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




                  THE TERROR FINANCE TRACKING PROGRAM

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                      OVERSIGHT AND INVESTIGATIONS

                                 OF THE

                    COMMITTEE ON FINANCIAL SERVICES

                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 11, 2006

                               __________

       Printed for the use of the Committee on Financial Services

                           Serial No. 109-105












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                 HOUSE COMMITTEE ON FINANCIAL SERVICES

                    MICHAEL G. OXLEY, Ohio, Chairman

JAMES A. LEACH, Iowa                 BARNEY FRANK, Massachusetts
RICHARD H. BAKER, Louisiana          PAUL E. KANJORSKI, Pennsylvania
DEBORAH PRYCE, Ohio                  MAXINE WATERS, California
SPENCER BACHUS, Alabama              CAROLYN B. MALONEY, New York
MICHAEL N. CASTLE, Delaware          LUIS V. GUTIERREZ, Illinois
EDWARD R. ROYCE, California          NYDIA M. VELAZQUEZ, New York
FRANK D. LUCAS, Oklahoma             MELVIN L. WATT, North Carolina
ROBERT W. NEY, Ohio                  GARY L. ACKERMAN, New York
SUE W. KELLY, New York, Vice Chair   DARLENE HOOLEY, Oregon
RON PAUL, Texas                      JULIA CARSON, Indiana
PAUL E. GILLMOR, Ohio                BRAD SHERMAN, California
JIM RYUN, Kansas                     GREGORY W. MEEKS, New York
STEVEN C. LaTOURETTE, Ohio           BARBARA LEE, California
DONALD A. MANZULLO, Illinois         DENNIS MOORE, Kansas
WALTER B. JONES, Jr., North          MICHAEL E. CAPUANO, Massachusetts
    Carolina                         HAROLD E. FORD, Jr., Tennessee
JUDY BIGGERT, Illinois               RUBEN HINOJOSA, Texas
CHRISTOPHER SHAYS, Connecticut       JOSEPH CROWLEY, New York
VITO FOSSELLA, New York              WM. LACY CLAY, Missouri
GARY G. MILLER, California           STEVE ISRAEL, New York
PATRICK J. TIBERI, Ohio              CAROLYN McCARTHY, New York
MARK R. KENNEDY, Minnesota           JOE BACA, California
TOM FEENEY, Florida                  JIM MATHESON, Utah
JEB HENSARLING, Texas                STEPHEN F. LYNCH, Massachusetts
SCOTT GARRETT, New Jersey            BRAD MILLER, North Carolina
GINNY BROWN-WAITE, Florida           DAVID SCOTT, Georgia
J. GRESHAM BARRETT, South Carolina   ARTUR DAVIS, Alabama
KATHERINE HARRIS, Florida            AL GREEN, Texas
RICK RENZI, Arizona                  EMANUEL CLEAVER, Missouri
JIM GERLACH, Pennsylvania            MELISSA L. BEAN, Illinois
STEVAN PEARCE, New Mexico            DEBBIE WASSERMAN SCHULTZ, Florida
RANDY NEUGEBAUER, Texas              GWEN MOORE, Wisconsin,
TOM PRICE, Georgia                    
MICHAEL G. FITZPATRICK,              BERNARD SANDERS, Vermont
    Pennsylvania
GEOFF DAVIS, Kentucky
PATRICK T. McHENRY, North Carolina
CAMPBELL, JOHN, California

                 Robert U. Foster, III, Staff Director
              Subcommittee on Oversight and Investigations

                     SUE W. KELLY, New York, Chair

RON PAUL, Texas, Vice Chairman       LUIS V. GUTIERREZ, Illinois
EDWARD R. ROYCE, California          DENNIS MOORE, Kansas
STEVEN C. LaTOURETTE, Ohio           CAROLYN B. MALONEY, New York
MARK R. KENNEDY, Minnesota           STEPHEN F. LYNCH, Massachusetts
SCOTT GARRETT, New Jersey            ARTUR DAVIS, Alabama
J. GRESHAM BARRETT, South Carolina   EMANUEL CLEAVER, Missouri
TOM PRICE, Georgia                   DAVID SCOTT, Georgia
MICHAEL G. FITZPATRICK,              DEBBIE WASSERMAN SCHULTZ, Florida
    Pennsylvania                     GWEN MOORE, Wisconsin
GEOFF DAVIS, Kentucky                BARNEY FRANK, Massachusetts
PATRICK T. McHENRY, North Carolina
MICHAEL G. OXLEY, Ohio

















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    July 11, 2006................................................     1
Appendix:
    July 11, 2006................................................    37

                               WITNESSES
                         Tuesday, July 11, 2006

Levey, Stuart, Under Secretary, Terrorism and Financial 
  Intelligence, U.S. Department of the Treasury..................    13

                                APPENDIX

Prepared statements:
    Oxley, Hon. Michael G........................................    38
    Kelly, Hon. Sue W............................................    40
    Levey, Stuart................................................    44

              Additional Material Submitted for the Record

Kelly, Hon. Sue W.:
    CRS Report for Congress: Treasury's Terrorist Finance 
      Program's Access to Information Held by the Society for 
      Worldwide Interbank Financial Telecommunication (SWIFT)....    63
Maloney, Hon. Carolyn:
    Compilation of publicly available statements regarding the 
      monitoring of wire transfers by the U.S. Government........    49






















 
                  THE TERROR FINANCE TRACKING PROGRAM

                              ----------                              


                         Tuesday, July 11, 2006

             U.S. House of Representatives,
                          Subcommittee on Oversight
                                and Investigations,
                           Committee on Financial Services,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2128, Cannon House Office Building, Hon. Sue W. Kelly 
[chairwoman of the subcommittee] presiding.
    Present: Representatives Kelly, Paul, Royce, Kennedy, 
Garrett, Davis of Kentucky, McHenry, Oxley [ex officio], Moore 
of Kansas, Maloney, Davis of Alabama, Cleaver, Scott, Moore of 
Wisconsin, and Frank [ex officio].
    Also present: Representative Bachus.
    Chairwoman Kelly. This hearing of the Subcommittee on 
Oversight and Investigations will come to order. Without 
objection, all members' opening statements will be made part of 
the record.
    I wanted to point out that during World War II, Congressman 
Andrew May returned from an oversight visit to the Pacific 
theater and told a group of reporters that those with loved 
ones serving in submarines didn't need to worry because the 
Japanese were setting their depth charges to detonate at a 
level that was too shallow to reach our submarines. Several 
newspapers reported this.
    The Japanese then subsequently reset the fuses on their 
depth charges. A vice admiral estimated that the public 
disclosure of this information cost us 10 submarines and the 
lives of 800 American men.
    During the mid-1970's, committees chaired by Senator Frank 
Church and Congressman Otis Pike brought to the attention of 
the American public a litany of activities which showed an 
intelligence community that had, at times, overstepped its 
bounds, leading to the enactment of the Foreign Intelligence 
Surveillance Act.
    I cite these instances not to draw comparisons with the 
subject of the hearing today, but rather to demonstrate the 
cross-pressures that we all confront when dealing with matters 
of secrecy and national security.
    No member wants to undermine our national security.
    We all recognize that there are times in wars, Churchill 
said, when certain truths must be, ``attended by a bodyguard of 
lies.''
    As a New Yorker, and representative of so many people who 
are deeply affected by terrorism, I could not feel more 
strongly about protecting our vital national security tools.
    Just the same, no Member wants to forgo the institutional 
obligation envisioned by the Founding Fathers. We work always 
to strike a structural balance that James Madison articulated 
very well in Federalist Paper No. 51. The hearing today is to 
examine a terror finance tracking program and to examine the 
merits of the program and to see if it has been properly 
created and implemented by the Administration.
    Along with Chairman Oxley, and my colleague Mr. Gutierrez, 
and my colleague Mr. Frank, I have spent as much time on terror 
finance as any Member of this body. We have held many hearings. 
We have established a bipartisan Task Force on Terror Finance, 
and in 2004, I even authored an amendment which authorized the 
government to monitor cross-border wire transfers.
    My record properly suggests that I would support a 
sophisticated and aggressive program similar to what has been 
described by the media. While many terrorist operatives are 
increasingly resorting to cash couriers to move funds, 
charities and wealthy donors who support terrorists are likely 
to have used the SWIFT system that this program specifically 
targets. It would be foolish to ignore that.
    Furthermore, this program has the support of several 
important people outside of the Administration who are familiar 
with the workings of the program: people like Chairman Oxley; 
the co-chairs of the 9/11 Commission; and former officials such 
as Dennis Lormel, former head of the FBI's terror financial 
units, who said that many people in Congress who should have 
been briefed by this Administration were not.
    And while I appreciated the visit last week from Under 
Secretary Levey after the program's existence was reported in 
the media, our oversight obligations are far from fulfilled.
    I believe that the skepticism the Administration afforded 
this Congress, perhaps properly, regarding the terror finance 
tracking program must be reciprocated. We must ensure that an 
environment of accountability is provided for everyone in 
government who deals with sensitive financial information.
    In our letter our colleague, Intelligence Chairman 
Hoekstra, recently sent to President Bush about withholding 
information from Congress, he mentions how he expects it to 
reinforce an important question in the minds of all Members: 
What else is it that we don't know? What else don't we know?
    So, in addition to this hearing, I am going to ask Under 
Secretary Levey to come back here to brief this subcommittee, 
and to answer any questions he cannot answer in public forum 
today. I will also conduct a follow-up hearing on this subject 
in September to allow the private sector witnesses to discuss 
pros and cons of this program.
    Additionally I am asking the GAO to conduct an 
investigation into this program to ensure that it was indeed 
conducted in accordance with all proper laws; that it does 
possess all necessary safeguards; and that Congress was 
appropriately informed. This GAO investigation is mere due 
diligence, and it is going to help ensure that our trust is not 
poorly placed in the Treasury Department.
    I want to thank Under Secretary Levey for coming here 
today. I have a deep respect for Under Secretary Levey, and I 
believe he is doing an excellent job at Treasury. We understand 
that he did not make many of the decisions about disclosure to 
Congress and that there are many things he cannot discuss in an 
open setting. However, I do look forward to an informative 
discussion on this matter today.
    And with that, I turn to our ranking member, Mr. Frank.
    Mr. Frank. Thank you, Madam Chairwoman. I am here today in 
the absence of the ranking member of the subcommittee, Mr. 
Gutierrez, who missed his plane; he flies out of Chicago and 
these things will happen.
    I begin by expressing my appreciation for your statement, 
Madam Chairwoman. I think you have laid out what exactly the 
issues are here; namely, the extent to which our fight against 
terrorism is going to be a genuinely collaborative effort 
between the Executive Branch and Congress. And I think you were 
right to point to the broad support for the program. I don't 
know of any Member of Congress who thinks we should not be 
tracking the finances of terrorists. The resolution which I 
offered, which was widely supported by people on my side of the 
aisle and a few on the other side, explicitly affirmed that.
    My problem is that this Administration, by its pattern of 
rejecting the notion of Congressional collaboration, has made 
this controversial. That is where the controversies come in. 
There was not a great deal of controversy about the substance. 
There is wide agreement that we should be tracking the 
financing of terrorists in many ways. As the gentlewoman from 
New York has said, we on this committee have been pushing the 
Administration to do even more in that area than it wanted to 
do.
    The problem is--and it is not an isolated instance. We have 
seen it in area after area. I have come to genuinely believe 
that the fact that the Congress would have been willing to be 
cooperative is not only irrelevant but seen by the 
Administration as problematic; that is, I believe this 
Administration would rather do things unilaterally, without 
inviting Congressional collaboration, because the dominant 
factors in the Administration genuinely believe that increased 
executive authority, unhindered and unhampered by interference 
by the Congress, is essential. And we have seen this in a 
number of areas.
    To be honest, I have come to believe that the people in 
this Administration have a different view of democracy than the 
one that I have.
    But I want to be very clear, this is not a case of my 
accusing them of not being democratic. Those on the left who 
make those accusations, I think, are wrong. The question is: 
How do you define democracy? I think this Administration 
prefers the model of having the single decisionmaker elected 
every 4 years and basically entrusting most of the important 
decisions to that decisionmaker. And the willingness of the 
Congress to cooperate, that the gentleman from New York 
correctly pointed out, is robust because they think, okay, if 
we let them agree with us on this issue, then they will have 
established the right to disagree with us on another.
    There would not have been any problem with this program, 
and the proof of that is the briefing pattern. Now, we are 
supposed to be briefed on these things. I have a list here of 
the Members who were briefed on this program.
    Let me start with a story. On May 11th, I was invited to a 
briefing. I went to the secret elevator, up to the secret room, 
and I took out my cell phone because, you know, who knew who 
might be listening in on my cell phone. And two people from, I 
guess, Treasury, that I never even knew, said we are going to 
tell you about something that is about to be made public.
    The conversation I had, the only time I have heard a 
comparable conversation was between Groucho and Chico. They 
said to me, ``We are going to tell you something that is about 
to be made public.'' I said, ``Well, is it going to be made 
public because you want it to be?'' ``No. It is going to be in 
the newspaper.'' ``Okay, you are telling me this only because 
it is going to be in the newspaper?'' ``Correct.'' ``Well, I 
have a question. Since you are only telling me this because it 
is going to be in the newspaper, when it is in the newspaper 
can I then talk about it?'' ``No.''
    So here is the briefing I was offered. I was offered a 
briefing about something only because it was about to be made 
public anyway. And the purpose of telling me this, I believe, 
was that so once I heard about it first from them, I couldn't 
talk about it in the newspaper.
    There have been 28 Members of the House briefed on this 
program. Two were briefed in March of 2002, a few months after 
it started; one in 2003; two in 2005; and 23 on the 11th of May 
2006.
    In other words, the briefings were overwhelmingly after the 
Administration knew that it was being made public. These were 
briefings after the fact.
    This is the exact opposite. Let me put it this way. When 
you brief us--and by the way as I read this, no member of this 
committee was briefed until the 11th of May when the chairman 
of the committee and I were invited to the briefing room. And I 
was never briefed, let me say--by the way, I don't want to get 
myself in any more trouble than I might otherwise be; I 
declined the briefing. When I was told that I was being briefed 
only because it was going to be made public anyway, and the 
consequence of my being briefed would be that I couldn't 
discuss the program, I excused myself.
    And I did tell Treasury, and I will repeat myself for Mr. 
Levey, if you ever want to tell me about something that I am 
not going to read in the newspaper, I will be available. But 
otherwise you can trust me to read the papers on my own. I will 
be okay with that. If I miss an issue, I will see if I can call 
and see if I can have you mail me one. But I don't need you to 
give me the oral version.
    To some extent, Treasury saw itself in that position. The 
role model was La Guardia reading the comics to the people of 
New York during the newspaper strike.
    As long as the newspapers are available, I will get them 
myself. See, that is the problem; the briefing apparently shows 
it. You briefed very few Members of Congress; only two Members 
were briefed between 2003 and the program being made public.
    Now, here is the problem with that, and I will wind this 
up, Madam Chairwoman. I appreciate your indulgence.
    Yes, of course, we think this program should go forward. 
And why do we want to be briefed and have oversight? And let me 
summarize it this way. I strongly believe that you and the 
other law enforcement people are the good guys and you are 
fighting the bad guys. But you are not the perfect guys. And my 
problem is that your model seems to assume that you are the 
perfect guys, that you won't make mistakes, that you don't need 
to be checked, and that you can do this all on your own. And 
what I want to do is give you all the powers you can to fight 
the terrorists, to fight the bad guys; but I don't think 
anybody ought to be given enormous power. And that is what you 
are going to be given, because you are going to be given an 
enormous staff and not have checks. And no matter how many 
internal checks you have, I don't think they will ever be 
enough.
    I think Congressional oversight makes sense. I think the 
gentlewoman from New York is correct. She and others have a 
very good record in being very supportive of this effort 
against terrorism, and you have rebuffed us. And I think that 
is a mistake. And, consequently, that is why a program that 
should not have been terribly controversial has become 
controversial.
    So I hope with the program the gentlewoman has outlined, we 
will now begin a period of real cooperation, and that in the 
future there will be a voluntary effort on your part to do 
this. Thank you, Madam Chairwoman.
    Chairwoman Kelly. Thank you, Mr. Frank.
    The Chairman of our Committee, Mr. Oxley.
    The Chairman. Thank you, Madam Chairwoman. And Secretary 
Levey, thank you for appearing today. We are pleased to have 
you here as the obvious reason for this hearing was to discuss 
the positive aspects of this program and how effective it has 
been.
    I think that there has been very little argument in the 
Congress of how effective that has been. The issue raised this 
morning, of course, was who was briefed and when and so forth. 
And frankly, I am confident that the Administration did the 
right thing in very selectively informing the Intelligence 
Committee. We are not the Intelligence Committee, in case you 
haven't noticed, and the Intelligence Committee did their work 
very effectively.
    How many people were briefed and when it occurred seems to 
be relatively irrelevant since the program was up and running, 
and I think there was general consensus that it was very 
effective. And, obviously, the fewer people who know about that 
program, that secret program, the better. The revelations that 
appeared in the popular media clearly had a negative effect on 
the effectiveness of that program. I am sure you are going to 
testify to that later.
    I keep coming back back to the warnings or the concerns 
that were expressed, particularly by the co-chairs of the 9/11 
Commission, two well respected gentlemen, Governor Kean, and, 
of course, our former colleague, Lee Hamilton.
    Why would those two individuals, well respected, plead with 
the news media--in this case, the New York Times--not to reveal 
that information? It seems to me that goes to the heart of this 
entire issue. And it was, frankly, never answered during the 
debate on the resolution that we had a week or so ago.
    So we keep coming back to that very poignant issue. And by 
the way, they weren't the only two who were trying to keep that 
program secret, because obviously the terrorists, once they get 
that information, change their habits, the New York Times 
Editorial Board to the contrary notwithstanding. It is amazing 
how much the editorial board at the New York Times understands 
about terrorists' actions and finances.
    But that is for another day.
    It seems to me that, again, the purpose of this hearing is 
to describe how effective the program has been and the 
potential and real damage the leaks have caused. When this 
committee debated and voted on the terrorist financing part of 
the PATRIOT Act, it was this kind of program that we clearly 
had in mind.
    If you look at the editorial in the New York Times shortly 
after 9/11, they called upon the Administration to do exactly 
what the Administration did. And sometimes I am concerned that 
maybe the effectiveness of the program is what really upsets 
some folks in the media. But we have in this committee, I 
think, set the framework in the terrorist financing provisions 
and the anti-money-laundering provisions in the PATRIOT Act 
that really allow the Administration to do this effective 
program that has, I think, been severely weakened by the 
revelations that occurred in the popular press. I find that to 
be very upsetting.
    By the way, this is not the first time that we have had 
this kind of situation where you have had unauthorized leaks 
from--which I think is frankly treason--and it has been 
reported in the popular press, for whatever reason. This is at 
least the third time that we have had that situation occur. And 
as one of my colleagues said on the Floor, nobody is happier 
about these revelations than those who would harm us. I find 
that incredibly upsetting, and of real concern, as chairman of 
this committee, that we would find ourselves in that position 
today. I yield back.
    Chairwoman Kelly. Thank you.
    Mr. Moore, do you have an opening statement?
    Mr. Moore of Kansas. Thank you, Madam Chairwoman, and thank 
you, Secretary Levey, for being here today. And I really 
appreciate the opportunity to have a brief conversation with 
you and hear your testimony.
    I really, really appreciate the statement, the strong 
opening statement made by our Chair, and I really do mean that 
sincerely.
    I believe what she said, I believe what the Ranking Member 
said, that every Member of Congress wants to protect our 
country. Nobody wants any more harm to come to our country. 
That is not the issue and that is not the question. When I 
disagree with somebody I try to at least understand why they do 
what they do so I can work with it.
    And I really, truly, believe that had the President and the 
Administration come to this Congress after September 11th and 
said, look, the whole world has changed. We need to look at the 
FISA law which has been in effect since 1978--and I understand 
there are 17,000 applications and only 6 or 10 or 8 rejections 
after 17,000. I was a district attorney for 12 years. I never 
had that kind of a record, the batting average, when I went to 
get search warrants. And I just think that is an exceptional 
number.
    And my point by saying that is this: If the President had 
come to Congress to say, ``Look, the whole world has changed, 
we need to change the FISA law, we need to enact some new laws 
regarding wire transfers and bank transactions in other 
countries,'' I think Congress would have lined up, Republicans 
and Democrats--this is not about partisan politics, as the 
Chairman said--Mr. President, we will do anything reasonable 
you ask.
    And I mean that very sincerely, and that is what I invite 
and encourage the Administration to do in the future if there 
is something like--in the war on terror, we need to work 
together. We are all Americans and we all want to protect our 
country. And I say this with the greatest respect and 
sincerity. I hope the Administration will come to Congress and 
say we need to change the laws in the area. And if they do 
that, I really believe--I honest to God believe that we will 
work together with the President to do whatever, anything 
reasonable to protect our country.
    So I look forward to hearing your testimony today, Mr. 
Secretary Levey, and look forward to asking you some questions, 
and thank you for being here. Thank you, Madam Chairwoman.
    Chairwoman Kelly. I am going to turn to Mr. Paul in 1 
minute, but because there are a number of people here, and I 
know that the Under Secretary is going to need to leave, I am 
going to ask all members to shorten their opening statements to 
a 2-minute, rather than a 5 minute, with unanimous consent.
    Mr. Paul.
    Dr. Paul. Thank you, Madam Chairwoman. I know today it is 
not very appropriate to bring up the subject of the 
Constitution and the Fourth Amendment, so I am not going to 
pursue that. But I am always concerned about the legal 
authority for what our government does.
    The whole issue of whether or not records can be examined 
without a subpoena issued under probable cause is really 
questionable. And I too, like everybody else, wants to do 
whatever we can to find out what the terrorists are planning to 
do.
    But I want just take a minute to make the point about the 
practicality of what we do.
    Quite frankly, I don't think the terrorists were tipped off 
to anything. You know, we have been monitoring financial 
transactions for 30 years. And, they know what is going on. As 
a matter of fact, they have been suspicious to the degree that 
they essentially don't use the system any more. They have gone 
to this hawallah type of system, which is off the books. And 
therefore, all the effort that we put forth may be wasted 
effort and may be confusing things.
    This assumption that more is better--spend more money, have 
more reports, have more subpoenas--can actually backfire on us. 
And I want to just quote a U.N. report that came out after 9/
11. As a matter of fact, it came out in May of 2002. And this 
dealt with a $69,000 wire transfer that Mohammed Atta, leader 
of the hijackers, received from the United Arab Emirates. The 
report noted that this particular transaction was not noted as 
quickly enough because the report was just one of a very large 
number and was not distinguishable from those related to other 
financial crimes.
    So therefore, this idea that we just need more financial 
surveillance is flawed since the Bank Secrecy Act, FinCEN, has 
been around, we have had executive orders, we have the SWIFT 
program. And to think for a minute that the hijackers aren't 
going to be very knowledgeable about this--I just think we are 
kidding ourselves. And this whole idea of more is better, I 
think, needs to be questioned.
    I yield back.
    Chairwoman Kelly. Thank you, Mr. Paul.
    Ms. Maloney.
    Mrs. Maloney. Thank you, Chairwoman Kelly and Ranking 
Member Frank for holding this important hearing. Our oversight 
is legally required under the International Emergency Economic 
Powers Act, the law the Administration is using to support this 
initiative. But the Administration has kept Congress in the 
dark. Although Treasury started subpoenaing data from SWIFT in 
October of 2001, only three present Members of this body were 
informed about the program before May 11, 2006.
    Even though this committee has jurisdiction, most of us 
learned about the depth of this program only from the New York 
Times when it published its article on June 23rd of this year. 
Apparently, Congressional notification occurs when the New York 
Times is delivered to our office.
    The Administration's intentional failure to consult with 
Congress for 5 years--even though it is clearly required by the 
law they argue supports this program--is part of a very 
disturbing pattern. As the Chairman of the Intelligence 
Committee, Chairman Hoekstra, noted over the weekend, the 
Administration needs to be reminded that keeping Congress 
informed of intelligence programs is not optional. It is a 
legal requirement.
    Congressman Hoekstra's comments echo those of the Supreme 
Court in reviewing the Guantanamo Bay tribunals. The 
Administration needs to remember that this is a country where 
there are three branches of Government.
    I would just like to say that when the Times brought this 
program to our attention, it was condemned by the 
Administration. But these are the same types of charges leveled 
against the same paper that we heard about with the Pentagon 
Papers. But despite the statement of the President and 
Secretary Snow, no one was exactly surprised that the U.S. 
Government is monitoring international wire transfers.
    And I have here a list of public statements in papers 
across this country, in Canada, and in Australia, about the 
SWIFT program and our government's monitoring of it. And I 
request permission to place this in the record, and would note 
that the interns in my office compiled it in just 2 days and it 
is quite extensive. So no one was surprised.
    I request permission to put my entire statement in the 
record.
    Chairwoman Kelly. So moved.
    Mrs. Maloney. And the press clippings.
    Chairwoman Kelly. Thank you.
    Mr. Davis.
    Mr. Davis of Kentucky. Thank you, Madam Chairwoman. I think 
we face two issues here. I appreciate your coming here, Mr. 
Secretary. One is the ability to act; and second is the issue 
of how we manage an effective oversight program from a 
constitutional perspective.
    I think it was extremely regrettable and frankly 
reprehensible that the New York Times published this 
information. I am thoroughly familiar with the hawallah 
networks myself from my experience and study with the Middle 
East; however, I think the bigger aspect is their selectivity 
in information that they have shared, particularly since they 
called for this type of program in an editorial on September 
24, 2001.
    However when we look at this ability to act, I think one of 
the deeper issues is that we need collaboration as opposed to 
briefing. I have been to plenty of briefings during my time in 
the House that were classified, and all of the information was 
available online or in public media sources. I would question 
the status of the classification.
    But I think what we need at a deeper level, rather than 
information, is participation and using the expertise in the 
House to collaborate because we are dealing with adaptive 
networks. Just as terrorists are changing as they find out 
methods that we have, one of the things that I think would be 
helpful to maintain the constitutional oversight, that it is 
necessary for the Administration to work closely with the 
subcommittees in Congress, and specifically those Members with 
expertise on these issues and understanding perhaps the 
political dimension in a way that many of the agencies may not, 
to ensure that we can have a robust, flexible, and responsive 
system and one that can adapt to the continuing changes in 
technology and the way our enemies operate.
    I appreciate your being here today, and I look forward to 
the discussion. I yield back, Madam Chairwoman.
    Chairwoman Kelly. Thank you. Mr. Cleaver.
    Mr. Cleaver. Because I respect the seniority system, then I 
will wait until next if it is okay.
    Chairwoman Kelly. Okay, thank you. Mr. Scott.
    Mr. Scott. Thank you very much, Chairwoman Kelly. Again I 
want to congratulate this committee under the leadership of 
Chairwoman Kelly for providing the leadership on a very intense 
and important issue of terrorist financing. And I am very 
pleased to have served with her on this committee. I have been 
to every meeting. I think it is very important, Secretary 
Levey, that we understand what we are really saying here. What 
we are saying is that this Administration needs to understand 
that they are not the only ones who are concerned about the war 
on terror. The American people elected a Congress, men and 
women who care about this country, who are just as concerned 
about this fight on terror as the President is. He has no 
monopoly on that.
    What is of paramount concern to me is that the framers of 
the Constitution put this government together, and they put it 
together--and the phrase that John Adams used was, ``We put 
this government together in a manner that is a balance of a 
delicate nature,'' meaning that there is a separation of power. 
It is not just the Executive Branch. They put the Executive 
Branch there to execute and administrate. But they put the 
Congress of the United States here so that we might be able to 
handle the purse strings, but, most importantly, to provide the 
oversight.
    And what it appears to me that this committee--and the 
President seems to think this committee is not a committee of 
oversight but a committee of hindsight. We are here to tell 
this Administration that we are not a committee of hindsight. 
We are going to do our job that the American people put us here 
to do.
    Now, it is not the New York Times or the Washington Post or 
the L.A. Times or even the Wall Street Journal or any of our 
distinguished newspapers that need to be called to task. It is 
this Administration. The leaks didn't come from the New York 
Times. They came from people in your Administration.
    The fundamental question has to be: When is this 
Administration going to look in the mirror? That is where you 
need to look.
    Let that message go back to this Administration. We care 
about it. Why don't you have people over there with loyalty? 
Where is your test? Where is your examination for people who 
work in this Administration? What are you doing to seal the 
leaks?
    The other issue that is of paramount importance, Mr. Levey, 
is the first amendment and the fourth amendment. They are 
precious. Our men and women of many years throughout the 
history of this country died on the battlefield so that we 
could have that first amendment, which is the freedom of the 
press, so we can have that fourth amendment, which protects our 
privacy.
    It is along those lines that I would like to question you 
this afternoon. Thank you, Madam Chairwoman.
    Chairwoman Kelly. Thank you, Mr. Scott.
     Mr. Garrett.
    Mr. Garrett. Thank you, Madam Chairwoman, and I will be 
very brief. First of all, I think I go along with the 
statements by the ranking member that members on both sides 
have the same bottom-line interest to make sure that the job 
gets done, but within a constitutional framework. I will just 
be listening to your testimony on three quick points. One is 
the aspect of why it is that--we can go back to my constituents 
and tell them why it is that the information from programs such 
as SWIFT is vital to the overall program, but does not go to 
the point that Mr. Paul raised, is just providing us with too 
much information. Secondly, how can I assure them that the 
average, the majority of Americans, their financial information 
is not going to be within--or is it--not going to be within the 
information that you look at. And thirdly, to the overall issue 
of information going out to the public, to the question of was 
the information that was reported in all the papers and what 
have you truly unique and new information to the public, or was 
it actually information as we have heard both here and on the 
Floor of the House, information that was really out there in 
the general domain prior to this? And if it was information 
that was out in the general domain prior to this, is this 
something your program looks at and should have done something 
to dissuade them from putting it on their Web site, that how 
they work with their government and the general public has this 
access to information in the past? But I appreciate your being 
here. And thank you, Madam Chairwoman.
    Chairwoman Kelly. Thank you Mr. Garrett.
    Now, Mr. Cleaver.
    Mr. Cleaver. Thank you, Madam Chairwoman, and Ranking 
Member Frank. Under Secretary Levey, thank you for 
participating in this hearing, and I am looking forward to 
hearing about the Administration's efforts to combat terrorism 
and how you plan to implement communication between this 
Administration and the Congress as we address this critical 
issue of fighting terrorism.
    Among the critical institutional issues that this topic has 
helped to shed light on is the importance of Congressional 
oversight with respect to fighting terrorism and implementing 
other Federal programs and activities.
    I am sure that my colleagues and the Administration will 
agree that Congressional oversight is an integral part of our 
system of checks and balances, as fundamental to our Nation as 
the right to vote. And as a Member of Congress, I believe it is 
incumbent upon this body not only to protect the people from 
terrorists but to also ensure that our government respects our 
Constitution and follows the rule of law.
    Again, I look forward to hearing your testimony.
    And I will have some very, very clear questions that I 
would like for you to address.
    Thank you, Madam Chairwoman.
    Chairwoman Kelly. Thank you.
    Mr. McHenry.
    Mr. McHenry. Thank you, Madam Chairwoman. I certainly 
appreciate your holding this important hearing today, and I 
certainly appreciate the Secretary taking the time to be here.
    I think of major importance to this committee and to 
Congress and to the public at large is the question of is the 
government doing enough to protect us from future attacks. And 
I think that is at the heart of what this is all about.
    You have some who just want to put their head in the sand 
and say that we will just duck and cover and avoid the next 
attack. But I think that is a horrible policy. It is a cut-and-
run policy. It is an ignoring-the-world-as-it-is policy. And I 
am grateful that this Executive Branch, and you, Mr. Secretary, 
have taken on this task.
    I mean, after all, you are the Under Secretary for 
Terrorism and Intelligence. What are you supposed to be doing, 
other than figuring out the financial transactions of the 
terrorists and harvesting that intelligence?
    Now, I certainly appreciate the fact that this was 
disclosed to the Intelligence Committee, as it should be. I 
understand their special place and their special protections in 
Congress of that information so that we can provide necessary 
insurance that it is not let out to the public.
    I do think it is horrible what the New York Times has done 
to this program. But I do commend you, Mr. Secretary, for 
working hard every day. I look forward to your testimony and 
opportunity for you to answer some questions today.
    Thank you, Madam Chairwoman.
    Chairwoman Kelly. Thank you.
     Ms. Moore.
    Ms. Moore of Wisconsin. Well, thank you, Madam Chairwoman 
and Ranking Member Frank. I want to welcome the Under Secretary 
to this very important hearing. It must be a relief to see me 
speak, because I am the last. I have the least seniority on 
this committee. And so certainly this part of the inquiry will 
be over soon.
    I can tell you that as a new Member of Congress, I was not 
here on 9/11. I was not here for the debate on the PATRIOT Act 
and other things.
    But I do--as a citizen, at the time, I do recall the many, 
many discussions and the debates that were held and statements 
that were made by people on both sides of the aisle about how 
our enemies were jealous of our freedoms, that a victory to the 
terrorists would be that they would be able to undermine our 
freedoms, undermine our system of democracy which they held in 
great contempt and disdain.
    Part of the system on our way of life of government that we 
revere so much is, in fact, this shared power, this 
Congressional oversight, oversight of the people. And I am 
wondering as we begin this hearing--I do want you to keep this 
in mind--are we indeed capitulating on that very fear by an 
Administration that is determined that our need to 
surreptitiously examine financial records is more important to 
capitulate to that fear than it is to include the Congress of 
the United States in their oversight role and to make sure that 
we are not conducting warrantless searches without the consent 
of the people? Are we indeed capitulating to that fear? I yield 
back.
    Chairwoman Kelly. Thank you very much, Ms. Moore.
    Mr. Bachus.
    Mr. Bachus. I thank the chairwoman.
    Secretary Levey, I almost feel like apologizing to you. 
There are obviously not only many newspapers in this country, 
but there are many Members of Congress who simply will not 
acknowledge what is a fact, and that is, number one, this is a 
legal program.
    The legal foundation of this program is well established. 
In fact, it has not been questioned by any of the newspapers. 
The New York Times has actually admitted that this program 
does, in fact, have a sound legal basis.
    Number two, the program is necessary. The New York Times, 2 
weeks after 9/11, in an editorial, urged the Administration to 
start such programs as this.
    And the third thing that no one has disputed is that this 
is a very successful program.
    The program is legal, it is necessary, and it is 
successful.
    The one point of debate has been whether or not this 
classified secret covert operation, whether or not Members of 
Congress or newspapers had the right to print publicly the 
sources of our information, the methods we were using, and the 
details of the program.
    And I would hope that Members of this Congress, and 
newspapers and the media, would realize that decision which the 
Administration has said comprised this program, that decision 
was not given under our Constitution to either newspapers or 
Members of Congress. And for Members of this Congress, if I had 
gone out and held a press conference and revealed this 
information, I could have been criminally prosecuted.
    And when newspapers reveal classified secret information 
which not only compromises the program but compromises our 
allies overseas, it is--to me, it is inexcusable and 
reprehensible. And I am sorry that your job of protecting this 
country is being made more difficult by not only Members of 
this Congress but by the media.
    Chairwoman Kelly. Thank you very much, Mr. Bachus.
    We have before us Under Secretary Levey. He is Under 
Secretary for Terrorism and Financial Intelligence of the U.S. 
Department of the Treasury. And, Secretary Levey, I understand 
that the problem here is not the program itself. The problem 
that this committee has is that we have a charge to provide 
oversight over the legislative arena to make sure that there is 
not anything going on that might in some way inherently damage 
the public of the United States. That is what our committee is 
charged to do.
    Given that, as you know, some people have lamented that 
public disclosure of this program has essentially rendered it 
defunct, we now would like to hear your opening statement, and 
then we will follow that with questions.

   STATEMENT OF STUART LEVEY, UNDER SECRETARY, TERRORISM AND 
    FINANCIAL INTELLIGENCE, U.S. DEPARTMENT OF THE TREASURY

    Mr. Levey. Thank you, Chairwoman Kelly, Congressman Frank, 
and distinguished members of the committee. This is my fifth 
time appearing before your committee in the past 2 years in 
what has been an ongoing and fruitful discussion of our 
government's efforts to track and combat terrorist financing. 
It is clear from everyone's opening statements that we share 
the same mission, which is to succeed in disrupting those 
terrorists.
    The program we are discussing today, the terrorist 
financing tracking program, has supplied a powerful source of 
intelligence that has greatly advanced that mission to track 
and disrupt terrorists.
    Counterterrorism officials place a heavy premium on 
financial intelligence because it is rich and accurate. When 
terrorist supporters send or receive money, they may provide 
the kind of concrete leads that can advance a terrorism 
investigation.
    As 9/11 Commission Chairman Lee Hamilton testified before 
this committee in 2004, ``Following the money to identify 
terrorist operatives and sympathizers provides a particularly 
powerful tool in the fight against terrorist groups. Use of 
this tool almost always remains invisible to the general 
public, but it is a critical part of the overall campaign 
against al Qaeda.''
    The terrorist finance tracking program was until recently 
just such a powerful and invisible tool. It has been a key part 
of our efforts to combat al Qaeda and other terrorist groups 
and its exposure represents a grave loss.
    SWIFT is the premier messaging service used by banks around 
the world to issue international transfers, which makes its 
data exceptionally valuable. In response to a subpoena, SWIFT 
makes available to us a subset of its records that it maintains 
in the ordinary course of business in the United States. SWIFT 
data consists of records of completed financial transactions, 
largely overseas transfers. It does not contain, for the most 
part, information on ordinary transactions made by individuals 
in the United States such as deposits, withdrawals, ATM 
transactions, and the like. It does not provide access to 
individual bank account information.
    The program is consistent with privacy laws as well as 
Treasury's longstanding commitment to protect sensitive 
financial data. The SWIFT subpoena that we issue is powerful 
but narrow. We cannot simply browse through the records that 
SWIFT turns over. We are only able to see that information that 
is responsive to targeted searches in the context of a specific 
terrorism investigation.
    The data cannot be searched unless the analyst first 
articulates and enters into a computer the justification that 
links that target of the search to a terrorism investigation.
    I want to emphasize that we cannot search this data for 
evidence of nonterrorist-related crime such as tax evasion, 
economic espionage, money laundering, or other criminal 
activity. As a result, we have access to only a minute fraction 
of the data that SWIFT has provided.
    Because we agree with Mr. Frank that people aren't perfect 
and people in government are not perfect either, the program we 
have instituted has multiple overlapping layers of governmental 
and independent controls to ensure that the data is only 
searched for terrorism purposes and that the data is properly 
handled. SWIFT representatives are able to monitor our searches 
in real time and stop any one of them if they have any concerns 
about the links to terrorists.
    In addition, a record is kept of every search that is done 
and those records are reviewed by SWIFT's representatives and 
by an outside independent auditor. Moreover, Congress was 
informed of this program in the traditional way of such matters 
through the Intelligence Committee.
    The program has also delivered results. It provides 
counterterrorism analysts with a unique and powerful tool to 
track terrorist networks. To cite one prominent example, the 
program played an important role in the investigation that 
culminated in the capture of Ham-bali who, as you know, is JI's 
operation chief and masterminded the deadly bombings in Bali in 
2002.
    But beyond these headlines cases, the program has proved 
its worth in many quieter but equally significant ways. Anyone 
who has tried to piece together a complex terrorism 
investigation with months of sweat and dead ends knows how 
important it can be to uncover a new connection or a new 
personal identifier.
    This program generated just such leads on a regular basis. 
Some observers, including some members of this committee, have 
argued that the disclosure of this program did little damage 
because terrorist facilitators are smart and they already knew 
to avoid the banking system. They note that we were quite open, 
that we were following the money and trying to track financial 
transactions.
    But let me respond to this issue firsthand. When I was 
asked to oversee this program nearly 2 years ago, I requested 
that the written output from this program be part of my 
intelligence briefing every single morning. Every day I go into 
our SCIF and I get my intelligence book and behind tab 11 of my 
book is the output from this program. And I can't remember a 
single day when my intelligence book hasn't included concrete 
leads from this program and most often many more than one.
    Now, one can debate the reasons why, but the fact is that 
financiers and associates of terrorist networks have continued 
to use the banking system. And this program continued to show 
us who they are and how they do so.
    In short, the terrorist finance tracking program has been 
extremely valuable. It is grounded in law and bounded by 
safeguards. It represents exactly what I believe our citizens 
hope we are doing to prosecute the war on terror.
    Finally, much has been said about the newspaper's decision 
to publish information about this program. As a government 
official, and as mentioned here today, I must point out that 
the newspapers almost certainly would not have known about this 
program if someone had not violated his or her duty to protect 
this secret.
    At the same time, I do very much regret the newspaper's 
decision to publish what they knew. Tracking terrorist money 
trails is difficult enough, without having our sources and 
methods revealed. I can assure you, however, that our efforts 
will not wane. We will continue to do everything in our power 
to follow terrorist money trails and disrupt their activities. 
We are absolutely committed to this mission, and I know that 
this committee is, as well.
    I look forward to answering your questions about this 
program. Thank you.
    Chairwoman Kelly. Thank you, Secretary Levey. Without 
objection, your full opening statement will be made a part of 
the record.
    [The prepared statement of Secretary Levey can be found on 
page 44 of the appendix.]
    Chairwoman Kelly. I am going back to something I said 
before, which is that there are people who have lamented that 
public disclosure of this program has essentially rendered it 
defunct. 9/11 Commission co-chair Tom Kean said, ``I think it 
is over.''
    I am interested in exploring this suggestion that the 
program is no longer useful. You have testified before Congress 
that there was a lag between what Saudi Arabia said and what 
Saudi Arabia did regarding their efforts to fight terror 
financing. And you and others in government have raised 
concerns about wealthy individuals and charities based in Saudi 
Arabia.
    Given the nature of the data that passes through the SWIFT 
system, it seems reasonable to conclude that the tracking 
program may continue to be particularly useful in monitoring 
the activities of charities and wealthy individuals who support 
terrorism under the veil of legitimacy.
    Generally speaking, how, if at all, has this SWIFT program 
helped you assess whether the Saudis and other emerging banking 
centers such as the UAE and Bahrain have lived up to their 
stated commitments to combat terror financing?
    And in talking about this, if you would specifically 
respond to the suggestion that the program has been killed by 
public disclosure, I would appreciate it. And I would 
appreciate you updating your views on how Saudi Arabia and 
others are cooperating with us in our fight against terror 
financing. Is Treasury investigating the link that resulted in 
the public disclosure, also? So I am asking you essentially 
three questions.
    And I will repeat them. Would you like me to?
    Mr. Levey. Sure.
    Chairwoman Kelly. Okay. One is I would like to know how the 
SWIFT program has helped you assess the Saudis and other 
emerging banking centers such as UAE and Bahrain, how that has 
helped you assess whether they have lived up to their 
commitments in combating terror finance. And in discussing 
that, I would like you to specifically talk about whether or 
not the program disclosure, the SWIFT program disclosure, has 
been killed because its usefulness is no longer available to 
us. And the third question I would like to ask is if Treasury 
is investigating the leak that resulted in the public 
disclosures.
    Mr. Levey. I think I have those questions.
    Let me start by the damage from the disclosure. I think, as 
I indicated in my opening statement, there is no doubt there 
has been damage from this disclosure. As everyone on this 
committee knows, this is a very formidable enemy. They are 
intelligent. They do what they can to cover their tracks. The 
fact that we have now made explicit the information that we are 
looking at to track their money trails is definitely damaging, 
just as a matter of logic.
    The question that you pose, though, is whether the program 
is dead or absolutely without value. And to be very honest, I 
think that remains to be seen.
    One of the things that one has to take into account is when 
you talk about terrorist networks, there are lots of aspects to 
it. And I think you have alluded to some of the key points, 
which is that you have some people trying to live in polite 
society and keep one foot in both worlds, one foot in the 
legitimate world and one foot in the world where they are 
supporting violent jihad. You have charities and so forth. It 
may well be that this program will still yield a great deal of 
value in those sorts of--those sorts of investigations.
    I can tell you, without going into specifics about any 
individual case, for obvious reasons, that one of the ways that 
this program has been quite valuable is in the investigation of 
charities and particularly their attempts to reconstitute 
themselves after they have been first exposed. So without going 
into specific detail about how it has helped with respect to 
the countries you named in your question, I can tell you that 
the program has been quite valuable in that respect.
    If I can just touch briefly on the question you asked about 
the leak and investigation of the leak.
    Obviously, I think everyone here knows that the Department 
that handles investigations is the Justice Department and they 
would be responsible for any investigation. All I can say at 
this point is that we have shared information with the Justice 
Department and are in consultation with them about the 
appropriate way to go forward.
    Chairwoman Kelly. So you are working with Justice to 
investigate the leak that resulted in the public disclosure; is 
that correct?
    Mr. Levey. We are in consultation with them. The 
responsibility for doing an investigation in this sort of 
matter would be the Justice Department.
    Chairwoman Kelly. I would like for you to describe the 
thought process behind the plan notifying Congress. When you--
this was brought out by Mr. Frank. Correct me if I'm wrong, but 
it looks to me like the Administration sought to brief chairs 
and ranking members of the Intelligence Committees on this 
program prior to their decision to preempt--only prior to 
preempt the New York Times, Wall Street Journal, and L.A. 
Times. My colleague testified he was told that he was only 
briefed because it was going to appear in the newspapers.
    I would like to know if at any point there were changes 
made to the program in response to feedback from the people in 
Congress that you did notify? And I would further like to know, 
what kind of--I would like to hear an explanation for the 
limited scope of briefing Congress. The authorities that the 
Administration, you, cite in your testimony for the program are 
the International Economic Powers Act, the United Nations 
Participation Act, and Executive Order 13224. The International 
Economic Powers Act is the primary jurisdiction of this 
committee along with the International Relations Committee.
    The International Relations Committee has jurisdiction also 
over the U.N. Participation Act. The executive order cited 
focuses on Treasury Department powers but also references both 
Justice and State Departments.
    So why did the Administration choose to brief none of the 
committees that have been put in charge of overseeing the 
government functions that you talk about giving you authority? 
Why did they brief others and not the committees of 
jurisdiction?
    Mr. Levey. Well, thank you for that question. I look 
forward to responding to it. I know it is a concern of yours 
and many others.
    I should say at the outset that I very much value the 
partnership we have with this committee. This has been an 
excellent relationship. We have done many good things together 
and I hope we will continue to do so. As I said in my opening 
statement, Congress was informed of this program in exactly the 
way that Mr. Frank indicated in his opening statement, through 
the chairman and ranking member of the Intelligence Committees.
    The members were briefed as consistent with my 
understanding of the National Security Act and the customs and 
practices that have been agreed upon over time by both the 
Executive and Legislative Branches in working on intelligence 
matters.
    As you indicate in your opening statement, these were 
decisions that were made in 2002, and so I can't tell you the 
thinking that went behind them because I was not there at the 
time.
    I can tell you that when I did arrive at the Treasury 
Department in 2004, and I was given responsibility for this 
program, I took a look at that and it seemed at that time even 
more appropriate because the office that I had been just 
confirmed to be the head of is a hybrid office. It is one where 
we have a policy function as well as an Assistant Secretary for 
Intelligence and an Intelligence Office.
    My Assistant Secretary for Intelligence is naturally a part 
of the Intelligence Community. She reports not just to me but 
to the DNI. Her confirmation--I know that is a Senate issue--
but her confirmation went through the Intelligence Committee 
and not through Senate Banking or Senate Finance. And we have a 
hybrid office and she is the person with day-to-day 
responsibility for this program. It seemed appropriate to me 
that the Intelligence Committee would be the committee that 
would have the primary responsibility for oversight of what is 
essentially an intelligence-gathering tool.
    And that is why the decision was made, I believe, as it 
was, and continued until May of 2006.
    Chairwoman Kelly. Mr. Secretary, I would call to your 
attention the International Economic Powers Act, section 1703, 
which requires full Congressional notification and on a 
continuing basis. That is full Congressional notification. I 
would also note that your testimony comments about the fact 
that you have hired an outside independent auditor for 
oversight. That is the province of this committee.
    We turn now to Mr. Frank.
    Mr. Frank. Thank you. First--and I think there is a genuine 
interest in trying to find out how we control leaks. I would 
say I know my friend from Alabama referred to Congressional, as 
well as newspaper, divulging of information. I am not aware of 
any Member of Congress who divulged anything, including those 
who were briefed.
    Obviously the question about how much damage was done is a 
very important one; we don't want to see damage done. But here 
is my problem. You quoted Mr. Hamilton in your statement. Mr. 
Hamilton said a long time before this leak: ``Following the 
money to identify terrorist operatives and sympathizers 
provides a particularly powerful tool in the fight against 
terrorist groups. Use of this tool almost always remains 
invisible to the general public but it is a critical part of 
the overall campaign.''
    Didn't that make it visible? I mean, when Lee Hamilton said 
that, he said here is a tool that is invisible, was Lee 
Hamilton irresponsibly leaking when he said that this is an 
invisible tool and it made it visible?
    Mr. Levey. Actually, I think what Chairman Hamilton was 
doing was something very different, and I don't think that he 
caused damage to this program or any other. I think what 
Chairman Hamilton was doing was saying that following the money 
is an important--
    Mr. Frank. Okay, but here is the key question. No, Mr. 
Levey, here is the problem. We announced to the al Qaeda and 
others--it says it is a critical part of the campaign against 
al Qaeda, following the money.
    Did they not infer from that that we would be looking at 
their bank accounts? I mean, did they think we were sneaking 
into the caves at night and going through their pockets? I 
mean, I really have trouble understanding.
    By the way, I also have seen this referenced in December of 
2002, a U.N. Communication, public, that said, talking about 
SWIFT, the United States has begun to apply new monitoring 
techniques to spot and verify suspicious transactions. Was this 
not known to them, that we were carefully tracking financial 
records?
    Mr. Levey. I think we can't speculate about what the 
terrorists knew. What I can tell you, as I said in my opening 
statement, is that I look at this every day and it still is 
providing concrete leads.
    Mr. Frank. Today? It still is?
    Mr. Levey. Yes.
    Mr. Frank. So it is still working, even after the leak? You 
just said that, Mr. Levey.
    Mr. Levey. Yes, it is.
    Mr. Frank. Okay. Good.
    Mr. Levey. But the leak hasn't had any effect on the 
program yet, because the data we are looking at predates the 
leak.
    I would like to answer your question, if I could, about 
this U.N. report and other disclosures that were made. What was 
done very commonly was we would discuss that we are following 
the money. But that leaves people in some doubt as to what 
exactly we are able to look at. Once the SWIFT program is 
disclosed, it is my fear that they will now know exactly what 
it is.
    Mr. Frank. Excuse me, but the U.N. reference here refers 
specifically to the SWIFT program. It says settlement is 
handled through correspondent banking relationships, such as 
the SWIFT, Fedwire, and TIPS. The United States has begun to 
apply new monitoring techniques to spot and verify 
transactions. It mentions SWIFT in that reference.
    Mr. Levey. I have read the U.N. report. I have to admit, I 
read it after this week, because I probably, like everybody 
else, didn't see that U.N. report until after it was brought to 
our attention. But I can tell you that U.N. report does not 
describe this program.
    Mr. Frank. It does say we are tracking things, and it 
mentions SWIFT.
    Mr. Levey. But there is a significant difference, Mr. 
Frank. The difference is that U.N. report talks about then 
monitoring and looking for suspicious transactions. I think it 
is important for people to understand that is not what we are 
doing in this program. We are not looking for suspicious 
transactions. We are doing targeted searches on individuals.
    Mr. Frank. I would say this. Look, I want this program to 
work. My sense is that people do these things even though they 
are generally aware they are being tracked. People get 
wiretapped, and everybody knows about wiretapping. That doesn't 
keep people from saying things we can wiretap.
    Mr. Levey. I hope we are right.
    Mr. Frank. I am going to ask for a classified briefing in a 
few months as to whether or not there is damage. This is a 
serious question. I have to correct myself. I said I was 
offered a briefing on the 11th of May. It was the 25th of May.
    If it wasn't important to brief me before it was going to 
become public, why did you decide after it became public to 
brief me? What was the point of that?
    Mr. Levey. Well, the point of that was that, when we 
realized that there would be a very likely disclosure, there 
was discussion within the Administration about briefing certain 
chairmen and ranking members of committees so--as a courtesy to 
them so they wouldn't read about it.
    Mr. Frank. As a courtesy to me. The courtesy is that this 
program has been going on for four-and-a-half years; I have 
been the ranking member for a couple of years; Mr. Oxley is the 
chairman; and we don't know about it. Did I miss something in 
Miss Manners? What is courteous? To say that I am going to tell 
you a secret because everybody is going to know it in an hour, 
and the question is I couldn't talk about it as much. If I was 
due the courtesy after you knew it was coming out, why not 
before? It is not a matter of courtesy.
    I want to go back to what the chairwoman said. We wanted to 
help you make this thing work. I think we can. We can look at 
this and say this is a good idea, but how about this or that 
element of privacy?
    We work with the financial services community. This 
committee has, on several occasions, recommended changes. We 
haven't always agreed. We passed in our regulatory relief bill 
a loosening of some of the requirements because we thought we 
could make the system less inefficient and less burdensome 
without any damage. Not everybody agreed, but we did it. The 
Senate rejected that.
    That is the kind of give and take that, I think, improves 
the program. You talk about briefing. Let me just say again, 
yes, the chair and ranking member of the Intelligence Committee 
were briefed on the 7th of March of 2002, just after the 
program started. There was virtually no briefing until--only 
three other members were briefed: the chairman of the 
Intelligence Committee, and you apparently tried to brief the 
ranking member--she wasn't available it says--and the chairman 
of the Appropriations Subcommittee. So between 2002 and 2006, 
when you knew it was going to be made public, there were three 
briefings. That is not nearly an adequate effort for us to work 
together on this.
    This program is not in controversy. The unilateralism with 
which you proceed is, and that is what makes something 
controversial.
    Chairwoman Kelly. Thank you.
    Mr. Oxley.
    The Chairman. Thank you, Madam Chairwoman.
    Mr. Levey, are you satisfied that the proper requirements 
were met in terms of briefing the Intelligence Committee?
    Mr. Levey. As I understand this process, I think the proper 
requirements were met, that you brief the chairman and ranking 
member of the Intelligence Committees, which is what we did.
    The Chairman. And the program at the time was up and 
running and you didn't feel it necessary to brief the 
Intelligence Committee every couple of weeks or that the 
program was operating, they were briefed on it, they knew how 
the program was operating?
    Mr. Levey. That is correct.
    The Chairman. And my briefing with the committee, with the 
ranking member and the chairman, was informative. I didn't feel 
upset that I had not been briefed beforehand. After all, I am 
not on the Intelligence Committee. This is the Financial 
Services Committee. The obligations the Administration had to 
brief the members of the Intelligence Committee, the chairman 
and the ranking member were met under the law, and at least 
this chairman is perfectly satisfied with the way that was 
handled.
    All right. As you know, Congress had mandated a FinCEN 
exploration of a system to review all cross-border financial 
transactions. I believe it was in the PATRIOT Act. Could you 
tell us the status of that?
    Mr. Levey. Yes, Mr. Chairman, I would be happy to.
    Let me first do that by distinguishing what that program of 
cross-border wire project--how it differs from the SWIFT 
program. I think it is important.
    The cross-border wire study that we are doing a feasibility 
study on now, that project is both narrower in a sense, because 
it only deals with U.S.-to-abroad and abroad-to-U.S. 
transactions, whereas the SWIFT program is worldwide, but it is 
also much broader as well, because it deals with all cross-
border transactions, whether handled by SWIFT or not. We can 
use that information for terrorism, money laundering, all sorts 
of law enforcement purposes; and we can do all kinds of things 
that people traditionally think about when they think about 
data mining in terms of looking at trend analysis, suspicious 
activity, and the like.
    We are currently doing a feasibility study on that broader 
project that you have asked us to take a look at. We have 
gotten some comments from the private sector as well as from 
the regulators which we are currently considering.
    I can tell the committee that one thing we are considering 
is whether we should try to do this as a pilot project to see 
if we can set up the system right and get value for it before 
we proceed with the larger project.
    The Chairman. And once that is completed, then will that be 
reported back to this committee and to the Congress?
    Mr. Levey. Yes. I think we have to do a feasibility study; 
and, of course, we have to brief this to our new Secretary who 
will be the decisionmaker about how he recommends that we go 
forward.
    The Chairman. Let me ask you about the Terrorist Finance 
Tracking Program and use of SWIFT data. What key protections 
were part of that program that could guarantee fourth amendment 
protections?
    Mr. Levey. Well, as you know, Mr. Chairman, the fourth 
amendment, the Supreme Court case of the United States v. 
Miller, that there is no fourth amendment right to privacy in 
the types of records we are talking about here. But we take 
very seriously the sensitivity of financial data, so we did put 
in place very serious protocols and controls. They include 
making sure that the data is in a very secure place, the most 
secure place, the most secure environment, that the people who 
have access to it are only those with the appropriate 
clearances, and that they can only use this data to do 
terrorism searches.
    As I indicated at the outset, actually, I sat down with one 
of our analysts yesterday and watched how this worked. If--you 
type in the target of the search, and then the next required 
field is the justification, the connection to terrorism, and if 
you don't fill that in, you can't search the data.
    It is that justification field that is monitored both by 
the SWIFT people onsite and an outside auditor after the fact 
to ensure that any improper searches are identified.
    The Chairman. As I understand it, one of the arguments that 
the New York Times used after the story broke to rationalize 
this was, well, everybody knew about this program. It was out 
there in the general media, and people knew that that SWIFT 
program was up there and operating.
    If that were true, why was it a kind of a ``man bites dog'' 
story above the fold in the New York Times?
    Mr. Levey. I think that is an excellent question, Mr. 
Chairman. I can't speak for the New York Times. They clearly 
thought it was front-page, above-the-fold news.
    I think, as I tried to explain to Mr. Frank, the answer 
here is it is one thing to say that you are following the 
money, and people think, okay, maybe they are getting 
suspicious activity reports and whatnot. It is quite another 
thing to tell people exactly what you are looking at and how.
    I think--I won't speak for the members of this committee, 
but the people that I have talked to, very, very few of them 
knew what SWIFT was at all before June 23rd, let alone exactly 
how it worked. Unfortunately, that informational advantage that 
we had over our adversary is gone.
    The Chairman. Precisely, the operational details of how 
this program worked. Mr. Frank made the analogy to wiretaps. I 
used to do this for a living. Not for a moment did I think that 
the people I was wiretapping, organized crime, knew that I was 
wiretapping them. It would be pretty evident from the 
discussions on there that they would have never said that had 
they known I was listening in on the proceedings.
    So it seems to me that this program, which has proven to be 
very, very effective, and the revelations, that really kneecaps 
our operational actions here, and the success of that program 
is deeply disturbing.
    To the extent you can tell us, who implored the New York 
Times to not run this story?
    Mr. Levey. I had a series of meetings with the reporters 
and with the editors of the New York Times and implored them, 
as persuasive as I could be--apparently not persuasive enough--
that they shouldn't run the story. In addition, Secretary Snow 
had a separate meeting with Mr. Keller to make the same points.
    We tried--the position I took with them--and everyone knows 
what the outcome was--was that this program was legal, that it 
was properly controlled and it was valuable and, therefore, the 
real newsworthiness of this story would just be the tipping off 
of our adversaries as to what we were doing. I didn't think it 
was something that they should do. They obviously differed with 
me on that and published it.
    The Chairman. What role did Governor Kean and former 
Congressman Hamilton play as well?
    Mr. Levey. As I understand it, Chairman Hamilton both met 
with the New York Times and urged them not to publish the story 
and Governor Kean made the same request, as I understand it, 
over the telephone; and they made their argument that this 
story--that they knew about the program, that they thought the 
program was well run, and that publishing it would not--would 
be harmful to our overall effort in combating terrorism. But, 
apparently, their suggestions were not heeded as well.
    The Chairman. To your knowledge, did any sitting Members of 
Congress implore the New York Times to withhold the story?
    Mr. Levey. It is my understanding--though I am not 100 
percent sure about this--that Congressman Murtha did, but I 
don't know. All I know is that he told us that he was going to, 
but I don't know whether he did.
    The Chairman. I am sorry, what was the last part?
    Mr. Levey. He told us he was going to, but I don't know 
whether he did.
    The Chairman. You had some conversations with Congressman 
Murtha?
    Mr. Levey. Yes, we did.
    The Chairman. The stories I read at least indicated that he 
followed up on that?
    Mr. Levey. Yes, but I can't say for sure.
    The Chairman. So here you had a current Congressman, well-
respected on these issues, a former chairman, well-respected on 
these issues, and a former chairman, of course, of the 9/11 
Commission, both Democrats, along with Governor Kean, former 
Governor of New Jersey, Republican Governor, along with the 
Secretary of the Treasury, and I am assuming some other folks, 
perhaps higher up in the Administration, imploring the New York 
Times that this would do serious damage to our ability to track 
terrorist financing and to better protect the American people, 
and the New York Times basically said, as their famous headline 
said about Gerry Ford, drop dead.
    I yield back.
    Chairwoman Kelly. Thank you, Mr. Chairman.
    Mr. Moore.
    Mr. Moore of Kansas. Thank you, Madam Chairwoman.
    Chairman Oxley said, ``I used to do this for a living,'' 
talking about gathering information subject to wiretaps and 
others. I did as well as a district attorney. But I have 
tremendous respect for our system and the fact that we have an 
Executive Branch, a Legislative Branch and a Judicial Branch, 
all of which have co-equal power, meaning that they all have 
the same power.
    In our system there is oversight by the Executive Branch, 
and that is the FBI, the district attorney or the local police 
department, but the Judicial Branch, especially when gathering 
sensitive, private information. Is our system here sufficient, 
do you believe, to protect the privacy of individuals, number 
one?
    Number two, what Members of Congress--you mentioned the 
Intelligence Committee chairman and ranking member are advised 
or briefed. Anybody else?
    Mr. Levey. I think that the system we have in place does 
provide appropriate oversight.
    Mr. Moore of Kansas. By whom?
    Mr. Levey. Both by Congress, through the Intelligence 
Committee, the controls we have in place that I have described 
in my testimony, but also you mentioned the type of process 
that we use to gather the information.
    We issued an administrative subpoena in this case. The key 
fact that I think is important to point out here is that the 
recipient of this subpoena, SWIFT, had every right to challenge 
that subpoena in court. They could go to district court and 
challenge the subpoena on any ground they wished. They had, and 
continue to have, the most excellent outside counsel that one 
could obtain, and they knew all of their rights. They could 
have gone to court.
    This is not a situation that I know has been debated in 
other contexts where the recipient of the compulsion order from 
the government is not able to--or doesn't feel able to 
challenge the compulsion in court. This is a situation where 
they not only were able to as a matter of law, but were fully 
aware that they were able to.
    Mr. Moore of Kansas. Were other Members of Congress, aside 
from the chairman and ranking member of the Intelligence 
Committee, briefed?
    Mr. Levey. I believe Mr. Frank has the list of briefings 
and has better information than me. We can get back to you.
    Mr. Moore of Kansas. My question is, initially, were other 
than those two people briefed, other Members?
    Mr. Levey. Of Congress?
    Mr. Moore of Kansas. Yes.
    Mr. Levey. There would be, both in the House and the 
Senate, the chairman and ranking member.
    Mr. Moore of Kansas. So four Members of Congress, the House 
and the Senate, were briefed.
    Mr. Levey. It is my understanding, yes.
    Mr. Moore of Kansas. How often did that briefing take 
place, besides the initial briefing?
    Mr. Levey. We gave them the briefing. I wasn't there at the 
time, and I don't know if there were follow-up discussions or 
not.
    Mr. Moore of Kansas. I would like you to find that out, if 
you would, please, and provide that information to the 
committee, if there were follow-up briefings after the initial 
briefings of the House and Senate committee. Would you do that, 
sir?
    Mr. Levey. I will look into that.
    Mr. Moore of Kansas. Not responsive, your honor. Will you 
do that, sir?
    Mr. Levey. I will look into that. I don't know if I have 
that information.
    Mr. Moore of Kansas. If you do, will you please provide 
that or tell us why you can't provide it?
    Mr. Levey. Yes, absolutely.
    Mr. Moore of Kansas. Thank you.
    With disclosure--well, with disclosure of the eavesdropping 
program that has happened in the past few months here, with 
disclosure of this program, a lot of Americans are wondering if 
there are other programs that this government is operating 
right now that even we, Members of Congress, don't know about. 
And I guess again I would ask you--as I said in my opening 
statement, I would really appreciate and invite the 
Administration to bring Congress in and tell us in classified 
briefings, if necessary, if you think it is necessary, and I 
would certainly respect that as a former prosecutors, but tell 
us, make us part of this whole thing, so we can protect our 
country as well and not feel like we are being kept out of the 
process. That is what it feels like, I think, to a lot of 
Members of Congress; and that is why you are getting this kind 
of questioning right now from some people.
    I would absolutely respect any request for a confidential 
briefing, a classified briefing. I think it is important that 
there really be oversight here so the three branches of 
government and our system of checks and balances can operate to 
protect the people in our country.
    Thank you, sir.
    Chairwoman Kelly. Mr. Moore, two things arose in your 
questioning. One, you asked about oversight, and the Secretary 
said they have oversight. The oversight, however, is an outside 
auditor that has nothing to do with government.
    Mr. Moore of Kansas. Very good point.
    Chairwoman Kelly. I have asked for a classified briefing. 
We have formally asked for a classified briefing to follow 
this. So we will be having that.
    Mr. Moore of Kansas. I thank the Chair.
    Chairwoman Kelly. Thank you very much.
    Mr. Bachus apparently has to leave, so we will go next to 
Mr. Bachus.
    Mr. Bachus. Thank you. I have to go to the Floor on the 
Internet gambling bill.
    Mr. Secretary, I think most members of this committee and 
the Congress are aware the Espionage Act of 1917 basically 
makes it a criminal act to, ``communicate, deliver or transmit 
information to any person not entitled to receive it.'' They 
are talking about, there, information related to national 
defense.
    Now that Act allows the Executive Branch to classify 
information. This information was classified information. So it 
fit into that category, and it makes it a criminal act to 
communicate that information, to deliver it or to transmit it.
    Having said that, the case law--the Supreme Court has made 
an exception, and it has said, if specific information has been 
published or released by the government that it is not a 
criminal act.
    It is my understanding that the New York Times and some 
members of this committee have said that this information was 
already published. Would you one more time go over whether or 
not--it is not the existence of something. We know we have 
spies, for example, in Russia. But if we reveal the names of 
those spies, that would be a different thing.
    Would you go over with this committee one more time whether 
or not the methods of this program, the details, had been 
revealed?
    Mr. Levey. I would be happy to. I think you make a good 
point.
    I think Mrs. Maloney pointed out that there are lots of 
statements made in the public about following the money. Even 
the word SWIFT, I gather if you do a Google search, you can 
find SWIFT someplace, and people have found that.
    But what wasn't revealed before these articles was how we 
are doing this, we are subpoenaing the information from SWIFT. 
There were other aspects of the New York Times story that 
talked about the interagency collaboration in exploiting the 
data that was classified and remains classified. It is that 
sort of operational detail that both was classified and remains 
classified, but also which I find so disappointing, because, as 
I said, my interest here is not in anything other than getting 
after the terrorists. I was very disappointed to see the story 
because it makes my job, that I think we are doing all together 
here, much, much more difficult.
    Mr. Bachus. I read the case last night, United States v. 
Morrison, which says that the determination of whether 
something should be published or not or given to the public is 
up to the Executive Branch of the Government, and at no time 
did you all make a determination to publish this information, 
as I understand it. In fact, you made the determination not to.
    Mr. Levey. As I said, Congressman, we did everything we 
could to try to persuade the New York Times not to publish this 
story. I had several meetings with them. I answered a lot of 
their questions. I was authorized to give them information in 
order to persuade them of the controls that we had in place and 
so forth. I spent some time correcting some misimpressions they 
had made in the course of their reporting. I did everything I 
possibly could to try to talk them out of it.
    In fact, when they notified us they were going to publish 
the story, I was in Italy on my way to go to Poland to give a 
speech with Under Secretary Joseph on the Proliferation 
Security Initiative. I had to cancel that appearance in Poland 
in order to come back and have one more meeting with the folks 
from the New York Times. I very much regret not being able to 
follow through on my commitment to Under Secretary Joseph on 
proliferation of finance, which I know is another concern of 
this committee, but I felt like it was important to do 
everything I possibly could in this regard.
    Mr. Bachus. Did they give you any reason for why they were 
going to publish it?
    Mr. Levey. I think the way I can answer that is Mr. Keller 
seems to be quite able to speak for himself and has a forum to 
do so. I will let them speak for themselves.
    Mr. Bachus. I have no further questions.
    Chairwoman Kelly. Thank you.
    Mrs. Maloney.
    Mrs. Maloney. Thank you.
    Mr. Levey, the Administration strongly objected to the 
publication, as you said over and over, of the Times story, but 
the fact that the United States was monitoring wire transfers 
both in this country and abroad was very well known, it was the 
topic of multiple newspaper articles and testimony, both here 
in Congress and other places. It was widely reported that 
Canada had a SWIFT tracking system, as did Australia. Even TV 
fiction picked up on it, as one of my interns found the issue 
was a central part of a West Wing episode on May 15, 2002, 
literally 4 years ago, cross-border wire transfers. I could go 
into the whole plot of how they found it, but they were 
tracking it through the central data system. It was very 
similar to what is happening. This was West Wing, popular TV.
    There was a book that came out by a Wall Street reporter 
several days before this Times report, the One Percent 
Doctrine, where he goes into the whole deal and how it 
happened. He goes on to say that the terrorists had wised up. 
They were no longer using wire transfers.
    So, really, my basic question is, is it your position--and 
I have to say you said there was never a detailed description. 
But in the Security Industry News of May 2005, there was a 
detailed description of the SWIFT program. He says, ``We are 
not simply running a watchlist against the data. The SWIFT 
messages can be parsed, they do contain fields, they can be 
formatted in a way that helps us to analyze''--and it goes on 
for pages about how the SWIFT program operates.
    So where was the hue and cry against the Security Industry 
News when they published a detailed description well over a 
year before, in addition to the many descriptions that I put 
into the record?
    So is it your position that a significant number of 
terrorists would not have been aware of this monitoring after 
all this coverage but suddenly woke up and were threatened by 
it after they read the New York Times, after it had been in the 
Australian news, the Canadian news, the Security News, even 
West Wing stories, well over 4 years ago?
    Mr. Levey. Absolutely, and I know that for a fact because I 
go into the SCIF every morning and I read my intelligence book 
and I see exactly what transactions are still occurring that 
were captured by this program which came up in response to our 
targeted searches. That is exactly what value the program had, 
and I think that value has been compromised by this revelation 
and the discussion that followed it.
    I don't think that any of the things that you referred to 
revealed this program, as I explained to the prior questioner, 
did not explain exactly how we were doing this, what we were 
subpoenaing from SWIFT, that we, the United States Government, 
had access to that information. None of the things that you 
referred to revealed that. Even if they had, the front-page 
discussion of it and the ensuing media description of it made 
it much more apparent to the terrorists.
    I know for a fact--
    Mrs. Maloney. Maybe the terrorists don't watch West Wing.
    I have another question. You testified, Mr. Levey, that you 
obtained large blocks of data from SWIFT and put these in a 
U.S. Government database. You testified that you only searched 
this data under specific rules. But those rules are written by 
you, known only by you, and enforced by you and not by any 
other branch of government. There is absolutely no review.
    Apart from the condition that SWIFT apparently--conditions 
that they negotiated with you, there is no check on your 
discretion at all. In fact, we learned that at least one 
instance of abuse occurred, but we do not know when it happened 
or what it was.
    So my question is, one, are you willing to provide this 
committee with the subpoenas you served on SWIFT; two, are you 
willing to provide us with the protocols or rules you used to 
search the data; and, three, are you willing to give us details 
about any inappropriate searches to date? We know of one, 
because that was reported in the paper again, but this 
information would be very helpful to oversight.
    Mr. Levey. Well, as Chairwoman Kelly said at the outset, 
she has requested a classified briefing. Those are requests 
that we will take back and try to provide as much information 
as we can in the classified setting, because I think the proper 
forum for discussing issues like that would be in that setting. 
We will try to arrange that.
    Mrs. Maloney. Thank you very much. My time is up.
    I look forward to the classified briefing. If I may, Madam 
Chairwoman, put in writing specific questions we would like 
followed in that meeting.
    Chairwoman Kelly. Under Secretary Levey has to leave at 
noon, so, without objection, all members' written questions 
will be able to be submitted. I will be holding the hearing 
open for 30 days for questions and responses.
    With that, we now turn to Mr. Paul.
    Mr. Paul. Thank you, Madam Chairwoman.
    Could you tell me, Mr. Secretary, how many subpoenas have 
been issued under the SWIFT program?
    Mr. Levey. Mr. Paul, if I could, I would take that 
question--first of all, I don't know the exact number off the 
top of my head. Even if I did, I would rather provide it in the 
other setting, if I could.
    Mr. Paul. How many criminal prosecutions have there been?
    Mr. Levey. Getting into the operation details, again, and 
detailed output of the program would not be appropriate for 
this setting.
    Mr. Paul. In many ways, this whole idea of oversight 
doesn't amount to a whole lot, because that would be the 
essence of oversight.
    My contention in my opening remarks, in a practical sense, 
they have an alternative. They go to this transfer of money 
through hawallahs. Isn't this a possibility that they could do 
that and isn't it quite possible that they did know about our 
surveillance since it has been around for a long time? If you 
could answer that.
    And also answer the question I raised about the information 
being very adequate before 9/11 with that currency suspicious 
transaction report that told us that Mohammed Atta had actually 
transferred money. So it isn't the lack of information that is 
the problem. Just additional subpoenas and information, how is 
that going to solve our problem?
    Mr. Levey. Those are good questions, Mr. Paul. Let me take 
the first one first, which is, is it possible that they knew 
about this? I think this is the exchange I had with Mrs. 
Maloney.
    I have testified that there is a trend that the terrorists 
have moved towards cash couriers and hawallahs. I think that is 
part of what Mrs. Maloney was referring to. I have been very 
open to that. But a trend doesn't mean 100 percent.
    Yes, some terrorists have moved to cash couriers and 
hawallahs. But what I was very adamant with her, and what I 
will say to you as well, is I know for a fact that some 
terrorist facilitators and some parts of these terrorist 
networks were still using this traditional banking system and 
we were capturing that information by targeted searches through 
this SWIFT data and it was yielding value up until the time of 
this disclosure. That is just a fact.
    I don't know for sure why. We can speculate why. But that 
is the fact. I do know that. That is what I think is lost.
    This question that you asked, and I think it is an 
important point you are making, are we just getting more data 
and just collecting as much as we can? I think our record on 
this program is really quite good, because what we have done 
over the course of time is look at the data that we are getting 
from SWIFT in response to our subpoena. What we do is we search 
the data and we see where the value is in that data; and what 
we have done is stopped collecting from them, stopped getting 
from them, the parts of the data that are not yielding value.
    In addition to that--this really goes to the points you are 
getting at--we have deleted the data going back historically 
that wasn't valuable to a terrorism investigation. That is a 
very strong indication of our good faith, that we are only 
using this for terrorism purposes. That is our only intention 
in getting the data, and that is the only use we are trying to 
put it to.
    Mr. Paul. I yield back.
    Chairwoman Kelly. Thank you, Mr. Paul.
    We have been called for a vote, but I think we have time to 
fit Mr. Davis in.
    Mr. Davis of Alabama. Thank you, Madam Chairwoman.
    Have you read the One Percent Doctrine by Ron Suskind?
    Mr. Levey. No, sir, I have not.
    Mr. Davis of Alabama. Among other things, there is a 
reference in the One Percent Doctrine to human intel that the 
United States obtains from al Qaeda. There is a description of 
a particular operative. There are references to specific 
conversations that the informant had with al Qaeda leadership. 
There is a reference in the book to locations of those 
conversations. There is a reference to the exact nature of 
those conversations. That is information that it would seem to 
a reasonable listener would provide some information about who 
the operative was.
    There is also a description in the One Percent Doctrine of 
a particular device called I think a muftaker which could 
possibly be used to release or discharge chemical weapons. 
There is a detailed description of how big it is, how wide, its 
dimensions, what it looks like, a comparison of things it looks 
like. Obviously, a reasonable al Qaeda operative reading that 
book could decide to make a change in tactics and come up with 
a new device of which we have no knowledge.
    Tell me why the Administration is not as outraged by the 
One Percent Doctrine as it is with the New York Times?
    Mr. Levey. Um--as I said, I haven't read that book.
    Mr. Davis of Alabama. ``Um'' is not a good answer.
    Mr. Levey. Oh, I am sorry. My answer wasn't satisfactory? 
Give me another chance, okay?
    I think that we are concerned about that book and the types 
of revelations that are made in that book.
    Mr. Davis of Alabama. Has there been any Congressional 
resolution introduced, to your knowledge, regarding that book, 
Mr. Levey?
    Mr. Levey. I have no idea. You would be in a better 
position.
    Mr. Davis of Alabama. Madam Chairwoman, can I inquire of 
the Chair if the Chair knows of any resolution relating to the 
One Percent Doctrine?
    Chairwoman Kelly. Not that I know of.
    Mr. Davis of Alabama. Go ahead, Mr. Levey.
    Mr. Levey. I think I have answered your question, that I 
don't know whether there has been a resolution.
    Mr. Davis of Alabama. Do you agree, Mr. Levey, that the 
information contained in the One Percent Doctrine could cost us 
an operational advantage against al Qaeda?
    Mr. Levey. I can't comment on the specific parts of the 
book that you have referenced, although I have read the 
muftaker part but not the others. From your description--and I 
would assume your description is accurate--I would agree that 
those are not the kinds of things we would want to see 
published.
    Mr. Davis of Alabama. So, therefore--and I am not going to 
use up my time so that other members can question--but my 
point, Mr. Levey, I think is fairly straightforward. This is 
the concern that some of us have. You are not terribly animated 
about the One Percent Doctrine because, frankly, it is obvious 
the Administration was a very significant, extensive source for 
the author of that book. Frankly, for those who read it, it is 
also clear that the Administration is portrayed in a pretty 
favorable light.
    The New York Times I don't think anyone in this room 
believes necessarily portrays the Administration in a favorable 
light. So it leaves the inexplicable conclusion, Mr. Levey--and 
I think it is a pattern if you look at the Plame disclosures--
your Administration is deeply concerned when some sources 
reveal classified intel; it is not terribly animated when other 
sources reveal classified intel.
    That is exactly the reason why so many people on both sides 
of these daises have a problem or a question with the kind of 
unilateral authority the Administration seeks to gather upon 
itself.
    It is crystal clear that anyone reading the One Percent 
Doctrine knows a great deal about American intelligence 
gathering operations. It is far more detailed and specific than 
the New York Times story, and it has not produced a peep of 
outrage from the people you work for.
    I will yield back.
    Chairwoman Kelly. Thank you, Mr. Davis.
    Mr. McHenry.
    Mr. McHenry. Thank you, Madam Chairwoman.
    Mr. Under Secretary, you are Under Secretary of what?
    Mr. Levey. Terrorism and Financial Intelligence.
    Mr. McHenry. Terrorism and Financial Intelligence.
    Mr. Levey. Yes, sir.
    Mr. McHenry. So what do you deal with, mainly?
    Mr. Levey. Well, the broad mandate, it is terrorism was 
sort of the founding principle upon which the office was 
created, but, over time, we have done a lot of work on 
counterproliferation and sanctions and so forth using the 
financial system and financial intelligence to advance national 
security goals, including proliferation finance as well. But 
terrorism still remains the number one priority.
    Mr. McHenry. Okay. I recognize that may seem a silly 
question to you, but we are dealing with Congress here. Based 
on the rhetoric I have heard this morning from my colleagues, 
it seems a new fact to them that indeed you are trying to deal 
with the financing of terrorism. You have tools in place to 
monitor the financing systems of these terrorists, including 
one that was disclosed, a classified program, which I would 
hope, Mr. Under Secretary, that you do have classified programs 
to root out and find these terrorists and their funding 
mechanisms. Do you not have tools to do this?
    I would say you don't have to answer, but I am saying, 
rhetorically, it seems ridiculous, the rhetoric that has been 
used here.
    Now, additionally, the ranking member of this committee had 
a level of outrage that you had not come before this committee 
and disclosed to all that can listen, that can watch it on C-
SPAN, whoever wants to fall asleep can watch it on C-SPAN, 
about this program.
    Were you asked indirectly about anything related to this 
SWIFT program by anyone from this committee?
    Mr. Levey. I am not sure I understand the question, but I 
don't believe I was ever asked about this program by anyone on 
this committee.
    Mr. McHenry. Okay. Or anything related to it?
    Mr. Levey. I don't believe so, no.
    Mr. McHenry. But you did disclose this program to the 
Intelligence Committee, which also has oversight over your 
activities?
    Mr. Levey. The Intelligence Committee definitely has 
oversight of our activities, including our intelligence office, 
for obvious reasons.
    Mr. McHenry. I have two quick questions, because we have 
been called to vote on the Floor.
    You said in your testimony that you received written output 
from the program as part of your daily intelligence briefings 
and that you, ``cannot remember a day when that briefing did 
not include at least one terrorism lead from the program.'' Do 
you believe that this disclosure will, in the end, reduce the 
number of leads that you will have in this program? Or have you 
seen a result yet?
    Mr. Levey. As I indicated to Mr. Frank, we haven't seen the 
result yet because the data that we are accessing right now was 
data that was created before the news stories. It is a matter 
of logic that I would think the public discussion of this would 
be harmful to the program. But, as I also said to Chairwoman 
Kelly, I am hopeful that we will still have some value from the 
program, and we intend to continue with it.
    Mr. McHenry. Briefly, you also touched on the difference 
between the wiretapping program, the national security 
wiretapping program, versus what you are doing with financial 
tracking.
    Mr. Levey. If you are referring to the NSA program?
    Mr. McHenry. Yes.
    Mr. Levey. I am happy to say I was not read into the NSA 
program, so I am happy to say I don't know the details of the 
differences between that program and this one. But there are a 
couple of things that I think are fairly obvious.
    One is that we are obtaining records by subpoena that are 
kept in the ordinary course of business. We are collecting 
business records that SWIFT keeps in the United States in the 
ordinary course of business. From what I have read, I think it 
is a different legal authority being used in the other 
programs. But, again, I state very clearly, I don't know for 
sure. I wasn't read in.
    Mr. McHenry. Thank you, Mr. Under Secretary. I certainly 
appreciate your being here today.
    Just in conclusion, I think it is a big difference that we 
are discussing here. It is the difference between a classified 
program and a headline. Certainly, classified programs are not 
meant to be headlines so we can protect our operational 
advantage over our enemies.
    I thank you for your service and thank you for your 
testimony and thank you for answering these questions today, 
however outrageous some of them have been.
    Mr. Levey. Thank you.
    Chairwoman Kelly. Thank you very much.
    We have been called for a vote. I know that the Secretary 
needs to leave. Mr. Scott has a question he would like to ask. 
If you could briefly answer that, we would be appreciative.
    Mr. Scott. Let me just call your attention to what the Act 
says, because I believe if this Administration had followed the 
law, had done what the Act expressly says, we wouldn't even be 
in this shape we are in today.
    It clearly states that the President shall--shall, not 
may--``shall consult with Congress before exercising any of the 
authorities granted by this Act and shall consult regularly 
with the Congress so long as such authorities are exercised. 
Whenever the President exercises any of the authorities 
granted, he shall immediately transmit to Congress a report 
specifying, among other things, the authorities to be 
exercised, the actions to be taken in exercise of those 
authorities to deal with those circumstances.''
    We are not here to talk about the SWIFT program or what it 
has done or all of this. That is fine. There is no problem with 
that. But it is important for this Administration to understand 
that they have violated the law. They have not allowed Congress 
to do its job.
    You have people who run not every 6 years, not every 4 
years, but every other year. The mandate from the people is to 
do our charge. The charge of this committee is the oversight 
and investigation of terrorist financing. Here we are 5 years 
after and no report.
    So when you look at what the New York Times has put 
forward--and let me just state this very clearly. This is no 
ordinary leak. I don't think it has been made known that this 
is no ordinary leak. That story in the New York Times was put 
together--and the Washington Post--by a compilation of 20 Bush 
officials who saw something enough wrong that something needed 
to be done about this.
    This is no ordinary leak. This is no story of whether you 
are strong on terror or not. It is whether or not you are going 
to stand up for the principles that this country stands for. 
And had we done what the emergency act says for us to do, 
clearly we would not be in this position.
    When 20--not some clerk, not some disgruntled employee, we 
are talking about 20 Bush officials, administrators in your 
Administration, who saw something wrong with the direction in 
which we were going to say let us pause here for a moment so 
that--this is a dangerous road we are going on that undermines 
the very system.
    At some point, this Administration, as I said before, needs 
to clearly look in the mirror and see where the wrong is coming 
from.
    I am going to vote, Mr. Chairman.
    Chairwoman Kelly. Thank you, Mr. Scott.
    Mr. Levey. Again, that was not a question, so I will not 
have a response.
    Chairwoman Kelly. I would like to go and vote, also, but I 
think it is far more important that we get some of these 
questions answered, so I am going to stay here and ask a few 
more questions. One is a question that you did not have an 
opportunity to answer, evidently, Mr. Under Secretary.
    I asked you about the tracking program that you mentioned 
might be useful, continue to be useful, with regard to tracking 
activities of charities and wealthy individuals that support 
terrorism. The Saudis, for instance, have not yet set up a 
functioning commission over their charities. I wants to know 
why there is this lag, and I want to know if this program would 
be helpful in that regard.
    Mr. Levey. If I could, Chairwoman Kelly, I would like to 
respond to those separately, rather than together, because I 
don't want to talk about the use of this program with respect 
to any particular country.
    As I said to you earlier in response to another question, 
it is my hope--because, as you point out, there is a 
multilayered factor to a terrorist network and there may well 
be parts of terrorist networks where this program, even after 
its disclosure, will remain valuable because people will still 
be using the banking system. It is my hope--I hope Mr. Frank is 
right when he said it will still be valuable. I hope that is 
right. I don't really care about winning some political 
argument. What I want to do is get at the terrorist financing. 
I would be happy if there was no damage at all. Unfortunately, 
I don't think that will be the case.
    With respect to the Saudi charity commission, this is an 
issue that I know we have discussed both in this room and in 
your office on several occasions. There is no country that we 
have spent more time with in terms of trying to work with them 
on terrorist-financing issues.
    The Saudis, as we have said--this will sound repetitive to 
you because I have said to this to you before, but I think it 
is important to say the whole piece, which is when it comes to 
counterterrorism generally and fighting al Qaeda cells in Saudi 
Arabia, they have been extremely aggressive and effective, and 
their security services have had causalities, and they are 
really in the fight in a way that I think is valuable not just 
in Saudi Arabia. But al Qaeda is a worldwide threat, so when 
they are fighting cells in Saudi Arabia, that is of benefit to 
us all.
    On terrorist financing, there are a number of issues where, 
as you put it--and I guess you were quoting me, so I know I 
agree with it--there has been a real lag between what they say 
they were going to do and what they do. The charities 
commission is a perfect example. We haven't seen the charities 
commission. It is a matter of years now, and there is no 
charities commission. I am not satisfied--you work personally 
on getting their FIU up and running. I think that is a project 
that still requires a lot of work.
    The specific thing I was referring to when I made this 
suggestion about lag and gap in a prior statement was holding 
individual financiers personally responsible in Saudi Arabia. 
This is something where the Foreign Minister, Prince Saud, has 
said they intend to hold people personally accountable; and 
that has not yet happened. As I say, there is a lag between 
what they are saying and the facts on the ground. We will see 
if there is a gap between what they say and what they do.
    I think I have been to Saudi Arabia three or four times, 
and I spent a lot of time and effort on this, and I know you 
do, too. I am going to keep at this and do everything I can 
both to encourage them and to help them fight terrorism more 
effectively.
    Chairwoman Kelly. We have both been advocates for the work 
of the Egmont Group, the financial intelligence units of a 
number of different countries. I want to know how the TFTP 
program complements our technical assistance programs with 
those groups.
    Mr. Levey. I have to think about that a little bit, 
Chairwoman Kelly. I think they may be separate enterprises. 
They fit together in one sense, which is that effective 
counterterrorism and, frankly, effective anti-money laundering 
policy requires the exchange of information and exploiting that 
information. Egmont is a great forum for doing that on an 
international basis, and we continue to work on it. A new 
director of FinCEN, Bob Horner, has taken up the torch on this 
and is doing a great job and takes this all very seriously.
    But, frankly, this program that we are discussing today was 
one that is separate. It is limited only to terrorism and not 
to all law enforcement and money laundering efforts like the 
Egmont group is. So it is narrower in that sense, and the 
sharing mechanisms are different.
    Chairwoman Kelly. How do you evaluate what is working and 
what is not?
    Mr. Levey. This has been a very difficult problem ever 
since I started this job. I think this is something we 
discussed when I first testified.
    A lot of the indices of how effective we are are things 
that we see only in intelligence reporting, and, therefore, you 
have to wonder whether you are getting the full story. Because 
the way intelligence reporting works is you get some 
information, but you don't know whether there is reporting bias 
or collection bias or whatever.
    There are two things I can point to that I take some heart 
in. One would be is that, as I indicated in my written 
statement, we have seen a terrorist organization that was under 
so much pressure that the intelligence suggested they could not 
conduct a sophisticated attack because they lacked the funding 
to do so.
    You saw another indication like that in the letter Zawahiri 
wrote to the now deceased Zarqawi asking for money and saying 
that the al Qaeda leadership, and Zawahiri, lacked money and 
their lines have been cut off. That is, of course, a great 
symbol of success.
    I also point the committee to the assessment the 9/11 
Commission public discourse project gave us, which was a fairly 
tough assessment across the board, but when it comes to this 
issue in particular, they graded the interagency effort as an 
A-minus, their highest mark. And I should say I have seen some 
news reporting in recent weeks that that was a grade for the 
Treasury Department. I want to make clear that wasn't a grade 
for the Treasury market. That was a grade for the entire 
government's efforts, including, I would say, this committee.
    Chairwoman Kelly. Thank you.
    You said that the G-10 central banks were kept informed of 
the program. But in some countries, like the United Kingdom and 
others, the Egmont group, the Egmont member FIU, isn't part of 
the Central Bank. So did they know about SWIFT or were they 
left in the dark?
    Mr. Levey. As I said, the ones that were informed were the 
Central Bank governors, not necessarily FIU's.
    Chairwoman Kelly. So other country FIU's may not have known 
about the SWIFT?
    Mr. Levey. That is correct.
    Chairwoman Kelly. And therefore were not able to use it?
    Mr. Levey. That is a separate question which I would like 
to discuss with you in another setting.
    Chairwoman Kelly. I thank you.
    I have just been reminded that there was a question that I 
didn't really get an answer to, another section of a question, 
and that is the question about the UAE and Bahrain and whether 
they are living up to their stated commitments to combat 
terrorist finance.
    Mr. Levey. I think that the general answer is that we have 
very good relationships there, and our cooperation is strong. I 
think I can give you a more satisfying answer if I respond to 
that in writing, if that would be okay with you.
    Chairwoman Kelly. That is fine. You can give it to us in a 
more detailed answer, if you would like to, in a confidential 
briefing.
    I need to do a bit of business here. There are a number of 
things that we have been requested to insert in the record. One 
is the list that Mr. Frank had on what Members of Congress were 
briefed and what the dates were.
    The other is the CRS report for Congress entitled 
Treasury's Terrorist Finance Programs: Access to Information 
Held by the Society for Worldwide Interbank Financial 
Telecommunication.
    The next one is Reports of U.S. Monitoring of Swift 
Transactions Are Not New: The Practice Has Been Known by 
Terrorism Financing Experts for Some Time, by Victor Comras.
    Another, A Secret the Terrorists Already Knew, by Richard 
A. Clarke and Roger W. Cressey.
    And the final one, Continued Debate Over the Swift 
Disclosure, by the New York Times by Dennis M. Lormel.
    So moved that they be put in the record.
    Chairwoman Kelly. With that, the Chair notes that members 
will have additional questions for this panel that they will 
submit in writing. So, without, objection the hearing record 
will remain open for 30 days for members to submit written 
questions to this witness and to place their responses in the 
record.
    With that, we thank you very much, Mr. Secretary. You have 
been very patient with us all.
    This hearing is adjourned.
    [Whereupon, at 12:08 p.m., the subcommittee was adjourned.]





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                             July 11, 2006





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