[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 ======================================================================= 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 Printed for the use of the Committee on Homeland Security and Governmental Affairs U.S. GOVERNMENT PRINTING OFFICE 38-989 PDF WASHINGTON DC: 2008 --------------------------------------------------------------------- For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001 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 ------ 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 ---------- 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. --------------------------------------------------------------------------- \1\ The GAO Report on ``Terrorist Watch List Screening'' appears in the Appendix on page 87. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \1\ The prepared statement of Ms. Larence appears in the Appendix on page 37. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Fine appears in the Appendix on page 54. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \1\ The responses from Mr. Fine and Mr. Boyle appear in the Appendix on pages 278 and 291 respectively. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- \1\ The Constitution Project's report appears in the Appendix on page 78. --------------------------------------------------------------------------- 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. 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