[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
                   SHARING AND ANALYZING INFORMATION 
                          TO PREVENT TERRORISM

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


                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 24, 2010

                               __________

                           Serial No. 111-116

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY


                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 24, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     2
The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California, and Member, Committee on the 
  Judiciary......................................................     4
The Honorable Darrell E. Issa, a Representative in Congress from 
  the State of California, and Member, Committee on the Judiciary     6
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Committee on the Judiciary..........     7
The Honorable Ted Poe, a Representative in Congress from the 
  State of Texas, and Member, Committee on the Judiciary.........     8
The Honorable Tom Rooney, a Representative in Congress from the 
  State of Florida, and Member, Committee on the Judiciary.......     9

                               WITNESSES

Mr. Russell Travers, Deputy Director for Information Sharing and 
  Knowledge Development, National Counterterrorism Center
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
Mr. Timothy J. Healy, Director, Terrorist Screening Center, 
  Federal Bureau of Investigation
  Oral Testimony.................................................    17
  Prepared Statement.............................................    20
Ms. Patricia Cogswell, Acting Deputy Assistant Secretary, Office 
  of Policy, Department of Homeland Security
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
The Honorable Patrick F. Kennedy, Under Secretary for Management, 
  U.S. Department of State
  Oral Testimony.................................................    44
  Prepared Statement.............................................    47

                                APPENDIX

Material Submitted for the Hearing Record........................    75


                   SHARING AND ANALYZING INFORMATION 
                          TO PREVENT TERRORISM

                              ----------                              


                       WEDNESDAY, MARCH 24, 2010

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to notice, at 10:15 a.m., in 
room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Nadler, Scott, Watt, 
Jackson Lee, Delahunt, Pierluisi, Quigley, Chu, Schiff, Smith, 
Coble, Goodlatte, Lungren, Issa, King, Franks, Gohmert, Jordan, 
Poe, and Rooney.
    Staff Present: (Majority) Perry Apelbaum, Staff Director 
and Chief Counsel; Aaron Hiller, Counsel; Renata Strause, Staff 
Assistant; (Minority) Andrea Loving, Counsel; and Caroline 
Lynch, Counsel.
    Mr. Conyers. Good morning, ladies and gentlemen. Someone 
said are we going to start anytime soon? And I know Dan 
Lungren's voice when I hear it. So let's begin.
    We are having an oversight hearing on ``Sharing and 
Analyzing Information to Prevent Terrorism.'' And I am 
privileged that this discussion could arise in the Judiciary 
Committee. The 9/11 attacks, the Fort Hood shootings, and the 
attempt to destroy Flight 253 headed for Detroit this past 
Christmas all reveal limits of our government's ability to use 
information to stop terrorist attacks. These are longstanding 
issues that predate both the Obama and Bush administrations. So 
today we have a valuable opportunity to explore what the 
government has done and what it is doing and what it needs to 
do to put these problems in perspective and to keep everyone in 
this country as safe as possible.
    Now, it is no secret that the Administration has faced a 
series of political criticisms in the wake of the attempted 
Christmas Day airplane bombing in Detroit because FBI agents 
gave Miranda warnings during their interrogation of the Flight 
253 suspect. One of our Members in the other body called it 
irresponsible and dangerous. Another claims that there will be 
dire consequences.
    Now, in my view, these assertions ignore the reality the 
suspect was first questioned without Miranda warnings and gave 
up important information. Some criticisms ignore the fact that 
the Miranda warnings were not given until after the suspect had 
stopped talking of his own accord. Some ignore the fact that 
the suspect has continued to cooperate and provide valuable 
information after receiving the Miranda warnings.
    They ignore the fact that under the prior Administration 
Miranda warnings were read to the so-called shoe bomber Richard 
Reid on four separate occasions. According to reports, the 
first warning was given 5 minutes after he was taken into 
custody. The same is the case with many complaints we hear now 
about trying terror cases in Federal court. Some ignore the 
fact that the prior Administration tried numerous terrorism 
cases in Federal court without major incident and pretty good 
success. It also is notable that in the recent conviction in 
the Federal court of David Coleman Headley for his role in the 
Mumbai Hotel attacks, Headley reportedly provided extensive 
intelligence after being charged and is now serving a life 
sentence.
    There is no issue that we face as a Nation that is more 
challenging than getting the balance right on terrorism. While 
none of us can predict the future, I can tell you our 
constitutional system of checks and balances has served our 
Nation well for more than 230 years and has been a model for 
many nations around the world. As a matter of fact, some of us 
have gone to the countries that were trying to emulate our 
constitutional and democratic system of government. Now, if we 
follow that model, I believe we can and will defeat terrorists 
and protect our citizens' liberties. I suppose that is, for my 
purposes, ladies and gentlemen, the purpose of the hearing. How 
do we protect our citizens and still keep our liberties? So in 
that spirit, some questions that I hope the distinguished 
national security professionals here today will address.
    In early January, the President issued a series of written 
directives to the executive branch agencies involved in 
national security. He described this memo as corrective 
additions and demanded monthly progress reports on their 
implementation. I hope some of our witnesses can update us as 
well on the progress of these corrective actions. Second, it 
seems that one of the biggest intelligence challenges we face 
is learning to deal with the larger volumes of information that 
we collect and developing methods to separate the wheat from 
the chaff.
    Do you think there is a point at which we are collecting so 
much information that we are actually making it harder to 
identify and separate out the action that really matters? Is 
there such a thing as collecting too much information? And, 
finally, we have become very expert here in figuring out what 
went wrong in a particular instance and fixing those gaps, but 
I think we have a broader view here.
    After 9/11, we improved our information sharing, and now 
after Flight 253, we will have new analysis teams and better 
systems to search our databases. I would like to know what you 
as our experts and guests here this morning are doing beyond 
this fighting the last war kind of mentality. What are we doing 
now to identify other possible gaps that may be existing in our 
security systems? And so I welcome you here this morning. And I 
would like to yield to my friend, Lamar Smith of Texas.
    Mr. Smith. Thank you, Mr. Chairman.
    Umar Farouk Abdulmutallab attempted to blow up Northwest 
Flight 253 on its way to Detroit on Christmas Day. Thankfully, 
his attempt was thwarted and hundreds of innocent lives were 
spared. After failing in his attempt to murder 288 innocent 
Americans, Abdulmutallab was questioned for less than an hour 
and then given the right to remain silent. He then stopped 
talking to investigators for the next 4 weeks. The 
Administration brushes off criticism about its decision to 
Mirandize Abdulmutallab because he has since provided useful 
intelligence to investigators. But what vital intelligence was 
missed because of his 4 weeks of silence? Was a plea bargain 
for reduced sentence necessary to get information, and what 
questions did his lawyers refuse to let him answer?
    At the very least, Abdulmutallab's month of silence gave 
his coconspirators time to cover their tracks. So the Obama 
administration forfeited an opportunity to obtain information 
inform that might have identified terrorists and prevented 
future attacks. That neither the President nor his national 
security advisors supported treating Abdulmutallab as an enemy 
combatant is worrisome. As the President has admitted under his 
new policies, the CIA has ``a harder job.'' The President's 
policies make it easier for terrorists to get constitutional 
rights and harder for intelligence officials to keep America 
safe. Abdulmutallab should never have been allowed to board the 
plane to Detroit. Despite warnings from Abdulmutallab's father 
about his son's possible Muslim radicalization, the U.S. Visa 
he had been issued in 2008 was neither identified nor revoked.
    Mr. Chairman, I want to call a piece of legislation to your 
attention because it goes to the future, as you just were 
suggesting a minute ago. Earlier this month, I introduced 
legislation designated to help make the visa process more 
secure. H.R. 4758, the Secure Visas Act, requires placement of 
visa security units at U.S. Consular posts in high risk 
countries such as Algeria, Lebanon, and Syria. The placement of 
visa security units at U.S. consular posts will help address 
lapses in the current system and prevent terrorists from 
gaining access to the United States. H.R. 4758 explicitly 
grants the Department of Homeland Security Secretary the 
authority to revoke a visa and to delegate that authority to 
others in the agency. These are commonsense steps to help 
ensure that no one who wants to do us harm is able to enter and 
stay in the United States.
    The President says that we are at war with terrorist 
groups, but many of the Administration's decisions have 
actually put the American people at greater risk. First, trying 
to close a terrorist detention facility at Guantanamo Bay has 
not made America safer. The Pentagon has reported that 20 
percent of released Gitmo terrorists have returned to plotting 
attacks against Americans. Two former Gitmo detainees in Yemen 
are suspected of organizing the Christmas Day plot. Second, the 
Administration's decision to try terrorists in Federal civilian 
court continues the trend of weakening national security.
    Bringing terrorists into the criminal justice system limits 
our ability to interrogate them and get intelligence that might 
prevent attacks and save lives. Abdulmutallab didn't simply rob 
a convenient store. He tried to blow up a plane and kill nearly 
300 innocent civilians. This was an act of war and should be 
treated as such. The American people agree. Sixty-seven percent 
of Americans favor military tribunals to try terror suspects.
    And, third, the Obama administration released highly 
sensitive memos detailing interrogation tactics used against 
terrorists. The formerly classified Office of Legal Counsel 
memos gave terrorists a how-to manual on how to resist 
interrogation tactics. These are just a few of the ways the 
Administration has weakened our national security.
    Richard Cohen, a very liberal columnist, recently wrote in 
The Washington Post that ``There is almost nothing the Obama 
administration does regarding terrorism that makes me feel 
safer.'' Last month, national security officials warned that 
another terrorist attack is certain within the next 3 to 6 
months. But we don't need national security officials to 
predict attacks. We need them to prevent attacks. That means we 
need to apprehend and interrogate terrorists.
    Many believe that the war on terror is over and that the 
threat from al Qaeda and other terrorist groups is nothing more 
than a vague memory from 9 years ago. The Christmas Day bombing 
attempt is proof that the war on terror continues and that 
radical jihadists are as committed as ever to killing 
Americans. The Administration must be equally committed to 
stopping them. The time for complacency is over.
    Thank you, Mr. Chairman, and I yield back.
    Mr. Conyers. Thanks, Lamar.
    I now recognize Dan Lungren, the senior former Attorney 
General of the largest State in the union.
    Mr. Lungren. Thank you very much, Mr. Chairman. I 
understand how serious the issues are that are before us today. 
I respect the professionals that are here before us. But I 
would be less than honest if I did not say that I have profound 
differences with the approach this Administration has taken in 
a number of different areas. I understand the importance of 
things such as the Miranda warnings. I recall when I had the 
opportunity to personally argue a case before the U.S. Supreme 
Court on an essential concept, what is the constitutional 
definition of reasonable doubt given to juries in criminal 
cases, seemingly an elementary question but one that caused the 
court to grant a case consideration from two states in the 
union, my state being one of them.
    At the same time, I have always understood the distinction 
between a criminal justice matter and a matter of national 
security and particularly a matter of national security based 
on a terrorist threat. And what we have to do is somehow deal 
with that area where they come into contact, and the question 
therefore is a serious one, whether it is appropriate for us to 
take those concepts, some would say that are bedrock in our 
criminal justice system, and somehow place them over into the 
national security arena, particularly in the area of terrorism.
    The 9/11 Commission told us that one of the major 
criticisms of our actions before 9/11 was our failure to 
connect the dots, and there were those that suggested that part 
of that was our confusion in that area of nexus between the 
criminal justice system and the national security system. In 
responding to that, we attempted to make changes. I don't know 
anybody who believes what we did in responding to the threat 
during the Christmas period by this particular bomber--anybody 
thinks it was sufficient.
    Mr. Leitner has told us that Mr. Abdulmutallab should not 
have stepped on the plane, the counterterrorism system failed. 
And I told the President we are determined to do better. So our 
question is how do we do better?
    And one of the areas I would I guess directly disagree with 
the Chairman, with all due respect, is the idea that somehow 
Mirandizing people makes it more likely that they are going to 
speak to us than if they are not Mirandized, almost as if there 
is some psychological impact on people that once we grant them 
their Miranda rights, they feel obligated to tell us something. 
In fact, in law enforcement circles, while we know we are 
required to doing Mirandizing, we recognize that oftentimes 
that interferes with our ability to gain useful information, 
but we believe that is acceptable under our Constitution.
    But I would suggest that we are in dangerous territory if 
we blithely transfer the same concept of Miranda warnings that 
the Supreme Court has put forward into the area of suspected 
terrorists. One of the things that bothers me, and I think 
bothers everybody, is why did we not connect the dots here, the 
information that was there, a father that comes to an American 
entity and says, I suspect my son may have fallen under the 
influence of terrorist groups in Yemen.
    Somehow that doesn't get through the system and I know we 
are going to hear some in detail on that. But in response to 
that, I have been informed that while the previous 
Administration instructed the government to identify and 
collect information on individuals ``appropriately suspected,'' 
or ``reasonably suspected'' of terrorist connections, or for 
whom there was an articulate and reasonable basis for 
suspicion, that we now have adopted a new standard that says 
this: To meet the reasonable suspicion standard, the nominator, 
based on the totality of circumstances, must rely on 
articulable intelligence, or information, which taken together 
with rational inferences from those facts, reasonably warrant a 
determination that an individual is known or suspected to be or 
have been knowingly engaged in conduct constituting in 
preparation for, in aid of, or related to terrorism or 
terrorist activities.
    And I will inquire of the four of you how you believe that 
that gets us where we need to go, that somehow that makes it 
more rational and somehow with that standard that is going to 
get the information flow unclogged as it was clogged in the 
case that we are talking about.
    I would argue that that kind of legalistic, almost CYA 
language, is going to make it more difficult. And if I am the 
person involved in the system and I am told that is the 
standard to which I will be held, and if I fail that standard, 
I will be disciplined or perhaps punished, how that is going to 
encourage people in the Intelligence Community to do the kind 
of creative thinking and thinking out of the box that is 
necessary to protect this country so that we don't come here 
after another incident that may be successful and say, you 
know, we created a wall that we didn't intend to create that 
somehow mandated that our people were not creative in their 
thinking and did not think out of the box and, therefore, 
because the bad guys thought out of the box, we have lost 
lives.
    I thank the Chairman for the time.
    Mr. Conyers. Thank you very much.
    I now turn to Darrell Issa, who is not only the Ranking 
Member on Government Reform, but served with distinction on the 
Intelligence Committee itself.
    Mr. Issa. Thank you, Mr. Chairman.
    And I want to associate myself in a broad sense with all of 
you. I think today's hearing for all of us who serve on this 
Committee and other Committees is the beginning of a process of 
reevaluating the work we have done over the last 9 years. I am 
personally a civil libertarian, as the Chairman knows. I very 
much believe that Miranda is an important right of individuals 
against self-incrimination. However, when we choose areas of 
specific protection, not the battlefield, where as an Army 
lieutenant I was never given a copy of Miranda to read to 
somebody that if I were so fortunate as to find them on the 
battlefield, those are opportunities in which investigations 
begin well afterwards. But our domestic ports of entry are, by 
definition, controlled environments in which the scenario and 
the plan of what to do if someone is found entering or exiting 
with a plan to bomb or in some other way commit a terrorist act 
is a scenario we can plan and predict.
    There is no question that the FBI should have known what 
they were going to do if a man with explosives in his pants was 
found and whether or not the best course of action was to 
Mirandize him, as Mr. Lungren said, in the hope that that 
somehow would cause him to tell us more or not Mirandize him 
because ultimately they had what they needed in order to 
effectively prosecute him for one or more crimes, while at the 
same time, they had no idea who the other terrorist 
conspirators could be.
    I think that is a point that Government Oversight and 
Reform will continue to look at. The question of in controlled 
space, do we really have the scenarios, are they well thought 
out, and are they leading to the best outcome from prosecution 
standpoint when appropriate but clearly from a standpoint of 
safety of American travelers and the American people overall? 
On that, I believe we can all agree there was a failure. 
Additionally, I happen to be an Arab American, and so I want to 
associate myself broadly with the fact Arab Americans have been 
the victims of a loss of civil liberties. Those who were 
innocent Americans, including my poor nonArab wife, who just 
happens to be cursed with the last name Issa, Arabic for Jesus, 
finds herself on a No-Fly List. I am equally concerned that the 
No-Fly List can somehow get Katherine Issa onto it and have to 
be taken off, while somebody's whose own father says he is 
going to try to commit a crime, he is a terrorist, he is an 
extremist, don't let him in, somehow does not rise to the level 
in any one of the many cables alone nor are the cables 
connected in a way that will lead to that outcome.
    I am deeply concerned because I have been reluctantly 
supporting legislation that often goes beyond my comfort level 
including some elements of the PATRIOT Act, and yet we don't 
seem to have gotten what we were promised. Again, beyond the 
scope of just this Committee, but well within the scope of all 
of us as people who swore allegiance to the Constitution.
    Last, as the Chairman was kind to mention, in my service on 
the select Select Intelligence Committee and now my membership 
as the Ranking Member of Government Oversight, we have invested 
countless--hundreds and hundreds of billions of dollars in 
creating databases that can, in fact, serve us to prevent 
stovepiping. The excuse that the dots were not connected this 
time is a self-inflicted wound, not created by money--or not 
prevented by lack of money and certainly not by lack of a 
directive from all of us on the dais and all of the people in 
the last Administration that we connect the dots.
    I don't think it is a secret by any means that our 
Intelligence Community can take disparate information, pieces 
and bits of words, put them together, and with analysis, 
sometimes automated, sometimes by talented human beings, reach 
a conclusion that there is a threat. We do that when we look 
outward.
    Today, with the indulgence of the Chairman, I am going to 
task the individuals here to explain to us in open session why 
we don't turn that same analysis inward so that disparate 
cables, as we are being told, each one not being sufficient to 
cause a triggering of the No-Fly List, were not connected by 
some sort of software which we certainly have paid for, we 
certainly own, and we certainly believe failed us on Christmas 
Day.
    Mr. Chairman I thank you for your indulgence and yield 
back.
    Mr. Conyers. Thank you, Darrell.
    I now recognize Steve King of Iowa, who serves in addition 
to our Committee on Small Business and Agriculture as well.
    Mr. King. Thank you, Mr. Chairman.
    I appreciate this hearing and the witnesses coming before 
this panel today. And as I listened to the opening statements 
of yours and Ranking Member Smith and others that have 
discussed this issue, it comes back to me that we had a shoe 
bomber and that happened years ago. That was the heads-up for 
something like this. And when we set up our security system, 
the Department of Homeland Security and all of the pieces of 
Federal legislation that put the tools in place so that we 
could prevent terrorists from hijacking airplanes, set up the 
filters as much as we could, this is one of the things that we 
had in mind.
    I mean it isn't a new tactic. It was a tactic that had 
already been used when this--when these parameters were set up, 
when the people that are in charge in the departments are 
thinking about what could happen bad to the United States, this 
had to be a model of no more shoe bombers. I mean, I have taken 
my shoes off so many times I know that is model. And yet the 
dots weren't connected and I can't understand why the device 
itself wasn't discovered, and that is a problem. That is a 
serious problem on how we would actually be able to identify 
individuals getting on airplanes that are might have devices 
like that.
    So our heads up that is back through the visa program and 
the visa security program, and when I think about the one 
reason that was given, one of several, that there was--that the 
exact spelling of his name didn't exactly match up; so 
therefore they believed that there wasn't a visa that had been 
issued to--I always have to look that up--Abdulmutallab--I have 
got Abdul Farouk Abdulmutallab, and it takes a little practice. 
But I have to go back and I look at that and I think all right, 
that is understandable if you are matching up paper records or 
if you are putting a name in quotes and sending it off in a 
software search, but when I do that on a Google page, it comes 
up and says ``didn't you mean'' and it will give me an 
alternative spelling.
    One of the things I am going to be interested in now, do we 
have at least a Google software so we could resolve that 
problem? And I am also interested in how it was that his father 
himself who said my son has disappeared and I believe that he 
has gone over to the other side and been radicalized, that 
should have been powerful enough for there to be individual 
attention to follow it.
    And the third thing would be he was a high-ranking Nigerian 
official who had credibility. It wasn't just someone off the 
street and it wasn't just a lineup of many cases. This was a 
case that should have had a red flag on it in several different 
ways. And then I am also interested in the difference in the 
philosophy of how we are going to go forward and fight their 
global war on terror. The philosophy of it is a law enforcement 
action, it has been clear that this Administration has put down 
marker after marker after marker that they believe it is law 
enforcement and not a war. And I contemplate what we do when we 
have terrorists that fit a whole series of different kinds of 
definitions.
    You could have a terrorist that was born, raised, bred, and 
trained and committed or attempted to commit an act against 
American interests in a foreign country and never set foot in 
the United States. You could go clear to the other side, a 
born, raised, bred and trained American terrorist who never set 
foot outside the United States but still was radicalized and 
still was part of that same network.
    And I think I could give you about six other definitions 
that fit in between those two extremes. Yet they are all part 
of the same movement that is attacking the United States, and 
we can't do this as just a law enforcement endeavor and we 
can't have terrorists that are committing similar acts that fit 
different categories of terrorism that go into a different 
system in our justice. We have got to look at this as a war and 
we have got to put the enemies we are fighting in the same 
category.
    So I am going to suggest that as we go through this 
discussion today, we consider an idea that I generated some 
months ago, and that is the idea of establishing a new set of 
laws for our terrorists and to adjudicate them immediately as a 
terrorist, and not read them their Miranda rights, and let them 
be subjected to the amount of interrogation necessary to 
protect the American people, try them all in a military court, 
get them all off of U.S. soil and out of the hands of our 
Federal judges as quickly as we can so that we can effectively 
fight this war.
    Those are the parameters that I view this as I listen to 
this discussion. I am looking forward to the testimony of the 
witnesses. And Mr. Chairman I appreciate your indulgence and I 
yield back the balance of my time.
    Mr. Conyers. Thank you, Steve.
    I now turn to Judge Ted Poe of Texas. He serves on Foreign 
Affairs and on both the Crime and Immigration Subcommittees.
    Mr. Poe. Thank you, Mr. Chairman.
    With all of the U.S. resources and money and intelligence 
and information, our security system in this incident boils 
down to the fact that we had to rely on an individual from the 
Netherlands who saw the underwear bomber doing something he 
shouldn't be doing, like setting his pants on fire and jump 
across several other people in an airplane to tackle him and 
then with the aid of other passengers, he was subdued. But for 
that person from the Netherlands, I believe we would have had a 
tragedy. I don't think that is a good security system that we 
have to rely on passengers to be our hope for defense of 
preventing airplanes from being blown up.
    Everybody wants to say somebody else is at fault. But the 
bottom line is there is information available and it wasn't 
used. We have a watchlist. We have a No-Fly List. And it seems 
like those are just lists that don't do anything except keep 
certain people from not flying. And the watchlist with the 
thousands and thousands of other people, I guess we are just 
watching those folks. I think we need to do some obvious things 
and that is get our house in order and secure the system so 
that we keep outlaws from getting on our airplanes.
    And it starts all the way back to the embassy that gets 
information from Daddy that this guy is a threat to the United 
States. A lot of people fell down on their jobs but some day 
somebody is going to die because people don't share information 
and pass information on. So I think excuses, there are no 
excuses for why the system fails. We cannot let it fail. 
Otherwise we will have tragedy and maybe we need to rethink 
some of the ways that we talk to folks who show up at airports. 
I think the Israelis have set up a model that has been quite 
successful for their nation.
    In any event, we ought to at least talk to them about how 
they are able to be so successful and maybe we should adopt 
their procedures in some of our airports. But the American 
people deserve better. They deserve better from a Nation that 
is supposed to be the world's superpower, and they deserve 
better than to expect that some passenger from the Netherlands 
is going to save us all from disaster.
    Thank you, Mr. Chairman. I yield back.
    Mr. Conyers. Thank you. Tim Rooney, did you have a comment? 
The gentleman from Florida is recognized.
    Mr. Rooney. Thank you, Mr. Chairman. It is Tom Rooney but 
that is okay. I am a new guy.
    Mr. Chairman, it has been almost 9 years since the attacks 
of September 11, 2001, and I clearly remember in the days 
following the attacks of 9/11 we committed as a Nation to never 
allow such a failure of intelligence ever to happen again. I 
clearly remember the formulation and the makeup of why and what 
Homeland Security was going to be, that we would never have a 
communications breakdown again between agencies of the Federal 
Government so that Americans could feel safer, that the 
communications between the various agencies would be more 
fluid. I wasn't sure how creating a new agency was going to do 
that, but of course had the confidence in our government to be 
able to figure that out for me as a regular constituent at that 
time and to keep us safe.
    And we have, as the Chairman said, over the last 9 years 
been kept safe. But in the last year there has been some 
serious flags that have been raised as you have heard in the 
various opening statements so far. Fort Hood, Texas, where I 
was formerly stationed, we came to know a guy named Major Nidal 
Hasan, who we have since come to know as a captain was a very 
substandard Army officer who was communicating with people that 
should have raised red flags. We have also come to know that 
these communications separate from his officer evaluation 
reports were known by people in the Intelligence Agency and may 
or may not have been shared with the Department of Defense or 
the Department of Army.
    And my immediate question after that is how after 9/11 with 
Homeland Security and everything that we talked about, that 
these agencies would communicate better, how does Intelligence 
Agency not communicate with the Department of Defense and say 
one of your own is talking with people, Awlaki, who has been in 
communications with 9/11 pilots, and as we will come to see, 
Abdulmutallab himself. Then we see, of course, what we are here 
today to talk about and that is the communications failures 
leading up to the attack on Christmas.
    The President said that after this attempt by the so-called 
underwear bomber that there was a mix of human and system 
failures that contributed to this potential catastrophic breach 
of security. I kind of disagree with that. I think that it was 
not potential catastrophic. I think it was catastrophic when it 
comes to you and your jobs. I think there can be nothing more 
discomforting to the American people to know that over the last 
year, we have had these two breaches of security, and I think 
that they are catastrophic and hopefully that is one of the 
things that we can try to figure out here today.
    But my questions are where is the disconnect? We have heard 
before by other opening statements, where are the dots not 
connected? And I have a chart to discuss with you later during 
Q&A, but when and where are we allowed to do and not to do for 
the sake of national security? What are we allowed to do? And 
that goes with, as we said, Miranda. What constitutional 
protections come to these people? And then juxtapose that to 
what the American people expect of us.
    I have seen the databases. I have seen the Visa VIPER, the 
TIDE, the Selectee, the No-Fly List, who qualifies, who doesn't 
qualify, what standard of proof is needed to put somebody on 
these lists. It is very confusing. And it seems like a lot of 
people have their fingers in this game. And again, I am just 
not sure that that was the purpose after 9/11. The sale that 
was made to the American people that you would be kept safe by 
a more streamlined system, it doesn't seem that way to me. As 
was said I am also very concerned about the fact that 
Abdulmutallab's name was misspelled and that somehow bounced 
him out of these databases as somebody to keep an eye on. 
Reports that the NSA reportedly intercepted communications 
between Awlaki and Abdulmutallab. Again, where were the dots 
there? Even if the intelligence officials didn't know his full 
name, how much did they know? What about his dad, a doctor in 
Yemen, who Petraeus said to us on the Armed Services Committee 
just last year that Yemen is a place we need to seriously look 
at and a doctor--and I imagine the people in Yemen aren't very 
friendly to the people of the United States.
    So if a guy goes to the U.S. embassy and he is a doctor and 
he makes a complaints about his son wanting to blow up--he is 
taking some risk there I would imagine; so it probably should 
be taken seriously.
    And I don't mean to disparage our Intelligence Community or 
anybody on this panel. I understand you guys have a very 
difficult job. I understand that you are trying to do that job 
and it is not easy. But we have an obligation, as you know, to 
the American people so that another Christmas Day or another 
Nidal Hasan does not happen. So being 9 years after 9/11, I 
personally, as many members on this panel, would love to know 
how the dots are connected and whether or not it is streamlined 
enough and if we can and should make it better.
    I yield back Mr. Chairman.
    Mr. Conyers. Thanks Tom. I should have mentioned that you 
were also a military prosecutor in your other career.
    Mr. Rooney. I was actually good at that job, sir. Thank you 
for mentioning it.
    Mr. Conyers. You underestimate how highly we think of you 
here in 111th Congress.
    Mr. Rooney. I can feel it. Thank you, sir.
    Mr. Conyers. Bill Delahunt? Oh, he is not here. Bob 
Goodlatte, do have you a comment?
    Well, we want to welcome all of our witnesses here today. 
Patrick Kennedy, Patricia Cogswell, Timothy Healy. We will 
start with Russ Travers, Deputy Director for Information 
Sharing and Knowledge Development for the National Counter 
Terrorism Center. He has been in the job since 2003 and is in 
charge of TIDE Terrorism Database and prior to that, he worked 
in the Defense Intelligence Agency and Army intelligence for 25 
years.
    All of your statements will be included in the record and 
we welcome your testimony.

 TESTIMONY OF RUSSELL TRAVERS, DEPUTY DIRECTOR FOR INFORMATION 
 SHARING AND KNOWLEDGE DEVELOPMENT, NATIONAL COUNTERTERRORISM 
                             CENTER

    Mr. Travers. Chairman Conyers, Congressman Smith, Members 
of the Committee, thanks very much. It is a pleasure to be 
here.
    Mr. Conyers. Pull your mic up closer.
    Mr. Travers. My written statement is going to detail NCTC's 
role in support of watchlisting and specifically focuses on the 
attempted attack on Christmas Day. At your staff's request, I 
am going to expand on that statement and use my opening remarks 
to address the somewhat broader context that a number of you 
have addressed in your statements.
    I will begin by distinguishing 12/25 issues from those of 
9/11, and then I am going to talk specifically about what NCTC 
has been doing since Christmas. First, the issues raised by 12/
25 were not, in any way, like those of 9/11. It was not a 
failure to share information. The key pieces of intelligence 
related to 12/25 were broadly available across the Intelligence 
Community and that is important. Why? Because it highlights the 
fact that simply sharing information does not guarantee 
accurate intelligence analysis. In that sense, information 
sharing is necessary but it is certainly not sufficient. I 
would also note as a number of you have mentioned information 
sharing has expanded dramatically since 9/11.
    There are difficult legal policy, privacy issues that 
remain. I would be happy to talk about those in the Q&A if you 
would like. 12/25 was also not--did not call into question the 
basic watchlisting architecture that has existed since 2003. It 
is complicated. I absolutely agree with that. I think it is 
necessary, though. That architecture that was designed in 2003 
was intended to ensure that all screeners had the benefit of 
any information collected by any collector in the United States 
Government. That was very different than it was before 9/11.
    And in that regard I think we succeeded. In that regard I 
think, again, we have enhanced information sharing. It is 
certainly not perfect. It is a names-based system, and 12/25 
highlighted a number of seams that my colleagues and I will 
discuss. For instance, standards as to who gets on a watchlist. 
We could lower that bar. If we do so, it has significant 
balance issues. How big do you want the list to get, and what 
are the associated tradeoffs? Long lines, false positives, and 
so forth. And we are working through those balance issues. So 
what did fail on Christmas Day? And here I think the bumper 
sticker description is that we failed to ``connect the dots.'' 
But what does that actually mean?
    Personally I do not believe it is a good metaphor. It 
conjures up the notion of the puzzle that our preschool kids 
use. You have got a sea of dots. They are numbered from 1 to 
29. You follow the line and you get a duck or in our case you 
get a terrorist plot. Intelligence has never worked that way 
and it never will. You do have a sea of dots. They aren't 
numbered. Lots of them are wrong. Many others are ambiguous or 
contradictory, and still others are just innocuous. You just 
don't know a priori which ones are important, and that was the 
problem with 12/25.
    Father comes into the embassy in Abuja. His son is involved 
with extremists in Yemen, as a number of you have noted. That 
given the standards of the time doesn't come close to getting 
him watchlisted. It does put him on the screen. It doesn't get 
him watchlisted. There was one other piece of information that 
was out there. It was in the noise. On a daily basis the 
terrorism intelligence traffic includes something like 10,000 
names every day.
    In this case we had a partial name, no last name, 
differently spelled than the name that we got from the father, 
and that is where we failed. We did not connect those two 
pieces of information, and that is what we are working very 
hard to do better in the future.
    The question I think is how do we do a better job of 
exploiting the information that is down in the noise? Is all of 
that background information in the sea of data that we 
confront? Conceptually, if you envision that sea of dots, what 
we are trying to do is lower the bar so there is less 
information that we are not able to exploit given the resource 
and time constraints under which we operate. Let me give you 
three initiatives that we are focused on at NCTC.
    First, a presidential directive, we are establishing a 
record enhancement capability for our terrorist identities 
database, and that, in effect, is improving our ability to 
build a fuller dossier on individuals that are nominated to the 
National Counterterrorism Center.
    Secondly, NCTC has also fenced off about 40 individuals 
into what we call pursuit teams and these individuals have been 
relieved of writing intelligence analysis. What they are doing 
is focusing on data points of potential interest and they are 
charged with following them through until resolved.
    Is this an important piece of information or is it not? 
And, third, we are continuing to focus on the basic data 
access, technical infrastructure and tools that are necessary 
to help find what we call ``unknown unknowns.'' In effect, to 
help us find linkages between dots when we just don't know a 
priori that there is any linkage there. A very complicated 
problem.
    In sum, Mr. Chairman, NCTC has been working very closely 
with all our interagency partners to try to rectify the 
problems identified by 12/25, and certainly I look forward to 
answering any questions you may have thank you.
    Mr. Conyers. Thank you.
    [The prepared statement of Mr. Travers follows:]
                  Prepared Statement of Russel Travers








                               __________

 TESTIMONY OF TIMOTHY J. HEALY, DIRECTOR, TERRORIST SCREENING 
            CENTER, FEDERAL BUREAU OF INVESTIGATION

    Mr. Conyers. Timothy Healy is the director of The Terrorist 
Screening Center at the FBI. And that group is responsible for 
the maintenance of terrorist watchlist including the No-Fly 
List. He has been with the FBI for 25 years and helped create 
the Terrorist Screening Center. He has received the Director's 
Award for outstanding work in his responsibilities.
    We welcome you here this morning.
    Mr. Healy. Chairman Conyers, Ranking Member Smith, Members 
of the Committee, thank you for the opportunity to talk about 
the Terrorist Screening Center and its role in the interagency 
watchlisting process.
    The attempted terrorist attack on Northwest Flight 253 on 
Christmas Day highlights the ever-present threat to our 
homeland. Over the past 7 years, the TSC has played a vital 
role in its fight against terrorism by integrating the 
terrorist information from the law enforcement intelligence 
community into a single database known as the Terrorist 
Screening Center database, the TSDB, or the terrorist 
watchlist.
    Following Christmas Day, the attempted attack provided an 
increased intensive scrutiny that has been placed on the 
requirements to nominate individuals to the watchlist, 
particularly the No Fly and Selectee list, which are subsets to 
TSDB. These requirements or standards have evolved over time 
based on the experience of the watchlisting community and the 
issuance of additional presidential directives. Throughout this 
process, the TSC has remained committed to protecting the 
American people while simultaneously protecting privacy and 
safeguarding civil liberties.
    As our efforts have evolved in response to new threats and 
intelligence, your support has been vital. Let me tell you 
about the watchlisting process, but understand the Terrorist 
Screening Center, the watchlisting process is half of it. We 
work the watchlisting process to get names out to the 
screeners. We also--when we encounter the terrorists, we 
coordinate the operational response with the FBI. But with 
regard to the watchlisting process, it is best described as a 
watchlisting enterprise that requires the collaboration between 
the Intelligence Community, the FBI, NCTC, and TSC.
    The NCTC relies upon information provided by the 
intelligence and law enforcement community. The TSC relies upon 
information that NCTC provides us where they analyze and 
provide accurate and credible information and the screening 
community relies on the TSC to manage the information and 
efficiently export it to their screening systems. Once an 
onerous suspected terrorist has been identified and included in 
the TSDB, the TSC ensures the timely dissemination of that 
terrorist identity data to our screening partners. The utility 
of the watchlisting process is greatest when the information is 
efficiently disseminated to those who could use it most.
    TSC has subject matter experts who are composed of 
experienced analysts and from designated agency representatives 
who review nominations to determine if they meet the criteria 
for inclusion into the screening systems. Four major U.S. 
Government systems support the TSC. The Departments of State, 
Consular Lookout and support systems are CLASS, and that is for 
passports and visa screening; the Department of Homeland 
Security tech system for border and port entry screening; the 
No Fly Selectee list used by the Transportation Security 
Administration for air passenger screening; and the FBI's 
National Crime Information Center of known or suspected 
terrorist file for domestic law enforcement encounters.
    The criteria for inclusion into each one of these systems 
is tailored to its mission, its legal authorities, its 
information technology requirements for each particular agency. 
Before Christmas Day, the TSC had not received a nomination for 
Umar Farouk Abdulmutallab and as a result, he was not 
watchlisted. Following the attempted attack, the President 
issued a directive for the TSC to review all facts surrounding 
this incident. As a result, the TSC was given two basic 
instructions. The first was to conduct a thorough review of the 
TSDB to determine the current visa status of all known or 
suspected terrorists beginning with the No-Fly List, and that 
process has been complete.
    The second was to develop recommendations on whether 
adjustments are needed to the watchlisting nomination criteria, 
including the biographical and derogatory information for 
inclusion into TIDE and the TSDB as well as the No Fly and 
Selectee list. To do so, the TSC convened the Policy Board 
Working Group with representatives from the National 
Counterterrorism Center, the Central Intelligence Agency, the 
National Security Agency, the Federal Bureau of Investigation, 
the Department of Homeland Security, Department of Defense, 
Department of Justice, and Department of State to achieve this 
interagency consensus. That process is underway, and TSC is 
working with our interagency partners to develop appropriate 
recommendations to the White House. Also at the direction of 
the White House and in conjunction with NCTC, the TSC has made 
some temporary and limited additions to the watchlist to 
counter the specific threat that was observed on Christmas Day. 
As a result a threat related target group was identified and 
individuals from specific high-threat countries already 
residing in TIDE and TSDB were either upgraded, added to the No 
Fly or Selectee list, and this was to prevent future attacks.
    TSC remains focused on fulfilling its presidential mandates 
and interagency mandates to share terrorist screening 
information with our domestic and foreign partners. We have a 
standing commitment to improve our operational processes, to 
enhance our human capital and technological capabilities, and 
to continue to protect the Americans from terrorist threats 
while protecting privacy and safeguarding civil liberties.
    The terrorism watchlisting system is a vital tool in the 
counterterrorism effort for the United States Government and 
continues to be.
    I look forward to answering any questions you may have. 
Thank you.
    [The prepared statement of Mr. Healy follows:]
                 Prepared Statement of Timothy J. Healy














                               __________

    Mr. Conyers. Our next witness is Patricia Cogswell, a 
lawyer, who is Acting Deputy Assistant Secretary for the Office 
of Policy at the Department of Homeland Security. Most of her 
career has been spent at the Department of Homeland Security 
and the INS before that, and she has served as Executive 
Director of the Department of Homeland Security Screening. 
Welcome.

    TESTIMONY OF PATRICIA COGSWELL, ACTING DEPUTY ASSISTANT 
  SECRETARY, OFFICE OF POLICY, DEPARTMENT OF HOMELAND SECURITY

    Ms. Cogswell. Chairman Conyers, Congressman Smith, and 
Members of the Committee, thank you very much for this 
opportunity to testify on sharing and analyzing of information 
to prevent terrorism.
    DHS has a number of screening programs in place and works 
closely with foreign governments and air carriers in our 
efforts to strengthen global aviation security. Information 
sharing and analysis plays a critical role in these programs.
    This Administration and all of us here today are determined 
to find and fix the vulnerabilities that allowed Umar Farouk 
Abdulmutallab to board a U.S.-bound plane and prevent such 
breaches in the future. Today I will describe the screening 
conducted in the aviation environment, including the changes 
DHS has put in place since December 25, and how we are moving 
forward to further bolster aviation security.
    First, most noncitizens need a visa, or if traveling under 
the Visa Waiver Program, a travel authorization issued through 
the DHS electronic system for travel authorization, or ESTA, 
prior to travel to the United States. DHS screens each ESTA 
applicant to assess whether he or she could pose a risk to the 
United States, including potential links to terrorism. At 
certain embassies and consulates, DHS has also placed Visa 
security program personnel to assist the State Department in 
identifying visa applicants who may pose a security concern.
    DHS also conducts predeparture screening in partnership 
with the airline industry. Individuals on the No-Fly List 
should not receive a boarding pass. Individuals on the Selectee 
List must go through additional screening before boarding an 
aircraft.
    Through the implementation of the Secure Flight program 
which is underway now, DHS is checking passenger manifests 
against these lists directly, a job previously performed by the 
air carriers. For international travel, carriers are also 
required to provide DHS with access to certain passenger 
reservation information, basic identifying and itinerary 
information referred to Passenger Name Record, 72 hours prior 
to departure to the U.S.
    Carriers must then transmit their flight manifest 
containing complete and standardized information on a traveler, 
as shown on their Official Travel Document, through the 
Advanced Passenger Information System no less than 30 minutes 
before the flight. DHS uses both of these data feeds to be able 
to do risk assessments and conduct checks against the Known or 
Suspected Terrorist Watch List, lost or stolen passport 
information, prior immigration or Customs violations, visa 
revocations, and other records such as State Department records 
indicating potential terrorism concern.
    If the flight departs from an airport where DHS has an 
immigration and advisory program officer station, the IAP 
officers make use of this information to interact with 
individuals, and can make no-board recommendations to the 
carriers or host governments. In non-IAP locations, DHS will 
directly contact the airline, when appropriate, to recommend a 
person not board a flight. This is a change since December 25.
    The next step in the process is the physical screening of 
passengers, their accessible properties, their checked baggage, 
by utilizing a combination of x-ray systems, walk-through metal 
detectors, full body pat-downs, explosive trace detection 
equipment, trained canines, advanced imaging technology, and 
behavioral detection, depending on the location. In the U.S., 
DHS conducts such screening. Overseas, the screening is 
conducted by the foreign government, the air carriers, or their 
respected airport authority.
    Since the 25th, DHS has put in place security directives 
and emergency amendments for increased use of enhanced 
screening technologies and threat-based and random screening 
procedures. These measures have been implemented with the 
extraordinary cooperation from our global aviation partners.
    DHS also conducts security assessments in accordance with 
standards set by the International Civil Aviation Organization 
at approximately 300 foreign airports. If an airport does not 
meet these standards, DHS works with the appropriate host 
government authorities to raise the airport security posture.
    In addition to all these immediate activities we have 
already taken to further enhance our processes, we are also 
taking action to address the systemic vulnerabilities 
highlighted by this failed attack. As announced by the 
President and Secretary Napolitano, as part of the overall U.S. 
Government approach, DHS is pursuing five objectives to enhance 
the protection of air travel through acts of terrorism. These 
include: Working with our interagency partners to reevaluate 
and modify the criteria and process used to create the 
Terrorist Watch List; establishing a partnership on aviation 
security with the Department of Energy and its national labs to 
develop future technologies that deter and disrupt threats; 
accelerating the deployment of advanced imaging technology as 
well as increasing our use of explosive trained canines and 
explosive detection equipment, augmenting law enforcement 
aviation, and working with our partners to strengthen 
international security measures and standards for aviation 
security.
    While we address the vulnerabilities associated with the 
December 25 attempted bombing, we must also recognize the 
evolving threats posed by terrorists and take swift and 
appropriate action to ensure that our layers of security 
continue to evolve in order to defeat them.
    Thank you for this opportunity to testify. I will be 
pleased to answer any questions.
    Mr. Conyers. Thank you.
    [The prepared statement of Ms. Cogswell follows:]
                Prepared Statement of Patricia Cogswell































                               __________
    Mr. Conyers. Mr. Patrick Kennedy, Under Secretary for 
Management at the Department of State, has been a career 
Foreign Service officer for more than 30 years. And in addition 
to other responsibilities, heads the Bureau of Consular 
Affairs, which issues visas overseas. Welcome.

TESTIMONY OF THE HONORABLE PATRICK F. KENNEDY, UNDER SECRETARY 
            FOR MANAGEMENT, U.S. DEPARTMENT OF STATE

    Mr. Kennedy. Thank you very much, Chairman Conyers, Ranking 
Member Smith, distinguished Members of the Committee.
    After the attempted bombing of Flight 253, Secretary 
Clinton stated that we are all looking hard at what did happen 
in order to improve our procedures, to avoid human errors, 
mistakes, oversights of any kinds, and we are going to be 
working hard with the rest of the Administration to improve 
every aspect of our efforts. This introspective review and the 
concurrent interagency review are ongoing. We appreciate this 
Committee's interest and support as we continue the review 
process.
    We recognize fully the gravity we face, and we consider 
ourselves the first line of defense in our national security 
efforts. We acknowledge that processes need to be improved, and 
here are the steps we have already taken.
    The Department of State misspelled Umar Farouk 
Abdulmutallab's name in our Visa VIPER's report; as a result, 
we did not have the information about his current U.S. visa. To 
prevent this from occurring again, we have instituted new 
procedures to ensure comprehensive visa information is included 
in all Visa VIPER reporting. This will highlight the visa 
application and issuance material also available in the data 
already shared with our national security partners.
    We are also reevaluating the procedures and criteria used 
to revoke visas. The State Department has broad and flexible 
authority in this matter. Since 2001, we have revoked 57,000 
visas for a variety of reasons, including over 2,800 for 
suspected links to terrorism.
    New watchlisting information is continuously checked 
against the database of previously issued visas. We can and do 
revoke visas in circumstances where an immediate threat is 
recognized. We can and do revoke visas at the point that people 
are seeking to board an aircraft, preventing their boarding. In 
coordination with the National Targeting Center, we revoke 
visas under these circumstances almost daily. We have 
standardizing procedures for triggering revocations in the 
field, and we are adding revocation recommendations to the Visa 
VIPER report. Visa VIPER reports received since December 
contain this fuller information.
    At the same time, expeditious coordination with our 
national security partners is not to be underestimated. There 
have been numerous cases where our unilateral and uncoordinated 
revocation would have disrupted important investigations that 
were underway by one of our national security partners. 
Although not the case here, in those circumstances, the 
individual is under active investigation, and our revocation 
would have disclosed the United States Government's interest in 
that individual and ended our law enforcement colleague's 
ability to quietly pursue the case and to identify the 
terrorist plans and co-conspirators.
    We will continue to closely coordinate visa revocation 
processes with our intelligence and law enforcement partners 
while also constantly make enhancements to the security and 
integrity of the visa process. Information sharing and 
coordinated action are foundations of the border security 
systems put in place since 9/11, and they remain sound 
principles.
    The Department has close and productive relationships with 
our interagency partners, particularly within the Department of 
Homeland Security. The State Department brings unique assets 
and capabilities to this partnership. Our global presence, 
international expertise, and highly trained and language-
qualified personnel provide a singular advantage in supporting 
the visa function throughout the world. We developed and 
implemented an intensive screening process requiring personal 
interviews and supported by a sophisticated global information 
network. Our front line of border security has visa offices in 
virtually every country in the world, and they are staffed by 
highly trained, multilingual, culturally aware personnel of the 
Department of State. We support them with the latest technology 
and access to information and screening tools. We are 
introducing a new generation of visa software to more 
efficiently manage our growing mission and the increasing 
amounts of data we do handle.
    We are pioneers in the use of biometrics, a leader in the 
use of facial recognition, and we are expanding into the field 
of high risk screening. We have and will continue to automate 
processes to reduce the possibility of human error.
    The State Department makes all our visa information 
available to other involved agencies, giving them access to 
over 13 years of data. We introduced online visa applications 
in 2009, which expanded our data collection tenfold and 
provides new information that is readily available for analysis 
by State and other agencies. This system will be rolled out 
worldwide by the end of this fiscal year.
    We have embraced a layered approach to border security 
screening which results in multiple agencies having an 
opportunity to review information, and requires separate 
reviews at both the visa and admission stage. No visa is 
issued, no visa is issued without it being run through security 
checks against our partners' database. We screen applicants' 
fingerprints against U.S. databases, and we run our facial 
recognition software against a photo array provided by our law 
enforcement and intelligence colleagues as well.
    At the same time, we believe that U.S. interests and 
legitimate travel, trade promotion, and educational exchanges 
are not in opposition to our border security agenda. In fact, 
the United States must strive to meet both goals to guarantee 
our long-term security. Again, the multi-agency team effort, to 
which each agency brings its particular strengths and 
expertise, results in a more robust and secure process, a 
process based upon broadly shared information.
    We remain fully committed to correcting mistakes and 
remedying deficiencies that inhibit the full and timely sharing 
of information. We fully recognize that we are not perfect in 
our reporting in connection with this incident; however, we are 
working and will continue to work not only to address 
shortcomings, but to continually enhance our border security 
screening capabilities and the contributions we make to the 
interagency effort.
    Thank you very much, Mr. Chairman. I would be pleased to 
take any questions that you or your colleagues might have.
    [The prepared statement of Mr. Kennedy follows:]
         Prepared Statement of the Honorable Patrick F. Kennedy






















                               __________
    Mr. Conyers. I want to sincerely thank all the witnesses 
and ask Subcommittee Chairman Jerry Nadler to begin the 
questioning.
    Mr. Nadler. Thank you very much. I am not sure which 
witness I will address the first two questions to.
    The Christmas bomb plot obviously exposed certain 
longstanding gaps in how we use and analyze threat information, 
and we are told you are working to fix these.
    What are you doing to identify any other gaps, ones that 
weren't revealed by this plot, but maybe the next plot? In 
other words, ones you haven't thought about yet.
    Mr. Kennedy. If I could, sir. One of the things that we are 
doing is, in the past, the State Department received a visa 
application, and then we ran the individual's name and other 
particulars against a 27-million-count database that we 
received from our colleagues and information that we have 
developed ourselves. We have turned that into now--and we will 
have, by the end of this fiscal year--a completely automated 
process where the visa application will come into us 
electronically. We are then going to push that visa application 
information immediately to all of our partners in the 
Intelligence Community and law enforcement community so they 
can look at that data in real-time, as we are also looking at 
it, to see if there is information they may have in the broader 
fields of information submitted by the applicant, not just the 
name, date and place of birth, passport number, and other data. 
So our goal is to push off all the information we can to our 
colleagues and enable them to provide us with more and fuller 
information that they might have in their possession so we can 
make decisions. We already reject almost 2 million visa 
applicants a year, and we want to make sure that we reject 
everyone who would threaten our national security.
    Mr. Nadler. Thank you. As long as you added those last few 
words.
    After the Christmas bomb plot, the Administration announced 
that travel to 14 nations would be subjected to heightened 
scrutiny. Most of these 14 nations are Muslim nations. Some 
have said that terrorists will be able to plan their travel to 
avoid these countries, but innocent travelers will not. Why do 
you think this is not the case, and how does this really 
increase our national security? Some have said this is simply 
religious profiling. How does this really increase our national 
security?
    Ms. Cogswell. Thank you very much. I would just like to 
note that the 14 countries, we do not consider the objective of 
the 14 countries to be a permanent list of countries. It was a 
way to have a quick mechanism in response to the immediate 
threat. They were compiled through a list of individual 
countries who are currently on the list of State Sponsors of 
Terrorism, state havens, or otherwise linked to the current 
threat streams that are being tracked.
    As I noted, we at DHS are going to continue to evaluate 
these designations and we will update them when appropriate. I 
think it is important to note that it is unrelated to religion; 
it is focused on individuals who are traveling to, from, or 
through countries where, again, we have noted that there is a 
safe haven, a state sponsor of terrorism, or something linked 
to the current threat stream.
    Mr. Nadler. Thank you. Let me ask you a different question. 
Everything we have heard thus far is about information linked 
to visas or air travel. What about train travel within this 
country? What are we doing to make train travel safe? I take 
the train every week from New York to Washington and back. It 
is a great convenience that I don't have to be screened, I am 
very happy about that. On the other hand, I could bring almost 
anything I wanted onto that train and no one would be the 
wiser.
    Ms. Cogswell. Thank you very much. We do recognize very 
much that aviation tends to occupy an awful lot of our 
attention and resources. This is in part because of the 
continuing threat streams that we are seeing. At the same time, 
we very much do recognize there are threats to other modes of 
transportation in particular. Congress has directed specific 
legislation also around areas such as maritime ports for us to 
follow. These are very much a focus of ours, and something we 
do look into very closely in terms of what are the appropriate 
measures to take in each of these environments to work through, 
what is a sustainable process? Perhaps it might be appropriate 
to set up a follow-on conversation to talk more specifically.
    Mr. Nadler. Let me just ask one further question on that, 
since you brought it up--I was going to ask it anyway, it was 
my next question in any event. I was the chief author of the 
legislation 3 years ago to require that every container be 
inspected and sealed before it is put on a ship bound for the 
United States in the foreign port, given that it would be a 
little late to find a nuclear device while being inspected in 
an American port.
    The Bush administration, as far as I could tell, made no 
effort to implement that. The Obama administration, as far as I 
can tell, has made no effort to the implement that legislation. 
It has told us that it will not be able to do it within the 
time frame--although the legislation provides for waivers up to 
a certain point--but I see no evidence that the Administration 
is making any attempt actually to implement that legislation. 
Could you tell us differently?
    Ms. Cogswell. I would just like to note that we have got 
several programs in this arena, Container Security Initiative 
being a key one. It is an environment where we work both with 
the various individuals here in the United States and overseas.
    Mr. Nadler. Excuse me. Let me stop you right there. There 
is a fundamental difference. On the one hand, there are people 
in the security field under both Administrations who have told 
us that it is impractical to inspect every container. We will 
look at threats, we will inspect five or 6 percent of the 
containers based on threat analysis and so forth. On the other 
hand, Congress made the judgment--and the President signed the 
bill--that is not sufficient, that we want to inspect every 
container, we want to get to that capability in a reasonable 
period of time. So my question is, what is the Administration 
doing to implement that determination?
    Ms. Cogswell. Sir, I cannot answer that question to your 
satisfaction. As you have stated, the Administration's position 
is that we are focusing on the risk procedure. And given the 
resources, we are----
    Mr. Nadler. Surely you are not telling us you are ignoring 
the congressional directive?
    Ms. Cogswell. Of course not, sir. I would not say that.
    Mr. Nadler. But you would say what?
    Ms. Cogswell. I would say that the Administration is 
working very hard to implement in a way that it believes is 
risk based and appropriate to the threat, understanding that 
the direction is 100 percent.
    Mr. Nadler. Okay, thank you.
    Mr. Conyers. Thank you, Jerry Nadler.
    Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    I actually have several questions about the same subject, 
and I think the questions will go to Mr. Kennedy and Ms. 
Cogswell. This is the subject of the 2,800 individuals with 
suspected ties to terrorism whose visas have been revoked since 
2001, I think that is around 350 a year. Mr. Kennedy, the first 
question is, how many of these individuals are still in the 
country, to your knowledge? These are the individuals with ties 
to terrorism whose visas we revoked.
    Mr. Kennedy. Sir, who is in this country or not, I would 
have to defer to my colleagues at DHS. They keep the records of 
individuals who are or are not in the United States.
    Mr. Smith. Ms. Cogswell.
    Ms. Cogswell. We have analyzed all those records and 
forwarded out to certain individuals to the fields for 
investigation. If possible, perhaps we can follow up with your 
staff for a more restricted briefing on the results of that 
analysis.
    Mr. Smith. Why can't you tell me now? Do you consider that 
to be classified information?
    Ms. Cogswell. We consider the results related to how the 
reviews are going to be restricted, yes.
    Mr. Smith. I am not asking about how the reviews are going, 
I am just wondering how many are still in the country.
    Ms. Cogswell. I cannot answer that at this time; I just 
don't have the number with me.
    Mr. Smith. Can you get it from staff in the time we are in 
the hearing today?
    Ms. Cogswell. We can.
    Mr. Smith. How many of these individuals have appealed 
their revocation of the visa? Is that a number you need to get 
as well?
    Ms. Cogswell. We would not have that.
    Mr. Smith. Who would have that?
    Mr. Kennedy. Mr. Smith, if I could, we would not entertain 
an appeal for revocation of visa. We would not reinstate. Once 
a visa is revoked, it is revoked. The individual is free to 
apply for a new visa, but after that circumstance----
    Mr. Smith. How many of these individuals then have been 
removed, deported?
    Mr. Kennedy. Again, sir, that is a question for Homeland 
Security.
    Mr. Smith. Okay. Ms. Cogswell, my other question was, of 
the individuals with suspected ties to terrorists whose visas 
have been revoked, how many of those individuals have actually 
been removed from the country?
    Ms. Cogswell. I would need to follow up, sir, I am not 
aware at this time. We were evaluating how many have stayed and 
then referring those for investigation----
    Mr. Smith. Of those 2,800, how many have been removed from 
the country? You don't know that either?
    Ms. Cogswell. It is important to note that of most of 
those, very few were even in the country in the first place.
    Mr. Smith. And the ones who were in the country, you are 
going to get that for me later, and then how many were removed 
of that figure?
    Ms. Cogswell. Sir, right now we are in the process right 
now, so I don't believe of the very small number who are still 
here, we have not reached that stage yet in the investigation, 
but I will need to follow up.
    Mr. Smith. And what are you doing to try and find these 
individuals and remove them?
    Ms. Cogswell. Sir, these have been forwarded out to the 
Immigration and Customs Enforcement, ICE agents, to evaluate 
the information and go after and investigate these in 
conjunction with the FBI's part of the terrorism review.
    Mr. Smith. And the earlier figures you can give me in the 
next few minutes from staff you think?
    Ms. Cogswell. I will attempt to do so; otherwise, we will 
follow up.
    Mr. Smith. I am sure your staff will be able to do that. 
Thanks.
    Mr. Healy, a couple of questions for you. The first is, in 
regard to the watchlist system, should the system be changed so 
that if we had the equivalent information again that we had 
about Abdulmutallab, should we change the system so that that 
would trigger action that was not triggered this time? Or is 
the failure that we had the information, we just didn't have 
the right spelling, and if we had had the right spelling, that 
would have triggered action? Which is the case?
    Mr. Healy. Congressman, as I mentioned, we are in the 
process of reviewing the issues that occurred as a result of 
the Christmas day event. Some of those, not necessarily in 
terms of the watchlisting standard, but more so in terms of the 
implementation and how that process worked.
    Mr. Smith. It was an implementation problem, not a 
standards problem?
    Mr. Healy. That is one of the things that we have taken a 
look at and we are leaning toward. There are issues, as you 
have mentioned and some of the Congressman here have mentioned, 
regarding the ability to credit Dr. Mutallab when he first came 
into the embassy. There was specific implementation regarding 
sole source, and it has to be credited, you have to define 
credibility. We are recommending that with that particular 
case, we leave it up to the Consular Affairs to assess the 
credibility of the source in situations like that. Based on his 
standing with the community, he would be deemed credible, and 
that would move up as well. Things like that we are taking a 
look at and making recommendations.
    Mr. Smith. Trying to decide whether a human error or a lack 
of standards, or standards that might be too high and we might 
need to adjust the standards to trigger action next time; that 
is what you are studying.
    Mr. Healy. Based on the President's report, they talked 
about the difficulty in connecting the dots. As my colleague, 
Russ, has mentioned, there is a lot of noise out there. There 
was a result of, we believe, one of connecting the dots issue--
--
    Mr. Smith. As opposed to standards.
    Mr. Healy. As opposed to standards. But we are looking at 
the standards and we are making some adjustments or 
recommendations for the implementation of that, sir?
    Mr. Smith. Mr. Healy, a final question. You mentioned a 
minute ago in your testimony that you conducted a thorough 
review of the Terrorist Screening database to ascertain the 
current visa status of all known or suspected terrorists. What 
are the results of that?
    Mr. Healy. We identify those individuals and refer to our 
State colleagues. I believe most of those have been revoked. 
They are under review right now. There were approximately 1,100 
individuals that had received visas that were in the Terrorist 
Screening Center database, and that information was coordinated 
with our Department of State colleagues.
    Mr. Smith. Okay. And do we know where those individuals 
are? Have they been removed or not? That gets back to the same 
question I was asking Ms. Cogswell.
    Ms. Cogswell. That is the number I asked for
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you.
    Bobby Scott, Chairman of the Subcommittee on Crime.
    Mr. Scott. Thank you, Mr. Chairman.
    Just a brief question. We are getting all this information, 
some of it in foreign languages; do we have enough foreign 
language people on staff to listen to some of these wiretaps, 
or do we need more staff knowledgeable in foreign languages?
    Mr. Travers. I would just say, sir, that foreign language 
training has been an issue for the community about as long as I 
have been in that community. We have obviously spent a great 
deal of money focused on many of the difficult languages in 
particular, but at the same time, I think everyone would 
acknowledge that there are shortages in a number of languages.
    Mr. Scott. Have you asked for us to do anything in 
response, like more funding, more scholarships, more courses?
    Mr. Travers. From NCTC's perspective, no, sir. I would have 
to check with ODNI and the various organizations----
    Mr. Scott. Well, you recognize the shortage, and you 
haven't recommended that we do anything about it.
    Mr. Travers. It wouldn't be NCTC to make that 
recommendation, sir. I can check with the broader community and 
get back to you on what requests have been made.
    Mr. Scott. Ms. Cogswell, if the Christmas bomber had been 
on the extra search list, would the extra search have revealed 
his plan?
    Ms. Cogswell. Sir, when you say ``extra search'' list, you 
mean the changes that we have made since December?
    Mr. Scott. Well, you have a No-Fly List and you have a 
selectee list; and selectee means you have got extra screening.
    Ms. Cogswell. Correct.
    Mr. Scott. If you had been given extra screening, could we 
have revealed the threat?
    Ms. Cogswell. If he would have been given extra screening, 
there would have been a greater likelihood we would have found 
the threat. As has been noted, given where we believe or how he 
was transporting the material--if, for example, it was in his 
carry-on baggage and his baggage was hand searched, it is 
highly likely it would have been found. Given if he was holding 
it where it eventually was detonated, that takes a very 
personal type of pat-down in order to find that. That is 
something since the 25th we have been focusing very much with 
our foreign partners on, as well understanding how can you best 
find these types of threats.
    Mr. Scott. Would the x-ray machine, the see-through thing, 
would that have revealed it?
    Ms. Cogswell. Thank you. This is an important distinction 
from what has been our current process. Under a traditional 
magnetometer and x-ray machine, it is primarily looking for 
metal. The advanced imagining technology has the benefit in 
that it identifies any foreign material by the fact that it 
shows up as an anomalous object on the body as a way to 
identify material. Again, given the location, we cannot say 
with certainty that it would have found it, but it is a 
significant improvement enhancement over what we have today.
    Mr. Scott. Does that mean he could have gotten it through 
anyway?
    Ms. Cogswell. In all of these circumstances we say that we 
can never say any specific layer and any specific technology is 
100 percent solution. We do also say this is why we must have 
the various layers so that you would have both these types of 
advantaged technologies in order to scan as well as things like 
behavior detection or canines so that you have the best 
likelihood of identifying these threats rather than relying on 
one single aspect.
    Mr. Scott. When we started the debate on the Department of 
Homeland Security, the problem we were trying to solve was the 
fact that the Department of Justice had information, CIA had 
information, Department of Defense and Department of State all 
had information but they weren't talking to each other. Our 
solution for four people not talking to each other was to 
establish a fifth organization in which none of the other four 
landed. So now you have five people not talking to each other. 
Can you explain to me how the Department of Homeland Security 
has actually helped things?
    Ms. Cogswell. I would like to start out by noting that the 
Department of Homeland Security was made up of 22 separate 
agencies who were originally part of that larger group. So I 
would say that, while it does look like a fifth new agency, all 
of the components within DHS--such as Customs and Border 
Protection, Immigration and Customs Enforcement, the Secret 
Service, all were very much part and parcel of this process 
well before these events, so that it is important to understand 
that these relationships, these processes have really advanced 
and improved. We have streamlined many of them, and very much 
inculcated a number of these to enhance our screening processes 
since that time.
    Mr. Kennedy. Sir, can I add something to that?
    Prior to 9/11, the State Department had a screening 
database that we used before we issued visas, somewhere on the 
order of 9 or 10 million hits, and obviously that number has 
grown in the last years. Right now, sir, before we issue a 
visa, we run that database against 27 million possible 
individuals of concern. It is a 400 percent increase since 9/
11. Five million of those records come from the Department of 
Homeland Security, 11 million of those records come from the 
FBI, others come from elsewhere in the community.
    We also now have full access to the FBI's fingerprint 
database, other material provided to us from elsewhere, 
including Homeland Security. When we run our facial recognition 
software, that is 83 million facial images, including material 
received from throughout the law enforcement and Intelligence 
Community.
    I am not saying that we are there or it is perfect, but by 
bringing all this information together in the sharing process 
that we have, at least from the State Department's view, we 
have access to an incredibly expanded and diverse database that 
we never had before in order to help us make our decisions.
    Mr. Scott. And the Department of State didn't end up in the 
Department of Homeland Security, so you didn't need the 
Department of Homeland Security to do that.
    Let me ask another question, because I am running out of 
time. The issue of torture has come up, and my question is, if 
Timothy McVeigh had been caught either shortly before or 
shortly after the Oklahoma bombing, if we are going around 
torturing people, how would we have known whether he should 
have been tortured as an American citizen or not?
    Mr. Travers. Sir, I think I probably speak for all of us 
that that question would be way outside the lane of 
responsibility for any of our organizations. NCTC, for 
instance, looks at analysis and integration of information----
    Mr. Scott. If he had been captured and if he was kind of 
foreign looking, people have suggested he shouldn't have been 
given Miranda rights and ought to have been tortured to get 
information. Are you suggesting that torture is always outside 
the line?
    Mr. Travers. No, sir. I am just saying that that particular 
question is outside the lane of any of our organizations here.
    Mr. Scott. Any of your organizations, it was not outside 
the lane of the United States policy.
    Mr. Travers. I would refer you to Department of Justice and 
operational organizations.
    Mr. Scott. Mr. Healy, you are in the Department of Justice. 
Is torture outside the lanes? We need to get information.
    Mr. Healy. Well, sir, as a father of seven, when you talk 
about torture, I think about what my children would say. I 
would not, with the word ``torture,'' condone torture, but with 
regard to your question, sir, I would refer you to the 
Department of Justice or my director.
    Mr. Scott. So how would you know whether to use--what do 
you call it--enhanced interrogation techniques, how would you 
know whether to apply those techniques or give Miranda warnings 
to someone--if it is an American citizen, I would assume they 
would be entitled to Miranda warnings; is that right?
    Mr. Healy. In a law enforcement action--and I go back to my 
24 years as an FBI agent--in a criminal matter, if I arrest 
someone, as a matter of policy prior to interrogating him, I 
would issue Miranda warnings.
    Mr. Scott. If they look foreign, does that----
    Mr. Healy. Sir, I am talking in general in my law 
enforcement days.
    Mr. Scott. Would a person's right to the Miranda warning be 
less if they looked foreign?
    Mr. Healy. Again, sir, the policy for law enforcement 
actions, if I have two components, custodial and interrogation, 
as part of my policy that I follow in any type of law 
enforcement case, I would Mirandize them. With regard to 
specific cases or operational decisions, I would refer you to, 
if it's a counterterrorism case or on a particular case, I 
would refer you to the assistant director over that particular 
case.
    Mr. Scott. So you would not treat someone who looked a 
little different than everybody else different than Timothy 
McVeigh?
    Mr. Healy. Pardon me, sir?
    Mr. Scott. You would not treat someone who looked foreign 
differently than you would have treated Timothy McVeigh.
    Mr. Healy. Yes.
    Mr. Scott. Yes, you would treat them differently----
    Mr. Healy. No, sir. I am acknowledging.
    Mr. Scott. I guess we are in the 5-minute honor system, I 
think my 5 minutes is up.
    Mr. Conyers. Does the gentleman need more time?
    Mr. Scott. Well, let me ask another question then since you 
have invited the other question.
    With all the information we have, how do we limit the 
number of people who can see the information that may be 
embarrassing--medical, mental health--about people; how do we 
limit the number of people that have access to that information 
and at the same time, have enough people connecting the dots?
    Mr. Travers. Excellent question, sir.
    As all of my colleagues have indicated, I believe that by 
any objective standard every department and agency in this 
government is pushing more and more electrons to relevant 
organizations to help do this ``connect the dots.'' While we do 
so, we are also incredibly careful about what information is 
being passed. And so issues of privacy concerns are foremost on 
all of our minds. We have significant conversations with any 
organization, for instance, that has a database with commingled 
data, a database that may have U.S. persons as well as foreign 
individuals in that data set; how do we get that information; 
what can we do with it; how long can we keep it? We have 
extensive auditing to ensure that information is being properly 
utilized. And so we have gone to great strides to both promote 
information sharing, but at the same time, be good stewards of 
information.
    Mr. Scott. And confidentiality, because a lot of 
information you get will certainly be embarrassing, 
confidential. I mean, you are talking about medical 
information, mental health, family situations, a lot of things 
that people would just assume not be public and not have a lot 
of people--I mean, if you are in Northern Virginia, it is very 
likely that some of your neighborhoods and friends may be 
government officials. How do you limit the number of people who 
can actually see it and at the same time make best use of it?
    Mr. Travers. Just speaking from the intelligence and 
national counterterrorism perspective, we would not be privy to 
that information. The only information that I get from the 
Federal Bureau of Investigation is related to terrorism 
investigations, for instance, or information that could be 
associated with terrorism. And the same thing with Homeland 
Security, I am not getting any medical records or anything like 
that at NCTC.
    Mr. Healy. And Congressman, if I may also point out, the 
way the system is set up, NCTC or TIDE actually holds 
identifying information and the derogatory information, so they 
withhold that, and it is a very highly classified system. The 
process that we set up with the Terrorist Watch List was that 
that identifying informational alone would be forwarded down to 
our screening partners. So the detail and information that you 
are talking about would not be available to the State or local 
law enforcement officer, it wouldn't be available to the 
thousands of Customs Border Protection people or the Consular 
Affairs. The way the process is set up is taking into 
consideration privacy, liberty, civil liberties, and things 
like that as well so that once a name goes through that process 
or an individual goes through that process, it gets vetted with 
NCTC, and they push down only identifying information.
    Once we look at it, we push down only identifying 
information. So the only information that is available to a law 
enforcement officer is the individual that I have stopped may 
or may not be a known or suspected terrorist. For additional 
action, call the Terrorist Screening Center and confirm that. 
Once that confirmation is made, a series of events occurs--
again, as I spoke before, a coordination between the FBI for 
some type of operational response.
    So the whole system was set up to, one, allow every law 
enforcement officer that queries into NCIC, every Border 
Protection officer and every Department of State person when 
someone applies for a visa to have that terrorist information 
available to them in their existing system, but yet balance 
civil liberties. And I think that we have really worked hard to 
strike that balance collectively with all of us.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you, Mr. Scott.
    We now turn to Dan Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman. I 
appreciate that.
    And just an observation I had listening to all this, I have 
often wondered why some people think that telling someone that 
``you have the right to remain silent'' would make it more 
likely that they would talk to you. That is the only thing I 
never tried with my kids, I guess, but maybe the world works 
differently than my experience has been.
    I also say, to ask someone questions without Mirandizing 
them is not torturing them. One of the questions previously was 
do you Mirandize them or do you torture them? There is a whole 
world in between that, and it sort of goes to some of the 
confusion we have here.
    Would the gentleman from Florida allow me to use his slide? 
Can we put that up? It helps me visually to be able to see 
exactly how this information flow goes. Can you read that? This 
is a schematic that Mr. Rooney has that was taken from some 
testimony by the State Department previously and CRS actually 
put it together. It tries to show the flow of information. And 
the reason I ask that is, in my opening statement, I mentioned 
that I have some concern about us using a different standard 
for watchlisting, and that in the previous Administration, as I 
understand it, the standard was ``appropriately suspected'' to 
now this new ``reasonable suspicion'' standard that appears to 
me to come right out of Terry versus Ohio, which is a criminal 
justice standard.
    And so Mr. Healy, I guess I would ask you, why has the 
Administration decided that the Terry standard should apply to 
aliens outside the United States who, by my understanding of 
the Supreme Court decisions, have no right to Fourth Amendment 
protections?
    Mr. Healy. Thank you, Congressman. Prior to the reasonable 
suspicion standard that began--actually, it was enacted with 
the community in February of 2008, there wasn't a standard. I 
had the unique position of being at the Terrorist Screening 
Center during those early days when we started learning how the 
watchlisting process was. What occurred, actually, was as we 
progressed through the process, we identified an issue of 
making a standard so that the community could agree with it.
    As you mentioned, Terry versus Ohio is a legalistic opinion 
by the Supreme Court, but that was used as a baseline to help 
define reasonable suspicion. And from there, it was adopted and 
adjusted to meet the intelligence and law enforcement 
requirements. That process was very similar to the process that 
we are ongoing right now, Congressman, that involved all of the 
different agencies to come up with a unified standard so that 
they knew.
    The problem before that, Congressman, was that the CIA felt 
an individual should have been watchlisted that went through 
the process and it was or wasn't and it was inconsistent.
    Mr. Lungren. Here is my question, as I understand what you 
said in response to Mr. Smith's question, you indicated the 
Christmas bombing response as a failure to connect the dots. 
And I thought Mr. Travers suggested it wasn't so much a 
question of connecting the dots, but actually establishing what 
the dots were. And if I understand that correctly, there seems 
to be somewhat of a difference.
    And my question would be then to both of you, does the 
standard that has been adopted, the one that you articulated, 
which is the nominator, based on the totality of the 
circumstances, must rely on articulable intelligence or 
information which, taken together with rational inferences from 
those facts, reasonably warrant a determination that an 
individual is known or suspected to be, or have been knowingly 
engaged in conduct constituting in preparation for, in aid of, 
or related to terrorism or terrorist activities. Does that 
definition help you in the case of the Christmas bomber or 
hinder you, or make no difference whatsoever?
    Mr. Healy. With the review process, that particular 
standard, the reasonable suspicion standard that we have 
identified that we have been using, based on the review, we 
feel that the reasonable suspicion standard is adequate. We 
have looked at some of the implementation that we used----
    Mr. Lungren. Well, adequate for what purposes? Adequate for 
protecting you against legal action later on or adequate for 
purposes of putting the people on the list who ought to be on 
the list? Because this was an individual who wasn't on the 
list.
    Mr. Healy. Right. With regard to the Terrorist Screening 
Center and NCTC, and all of my colleagues here, we work with 
this terrorism issue every day. It is not an issue of I am 
concerned about being prosecuted, it is an issue of every day I 
sit down and talk to my staff and tell them this: If we make a 
mistake, people die. It is that easy. And as a result of that, 
we work to ensure that we don't have people get on planes and 
hurt people.
    The reasonable suspicion standard that we have, based on 
what occurred and based on the review, I think collectively we 
feel that that is a reasonable standard. It is low enough to be 
able to include people, it is high enough to make sure that we 
balance civil liberties and protection of the American people.
    Mr. Lungren. So, should Mr. Abdulmutallab have met the 
standard based on the totality of circumstances relying upon 
articulable intelligence or information which, taken together 
with the rational inferences from the facts, reasonably have 
warranted a determination that he was known or suspected to be 
or had been knowingly engaged in conduct constituting in 
preparation for or in aid of or related to terrorism or 
terrorist activities?
    Mr. Healy. And the question was, sir?
    Mr. Lungren. The question is very simple. I asked you 
whether or not Mr. Abdulmutallab meets that standard. That is 
my question. That is what we are here for.
    Mr. Healy. If all of the intelligence was put together, he 
would have met that standard in my view.
    Mr. Lungren. Well, here is my whole question: if someone is 
starting off with that standard, does he even begin to go into 
the process? Does the person at the consulate in Kenya or 
Yemen, or wherever, if they get that information from his 
father, does this standard give them a reason to put him in the 
system, or does this standard become so restrictive that if I 
take that information and knowing nothing else, I don't begin 
to put it into the process. That is my question.
    Mr. Healy. Actually, it does. The way the process is set up 
with TIDE and NCTC--and I will let my other colleagues speak as 
well--and with the Terrorist Screening Center, TIDE actually 
has a lower standard and it starts the process.
    Mr. Lungren. Okay. That is what I want to know. So what 
should the standard have been that the State Department should 
have paid attention to to at least enter that bit of 
information with enough significance so that you would have put 
it into the system? I mean, that is what I am trying to get at. 
We have heard a lot of stuff here, but I am trying to get at 
what happens in this case if it is repeated, what standard is 
used at that entry point that would start it going?
    Mr. Travers. And I think the complexity here, sir, is that, 
with respect to Umar Farouk, the information that came in from 
the State Department on the 20th of November with everything 
they had with respect to the derogatory, that amount of 
derogatory at the time--as you, I think, correctly quoted--
under the influence of extremists in Yemen, or something along 
that line--would not have been sufficient to get him 
watchlisted. The failure on the part of NCTC was there was this 
other piece of information that had we, in fact, connected it 
to the Visa VIPER cable, I think everyone agrees would have 
crossed the bar, would have gotten----
    Mr. Lungren. Okay. My question is very precise--I hope--
which is, was it the failure of the intake officer--I will call 
him the intake officer, whoever got that information from his 
father--was it the failure of him to put significant facts into 
this entry point, or was it that the system didn't 
automatically take that bit of information and connect it with 
several other pieces of information?
    Mr. Travers. The system at the time said, Militants, 
extremists, jihadists should not be nominated without 
particularized derogatory. The State Department had no other 
information from the father that would have come to me that 
would have led my analyst to nominate the individual.
    Mr. Lungren. So what is the difference now? Same scenario, 
comes in today, same information, no more information, it is 
not after the fact, it is before the fact, the father comes in 
with that information, what difference would it make today?
    Mr. Travers. And that is the discussions ongoing within the 
interagency right now, but I think that as a general 
proposition, the quality of the source coming in would weigh 
quite heavily.
    Mr. Lungren. The father?
    Mr. Travers. The father, exactly. And so that you could 
have sufficient flexibility to get an extremist nominated to a 
watchlist.
    Mr. Healy. And additionally, sir, the label ``extremist,'' 
we are taking a look at that as well and--again, the 
implementation process, judging that as well.
    Mr. Lungren. My other question will be on this: When you 
folks got the information from State Department, did you not 
know the source? That is, did you not know it was his father 
and the significance of his father being a reliable source, 
someone who--if you look back now, and I know it is easy to 
look back now, if you look back now, it is the father, he's got 
some prominence. He obviously is putting himself in jeopardy by 
bringing this information forward or maybe bringing his son 
into jeopardy. That, to me, if I am an investigator, even in 
law enforcement, suggest, hey, this guy might be credible. So 
was that information passed on to you?
    Mr. Travers. I have actually forgotten whether or not that 
fact was in the Visa VIPER cable itself. I don't think it was. 
But, frankly, that would not have, at the time, given the 
standards and the way we were interpreting the standards, would 
not have been sufficient. The father was concerned. He, 
frankly, wasn't concerned that his son was going to go blow up 
an airplane, wasn't concerned his son was going to be a 
terrorist.
    Mr. Lungren. I know, but he was concerned enough to come to 
us to tell us there was a problem.
    Mr. Travers. Sure. But I will tell you that we get tons of 
data pieces over the course of days and weeks about extremists 
and people being concerned about relatives and so forth. It is 
a function of separating the real important ones from whose 
those that are of less importance.
    Mr. Lungren. I understand that, and I have heard this 
before. My question, is it going to be different next time? I 
realize you get all kinds of information, I realize that.
    Mr. Healy. Congressman, one of the things that we've looked 
at and recommended changes for is that single source coming in 
and the ability for that receipt officer to be able to judge 
the credibility of the source. In this case, because of the 
prominence of the individual, because of the fact that he is 
reporting on his son, that would give additional weight to the 
nomination process.
    Mr. Lungren. My concern is this--and you know this, being 
in the FBI for your career and having any exposure to law 
enforcement, particularly at the local level, often it is a 
small piece of information from an investigator, from someone 
who has got some sense that something is wrong that triggers an 
entire investigation.
    Goodness gracious, Watergate. We know that started with 
somebody who put something together. You put a piece of tape on 
a door jam and the government implodes. No one would have 
figured that.
    My point is, we understand the significance of an intuition 
by trained people in the field. I just want to make sure that 
this standard doesn't go counter to that. That is all I am 
trying to do is to make sure we are not putting a harness on 
good people in the field who are beginning to sense that 
something is wrong, and I don't want them to have this fear 
that, oh, my God, you are going to be accused of this, that, or 
the other thing by not entering it into the system. That is my 
fear, and that is my concern. And that is all I am trying to 
get to here.
    Mr. Kennedy. Sir, if I might add, when the information came 
to the State Department--we get lots and lots of poison 
information every day, former business partners, former 
boyfriends, former girlfriends come in all the time and attempt 
to--using a law enforcement term--dime out their people. The 
State Department took this seriously enough, as we do things, 
and that is the entire purpose of the Visa VIPER program.
    Somebody comes in and we say, this doesn't look right. We 
then send that information off to Washington so that our 
colleagues in the law enforcement and Intelligence Community 
can integrate that single piece of information, just as you 
said, the investigator seeing something----
    Mr. Lungren. Did the VIPER report indicate that it was the 
father and that the father was prominent?
    Mr. Kennedy. It was collateral reporting that we can 
discuss in another venue, sir.
    Mr. Lungren. Well, I mean, that is pretty important. That 
is pretty doggone important.
    Mr. Kennedy. There is collateral reporting that----
    Mr. Lungren. And I appreciate everything you have done, I 
appreciate the entire panel, but, sir, you said we took it 
seriously, or seriously enough, or something; obviously we 
didn't take it seriously enough.
    Mr. Kennedy. I was talking about the State Department's 
taking the father's reporting to us, the sufficient severity 
descended into Washington and not dismiss it as raving.
    Mr. Lungren. I hope the State Department has purchased the 
Yahoo software that if you have a different spelling----
    Mr. Kennedy. We have that already installed.
    Mr. Conyers. Thank you, Dan Lungren.
    Sheila Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Let me ask Mr. Healy, how many years have you served at the 
Bureau?
    Mr. Healy. Approximately 24.
    Ms. Jackson Lee. So you were at the Bureau during the Bush 
administration?
    Mr. Healy. Yes, ma'am.
    Ms. Jackson Lee. And to your knowledge, Miranda was used in 
previous Administrations on alleged terrorists, Miranda?
    Mr. Healy. Yes. I believe in previous cases when 
individuals were arrested, they Mirandized them, yes, ma'am.
    Ms. Jackson Lee. And do you feel that the security of the 
Nation was diminished because Miranda was used in certain 
instances?
    Mr. Healy. I don't think I had an opinion on it, ma'am.
    Ms. Jackson Lee. Would you use it? I don't see why you 
don't have an opinion, I don't understand that. Do you believe 
that the security of the Nation was diminished at times that 
Miranda was used? Your title seems to be over the Director of 
Terrorism Screening, so you have some sense of terrorism. I 
don't know what you mean you don't have an opinion. Does 
Miranda equal the diminishment of national security for the 
United States if it is used?
    Mr. Healy. I don't think it is a factor. I have never seen 
it used where it is a factor in that, ma'am.
    Ms. Jackson Lee. And where it is a factor in that it can be 
considered a problem in the security of America; is that my 
understanding?
    Mr. Healy. Again, with my experience in criminal matters, I 
have not worked terrorism cases other than my involvement 6 
years ago with the shift in the direction of the Bureau. 
Whether a Miranda warning was issued or not is an operational 
decision that is made at the time.
    Ms. Jackson Lee. And so you would not oppose operational 
decisions like that if the parties involved felt that Miranda 
was appropriate?
    Mr. Healy. I would refer decisions like that to the 
operational components on the ground and my superiors. As the 
Director of the Terrorist Screening Center with regard to this 
particular case, my involvement didn't involve the operational 
component, it was already ongoing. The only time that my 
involvement with the Terrorist Screening Center and any type of 
terrorist subjects that are watchlisted, the operational 
component is during the screening process.
    The extent of my involvement in that is to coordinate with 
the FBI to get the operational components on the ground 
connected with the screening entities. Once that has occurred, 
then they take over the investigation or whatever results of 
that. As a result of that, they report----
    Ms. Jackson Lee. I will pose a question to others on the 
panel and see whether they have an answer, but let me continue 
to work with you on this question, particularly the Christmas 
Day bomber.
    What was the breakdown between the information received in 
Nigeria with the State Department--the State Department is 
here, I know--in getting this information transferred and 
interpreted such that this alleged perpetrator could be on the 
watchlist?
    Mr. Healy. The initial information, as my colleagues have 
said, based on the father coming into the embassy, resulted in 
a Visa VIPER. That Visa VIPER was referred to NCTC and entered 
into TIDE. That Visa VIPER, as Mr. Travers has said, had enough 
biographical information to be in TIDE, or watchlisted, lacked 
enough derogatory information to put it into the reasonable 
suspicion standard. So from that standpoint, the name wasn't 
watchlisted based on that single reporting piece of 
intelligence and it wasn't pushed over to the Terrorist 
Screening Center database.
    Ms. Jackson Lee. So where do you think the collapse came or 
the failure came?
    Mr. Healy. As I have said, if we have a magic ball, if 
there was something that would allow us to connect the dots on 
everything, every piece of intelligence that came in and it 
automatically connected to everything else that we had, that 
would be very beneficial. If you could look at the totality of 
the facts to be able to make a nomination, that would be 
helpful.
    Unfortunately, right now what we get from NCTC is between 
400 and 1,200 add, modifies, and deletes a day. What they look 
at is significantly bigger than that.
    Ms. Jackson Lee. Do we need more resources, more trained 
professionals in human intelligence? Let me try to, without 
probing into classified information, I assume that the father 
publicly told the point person in Nigeria that the individual 
had been to Yemen and that he felt he was being trained in 
Yemen. Was that not information that the desk officer had?
    Mr. Healy. I would have to refer to the desk officer on 
that, ma'am, I am not sure.
    Ms. Jackson Lee. So you are not privy to what information 
was then sent through Visa VIPER and then on to the various 
areas?
    Mr. Healy. The way the process works, the information, the 
derogatory information is in TIDE. And I will refer to my 
colleague to talk about the TIDE information.
    Ms. Jackson Lee. All right. Colleague, would you answer 
that, please, Mr. Travers?
    Mr. Travers. The Visa VIPER cable that came in, Umar Farouk 
Abdulmutallab, came into one of my desk analysts with a Viper 
cable that had a pretty short statement of derogatory--under 
the influence of extremists in Yemen, or something to that 
effect. What she did was exactly what she has been taught, she 
went and searched Umar Farouk Abdulmutallab across all the 
other databases and got exactly zero hits. Why? Because there 
was no other Abdulmutallab anywhere in the database.
    The problem came that there was other information out there 
associated with Umar Farouk, that is all--spelled differently. 
And the challenge for her, the challenge for all of my analysts 
is that roughly 350 names are nominated to the National 
Counterterrorism Center every day, and they span a wide range 
of derogatory information--suicide bomber, facilitator of 
terrorism, extremist. In the case of Umar Farouk Abdulmutallab, 
he would have been at the very, very low end of our level of 
concern. That is why in my opening statement, I said the two 
things that we are trying to do to enhance our ability to catch 
the next one of these kind would be to bolster the resource 
base associated with populating TIDE so that instead of a 
relatively rudimentary data set, we are enhancing the record so 
that the analysts will go out and search for other information 
that might enhance the record so that we would cross that 
reasonable suspicion bar to push the information to Director 
Healy.
    Similarly, we have a pretty substantial organization that 
is being built within our Director of Intelligence to help us 
with these random dots. It may not be a name, it may be a 
concept, but these are the kinds of things that are designed to 
help us exploit the tremendous amount of information that is 
out there. Are there resource implications? Yes, ma'am, 
absolutely.
    Ms. Jackson Lee. Let me just quickly move to Mr. Kennedy of 
the State Department. Have you had any change in procedure 
based on what happened in Nigeria?
    Mr. Kennedy. Yes, Congresswoman. What we have done is we 
have increased the information that we put into the Visa VIPER 
reporting cable. There was an interagency-agreed process that 
we provide the following data points.
    Ms. Jackson Lee. What about training of your staff? Because 
I am still concerned that the staff in Nigeria, obviously they 
are not terrorist experts, but I think if someone indicates 
that I believe my son is being trained in Yemen, that it should 
raise the level that maybe rather than you inputting it, you 
get on the phone and call, and maybe your call could convince 
the other receivers of information to heighten their 
sensitivity to the information.
    Mr. Healy. Congresswoman, we have added additional 
information, but just as a matter of technicality, by turning 
this into a Visa VIPER cable and reporting it, this information 
goes to the entire intelligence and law enforcement community.
    It is like a broadcast. Calling one person is good but we 
might call the wrong person and that person may not have--so we 
prefer as a matter of course to send it to the entire law 
enforcement and Intelligence Community so that if anyone is 
aware of concerns about this individual, we are raising the 
flag throughout that entire community rather than just with one 
individual who may or may not have that next piece that Mr. 
Lungren referred to. We are the frontline. We are out there----
    Ms. Jackson Lee. Let me just finish up on my question so I 
can yield back. Can you tell me what determination brings about 
the 14-country list? Did that come after the Christmas Day 
bomber? There is a 14 country list that Pakistan is on.
    Mr. Kennedy. That is a list that was proposed by the 
Department of Homeland Security.
    Ms. Jackson Lee. Let me move to the Department of Homeland 
Security. Would you explain that list and why, please.
    Ms. Cogswell. Yes, ma'am.
    Ms. Jackson Lee. Thank you, sir.
    Ms. Cogswell. Immediately after the event DHS moved to put 
in place immediate enhancements to our security and screening 
posture in order to address the immediate threat stream. In 
doing so, we looked at a process we already had in place, the 
ability to issue those security directives and enhanced 
emergency amendments to increase the level of screening, and we 
focused on a way to designate certain individuals for that 
enhanced screening. We selected the countries based on those 
that were designated as state sponsors of terrorism, safe 
havens or links to the current threats streams that were in the 
environment. These were meant to be not permanent but near term 
to address the threat. They will evolve. They will change and--
--
    Ms. Jackson Lee. When did you establish the list?
    Ms. Cogswell. I would have to check the date, but within a 
couple days. I think it was like 3 days after the event.
    Ms. Jackson Lee. I would ask that you submit the full list 
to the Committee and the analysis short of being classified, I 
assume, the general analysis that you utilized. Do you have a 
recollection of some of them without the whole list? I know you 
couldn't recite the whole list.
    Ms. Cogswell. Other than remembering, of course, that 
Nigeria and Yemen are on the list, I cannot recall the full 
list.
    Ms. Jackson Lee. Would you provide us with that list, 
please?
    Ms. Cogswell. I will.
    Ms. Jackson Lee. It seems that my good friend from 
California was diminishing the Miranda as a basis of getting 
information. I don't know why Mr. Healy--I guess he is limiting 
himself to the terrorists, but I know that he was an FBI agent 
previous to that, and I am not sure why he is not able to give 
some sense of why the Miranda would diminish the rights--or the 
ability to secure America.
    But I would suggest that the problem that we have--and I am 
prepared to yield back, Mr. Chairman, and I thank you for this 
hearing, and I sit on the Homeland Security Committee--is the 
unfortunate sense that I get is that we are repeating post-9/
11. It was the same lack of transfer of information that did 
not transfer a memo from an agent in the Midwest to the 
understanding of individuals who were training and used cash to 
be trained in Florida to take off and not land.
    So I don't know where we are going to go with this sharing 
of information. We put more layers on, Mr. Chairman, but I 
don't know if the layers are more effective. I think it will be 
interesting for us to continue to pursue this and collaborate 
with other Committees because our responsibility on securing 
the Nation is based on, I believe, human intelligence and the 
transfer of such.
    And as I listened to Mr. Healy talk about from Visa VIPER 
to so many acronyms, I don't know where you get to the point 
where somebody stops and says this is enough for me to pick up 
the telephone, something that we don't use anymore because we 
are too busy e-mailing and people are too busy not reading 
their e-mail, pick up the telephone and say I may be in error, 
but let's move forward and put Mr. X--Ms. XYZ on this 
watchlist. I believe privacy is crucial and I don't believe we 
should do this willy nilly.
    And I will be meeting with a group who are very concerned 
about the terrorists, about the list that DHS has put on, and I 
am concerned about that list because I don't think it was done 
with thoroughness. But the point is that we have got to find 
some way to be more keen on how we transfer information to 
avoid Fort Hood, the devastating loss of life, and to avoid 
what could have been another devastating loss of life.
    Mr. Chairman I yield back
    Mr. Conyers. Ladies and gentlemen, the bells are not 
working, but the voting has commenced on the floor.
    We will stand in recess until floor votes are disposed of 
and then we will resume.
    The Committee stands in recess.
    [Whereupon, at 12:20 p.m., the Committee recessed for votes 
on the House floor and the hearing was not resumed.]
                            A P P E N D I X

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