[Senate Hearing 110-621]
[From the U.S. Government Publishing Office]
S. Hrg. 110-621
WATCHING THE WATCH LIST: BUILDING AN EFFECTIVE TERRORIST SCREENING
SYSTEM
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HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 24, 2007
__________
Available via http://www.gpoaccess.gov/congress/index.html
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Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Christian J. Beckner, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Robert L. Strayer, Minority Director for Homeland Security
John K. Grant, Minority Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 3
Senator Tester............................................... 19
Senator Voinovich............................................ 21
Senator Warner............................................... 23
Senator Carper............................................... 23
Senator Levin................................................ 27
WITNESSES
Wednesday, October 24, 2007
Eileen R. Larence, Director, Homeland Security and Justice
Issues, U.S. Government Accountability Office.................. 5
Hon. Glenn A. Fine, Inspector General, U.S. Department of Justice 8
Leonard C. Boyle, Director, Terrorist Screening Center, Federal
Bureau of Investigation, U.S. Department of Justice............ 10
Paul Rosenzweig, Deputy Assistant Secretary for Policy, U.S.
Department of Homeland Security................................ 13
Alphabetical List of Witnesses
Boyle, Leonard C.:
Testimony.................................................... 10
Prepared statement........................................... 65
Fine, Hon. Glenn A.:
Testimony.................................................... 8
Prepared statement........................................... 54
Larence, Eileen R.:
Testimony.................................................... 5
Prepared statement........................................... 37
Rosenzweig, Paul:
Testimony.................................................... 13
Prepared statement........................................... 71
APPENDIX
``Promoting Accuracy and Fairness in the Use of Government Watch
Lists, Statement of the Constitution Project's Liberty and
Security Initiative,'' The Constitution Project, December 5,
2006........................................................... 78
U.S. Government Accountability Office, Report to Congressional
Requestors, ``Terrorist Watch List Screening: Opportunities
Exist to Enhance Management Oversight, Reduce Vulnerabilities
in Agency Screening Processes, and Expand Use of the List,''
October 2007................................................... 87
U.S. Department of Justice, Office of the Inspector General,
Audit Division, ``Follow-Up Audit of the Terrorist Screening
Center,'' Audit Report 07-41, September 2007................... 169
Questions and responses for the record from:
Ms. Larence.................................................. 275
Mr. Fine..................................................... 278
Mr. Boyle.................................................... 284
Mr. Rosenzweig............................................... 293
WATCHING THE WATCH LIST: BUILDING AN EFFECTIVE TERRORIST SCREENING
SYSTEM
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WEDNESDAY, OCTOBER 24, 2007
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Levin, Carper, Tester,
Collins, Voinovich, and Warner.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Good morning. In this hearing, we
continue this Committee's oversight of our homeland security
programs that have been created since September 11, 2001. Last
week, we had one on port security. Yesterday, we had another
interesting hearing on an aspect that we still need some help
on. And today, we go to one where we have made some progress,
although we still have some questions, and this is our focus on
the terrorist watch list--a critical tool in our battle to keep
terrorists from entering the United States and attacking our
homeland again as they did on September 11, 2001.
After September 11, 2001, we found as part of the
investigation of how that event occurred that lists of
suspected or potential terrorists that were in the possession
of the Federal Government, many different Federal agencies,
were, however, not shared, and certainly not shared in a way
that increased deterrence of a terrorist attack. As a result,
we now know that two of the September 11, 2001, hijackers--
Nawaf al-Hazmi and Khalid al-Mihdhar--were known to the CIA and
NSA and were regarded as dangerous by both agencies. But that
information was never shared with the Immigration and
Naturalization Service or the State Department, and therefore,
these two terrorists were allowed to enter our country and be
part of carrying out the most devastating attack on our
homeland in our history.
The Terrorist Screening Center, operated by the FBI, was
created in December 2003, to state it simply, to make sure that
nothing like that ever happened again. Its mission was to pull
together all the different lists of potential terrorists into
one master list and to make sure that everyone who needed that
information to protect our homeland had easy access to it. This
master list is used as the basis for the creation of separate
databases used by a number of Federal agencies today, including
as TSA's No Fly List and the State Department's CLASS list or
database, which is used to screen visa applicants. The
terrorism watch list is also a vital tool State and local law
enforcement can now access, creating a powerful new link to
generate leads on potential terrorists within our country
because of the access that hundreds of thousands of State and
local law enforcement officers have to that list.
This is a vast improvement over where we were before and on
September 11, 2001. I want to thank the Terrorist Screening
Center, the National Counterterrorism Center, the Department of
Homeland Security, and other Federal agencies for the
significant progress they have made over the last 4 years in
closing this previous gap in our homeland security.
The Government Accountability Office reports today in a
report that we are releasing on this progress.\1\ But it also
discusses some remaining vulnerabilities and weaknesses in the
watch list system which we will want to discuss. The Department
of Justice Inspector General, also appearing before us today,
has found similar problems in the watch list system in his
audits of the Terrorist Screening Center.
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\1\ The GAO Report on ``Terrorist Watch List Screening'' appears in
the Appendix on page 87.
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Some of the concerns that we are going to discuss stem from
the sheer size of the list. It contained 158,000 names in July
2004. That grew to 755,000 names by May of this year, and it
now stands at about 860,000 names. That is nearly a 500-percent
increase in 3 years. Of course, if there is a good reason to
have each of those names there, the increase in the size of the
list is good news for our homeland security. But if many of
these names are mistakenly there, the credibility of the
terrorism watch list and its usefulness will be compromised. So
we want to talk about that.
I know that the Terrorist Screening Center has undertaken
efforts to review portions of the watch list, such as the
entire No Fly List, and has a long-term plan to review the
entire watch list. But with the list likely to go over 1
million names in the near future, we need to know that there
are clear standards for placing names on it and, of course, for
taking them off it.
Another concern expressed by the Department of Justice--and
I guess I would say the traveling public, or some of it--is
providing an appeal for individuals who are caught in the watch
list system because they have the same name or a similar name
to someone who deserves to be on the list.
The most famous of these cases is our own colleague,
Senator Edward M. Kennedy, famously denied boarding on
different airline flights because his name resembled that of an
IRA terrorist. It took weeks to get this cleared up. I am going
to try to avoid humor here because this is a serious subject.
But it is essential that we have a redress system that is easy
for people to navigate and can quickly resolve problems of
mistaken identity without, of course, weakening the terrorist
watch lists and their utility.
Now, on the other side of the spectrum, the GAO report does
cite some cases where people whose names were justifiably on
the watch list have, nonetheless, been admitted into our
country by Customs and Border Protection and cases where people
on the No Fly List have been allowed to board international
flights traveling to the United States. That, of course, is the
most serious of all vulnerabilities that could exist in this
system.
So, bottom line, the picture I believe we are going to see
today and the testimony we are going to hear and the questions
we are going to ask, I think, will be around this reality. We
have a new system in place. It is a great improvement over what
existed before, but there are still occasions when that system
lets in people who are on the watch list and keeps out people
who should not be on the list. And, of course, all of us want
to fix those vulnerabilities. But it is with appreciation for
all that you have done that I welcome the witnesses and that I
call on the Committee's Ranking Member now, Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman, and let me begin
by commending you for holding this hearing. I think continuing
oversight by this Committee is so important, and this is
certainly an issue that directly affects the security of our
country, but also affects our constituents day in and day out.
The use of the terrorist watch list inspires both
confidence and concern--confidence that our counterterrorism
agencies are determined to detect and disrupt the travels of
those who would do us harm, but also concern that this
increased security may come at a cost to privacy and civil
liberties.
As the Chairman indicated, the 9/11 Commission noted that
as many as 15 of the 19 hijackers might have been intercepted
by border authorities if a procedure had been in place to link
previously accumulated information to their names. Several of
the hijackers had been cited in intelligence community files
for terrorist links. Existing but untapped data on travel
patterns, bogus visa applications, and fraudulent passport
information could have focused official attention on some of
the terrorists. Prior to the attacks of September 11, 2001,
however, the government simply had no such consolidated system.
Based on its investigation, the 9/11 Commission recommended
that the Federal Government design a comprehensive screening
system to help front-line officials at our borders and other
critical points confirm the identity of people trying to enter
our country or to board airplanes and to disrupt their plans if
they pose a security threat.
The need for effective information sharing and for tools to
track terrorists' movements is self-evident. But if these
databases contain information that is inaccurate, obsolete, or
error-prone, then watch lists can prove to be both ineffective
and unfair. Suspects who pose a security threat can pass
unimpeded if they are not listed or if technical problems
prevent their identification.
On the other hand, all of us have heard from innocent
constituents who have had the misfortune to share a similar
name or other identifying data with a suspect on the watch
list. Individuals who do not belong on the list can face
frustrating delays every time they travel, and as Senator
Kennedy and others have found, it can be very difficult to get
erroneous information corrected. In addition, volumes of
personal information in the hands of government can present a
tempting target for identity thieves.
Creating and maintaining a comprehensive terrorist watch
list is an enormous endeavor fraught with technical and
tactical challenges. On the technical side, integrating
information from multiple government databases and then
transmitting that information securely and accurately is no
easy task. To be useful to our officers in the field, the watch
list must provide reliable and accurate information that can be
quickly evaluated and then used as a basis for action.
The GAO report \1\ that we release today and the DOJ
Inspector General's report\2\ that we received last month
provide us with the means to review the screening process and
assess its strengths and weaknesses.
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\1\ The GAO report appears in the Appendix on page 87.
\2\ The DOJ Inspector General's report appears in the Appendix on
page 169.
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The GAO report details the use of the watch lists by law
enforcement over a 42-month period. Federal, State, and local
officials had more than 53,000 encounters with individuals on
the watch lists during that period.
Unfortunately, as the Chairman mentioned, there are
troubling examples of targeted individuals passing through
screening undetected. We also have the more recent, very
troubling case where Customs and Border Protection allowed an
individual from Mexico who was infected with a dangerous strain
of TB to pass across the border several times.
A particularly troubling problem has been the failure to
detect individuals on the No Fly List before they board a U.S.-
bound aircraft overseas. In some cases, the government's
response to delayed detection has resulted in planes being
diverted for an emergency landing--almost always, they seem to
get diverted to Bangor, Maine--so that a suspicious individual
can be questioned, detained, or refused entry. And perhaps the
most recent example of that happening that resonated with
people my age was when Cat Stevens was on the plane that was
diverted to Bangor, Maine.
These reports underscore the need to make the watch lists
more accurate and more timely. After all, if we are dealing
with the problem when the suspect is already on the plane, it
is really a bit too late. We need to also improve the system
for seeking redress if individuals believe that they have been
wrongfully targeted. My understanding is that the Terrorist
Screening Center is working with the GAO and the Inspector
General to implement their recommendations.
Any system that relies on judgments made by various
personnel in different agencies applying varying standards will
never be perfect, particularly when we are dealing with very
large, complex databases. It is, nevertheless, imperative that
improvements be made so that the American people can have more
confidence and less concern about this important safeguard
against terrorist attacks.
Chairman Lieberman. Thanks very much, Senator Collins.
Thanks to the witnesses for being here. We have an excellent
group of witnesses. We are going to vote around 11 or so, so
hopefully we can get through the opening statements and some
questioning by the Senators who are here before we have to go
and come back.
We will begin with Ms. Larence--is it Larence, you say?
Ms. Larence. Larence.
Chairman Lieberman. Larence. OK, forget the ``W.''
Ms. Larence. It was there before Ellis Island. [Laughter.]
Chairman Lieberman. Yes, we have a lot of stories we could
tell about that.
OK. Ms. Larence is the Director of Homeland Security and
Justice Issues at the Government Accountability Office of the
United States, which has been such a strong source of support
and assistance to this Committee and the Congress in general.
So we welcome your testimony now.
TESTIMONY OF EILEEN R. LARENCE,\1\ DIRECTOR, HOMELAND SECURITY
AND JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Larence. Thank you, sir. Mr. Chairman and Members of
the Committee, I am pleased to be here this morning to
summarize a report released today on the Federal Government's
use of the terrorist watch list to screen individuals for
possible threats to homeland security. As you acknowledged
already, unlike September 11, 2001, when agencies generally did
not share information on known or suspected terrorists, our
work shows that now the Terrorist Screening Center maintains
one master repository of records on individuals with real or
potential ties to terrorism. Agencies use the list to, for
example, screen people applying for a visa, crossing through
ports of entry into the country, or stopped for traffic
violations.
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\1\ The prepared statement of Ms. Larence appears in the Appendix
on page 37.
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Our work also shows that agencies find the terrorist watch
list to be an important counterterrorism tool, but we have
found that it could be strengthened by addressing potential
security vulnerabilities, using all appropriate screening
opportunities, and providing for greater accountability and
effectiveness.
In our report, we address several fundamental questions.
First, how do people get on and off the list? Intelligence
agencies, the FBI, and other Federal agencies nominate
individuals to the watch list using a relatively low bar
because they want to make certain they do not miss any threats.
Generally, agencies determine whether the information available
on an individual provides a reasonable suspicion that the
person has known or potential links to terrorism. Sometimes
agencies have limited information and so must use their
subjective judgment to determine who to list. To help guide
these decisions, agencies use criteria and have review
processes. For example, according to the FBI, generally any
person subject to a counterterrorism investigation is put on
the list after going through a formal review and approval
process. If the investigation does not show a terrorist threat,
as defined by Attorney General guidelines, the person is to
come off the list.
We do not know how the intelligence community makes such
decisions because, in part, the CIA chose not to discuss this
with us. Officials from both the National Counterterrorism
Center that receives and forwards to the Terrorist Screening
Center all nominations with international links to terrorism as
well as the Screening Center itself said they review
nominations to ensure there is a nexus to terrorism and have
criteria to do so. While the Terrorist Screening Center reports
deleting some 100,000 total records from the watch list so far,
as you noted, it continues to grow significantly.
The second question we answered is: How often have agencies
encountered people on the list, and what has happened to them?
As of May, airlines or agencies matched the names of travelers
with names of people on the watch list about 53,000 times,
although they matched some people more than once. Most matches
were within the United States by State and local law
enforcement or other government agencies. Individuals were
sometimes arrested or denied a visa, boarding an aircraft, or
entry into the country. But most often they were questioned and
released because the derogatory information on the person did
not show a legal basis, such as a criminal violation, to take
any other action.
Agency officials said that they use information collected
during questioning to assess the threat posed by the
individual, to track the person's movement, and to update
intelligence or investigation files. And the Terrorist
Screening Center shares information on encounters daily through
a reporting process.
On a related note, our prior work that we issued in a
report in September 2006 showed that agencies were almost as
often mistakenly identifying and stopping, questioning, and in
some cases searching individuals who are not the person on the
watch list but who unfortunately have a name similar to someone
on the list. We reported why this happens, how this is being
addressed, and what redress is available to these individuals,
and I would be glad to discuss that work further.
The third question our report today addresses is whether
there are potential security vulnerabilities in agency
screening processes. Agencies do not check against all names on
the watch list. According to the Terrorist Screening Center,
this can be a vulnerability, or at least a missed opportunity
to collect information. Rather, the center sends subsets of the
watch list to other information systems that agencies use to
screen individuals depending on the agency's mission or
operational capabilities. For example, Customs and Border
Protection maintains an information system it uses to check all
travelers, including U.S. citizens, for criminal or immigration
violations or other concerns before they enter the country.
Because of this broad mission, the Terrorist Screening Center
sends CBP the highest percentage of watch list records to use
during its screening.
In contrast, airlines receive fewer names to screen
passengers using the No Fly List or Selectee List. According to
TSA, this is because its mission is transportation safety, not
intelligence or investigations. And nominations to these two
lists must pass a higher bar or more stringent criteria
established by the Homeland Security Council, such as posing a
threat to civil aviation.
In addition, TSA requires that watch list records used for
screening contain sufficient identifying information, but not
all watch list records do so, and so these records are not
passed to the airlines for screening. This is also the case for
State and local law enforcement.
TSA and FBI officials told us that the requirement for full
information and records is to minimize the times people are
misidentified and that screening against all names on the list
would not necessarily result in increased security, but they
did not provide the basis for their position; therefore, we
continue to recommend that both agencies assess the extent of
vulnerabilities in their screening processes and address them.
Agencies also acknowledged that individuals on the watch
list have passed undetected through their screening, but they
said they are taking steps to address this problem. For
example, CBP has cases of people on the watch list who were not
identified until they had entered the country, but it is
working on corrective actions.
Likewise, as noted in your opening statements, individuals
on the No Fly List have boarded aircraft, and sometimes flights
had to be diverted. Agencies know this because for
international flights into the United States, Customs and
Border Protection screens all passengers a second time after
the airlines to determine if the passengers can enter the
country. To do this screening, CBP needs passenger data that
currently is not sent to CBP in time to screen before a flight
departs. A new rule in February will require that the data be
provided to CBP sooner, which could help to identify
individuals on the No Fly List before planes are airborne.
It is important to note that there is no such second
screening on domestic flights, but considering such a process
would require assessing impacts on privacy and air travel, and
TSA's new Secure Flight passenger pre-screening system, once
implemented, may help to alleviate this concern.
Finally, our work showed that the Federal Government has
not identified and implemented all possible terrorist screening
opportunities as mandated. The State Department is pursuing
opportunities with some foreign partners, the Terrorist
Screening Center is entering agreements with some agency
components, and DHS is working on guidelines to help the
private sector owners and operators of critical infrastructure
screen employees to see if they pose threats. But we have
recommended that all appropriate screening opportunities be
identified and implemented and that DHS complete and implement
the private sector guidelines, and the agency has agreed with
these recommendations.
In conclusion, overall GAO's findings stem in part from the
fact that while each agency owns a parochial piece of the watch
list process, no one entity is accountable overall for
resolving interagency conflicts, addressing vulnerabilities,
monitoring results, and ensuring that the list is working as
intended. Furthermore, the government does not have an up-to-
date strategy and implementation plan with a recommended
governance structure to provide for the most effective watch
list screening. The President tasked DHS to work with relevant
agencies to develop these plans. DHS said it submitted them in
November 2004. The Homeland Security Council did not approve
and implement the plans, however. We were not given copies of
the plans to review or the opportunity to discuss this issue
with the Homeland Security Council. So we have recommended that
DHS update and resubmit these plans and that the Assistant to
the President for Homeland Security and Counterterrorism ensure
that they are implemented and that the governance structure
agencies recommend be given the responsibilities and
authorities needed to manage and be held accountable for
screening governmentwide. DHS agreed to its recommendation, but
the White House chose not to respond to our report.
Mr. Chairman, that concludes my statement, and I would be
happy to answer any questions.
Chairman Lieberman. Thanks very much, Ms. Larence, for an
excellent report. I appreciate the question you posed at the
end and really the challenge, and we will want to hear from the
other witnesses about that, about accountability and
responsibility here.
Glenn Fine is the Inspector General of the Department of
Justice, familiar to us, even respected by us. Thanks for being
here.
TESTIMONY OF HON. GLENN A. FINE,\1\ INSPECTOR GENERAL, U.S.
DEPARTMENT OF JUSTICE
Mr. Fine. Thank you, Mr. Chairman, Senator Collins, and
Members of the Committee. Thank you for inviting me to testify
on the development and status of the terrorist watch list
screening system.
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\1\ The prepared statement of Mr. Fine appears in the Appendix on
page 54.
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For the past several years, the Department of Justice
Office of the Inspector General (OIG) has examined the work of
the Terrorist Screening Center (TSC), a multi-agency effort
administered by the FBI. Created in 2003, the TSC integrates
U.S. Government terrorist watch lists into a consolidated
database and provides 24-hour-a-day, 7-day-a-week responses to
Federal, State, and local governments to assist in screening
for individuals with possible ties to terrorism. Prior to the
establishment of the TSC, the Federal Government's terrorist
screening system was fragmented, relying on at least a dozen
separate watch lists maintained by a variety of Federal
agencies.
In June 2005, the OIG issued our first audit of the TSC's
operations. This audit found that the TSC had made significant
strides in developing a consolidated terrorist watch list
database. But we also found weaknesses in various areas of TSC
operations, including that the TSC had not ensured that
information in the consolidated database was complete and
accurate.
Last month, we completed a follow-up review examining the
TSC's progress in improving its operations since our 2005
audit. The recent audit found that the TSC has continued to
make significant progress in important areas. However, we also
concluded that the TSC's management of the watch list continues
to have significant weaknesses and that the information in the
watch list database was not complete or fully accurate.
These weaknesses can have enormous consequences.
Inaccuracies in watch list data increase the possibility that
reliable information will not be available to front-line
screening agents, which could prevent them from successfully
identifying a known or suspected terrorist. Furthermore,
inaccurate watch list information increases the chances of
innocent persons being stopped or detained because of
misidentifications.
For these reasons, we believe it is critical that the TSC
and the agencies providing watch list data to the TSC further
improve the accuracy of the information. In short, our
September 2007 audit credited the TSC for improving its
operations. It has enhanced its efforts to ensure the quality
of watch list data, increased staff assigned to data quality
management, and developed a process and a separate office to
address complaints by persons seeking redress related to
terrorist watch list screening. However, we also determined
that the TSC needs further improvement. I would like to make
five observations about these needed improvements.
First, the TSC still maintains two versions of the watch
list database. While the TSC is developing an upgraded,
consolidated database that will eliminate the need to maintain
parallel systems, the two databases were not identical in
content when we tested them, which they should be. In addition,
the number of duplicate records in the TSC database has
significantly increased.
Second, we found that not all watch list records were being
sent to downstream screening databases. We discussed this issue
with TSC officials, who agreed with our findings and began
correcting those omissions.
Third, our review found that the TSC did not have a process
for regularly reviewing the contents of the consolidated
database to ensure that all outdated information is removed, as
well as to affirm that appropriate records are watch-listed.
We concluded that the TSC needs to further improve its
quality assurance efforts for ensuring the accuracy of the
watch list records. Since our last report, the TSC has
increased its quality assurance efforts and implemented a data
quality improvement plan. In general, we believe that these
actions are positive steps. We also recognize that it is
impossible to completely eliminate the potential for errors in
such a large database. However, we identified continuing
inaccuracies in records that had undergone the TSC's quality
assurance processes.
For example, the TSC completed a special quality assurance
review of the No Fly List, which dramatically reduced the
number of records on the list. But our examination of the TSC's
routine quality assurance reviews revealed continued problems.
Specifically, we examined 105 records subjected to the routine
quality assurance review and found that 38 percent of these
records continued to contain errors or inconsistencies that
were not identified through the routine quality assurance
efforts. Thus, the TSC continues to lack important safeguards
for ensuring data integrity, including a comprehensive protocol
outlining the quality assurance procedures and a method for
regularly reviewing the work of TSC staff to ensure
consistency.
Fourth, we found that the TSC's efforts to resolve
complaints from individuals about their possible inclusion on
the watch list have improved since our previous audit, and the
TSC has created a dedicated unit to handle redress complaints.
However, the TSC's redress activities were not always timely.
Moreover, a high percentage of complaints requiring
modification or removal is a further indicator that watch list
data needs continuous monitoring and attention.
Fifth, we found that the TSC does not have a policy or
procedures to proactively use information from encounters with
individuals to reduce watch list misidentifications.
Considering that nearly half of all encounters referred to the
TSC Call Center are negative for a watch list match, we
recommended that the TSC consider misidentifications a priority
and develop strategic goals and policy for mitigating
misidentifications, particularly for individuals who are
repeatedly misidentified.
In total, our report made 18 recommendations to further
improve the TSC's watch-listing process. These recommendations
include making improvements to increase the quality of watch
list data; revising the FBI's watch list nominations process;
and developing goals, measures, and timeliness standards
related to the redress process. In response, the TSC agreed
with the recommendations and stated that it would take
corrective action.
Finally, I want to mention a separate audit that we are
currently conducting to examine the specific policies and
procedures of Department of Justice components for nominating
individuals to the consolidated watch list, which is a very
important issue. We are conducting this review in conjunction
with other Intelligence Community OIGs, who are examining the
watch list nomination process in their agencies. These OIG
reviews are being coordinated by the OIG for the Office of the
Director of National Intelligence.
In conclusion, the TSC deserves credit for creating and
implementing a consolidated watch list and for making
significant progress in improving the watch list and screening
processes. However, our reviews have found continuing
weaknesses in some of those processes. We believe it is
critical that the TSC further improve the quality of its data
and its redress procedures. Inaccurate, incomplete, and
obsolete watch list information can increase the risk of not
identifying known or suspected terrorists, and it can also
increase the risk that innocent persons will be repeatedly
stopped or detained. While the TSC has a difficult task and has
made significant progress, we believe it needs to make
additional improvements.
That concludes my statement, and I would be pleased to
answer any questions.
Chairman Lieberman. Thanks very much, Mr. Fine, for an
excellent statement and for your continuing interest in this
subject, which we all want to get right and want to be fair.
The next witness is Leonard Boyle, Director of the
Terrorist Screening Center. It is a personal pleasure for me to
welcome Mr. Boyle here because he comes to this position having
previously served with honor and effect as the Commissioner of
Public Safety of the great State of Connecticut. We welcome
your testimony.
TESTIMONY OF LEONARD C. BOYLE,\1\ DIRECTOR, TERRORIST SCREENING
CENTER, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF
JUSTICE
Mr. Boyle. Thank you very much, Chairman Lieberman, thank
you for those kind words, Senator Collins, and Members of the
Committee. Thank you for the opportunity to address the
Committee today on these two important reports that have been
issued.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Boyle appears in the Appendix on
page 65.
---------------------------------------------------------------------------
As both reports note, the Terrorist Screening Center plays
a critical role in the government's multi-layered strategy to
prevent another terrorist attack on the United States. That
multi-layered strategy calls for, in the first instance, every
effort to prevent a potential terrorist from leaving his or her
country of origin.
To that extent, the Terrorist Screening Center, having
created the Terrorist Screening Database, sends to the State
Department a significant number of identities of persons who
may be seeking to obtain a visa to enter the United States.
Because of the work that has been done by the TSC, all consular
officers around the world now have access to the U.S.
Government's best understanding, both the intelligence and law
enforcement community, of those who pose a terrorist threat to
the United States. Every consular officer, in considering a
visa application, can query the database and use any
information that is found there as one factor in determining
whether that particular person ought to be granted a visa to
enter the United States.
The second phase of that multi-layered strategy is for
persons who are trying to enter the United States at our
borders, for our Customs and Border Protection agents to have
access to a similar set of information, slightly broader than
what is given to the State Department, which is tailored to
meet the needs of Customs and Border Protection so that a CBP
agent can make the best informed determination as to whether he
should grant a person access to the United States. He queries
the IBIS or TECS system, which is supplied by the Terrorist
Screening Center, for a determination as to whether that
person, who is seeking entry to the United States, has been
identified as a known or suspected terrorist.
The third level of protection is within our borders. If a
person does manage to get into the United States, or is already
here, and is in the view of the law enforcement community or
the intelligence community a potential terrorist threat to our
Nation, information is now made available to all State, county,
municipal, and tribal police officers throughout the United
States, a force multiplier of about 750,000 law enforcement
officers that did not exist prior to the creation of the TSC.
While law enforcement officers did have access to Federal
databases regarding certain types of suspected problem persons,
they did not have access to the intelligence community's
assessment of known and suspected terrorists. They do now.
Chairman Lieberman, in your earlier remarks, you made
reference to two of the September 11, 2001, hijackers. I would
also cite a particular example. On the morning of September 9,
2001, a State trooper stopped a young man who was traveling
north on I-95, did all the appropriate actions, including run
that man's name through the National Crime Information Center,
found no negative or derogatory information. The trooper did
his job and sent that person on his way. Two days later, that
person, Ziad Jarrah, and four of his co-conspirators hijacked
United Airlines Flight 93 and, but for the actions of some very
brave and heroic people, would have probably crashed that plane
into some significant national asset.
That is the type of information that is now available to
all State, county, municipal, and tribal police officers as a
result of the work that is being done by the TSC.
That being the case, of course, we will not be satisfied
until we are certain that we have the best, most effective, and
most accurate watch list possible. And to that end, we welcome
the recommendations that have been made by the Office of the
Inspector General as well as by the Government Accountability
Office. We are using those reports as a road map to improve the
watch list, to make our processes better.
I think a fair assessment of what the TSC has done in 3\1/
2\ years is that it has achieved with remarkable success the
basic objectives that were tasked to it by HSPD-6, that is, the
creation of a unified watch list, the creation of a means to
update that watch list on a daily basis, the creation of a
system to export those lists to Customs and Border Protection,
the State Department, State and municipal law enforcement, as
well as the TSA, to protect our flying public and also to
create a call center, a 24-hour-a-day, 7-day-a-week call
center, so that anytime any of those screening agents or law
enforcement agents encounters a known or suspected terrorist,
they call the Terrorist Screening Center, they do not get a
busy signal, and they do not get a recording. They get a human
being who answers that phone, who has full access, electronic
access, to all of the underlying derogatory information about
the person who has been encountered.
We have also spent a great deal of effort reaching out to
our foreign partners in satisfaction of the goals tasked to us
by HSPD-6. We now have six agreements with foreign partners.
Spain recently publicly announced that we had executed an
agreement with Spain to share watch-listing information, and we
have numerous discussions going on with our foreign partners
around the world to try to increase the amount of sharing that
we have with our foreign partners. So we are, I believe, in a
position where we are now ready, having satisfied those basic
objectives, to refine the watch list and make it better.
I would address just a couple of matters that have
previously been raised, and the first has to do with redress.
We understand that our obligation is to protect the safety of
this Nation, but to do so in a way that protects and preserves
civil liberties and privacy. To that end, as a result of the
recommendations that were made by the OIG in 2005, the TSC has
created a redress office staffed by seven people, dedicated
employees who review every matter that comes to our attention.
To date, they have reviewed close to 500 separate matters that
have been brought to us. They do a complete de novo review of
the watch-listing status of any person who is referred to us to
make an independent determination as to whether that person is
properly listed or not.
We also have put in place a number of processes to address
the concerns that have been raised by the Office of Inspector
General to ensure that we are now, in fact, consolidating both
components of our system so that there is a single, unified,
one-component system of our watch list. We have set up a daily
reconciliation process to make sure that those two components
every day are reconciled. We also have added a compliance
officer to make sure that we have appropriate standard
operating procedures in place. And we have also brought on a
data integrity officer, a senior official from the Department
of Homeland Security, to make sure that we do not have gaps
within our systems so that we are properly structured to meet
our needs, to meet our requirements, and to meet the mission
that has been set out before us.
So, again, I thank you for the opportunity to address you
today, and I am happy to answer any questions that members
might have.
Chairman Lieberman. Very good. Thanks for that excellent
testimony, Mr. Boyle. We will have some questions for you.
Our final witness on the panel this morning is Paul
Rosenzweig, who is the Deputy Assistant Secretary for Policy at
the U.S. Department of Homeland Security. Welcome.
TESTIMONY OF PAUL ROSENZWEIG,\1\ DEPUTY ASSISTANT
SECRETARY FOR POLICY, U.S. DEPARTMENT OF HOMELAND
SECURITY
Mr. Rosenzweig. Thank you very much. Thank you, Senator
Lieberman and Senator Collins, for inviting me. It is a
particular pleasure to be here today. Though I have been with
the Department 2 years and have testified nearly a dozen times,
this is my first opportunity to actually testify in front of my
home Committee in the Senate.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Rosenzweig appears in the
Appendix on page 71.
---------------------------------------------------------------------------
Chairman Lieberman. There is a story there.
Mr. Rosenzweig. I know it very well.
Chairman Lieberman. We tried.
Mr. Rosenzweig. It is especially a pleasure because of the
constructive and thoughtful nature of the discussion we are
having today. I would have a great deal of difficulty
disagreeing with any of the comments and recommendations that
we have heard from the General Accounting Office or with any of
the statements that have gone before. As Senator Collins so
aptly said, it is a big system, and that makes it imperfect to
some degree. And our goal is to make it as close to perfect as
we can, recognizing that it is an unachievable objective.
I speak not as a nominator to the TSC because DHS puts very
few people onto the watch list but, rather, as a consumer of
its product. And as a consumer, we are as troubled by errors in
the system when they exist as anybody, simply because they are
an annoyance to the traveling public with whom we deal every
day; more importantly, they are a waste of resources. For every
time that we look at somebody who is not the right person, that
is time not spent looking in the right place.
I think it is fair to say that, by and large, we have had a
number of successes and much work needs to be done. Let me
briefly give you a sense of some of those successes.
We have put in place a layered system for checking people
as they arrive at the border, to take but one example. That
includes not only the Department of State Visa Lookout System,
but also the export of the No Fly and Selectee Lists to
international airlines for checking of those who are traveling
to the United States. It includes capture of data on all
travelers to the United States, alien and U.S. citizens,
through the Advanced Passenger Information System and the
Passenger Name Records. And, finally, of course, it includes
the final check at the port of entry by Customs and Border
Protection officers provided with the watch list to make a
determination, as Mr. Boyle said, given the best information
available whether or not a particular individual should be
admitted.
We have also had great success and made great strides, I
think, in improving our redress process. Mr. Boyle has
described some of the improvements that were made at TSC.
Within DHS, we have developed the Traveler Redress Inquiry
Program (TRIP) in partnership with the Department of State,
which is a one-stop shop for people to enter the system to seek
redress and, if appropriate, to receive notifications from us
that they get put on a cleared list, in effect.
We have also developed at the ports of entry themselves
something we call the Primary Lookout Override (PLOR) system,
which means that we can make corrections directly on the
screens in front of us and ensure that once we have identified
somebody as a misidentification, a false positive, he never
again gets troubled. And that gets propagated through the
system.
So we have made great strides, I think, but as you said,
there is much work to be done. You mentioned, Senator Collins,
the unfortunate visits of several airlines to Bangor. I am
happy to say that we have not had any in 2 years, and that is
part of our ongoing process. There are two other pieces that
are going forward that should come online in the next months to
year that will improve that even further. One is, as Ms.
Larence noted, the development of the Advance Passenger
Information System (APIS) quick query system. That will require
the transmission of passenger information to CBP for checking
at the National Targeting Center against the Terrorist
Screening Database before the airplane takes off from a foreign
country. It will allow that transmission up until the doors are
actually closed, but will require it before wheels-up. So we
will be doing that checking.
We will also be developing a system called Secure Flight,
which will take into the TSA the watch list name matching for
the No Fly and Selectee lists. As you probably know, today we
export that list to the airlines, and a lot of the problems we
have is simply because there are 63 different airlines that fly
here, and they do it 63 different ways. That creates, at worst,
inconsistency if not error. We have published a Notice of
Proposed Rulemaking to anticipate bringing that on board into
the United States sometime late this year or early next year.
I am constrained to mention at this juncture that we are
resource constrained in doing that. We have requested $53
million in the President's budget for that effort. The Senate
appropriations mark is $28 million, and that will, of course,
delay that implementation going forward. But, nonetheless,
those two pieces of the puzzle ought to improve our ability a
great deal.
But the final thing that I would say is that what we have
come to recognize as consumers is that there are inherent
limitations to watch list name matching by themselves. The case
of the Mexican gentleman with tuberculosis that you mentioned
is an example of that, where we can only work with as much
information as we have, and if the information is incomplete or
inaccurate, that defeats to some degree our ability to conduct
watch list name matching. What we need to do and the other
piece of the puzzle is to go beyond watch list name matching to
enhance our ability to identify people through secure
identification documents, to use the information we collect
about individuals, to identify unknown names through link
analysis--people traveling together where one is known and one
is not known, for example--and, finally, of course, through the
US-VISIT program to develop enhanced biometric capabilities so
that the name does not matter because the fingerprint never
changes while the names may. All of those taken together will
further enhance our ability.
Now, we will never get away from a name-based watch list
matching system because for many people who are deemed threats
to us we do not have the biometric identification, we do not
have the fingerprint. We have the names and the many aliases
that are also records in the Terrorist Screening Database
(TSDB). But as we continue to put on these layers, we will, I
believe, enhance our ability to identify correctly those who
pose a threat and reduce the instances in which we make
mistakes or errors.
Taken together, I think that paints a good picture of how
we at DHS are using the Terrorist Screening Database. We have
had a number of successes. Last year, at the borders, 5,900
positive matches against the watch list--not all of those
denied entry, but all of those people of interest who I am glad
we identified before they entered the United States.
We can do better for sure, but I share with Mr. Boyle--and,
I take it, with Ms. Larence and Mr. Fine--the sense that
between where we were on September 10, 2001, and where we are
now, we have made great strides. More work needs to be done,
but the improvement is quite noticeable.
I thank you for your attention, and I, too, look forward to
answering your questions.
Chairman Lieberman. Thanks, Secretary Rosenzweig. I
appreciate the testimony very much. We are going to do a 5-
minute round so all four of us can have a chance to ask some
questions before the votes go off.
Mr. Boyle--and I am having a hard time not calling you
Commissioner Boyle--let me ask you to comment on the growth in
the size of the watch list. Of course, as I said in my opening
statement, this is good news, assuming all those names are
correct, but the database has gone from 158,000, GAO reports,
in June 2004 to 860,000 today, and it is going up at around
20,000 records per month. And I know there is a process by
which they got on that list.
As it approaches 1 million, is it reasonable to assume that
there really are 1 million people who are known or suspected
terrorists?
Mr. Boyle. No, and for context, the watch list or the
Terrorist Screening Database does not reflect some 800,000
human beings.
Chairman Lieberman. So explain that. I understand that.
Mr. Boyle. Sure. We have approximately 860,000 records in
the Terrorist Screening Database. We create a record for any
identification that a person might use if he or she is trying
to enter this country or is trying to obtain documents in
support of terrorist activity. So, for example, if a person
uses the name Len Boyle and has at various times used three
separate dates of birth, that will create three separate
records in the Terrorist Screening Database.
Chairman Lieberman. OK.
Mr. Boyle. We have some persons for whom we have 50 or more
records, as the GAO report points out.
Chairman Lieberman. Right.
Mr. Boyle. So the actual number of human beings reflected
in the database is far fewer than 800,000. I cannot give you an
exact number because, in fact, we do not know for sure. Some
people actually successfully create an entire separate
identity.
Chairman Lieberman. Yes.
Mr. Boyle. So even if we looked at the database, we might
see what appear to be two completely separate identities that
reflect but one person. So the number is far fewer.
Another thing I think is very important for the public to
understand is that about 95 percent of the database consists of
non-U.S. persons.
Chairman Lieberman. Right.
Mr. Boyle. That is, people who are not U.S. citizens or who
have been granted permanent resident alien status.
Chairman Lieberman. And you are getting those from the
intelligence community, both ours and foreign intelligence,
cooperating agencies?
Mr. Boyle. Most often, yes, sir, and they are coming from
hot spots around the world.
Chairman Lieberman. Right.
Mr. Boyle. Areas of strong anti-American sentiment, and the
theory behind watch-listing those persons is if there is a
reasonable suspicion that this person has been associated with
terrorist activity, perhaps has provided funding to a terrorist
organization or has attended a terrorist training camp, we want
that person listed in the database so that if next week, next
month, next year that person tries to enter the United States,
Customs and Border Protection and the State Department are
going to be able to look at that person, know what we know
about him, what the intelligence community knows about him, and
make a determination.
Chairman Lieberman. OK. So, bottom line, not all the people
on there are there with full justification but that there is a
reason why everyone who is on there is on there, and you are
the man who sees it all. I presume you would say that, to the
best of your knowledge, most of the names on there deserve to
be on there.
Mr. Boyle. Yes, sir. Using the reasonable suspicion
standard, those names are vetted first by the nominating
agency, then by NCTC, then by us to make sure that there is a
reasonable suspicion of a nexus to terrorism.
Chairman Lieberman. Give me your response to the question
that Ms. Larence raised at the end, which is that the TSC is
really doing its job, but that there is no one in the Federal
Government to oversee the operation of the watch lists overall
to make priority decisions about investments or even
accountability. How do you respond to that? And if you think
she is right, should you do that?
Mr. Boyle. Well, as the Members of the Committee are aware,
HSPD-11 designates the Secretary of the Department of Homeland
Security to have overarching responsibility for watch-listing
in general. We, at the Terrorist Screening Center, work through
our governance board; we work very closely with DHS. But we
are, I would put it, more the nuts and bolts of watch-listing
and screening rather than the overarching strategic approach to
screening.
Chairman Lieberman. Would you say the Secretary of Homeland
Security is the one responsible for that overarching view?
Mr. Boyle. Yes, sir, and we work very closely with DHS in
accomplishing those objectives.
Chairman Lieberman. One of the things that really thrills
me most about what you have reported today is the access that
local, State, tribal, etc., law enforcers have to this
terrorism database because it vastly expands our potential to
catch these people before they act. Are the State, local,
county, and tribal law enforcers using it?
Mr. Boyle. They are using it, and they have been fantastic
partners with us, and we are continuing our outreach with State
and local law enforcement. One of the things that we are going
to be doing at the TSC over the next several months is
providing State and local law enforcement with a daily report
showing the encounters with suspected terrorists around the
country so that a police chief in Minneapolis will know how
many encounters occurred in his general area or the new
Commissioner of the Connecticut Department of Public Safety
will know how many encounters occurred in Connecticut. They
have been wonderful partners.
Chairman Lieberman. OK. Thanks very much. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Commissioner Boyle--I will use that name as well.
Mr. Boyle. Thank you.
Senator Collins. I could not help but think that, as you
described the incident that I remember so well from the 9/11
Commission's report, had that State trooper had access to the
kind of information in the system today, that individual
terrorist would have been stopped and many of the others would
have been as well. So I want to commend all of you for the work
that you are doing even as I ask some questions about some
concerns that I have.
Mr. Secretary, this morning we received information from
CBP that the original information that it had received on the
Mexican national with TB on April 16 was not actually an alias,
which had been the agency's justification for not stopping the
individual in the first place. What we found is that, in fact,
CBP and the system had the individual's middle name, his two
hyphenated last names, and a date of birth that had an error in
it, but the error was corrected the very next day.
So the information and the lookout was entered into the
computer system on April 16, and yet this individual was able
to cross the border an astonishing 21 times. And it was only
when his Mexican doctor confiscated his visa and turned it over
to U.S. authorities that he was stopped.
That raises real concerns to me about the effectiveness of
the computerized system and the name-matching process, and
indeed, in the report that GAO did, it found that individuals
were able to pass despite being on the watch list due to not
only errors in the computer system but also that the name-
matching process is not very sophisticated.
If an individual with a dangerous strain of TB can cross 21
times after being put on the list, that raises a lot of
concerns to me about whether you are capable of stopping
terrorists or other public health threats when there is a
slight variation in the name.
Mr. Rosenzweig. Thank you for the question, and it actually
allows me, if you will permit me, to explain the watch list
name-matching algorithms we use in a little bit of detail
because it is important to understand. And to explain, I will
use myself as an example because we are not publicly discussing
this gentleman's name.
My name is Paul Samuel Rosenzweig. My mother's maiden name
is Hahn. And my birth date is actually 10/31/59, but let's
assign me 10/8/59 as a birth date. So when we do a name check
against that, we use as a parameter the very first initial of
my first name, my last name, and my date of birth. So I am P.
Rosenzweig, 10/8/59, in my hypothetical example.
If the information we get from another source, in this case
CDC from the Mexican health officials, is different from that,
the question is how closely that match exists. The individual
that we are talking about used his second name and flipped his
two last names, so he would have been in my hypothetical
example Samuel Rosenzweig Hahn, and he also flipped at least
initially the date of birth, from 10/8 to 8/10. So the match
algorithm would have been S. Hahn, 8/10/59, matched against P.
Rosenzweig, 10/8/59. All three of the parameters that we search
against miss. And what happened on the very first day was we
used those parameters, and we said this person is not in the
system, something must be wrong.
Now, in order to find further information about a person,
we start by suppressing some of the information. We say maybe
there is a mistake in the date of birth, so you take that out
and you ask for all the S. Hahns. But, of course, that does not
catch P. Rosenzweig either because that does not work.
Then you say let's get rid of the first name, S., and catch
all of the Hahns. That, too, would not catch a person whose
last name is not Hahn but is, in fact, Rosenzweig.
It is only when you start asking all people who might have
the name in any particular order--because we do not know the
nature of the mistake up front--that is, Hahn or Rosenzweig or
S. or that date of birth, that I would pop up.
Now, that, too, does not actually sound like too much of a
problem for us to do a check, but then we actually have to
resolve those hits. And we get approximately 1 million land
border crossings a day, and though Hahn and Rosenzweig are
relatively uncommon names, this individual had a more common
set of names.
So to give you an example, and, again, using a hypothetical
example, on Monday of this week J. Rodriguez, picking a
relatively common Hispanic name, there were 816 crossers with
that name. Now, if you suppress the first initial and just went
for Rodriguez, you probably do something like 20 times that, or
16,000. And if you did Rodriguez plus another common Hispanic
name like Gutierrez, to pick our Commerce Secretary, as either/
or, you would maybe get 30,000. I have not run the numbers, but
that is a rough order of magnitude. That 30,000, that is 29,999
false positives for sure, plus, of course, this individual does
not cross every day, and that is repeated every day in the
system.
We have had many complaints that the lines on the Southern
border are already too long. As the type of information we get
is less and less accurate and we widen the field to make an
examination based upon the name check, we get more and more
people who will be overwhelming our secondary inspection
capabilities, extending the line beyond belief and
inconveniencing lots of people who are not matches for any of
those.
In retrospect, it is easy to understand that we should have
just switched the matrilineal and patrilineal names and dropped
the first name and corrected the date of birth. But that is
only because we know what the right answer is now. It is very
hard. And I am happy to talk about it more when----
Senator Collins. My time has expired.
Mr. Rosenzweig. I am sorry.
Senator Collins. But I appreciate the explanation. It is my
understanding that the birth date was corrected very quickly,
so it is not exactly the same as your hypothetical example, but
I understand your point. Thank you.
Chairman Lieberman. Thanks, Senator Collins. Senator
Tester.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. Thank you, Mr. Chairman.
Chairman Lieberman. I bet there are not too many Testers
coming in every day.
Senator Tester. It makes me appreciate that my name is not
John Smith. [Laughter.]
I appreciate the work that each and every one of you folks
do in your respective roles.
I guess the first question is for Director Boyle, and it
gets down to what the rules are for getting into the database.
You had said 95 percent of the people are not U.S. citizens. Is
that correct?
Mr. Boyle. Roughly, yes.
Senator Tester. So are the rules the same for folks that
are not U.S. citizens and folks that are U.S. citizens for
getting on that watch list?
Mr. Boyle. The standard is the same, sir. It is a
reasonable suspicion standard. Each agency may have its own
protocol. For example, an FBI nomination comes about after an
FBI case agent opens a preliminary inquiry or a case on
terrorism, and that has to be consistent with the Attorney
General's guidelines. But the reasonable suspicion standard
applies across the board.
Senator Tester. And 43,000 involved in those kind of
suspicions or counterterrorism investigations?
Mr. Boyle. I do not have the numbers in front of me, sir,
but if that----
Senator Tester. Well, that would be 5 percent of 860,000.
Mr. Boyle. If that is the way the match works out.
Senator Tester. A couple things, and I think the Chairman
touched on one of them, and that is, in fact, does the county,
city, highway patrol, and tribal police forces all have access
to this information?
Mr. Boyle. Yes, sir.
Senator Tester. And they are all encouraged to use it.
Mr. Boyle. Yes, they are.
Senator Tester. And then you talked about seven employees
dealing with 500 reviews on redress. How long has that board
been in existence?
Mr. Boyle. We created the redress group after the 2005
report from the Office of Inspector General. I can get you the
answer by turning around just briefly.
Senator Tester. Well, I guess more specifically, it was
created sometime in 2005.
Mr. Boyle. Yes, sir.
Senator Tester. So it has been in effect for a couple
years?
Mr. Boyle. That is correct, sir.
Senator Tester. Are those 500 people, are the majority of
them Americans or U.S. citizens? If you do not know that, you
can give me----
Mr. Boyle. I do not know. I am turning to our redress
officer.
Senator Tester. That would be good.
Mr. Boyle. I do not have the answer to that.
Senator Tester. And the other thing is you had mentioned
that you felt that a majority of the people that were on that
list were on that list--and make no mistake about it, mistakes
can be made when you are talking about a list this size. In Mr.
Fine's testimony, he said that 38 percent were errors or
inconsistencies. Could you explain that, Mr. Fine? I mean,
there seems to be some difference in opinion on the surface
here.
Mr. Fine. Well, we are not saying that those 38-percent
people should not be on the list, but when we looked at a
sample of 105 that had gone through the quality assurance
review, we found errors in there--for example, the date of
birth was wrong, incomplete, incomplete field, other errors,
which showed that it was not complete and accurate, despite the
fact that it had already gone through the quality assurance
program. That gave us concern about the quality assurance
program, and we wanted there to be more comprehensive protocols
and testing of this quality assurance program to make sure that
they were completely accurate.
Senator Tester. I understand. Mr. Rosenzweig, you said that
there were inherent limitations on the name situation, and the
Chairman talked about Senator Kennedy being on the list at one
point in time. What about the other side of the equation and
you have somebody who gets off the list and just by
happenstance there is a terrorist on the list that has the same
name? What are the impacts there?
Mr. Rosenzweig. Well, thank you for the question, Senator.
Actually, what we are doing inside DHS--and it is parallel to
things that TSC is doing--is we do not take the name off the
list. We will, for example, issue somebody who has gone through
the TRIP program a cleared number that is his kind of personal
additional identification number. We leave his name on the
list, but the addition of additional information means we can
differentiate.
Senator Tester. Can an individual within one of the
agencies or in government place names on this watch list, or
are there clear criteria, period, that are followed in every
case?
Mr. Boyle. There are clear criteria, sir. Any person who is
being nominated to the Terrorist Screening Database who is
suspected of being involved in international terrorism, that
nomination has to be vetted through the National
Counterterrorism Center, and the derogatory information
regarding that nominee must meet the standards that are
appropriate for inclusion on the list.
Senator Tester. Thank you very much. Thanks for your
answers.
Chairman Lieberman. Thanks very much, Senator Tester.
Senator Voinovich.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you, Mr. Chairman.
It is interesting that we hear examples of anecdotal
situations where people are on the list and somehow get through
the system. We also hear similar examples of individuals that
are on the list that should not be on the list and somehow have
not been taken off the list. But the fact of the matter is that
from what I hear today and read in the written testimony, we
have made really outstanding and significant improvement in
screening people and the sharing of information on the watch
list, and I congratulate you.
The thing that is of concern to me is that there are still
some things that need to be done. Mr. Fine, do you have a term
of office?
Mr. Fine. No.
Senator Voinovich. Are you out with the next
Administration?
Mr. Fine. I serve at the pleasure of the President. All IGs
do, although if the President wanted to remove me, he would
have to give the reasons why to both Houses of Congress. I
would note that this Committee and Congress is considering
amendments to the IG Act to create a term of office of 7 years.
Senator Voinovich. Well, the point is that you will be
around for a while. Ms. Larence, you will be around. Mr. Boyle,
you will be out, I believe. [Laughter.]
Mr. Rosenzweig, you will be out also. The real issue for me
is the transformation of some really significant issues in
terms of intelligence gathering for our people. And, by the
way, I just recently met with the FBI Joint Terrorism Task
Force in Cleveland, and they are doing a fantastic job. And the
great response that I got from local government officials is
that they are really sharing information, and they are sharing
information well. In fact, local law enforcement is embedded at
the FBI today. For a former mayor that lived in a town where
the Federal agencies did not even talk to each other, the
outlook is very promising. To see that kind of coordination and
communications is just very exciting and comforting.
But what I am concerned about is this: Does anyone have a
strategic plan on how to remedy the things that you have
pointed out? And is there an agreed upon metric to determine
whether or not, in fact, they have accomplished it so that a
year and a half from now, or more, we are not doing the same
thing but with different players? Mr. Fine or Ms. Larence, are
you going to be able to tell us whether or not they really have
made changes in terms of the issues that you are concerned
about?
Ms. Larence. No, sir. That was the major finding in our
report, that even though the President tasked DHS to work with
all the agencies involved in screening from soup to nuts and
put a plan together, including a recommendation about a
governance board for this process, that has not been completed
to date. I understand from the statement from the Homeland
Security Council that DHS has agreed to put that plan together
and submit that to the Homeland Security Council, and they have
agreed to look at that issue and take action on it. But we are
as concerned as you. You mentioned the growth of the watch
list. Who is managing that? Who is asking those questions? In
our conversations with the National Counterterrorism Center,
they are expressing the same concerns about the growth of the
list and our ability to manage that.
GAO was the only organization for the first time that put
together the outcomes of this process across the agencies and
took a look and said what does that mean and is this process
working as intended. And so unless the agencies and the White
House make that happen, I am afraid not, sir; we will be back
in a couple of years to discuss concerns again.
Senator Voinovich. Well, from the point of view of this
Committee, the issue we ought to be concentrating on is that a
plan be put in place to implement GAO's recommendations. We
must also implement metrics to determine whether or not the
plan is being instituted so that we do not lose momentum during
the change of administrations.
Ms. Larence. Yes, sir, a plan, and also we are suggesting
an entity be identified, and that could be an interagency
governing council, that is given the responsibility and the
accountability to watch this process from soup to nuts.
Senator Voinovich. Mr. Boyle, if you are not getting
cooperation from someone that you think you should have
cooperation from, what do you do?
Mr. Boyle. I go to the Director of the FBI or to the
Secretary of the Department of Homeland Security, and the
cooperation has never been a problem, sir. And with respect to
your question about the recommendations, the Office of
Inspector General made 18 recommendations to the Terrorist
Screening Center. We have accepted all of them. We will be
meeting with Office of Inspector General staff in early
December. I expect that as many as six or more of those
recommendations we can close out as having been satisfied.
Others are more long term, and we will be presenting the Office
of Inspector General with our long-term plan to address each of
those matters.
Senator Voinovich. Thank you. Mr. Chairman, the only thing
that I would recommend is that either you and Senator Collins
bring them in and see the plan or have another hearing.
Chairman Lieberman. We will do one or the other, and thank
you for focusing on this.
Let me mention briefly how we are going to proceed. Senator
Carper has yielded to Senator Warner for one question. Then
Senator Carper will proceed. I will head over to vote with
Senator Warner, leaving Senator Carper with really unlimited
power for a few moments. And then he can recess the hearing,
but then we will come back for a few more questions. It could
take 20, 25 minutes before we come back, but hang around.
Senator Warner.
OPENING STATEMENT OF SENATOR WARNER
Senator Warner. Thank you, Mr. Chairman. I thank my
colleagues.
We are privileged in the Commonwealth of Virginia to have
the National Ground Intelligence Center, and I visit quite
frequently, and they are on the cutting edge of biometrics. And
it has come to my attention--I am not sure of the accuracy--
that the Terrorist Screening Center presently does not have a
number of these capabilities, including the use of biometrics.
Are you leveraging research and capabilities from other
areas to incorporate it at the Terrorist Screening Center? Are
you planning to get biometrics capabilities? Or do you think it
should be made a part of the program? Please answer the
question for the record.\1\
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\1\ The responses from Mr. Fine and Mr. Boyle appear in the
Appendix on pages 278 and 291 respectively.
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Mr. Boyle. Yes, sir.
Senator Warner. I will ask each of the witnesses to make a
contribution. Thank you.
Mr. Boyle. Biometrics will play a key role in----
OPENING STATEMENT OF SENATOR CARPER
Senator Carper [presiding]. I am going to ask you to
withhold your answer at this time.
Mr. Boyle. OK. But put it in the record?
Senator Carper. If each of you would do that, it would be
much appreciated. We have a vote on the way. We are voting on
whether or not to order an up or down vote on the nomination of
Leslie Southwick to serve on the Fifth Circuit Court of
Appeals, and we have about 6 minutes to go. I do not want to
miss that vote.
I have a statement for the record. I will ask unanimous
consent that it be entered into the record. Since there is no
one here but me to object, I suspect it will show up in the
record.
[The prepared statement of Senator Carper follows:]
PREPARED STATEMENT OF SENATOR CARPER
Thank you, Mr. Chairman.
This is a very interesting hearing for me. My staff and I have
spent a great deal of time over the past year or so learning a lot
about the watch list process. We were doing this to help a constituent
and a friend from Delaware who was having just a terrible time getting
through airports.
This gentleman has a name that I'm assuming is similar to a name
that appears on one or more of the watch lists out there. Depending on
who was screening him when he got to the airport, he might have to wait
hours to get through security. I believe he also missed flights from
time to time. I eventually had to go all the way to the TSA
Administrator's office to set things right.
I found this situation troubling not because it involved someone
from Delaware, but because it told me that we're probably spending a
lot of our time and resources inconveniencing innocent people. And time
and resources are not unlimited, so we're probably missing
opportunities to catch individuals who truly are worthy of our
scrutiny.
According to the GAO report that inspired this hearing, this is in
fact the case. There have been a number of instances when individuals--
terrorists or suspected terrorists, I assume--have been able to board
planes or to enter the country when they probably should not have been
able to.
I'm pleased that we were able to make the watch list system work
better for my constituent in Delaware. It appears, however, that we
have our work cut out for us if this system is going to be as effective
as it needs to be.
We need fewer false positives, of course, but it's more important
that those who we rely on to make appropriate use of the terrorist
watch lists--agencies like TSA, law enforcement, the airlines--are
armed with the up-to-date and accurate information they need to make us
safe.
Senator Carper. I have two questions that I will ask each
of you to respond to for the record. In fact, the first one,
Secretary Rosenzweig, I will ask you to respond to it, and the
second one, Ms. Larence, I will ask you to respond. First of
all, to the Secretary, this is a question on a system called
Secure Flight. I understand that the Department of Homeland
Security has a system in the works called Secure Flight that at
least some believe will more accurately screen individuals at
the airports against terrorist watch lists. Explain to us how
Secure Flight will reduce false positives and other screening
issues that have been discovered over the years. And, further,
I would ask when do you believe the system will be up and
running and what is your Department doing to help airlines
improve their screening processes in the meantime?\1\
---------------------------------------------------------------------------
\1\ The response from Mr. Rosenzweig appears in the Appendix on
page 305.
---------------------------------------------------------------------------
Mr. Rosenzweig. It would be my pleasure.
Senator Carper. We will give you a copy of it before you
leave.
And, Ms. Larence, you note in your testimony that the
decision on whether or not to place someone on the watch list
is often somewhat subjective. There are individuals apparently
on the watch list who are terrorists, suspected terrorists, but
there are also some there who are simply being investigated for
some other reason. Are there clear enough rules out there for
determining who should and who should not be on the list and
who ultimately makes the decision and what does he or she base
his or her decision on? You are the one who made that point. I
believe that would be a question, I think, for the Secretary,
and if you would respond to that for the record, I would be
grateful.\2\
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\2\ The responses from Mr. Boyle and Mr. Rosenzweig appear in the
Appendix on pages 292 and 311 respectively.
---------------------------------------------------------------------------
With that having been said, we thank you for being here. We
thank you for your testimony. And I am going to just say for
now the hearing is in recess, but we are not adjourned, so hold
on. Thanks very much.
[Recess.]
Chairman Lieberman [presiding]. The hearing will reconvene.
Thank you for your patience. I hope that one or two other
Members will come back because they indicated to me that they
had some other questions.
Let me go first to you, Ms. Larence, and this question of
who has overall responsibility for, you might say, the
strategic decisions related to terrorist screening in the U.S.
Government. Mr. Boyle, as you heard, indicated that the
Secretary of Homeland Security has that authority. There was a
plan submitted, never adopted, by the Homeland Security
Council. I am not clear exactly why that has not happened. Are
you?
Ms. Larence. No, sir. We actually met with each of the key
players, and they gave us their perspectives on their role. The
Director of National Intelligence staff obviously said they
have a role in information and intelligence but not in
screening operations, so they did not really think they were
the appropriate person or organization to do that.
Chairman Lieberman. Right.
Ms. Larence. Likewise, TSC explained their role. So DHS was
tasked with working with the agencies to develop the plan, but
DHS was not tasked with being the overall entity that we are
calling for. And so it is our understanding that one possible
model that was suggested would be an interagency council with
representatives from each of those key players in that
screening process. TSC has a council like that already in
existence to advise them on their piece of the watch list
process. Our point, though, is such a council would need
additional authorities to be able to have responsibility for
intelligence operations and outcomes.
Chairman Lieberman. And those authorities would be able to
do what? Spell it out a little more.
Ms. Larence. We think that somebody needs to be
accountable, again, for really evaluating the watch list
process, to make sure that, for example, they would answer
questions about how are agencies making nominations, and are
they doing that consistent with the right criteria. They could
look at the screening across agencies to make sure that this is
being done consistently. They could look at how the information
is being used that is developed from the watch-listing process.
And, most importantly, they could monitor the outcomes of the
process to determine if it is complying with privacy issues, if
we are getting the types of outcomes that we want, and how we
can better manage misidentifications. And they could also help
to make sure that people consistently apply new technical
opportunities and tools such as new computer algorithms or more
sophisticated search engines.
Chairman Lieberman. Yes. Mr. Boyle, are any of those
responsibilities ones that you believe that you carry out now?
Or do you think that they really are in a different direction
than what you have been doing every day?
Mr. Boyle. Some of those fall pretty squarely, Senator,
within what we are doing right now. For example, the algorithm
project is something that we have been involved with. We are
currently approaching the testing phase to try to change search
algorithms so that the search engines that are being used
across the communities are more finely tuned and attuned more
specifically to the types of names that we are encountering in
the process these days. So that is one example of a matter that
we are intimately involved in. I consider that part of the
tactics, if you will, of screening, the nuts and bolts that we
are involved in, as is biometrics, which we are also involved
with.
Chairman Lieberman. Ms. Larence, do you reach a conclusion,
based on all your knowledge of what is happening here, about
what the best person, office, or group would be to perform this
larger oversight role?
Ms. Larence. The potential model of an interagency council
seemed to us to make sense because there are so many equities
involved in this process.
Chairman Lieberman. Right.
Ms. Larence. If I could just respond quickly, the Algorithm
Working Group is a good example. It is going to be up to the
agencies to voluntarily implement whatever algorithm is
developed from that group, so there is really no one saying,
are we going to be implementing this consistently or making
sure that this happens.
So a lot of the decisions are made through consensus,
working groups, or voluntary measures, and we are just
wondering if that is the most effective way to manage this
process.
Chairman Lieberman. Yes, OK.
Commissioner Boyle, let me go to a different part of this,
which is what you do to make sure that the nominating
agencies--that is, agencies that suggest you put somebody on
the terrorism list--are following the same criteria.
Mr. Boyle. Again, as we noted earlier, Senator, the
standard that is used is one of reasonable suspicion. In the
first instance, that determination is made by the nominating
agency itself.
Second, all international terrorism nominations--and about
98 to 99 percent of the database are persons who are associated
with international terrorism.
Chairman Lieberman. Right.
Mr. Boyle. All of those nominations go to the National
Counterterrorism Center where there is a second review or
vetting of the underlying derogatory information to make sure
it meets appropriate standards, and then it comes to us. So
there are three phases at which the determination is made does
this derogatory information meet a reasonable suspicion
standard.
Chairman Lieberman. Senator Levin is here, and I want to
ask one more line of questions--I am glad to see him--and then
I will yield to him. This, Commissioner Boyle, is on the
question of what happens when there are hits found to the list.
I believe I read and Ms. Larence said today that there were
53,000. Is that the right number, Ms. Larence?
Ms. Larence. Yes, sir.
Chairman Lieberman. And I understand that GAO issued a
restricted distribution version of its public report to us
today which provides, I think, valuable statistics about watch
list encounters and the results of those encounters. I know we
cannot talk about those statistics in detail, but to the best
of your ability, I wonder if you could talk a little bit about
the categories of things that happen when somebody's name
genuinely turns up on the list. I am leaving aside here--well,
you might want to mention it--the false positives. What else
happens?
Mr. Boyle. When our call center receives a call from either
a Customs and Border Protection agent or a municipal police
officer who has encountered one of our watch-listed subjects,
our call taker in the first instance, accessing all of the
underlying information, verifies that this is or is not the
watch-listed person.
Chairman Lieberman. So let me interrupt you a second. When
there is what I would call a hit, a match, in each case the
person at the point of entry, they call that 24-hour, 7-day-a-
week service?
Mr. Boyle. They should be calling. Now, we do have
instances where we do not get calls, and we are working
actively to try to prevent that. But, yes, if a police officer
pulls somebody over or a CBP agent encounters someone at a
border, they will get a screen that tells them to call the
Terrorist Screening Center.
They call the center. One of our analysts receives the
call, accesses electronically all of the underlying
information, and in the first instance tries to determine and
does determine is the person who you are encountering the
watch-listed person or is it someone who unfortunately shares a
name.
Chairman Lieberman. Right.
Mr. Boyle. We can usually make that determination within 10
minutes or less. If, in fact, the person who has been
encountered is the watch-listed person, we then immediately
notify the FBI's Terrorist Screening Operations Unit. The TSOU
then notifies the case agent who is responsible for the case
that has that particular person watch-listed so that there can
be an appropriate operational response.
The other things that happen are that the screen that the
police officer in this example would receive tells the police
officer, according to a category code, what action can be
taken. Most often it is not to arrest because there has to be
an active arrest warrant for that to happen, but most often it
is simply to try to gather information. So that is the general
procedure that happens.
Just to link back momentarily to the Ziad Jarrah case, if,
in fact, the person who has found his way into the United
States and is encountered as a known or suspected terrorist is
not the subject of an FBI investigation, then when we notify
the Terrorist Screening Operations Unit, they will set a lead
to the nearest FBI office, creating an investigation to follow
up on that person to make sure that the FBI monitors what he is
doing.
Chairman Lieberman. That is really interesting because I
would guess that most people would suspect that when you have
found somebody who is a known or suspected terrorist, you would
take them into custody, or the law enforcement person would
take them into custody. But what you are saying is that there
is really not a basis for that.
Mr. Boyle. Only if there is an active arrest warrant or a
detention order or if the person has done something else that
would justify an arrest. But, no, the fact that the person is
on the list does not in and of itself justify an arrest.
Chairman Lieberman. But the Members of the Committee and
the public I presume can have some confidence that having seen
that person, that person is likely then to be followed if this
is really a known or suspected terrorist.
Mr. Boyle. It is a great opportunity for law enforcement to
gather intelligence about that person because if the case agent
is investigating that particular suspected terrorist and that
person is stopped on the highway, we can get valuable
information, such as: Where he is at that particular moment;
who else is in the car with him; has he been found near a
critical infrastructure or some other area that is particularly
sensitive. It is a tremendous intelligence tool.
Chairman Lieberman. Thanks. Very interesting. Very helpful.
Senator Levin, welcome.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Thank you. Thank you, Mr. Chairman, for
holding this hearing. I will try to avoid questions if they
have been asked before.
The IG has found duplicate records in the Terrorist
Screening Database which can slow down the screening process or
even put a law enforcement officer at risk if the handling
instructions are inconsistent. The IG's report says that TSC
officials stated that they will review the TSDB on a weekly
basis for duplicate records. Is that now going on?
Mr. Boyle. Yes, sir, and I think it is important to
identify that duplicate records in some instances are
unavoidable because we have to maintain more than one record on
a particular person because our downstream customers may want
different fields of information. So while it appears to be
duplicative because the name, date of birth, etc., is the same,
we have to include some additional information.
What is of real concern and what was importantly pointed
out by the Office of Inspector General is when there are
inconsistencies that might result in a different sort of
category code. We are reviewing that to make sure that does not
occur.
Senator Levin. About how many inconsistencies have
appeared? Is this a rare thing? Is this one out of a thousand?
Mr. Boyle. I believe that the figure that was identified by
the Office of Inspector General was 38 percent?
Mr. Fine. I think that referred to problems with the
quality assurance review. I think our report said that we saw
approximately 2,000 in the first instance of duplicate records.
I am not sure all of them had different handling instructions,
but that was the concern that we had, duplicate records with
significantly different handling instructions.
Senator Levin. What percentage is that?
Mr. Fine. If there are approximately 800,000 records, it is
a very small percentage.
Senator Levin. So it is less than a quarter?
Mr. Fine. Less than 1 percent, yes.\1\
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\1\ A clarification of this response by Mr. Fine appears in the
Appendix on page 279.
---------------------------------------------------------------------------
Senator Levin. OK. The GAO report says that the Terrorist
Screening Center is developing a process that would permit law
enforcement and border control agencies to directly inquire of
the database as opposed to contacting the TSC by telephone when
there is a possible hit. What is the status of that process to
allow direct access to the database?
Mr. Boyle. Well, that is a remote query that we are in the
process of putting in place. Right now the only availability of
that is for certain FBI offices which we have made available so
that agents at certain airports and other areas can access the
database through a BlackBerry device.
I should point out, though, Senator, that even once that
remote query project is in practice, we will always want the
encountering agent to call our center because it is our call
takers, our analysts who have full electronic access to all of
the underlying information on the watch list.
Senator Levin. And it is not possible for someone in the
field to have that direct access to all the underlying data?
Mr. Boyle. No, because of classification issues.
Senator Levin. All right. Now, the IG follow-up audit of
the Screening Center found that there are two watch lists, not
one. One is a Web-based system and the other is an older legacy
version. They are supposed to be identical but they are not.
The IG found that multiple watch list records were missing from
one or the other database that was used by either visa, border,
or law enforcement personnel. The Terrorist Screening Center
has apparently told the IG that having two versions is
necessary for technological reasons. That is troubling to me,
but explain why you have to have two versions.
Mr. Boyle. Well, we have had substantial discussions with
our friends from the Office of Inspector General about that. At
one point there were two separate systems. Right now we have
what I would call two components of a single system. We have an
ingest system through which we receive the nominations. We then
have to take those nominations and export them or the export
system to our downstream clients.
The short answer to the question, sir, is that sometime
during the first quarter of calendar year 2008, we expect to be
able to retire that export system so that everything will be
done through that first component, which will satisfy the IG's
understandable concern.
Second, with respect to the time between now and then, as a
result of what the IG has identified, we now do a daily
reconciliation of those two components so that at the end of
each day, if they do not zero out, the very next day one of our
analysts takes that report and his first priority, his first
order of business is to ensure that those records are, in fact,
properly reconciled.
Senator Levin. And you have the funding to achieve that
goal in 2008?
Mr. Boyle. Yes, sir.
Senator Levin. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Levin.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Fine, the President has directed DHS to work with other
agencies and departments to identify other appropriate
screening opportunities, including the use of the watch list to
screen applicants for private sector jobs when it is a job
involving critical infrastructure.
Now, some people who advocate this point out that if you
are having an individual who is working in a chemical plant,
for example, this kind of screening could be very helpful.
Others, such as the Constitution Project,\1\ the think tank,
have said that it is inappropriate to use watch lists for
employment screening. And still other people have pointed out
that a person who is turned down for a job who was mistakenly
listed on a watch list would not be likely to conclude that was
the reason, unlike a frequent traveler where it is pretty
obvious that is what has occurred.
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\1\ The Constitution Project's report appears in the Appendix on
page 78.
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Do you have any thoughts on this issue that you could share
with us?
Mr. Fine. I do think that it is an important issue to
pursue, but it raises some significant concerns, particularly
because of the factors that you just identified. It is not a
minor inconvenience that you are going to be delayed at the
airport a short period of time. When you are looking at it in
the private sector, it can have very serious implications about
not being able to get employment without having any reason or
knowledge about why that is. It also gives us concerns because
of the size of the watch list and the potential inaccuracies in
the watch list about the impact of the mistakes on it.
So while I am not opposed to pursuing this, I do think that
these important safeguards need to be considered and discussed.
One of the things that I do think needs to be discussed is not
solely how people get onto the watch list--we have had a lot of
discussion about this today, and it is an important subject--
but how people get off of the watch list, how people are
removed. And the FBI has a process where if the case is closed,
they are removed. I am not sure all the other entities have
that same process or have that same standard, so I agree with
the GAO that they need to look at that in terms of a high-level
review and pursue these opportunities, but to ensure that there
are safeguards in place.
Senator Collins. I think that is a very difficult issue
when you start extending the watch list to matters of
employment. Clearly, we do not want terrorists to have the
ability to work at a nuclear power plant or chemical facility
or other critical infrastructure. But if you start having a
system where the personnel director of a company has access to
a watch list which may not be accurate and uses that to turn
someone down for a job, I think it raises a host of new
questions and we need to proceed with a lot of care in that
area.
Mr. Boyle, that raises an issue as well about how long it
takes for an individual who is mistakenly included on a watch
list to obtain redress. The IG has found that TSC on average
takes about 67 days to close its review of an inquiry from an
individual who believes he or she is mistakenly listed.
Now, for a busy traveler, for a business traveler who is
traveling every single week, several times a month, 2 months
can involve a great deal of inconvenience if they have been
incorrectly identified. Could you comment on what TSC is doing
to try to expedite these reviews?
Mr. Boyle. Yes. We are monitoring on a regular basis the
average time that it takes us to resolve these matters.
Sometimes because we must spend a fair amount of time dealing
with the nominating agency to try to find out exactly what the
information is that supports the nomination and that nominating
agency's view of that person's watch list status, it can take a
while, obviously particularly if we are dealing with someone
who is overseas. But we are monitoring that. We are trying to
reduce the time.
I would also point out that, as the OIG report mentioned,
although we would like to see the time that it takes reduced,
the quality of the work that is being done by our redress unit
is quite remarkable. And we certainly do not want to sacrifice
the quality of what those folks are doing for the sake of
expediency.
Senator Collins. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thanks very much, Senator Collins.
Commissioner Boyle, I know today the Committee did receive
the Memorandum of Understanding with this new series of
policies regarding redress. Is there anything more you would
like to say about that. We appreciate the fact that it has come
into effect. Parties to this are the various agencies involved
in the various terrorism databases.
Mr. Boyle. Yes, and thank you for the opportunity to
address that, Mr. Chairman. This has been the result of a lot
of hard work by a lot of folks over the past several months.
We have had in place a process whereby our redress analysts
in our redress unit work with the various agencies. The
Memorandum of Understanding that is being released today
commits each one of those agencies to identify a high-level
official who will be responsible for ensuring that each of
those agencies responds appropriately and quickly to any
request for information relating to redress. So we believe that
this will be a help in expediting the process and will continue
to help us do so in a way that produces the appropriate result.
Chairman Lieberman. Good. Secretary Rosenzweig, let me come
back to the question and answer you had with Senator Collins
about the Mexican national with tuberculosis who came back and
forth across the borders undetected. I understood your example,
and it was quite perplexing in its way. I want to mention two
things to you to ask you to respond now or afterward.
One, I have seen the name of the individual, and it is not
a common Hispanic name.
Two, my staff has continued to talk to the folks from
Customs and Border Protection, and I do not know exactly what
the individual did. I must say I do not have that, and I would
like to; I think the Committee should understand that, the
public should, from yourself or the Customs and Border
Protection people. But I gather from the CBP people, or my
staff does, that this was not a switch of names, that the
person did something else.
Mr. Rosenzweig. Thank you for the opportunity. Let me be
clear. My hypothetical----
Chairman Lieberman. That was a hypothetical.
Mr. Rosenzweig [continuing]. Was about me, and it shows the
difficulty when we do not know what the mistake is. In the
Hispanic culture, it is very common for transposition.
Chairman Lieberman. Right.
Mr. Rosenzweig. It is very common for a transposition of
birth dates because of the European style of 12/9 becoming 9/
12.
We got a lookout, and the very first information lacked the
first name and had the wrong birth date. We try within that all
the other possible permutations that we can think of, given our
knowledge--I mean, we are not, despite the fact that some
people might think so, routinized robots who do not actually
try and approach these things with creativity. We tried
reversing the names. We tried reversing the birth dates. We did
indeed get a corrected birth date. But we do not know if that
is a correct corrected birth date. The first one having been
wrong, we do not know if the second--it is only when we
actually find the person a month later that we know that it is
actually a corrected birth date as opposed to another incorrect
iteration.
We run all of those possibilities. In none of them, as I
understand it--and, granted, this is very fact intensive--did
we have a match, principally because we lacked a first name
that was at all accurate.
Chairman Lieberman. So you ran those at the time the person
came through or afterward to see how the person got through?
Mr. Rosenzweig. No. We are looking for him in our records.
This person is identified to us as a frequent border crosser.
If that is accurate, we should have a record of this person
having crossed the border, not only the 20 times between the
date and afterwards, but also the 50 times that he did before
we ever got a report from the Mexican health authorities,
which, of course, I cannot do anything until I get a notice.
When we throw all of these iterations of possibilities at
the data set and say, do you have any Hahns, do you have any
Rosenzweigs, do you have any 10/31/59s or 10/8/59s or 8/10/59s,
we do not get a match that matches these descriptions.
Chairman Lieberman. OK. So that was just an example, and
you are not sure whether he switched his name or not, the two
names?
Mr. Rosenzweig. We have no information about what the
source of the incomplete--I think the fair way to say this is
incomplete information that we got.
Chairman Lieberman. So at that point, you have somebody
that Mexico has told you is coming back and forth with a real
contagious health problem, and you are trying to find him but
you cannot. I mean, that is basically----
Mr. Rosenzweig. That is it. And, perhaps I will just
disagree with you slightly in characterization, but of the
three names that we had, two of them to our eyes looked
reasonably common, particularly the first name we got and one
of the two latter names. Whether they are as common as
Rodriguez, that is a value judgment that I----
Chairman Lieberman. Right.
Mr. Rosenzweig. But my Rodriguez example was intended to
demonstrate that the only way I can guarantee finding one is to
take all three names and all the possible dates of birth and
run them all separately. And that just creates lots and lots of
false positives.
If we have the accurate information with the name-matching
algorithm, we can find a person, but even there we are also
hobbled by misspellings. One of these names is indeed a complex
name, so we can try variants on that spelling. But we do not
know what the error is in the information we have until roughly
40 days later when we finally get the match and say, ``Ah, of
course. If only we had known.''
Senator Collins. Mr. Chairman.
Chairman Lieberman. Senator Collins.
Senator Collins. Could I just follow up on your point?
Chairman Lieberman. Sure.
Senator Collins. Because my information is a bit different.
First of all, the agency knew that this individual was crossing
at the El Paso, Texas, border crossing, so it is not as if we
have a huge number of border crossings where this individual is
coming through. Surely, that should have helped narrow the
search.
Second, the fact is, as I understand it from Customs and
Border Protection, the individual was able to cross 21 times
after the agency had the correct hyphenated last name, and I
agree with the Chairman that this is not like Joe Smith. This
last name is a hyphenated, not common last name. And you had
the correct date of birth. When you know where the individual
is going to be crossing, what his last name is, and his correct
date of birth, the fact that the first name is missing seems to
me not a sufficient explanation for why there was not a match.
You had the middle name, the hyphenated last name, and the
correct date of birth, and you know where he is coming from.
You know at which border crossing to be on the alert.
So I think this does not fit your example at all. Your
example is a compelling one of what can happen, but it does not
fit the facts of this case as they have been presented to me.
Mr. Rosenzweig. Again, with respect, Senator, I think we
are looking at it backwards. We now know that El Paso is the
place that he most frequently crossed. In fact, my information
is that all of his crossings were not at El Paso but at other
ports of entry as well. So, unless we know in advance that is
the only place, we are obliged to look everywhere.
I would also say that El Paso is one of the three busiest
crossing points in the United States on a daily basis. There
are thousands and thousands of people.
It is the case that with the information we had, had we
restricted ourselves to that, we could have picked out all the
people with those names crossing across the border. But not
knowing who he is and without the first name, that would have
included everybody who has either of those two hyphens, because
you and I now know that is the correct answer, that his name is
Rosenzweig-Hahn--and, again, I will not use his personal name.
But, with respect, it is a bit of back-seat driving. I cannot
know that until I find him. So I have to look at all the
Rosenzweigs and all the Hahns in order to be able to be sure
that I am getting the right answer.
We try and heighten our scrutiny of those people, but that
is a larger number of people than you might suspect.
Senator Collins. He was not using an alias. That was the
first report that we got from the Department--that was the
reason. That turned out not to be the case.
I am really concerned about this. This person was
potentially very dangerous from a public health perspective,
but what if this had been a terrorist? If a terrorist about
whom we have an accurate last name and an accurate middle name
and an accurate date of birth could cross 21 times, when you
know it is likely where the individual is going to be crossing,
that is of huge concern to me. And I say that with all due
respect to the good job that is being done on this watch list.
We have come a long ways. But if, in fact, with that kind of
information a person can cross into our country, that really
concerns me.
Mr. Rosenzweig. Well, I do not mean to suggest that it does
not concern us as well, and certainly with this event we are
going to go back and review our procedures on watch list name
matching to ensure that we are doing the best that we can. But
I do have to say that given the volume of people that we have
crossing the land border and not knowing ex ante whether or not
we actually have the accurate names--because we have already
determined, at least to some degree, that there is something
missing because it is not coming up on our system fully. We
have to always characterize and balance the risk/benefit of who
we are targeting for secondary screening in the devotion of
resources.
I have to also say--and I think that this is predictive but
accurate--that if the case were somebody who was a terrorist or
on the terrorist watch list, which, of course, this person is
not because it is a public health risk, we would probably apply
a different risk calculus, especially if it were an active
investigation of somebody we thought were coming immediately to
do harm to the United States. We would stop all the Rosenzweigs
and all the Hahns no matter what, and that would just be too
bad and a difficult time for the mistakenly stopped ones who
would be cleared after secondary. But we have to dial up and
dial down the degree of closeness of screening and match that
we seek, and at busy ports on the land side, we are disabled by
the volume and by the need to process people in 10 seconds, at
least as we currently stand, from doing much better.
I should add, by the way, that we have modernization money
in our budget, too, $100 million. The screens my guys use are
25 years old for these things, so that is part of the answer,
better software and things like that.
Chairman Lieberman. OK. You understand our concern.
Mr. Rosenzweig. Absolutely.
Chairman Lieberman. And we are going to stay on this. As
one of you said earlier, a terrorism watch list which is based
on names obviously has limitations. One of them is if somebody
uses an alias that they have not used before. Right,
Commissioner? Then we are not going to catch him.
Mr. Boyle. Yes, sir, unless we have some reason to link
that alias with that person.
Chairman Lieberman. To that person. Am I correct in my
recollection, surprisingly, that all or most of the September
11, 2001, terrorists actually used their own names?
Mr. Boyle. For the most part, that is correct.
Chairman Lieberman. That is what I thought, which was
amazing. Now, of course, what is perplexing, to put it mildly,
about this case of the Mexican national with tuberculosis is
that we, our government, had his name from the Mexican health
authorities, and we were still, for the reasons you said, not
able to stop him. I suppose hindsight is always clearer, but I
was interested in what you said, that obviously if we knew this
person was a terrorist, even if we had the confusion, in your
case we would have stopped everybody with those two names. It
is an interesting value judgment when you have somebody with
tuberculosis which could cause a real health problem here. I am
sure people would have complained, but, again, what I am about
to say I say with hindsight, I wish you had stopped everybody
with his two names if that is what was necessary to stop him
from coming in. It would have bothered a lot of people, a lot
of false positives, but I think overall public interest would
have been better served.
Mr. Rosenzweig. If I may, sir, and this is a complete throw
the ball to somebody else. But in making those kinds of
determinations, we rely obviously very strongly on Health and
Human Services and the Centers for Disease Control to tell us
what they assess is the risk and how much or how little we need
to dial up or dial down the matching process. And I am told
that we actually had this discussion with HHS, and they made a
judgment that they did not want to press for better
identification information because that has systematic effects
about discouraging people from seeking treatment. That is
completely outside of my lane, and it certainly is something
you should be interested in following up on. But we take the
medical judgments as given to us by our partners. We do not do
doctors.
Chairman Lieberman. OK. So, I ask you to keep us posted on
your continuing review of this because we are not satisfied yet
because we do not want this to happen again, and we know that
the GAO report mentions other cases in which people on a watch
list earlier this year--or was it last spring--got by and got
into the country. And it also reminds us that to the extent
that we move to tamper-proof IDs for people to come into the
country who are able to make that easily entered into an
electronic system and that we move to biometrics to the extent
that we have biometrics on people, that is obviously at a
higher level of certainty.
But I want to come back to the beginning because I think
the important thing is that the Terrorist Screening Center and
the accumulation of lists and the process you have has raised
our guard much higher than it was before and on September 11,
2001. For that we thank you. And I guess the other part of this
clearly is that there is more to do. We have a big country, and
a lot of people coming in and out of it every day, astounding
numbers, really--legally I am talking about, not even
illegally--and how we do our best using modern technology to
filter out those who either are dangerous to us in terms of
terrorism or health is critically important. So I thank you.
Senator Collins, do you want to add anything?
Senator Collins. No, thank you.
Chairman Lieberman. Thanks very much for what you have been
doing. The hearing record will be open for 15 days for Members
to submit additional questions to you and for you to answer
some of the questions. Senator Warner, I know, would
particularly like an answer to his question for the record.
I thank you very much. The hearing is adjourned.
[Whereupon, at 12:18 p.m., the Committee was adjourned.]
A P P E N D I X
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