[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                DEPARTMENT OF JUSTICE'S HANDLING OF 
                 KNOWN OR SUSPECTED TERRORISTS ADMITTED 
                 INTO THE FEDERAL WITNESS SECURITY PROGRAM
=======================================================================


                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,

                 HOMELAND SECURITY, AND INVESTIGATIONS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 4, 2013

                               __________

                           Serial No. 113-41

                               __________

         Printed for the use of the Committee on the Judiciary


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




                  U.S. GOVERNMENT PRINTING OFFICE
81-344                    WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001


                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
SPENCER BACHUS, Alabama              Virginia
J. RANDY FORBES, Virginia            PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona                JUDY CHU, California
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina           KAREN BASS, California
RAUL LABRADOR, Idaho                 CEDRIC RICHMOND, Louisiana

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              JUNE 4, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, Homeland Security, and 
  Investigations.................................................     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, Homeland Security, and 
  Investigations.................................................     2
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     3

                               WITNESSES

The Honorable Michael E. Horowitz, Inspector General, U.S. 
  Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8
David Harlow, Assistant Director, U.S. Marshals Service, U.S. 
  Department of Justice; and Paul O'Brien, Deputy Assistant 
  Attorney General, Criminal Division, U.S. Department of Justice
  Oral Testimony.................................................    14
  Joint Prepared Statement.......................................    16

                                APPENDIX
               Material Submitted for the Hearing Record

DoJ Interim Report...............................................    29


   DEPARTMENT OF JUSTICE'S HANDLING OF KNOWN OR SUSPECTED TERRORISTS 
           ADMITTED INTO THE FEDERAL WITNESS SECURITY PROGRAM

                              ----------                              


                         TUESDAY, JUNE 4, 2013

                        House of Representatives

                   Subcommittee on Crime, Terrorism, 
                 Homeland Security, and Investigations

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr., (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Scott, 
Conyers, and Bass.
    Staff present: (Majority) Allison Halataei, Parliamentarian 
& General Counsel, Sarah Allen, Counsel; Alicia Church, Clerk; 
and (Minority) Aaron Hiller, Counsel.
    Mr. Sensenbrenner. The Subcommittee will come to order.
    Without objection, the Chair will be authorized to declare 
recesses during votes on the Floor of the House.
    The Chair will make an opening statement and then yield to 
Mr. Scott.
    Last month the Justice Department's Inspector General 
released a report that should have sent chills through everyone 
who read it. The report was titled ``The Department of 
Justice's Handling of Known and Suspected Terrorists Admitted 
Into the Federal Witness Security Program,'' but it just as 
easily could have been the Department of Justice's mishandling 
of this program.
    The Witness Security Program, often called WITSEC, is a 
critical prosecutorial tool that has been in existence since 
1971. The program protects witnesses who agree to testify in a 
variety of different types of criminal cases, including drug 
trafficking, organized crime, and in recent years terrorism 
cases. For example, the witnesses involved in the 1993 World 
Trade Center bombing and the blind sheik prosecutions have been 
included in the WITSEC program. In order to protect them from 
harm stemming from their testimony, participants are relocated 
to a new community by the Justice Department, afforded 
financial assistance, and provided a new name and 
identification documents.
    While conducting its periodic oversight of the WITSEC 
program, the IG discovered the Department, specifically the 
U.S. Marshals Service and the Criminal Division's Office of 
Enforcement Operations, or OEO, had little or no safeguards in 
place to make sure that the American people were protected from 
these potentially dangerous individuals. While most of the 
details of what the IG discovered are contained in a much 
longer non-public and classified report, the six-page public 
summary alone paints an extremely troubling picture.
    For example, the IG discovered the Department did not 
actually know how many terrorists had been admitted into 
WITSEC. It had lost track of at least two terrorists in the 
program. It was not sharing critical information about 
potential terrorist activities by WITSEC participants with our 
national security stakeholders, including the FBI, and the 
Department was not providing the witnesses' new identities to 
the Terrorist Screening Center, which meant that these new 
names were not included in the Transportation Security 
Administration's No-Fly List. Accordingly, known terrorists who 
were trained in aviation and explosives and who were banned 
from flying were free to fly commercially at their whim. I 
would say this sounds like the plot of a Naked Gun movie if it 
were not so terrifying and true.
    One of the most important lessons after September 11th was 
the critical need for better information sharing among our 
national security and law enforcement entities. The IG's report 
makes it clear that there is still much work to be done in this 
regard. Today I expect to hear from the Justice Department how 
this mismanagement was allowed to happen, how the Department 
intends to mitigate the potential harm to our national security 
that has already been done, and what it is doing to make sure 
this thing does not happen again.
    It is now my pleasure to recognize for his opening 
statement the Ranking Member of the Subcommittee, the gentleman 
from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Over the course of its 40-year history, the Witness 
Security Program has proven an invaluable law enforcement and 
counterterrorism tool for the Department of Justice. The 
program has enabled us to secure the cooperation of witnesses 
who have provided key testimony against some of the most 
egregious criminals in modern history, including the 
perpetrators of the 1993 World Trade Center bombing, the attack 
on our embassies in East Africa in 1998, and the 2009 attempted 
bombing of New York City's subway system.
    But on May 16 of this year, the Office of the Inspector 
General issued its Interim Report on the Department of 
Justice's Handling of Known or Suspected Terrorists Admitted to 
the Federal Witness Security Program. The report raises a 
number of deeply troubling questions about the government's 
handling of individuals who are linked to terrorist activities 
and admitted to the Witness Security Program.
    For example, it appears that until recently the Department 
had no mechanism in place to notify the FBI or the Terrorist 
Screening Center of new identities the government had provided 
to suspected terrorists admitted to the program. Without that 
notice, TSC was unable to update the terrorist watch list to 
reflect these new identities. As a consequence, at least some 
of those new identities were left off the no-fly and selectee 
list, enabling these individuals to fly freely on commercial 
aircraft and evade our principal method for tracking the 
movement of known and suspected terrorists. In fact, it appears 
that in some cases, the United States Marshals Service 
expressly permitted these individuals to fly unescorted on 
commercial aircraft.
    In another troubling instance the OIG report suggested that 
the government altogether lost track of two known or suspected 
terrorists who at some point left the program on their own 
accord. In short, the report has identified several critical 
flaws in the Witness Security Program that should never have 
been allowed to develop and must be addressed immediately, to 
the extent that they have not already been addressed.
    One thing that is missing from the report and I think we 
should gain from the discussion today is a better sense of the 
timing of these incidents. Given the kinds of security flaws 
found in the audit, I can certainly appreciate the sense of 
urgency expressed by the Inspector General in his interim 
report and that the Chairman reflected in his opening 
statement. But it appears that the Department became aware of 
these problems years ago and has already taken substantial 
steps to address them, even before the OIG began its audit.
    Of the 16 recommendations listed in the report, apparently 
15 were completed by March 2013, 2 months before the report was 
circulated to our offices. If it turns out that any gaps remain 
in this program, I expect our witnesses to tell us how we can 
repair them immediately, and if those concerns have already 
been addressed, I expect to learn how they have been addressed 
and to be assured that the defects of this kind will not happen 
again.
    Before I conclude, Mr. Chairman, it seems worth noting in 
advance that our discussion today will be somewhat limited by 
the public forum. When you talk about these things, there is a 
lot of sensitive information that cannot be discussed in an 
open forum, and I appreciate you holding an open session, but 
if necessary I hope we can have a more private setting where we 
might get more classified information.
    But I look forward to our discussion today and thank our 
panelists for being with us.
    Mr. Sensenbrenner. To respond to the gentleman from 
Virginia, I think we will make that decision after we find out 
what the testimony is in the open session.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The Chair now recognizes the gentleman 
from Virginia, Mr. Goodlatte, the Chair of the full Committee.
    Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your 
holding this hearing.
    The Inspector General's recent report on the appalling 
handling of known and suspected terrorists in the Federal 
Witness Security Program raises serious concerns about whether 
this traditional law enforcement program should be used to hide 
and relocate suspected terrorists.
    The IG report found that the number of known or suspected 
terrorists admitted to the Witness Security Program is unknown 
to the Department, that the Department has lost track of two 
suspected terrorists in the program, and that critical national 
security information is not being shared with other agencies.
    For example, the Inspector General found that after the 
known or suspected terrorists received a new name and necessary 
identity-related documents, their new names were not placed on 
the Transportation Security Administration's No-Fly List, even 
though their previous names had been listed because they pose a 
threat to our national security.
    As a result, there was nothing to stop these terrorists 
from joining the general public on commercial airplanes here in 
the United States. In some cases, witnesses on the No-Fly List 
were even permitted to fly commercially with the Department's 
approval.
    All of this is especially problematic since the IG report 
found that terrorists admitted to the program include persons 
who have been trained in aviation and explosives, and 
individuals who have been involved in bombing attacks.
    The Department's mismanagement of the WITSEC program has 
put American lives needlessly at risk, which simply cannot be 
tolerated. As we saw in regard to the recent Boston bombings, 
the IG's report highlights that a lack of robust information 
sharing persists more than a decade after the 9/11 terror 
attacks.
    The terror threat has not diminished since 9/11. It is 
ever-present and evolving, and requires effective counter-
terrorism programs. I look forward to hearing from our 
witnesses today on the steps the Department has taken and will 
take to make sure that appropriate interagency coordination is 
occurring within the WITSEC program, across the Department and 
the Administration.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Mr. Sensenbrenner. Without objection, other Members' 
opening statements will be included into the record at this 
point.
    It is the policy of the Committee to swear in all of the 
witnesses.
    Would each of the witnesses please rise and raise your 
right hand?
    [Witnesses sworn.]
    Mr. Sensenbrenner. Let the record show that each of the 
witnesses has answered in the affirmative.
    The Chair will now introduce each of the witnesses.
    The first witness today is the Honorable Michael E. 
Horowitz, who was sworn in as the fourth confirmed Inspector 
General of the Department of Justice on April 16, 2012. In this 
capacity, he oversees a nationwide workforce of approximately 
450 special agents, auditors, inspectors, attorneys, and 
support staff whose mission is to detect and deter waste, 
fraud, abuse and misconduct in DOJ programs and personnel, and 
to promote economy and efficiency in Department operations.
    Mr. Horowitz most recently worked as a partner at 
Cadwalader, Wickersham & Taft, LLP, where he focused his 
practice on white-collar defense, internal investigations and 
regulatory compliance. He also served as a commissioner on the 
U.S. Sentencing Commission, where he was instrumental in re-
writing the guidelines for corporate compliance program and for 
fraud, anti-trust, intellectual property, and money laundering 
offenses. He previously worked for DOJ in the Criminal Division 
at main Justice from 1999 to 2002, and as an Assistant U.S. 
Attorney for the Southern District of New York from 1991 to 
1999. He received a Bachelor of Arts degree from Brandeis 
University and his law degree from Harvard Law School.
    David Harlow is the Associate Director for Operations for 
the U.S. Marshals Service. In this capacity, he is responsible 
for the development of the Behavioral Analysis Unit within the 
National Sex Offender Targeting Center, which assists with the 
prioritization and targeting of non-compliant and fugitive sex 
offenders and the safeguarding of Marshal Service employees. He 
joined the Marshals Service in December 1983 in the Northern 
District of Ohio, where he was promoted to Chief Deputy U.S. 
Marshal.
    During his tenure in Ohio, Mr. Harlow created the first 
Cooperative Fugitive Apprehension Team comprised of multiple 
law enforcement agencies in the Toledo metropolitan area. He 
was then transferred to the Eastern District of Virginia, where 
he served as Chief Deputy U.S. Marshal. Most recently, he 
served as Assistant Director for the Investigative Operations 
Division. He received his Bachelor's degree in Law Enforcement 
Administration from Western Illinois University.
    Paul O'Brien is the Deputy Assistant Attorney General of 
the Criminal Division of the U.S. Department of Justice. He 
joined the Department in 1995 as an Assistant U.S. Attorney for 
the Western District of Tennessee. In 2003, he joined the U.S. 
Attorney's Office in Nashville, where he served as Narcotics 
Chief, Criminal Chief, First Assistant U.S. Attorney, and 
Interim U.S. Attorney. In 2008, he was appointed Chief of the 
Narcotics and Dangerous Drugs Section and served in that 
capacity through his appointment as the Director of Enforcement 
Operations in February 2010. He is a graduate of Texas A&M 
University and earned his law degree from the University of 
Memphis.
    We will now proceed under the 5-minute rule. All of you 
know that we like to have your written testimony summarized. 
Without objection, the full written testimony will appear in 
the record.
    During your testimony, the green light says go, the yellow 
light says a minute, and the red light says yield the floor.
    And, Mr. Horowitz, you are first.

   TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ, INSPECTOR 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Horowitz. Thank you, Mr. Chairman, and thank you for 
inviting me to testify today about the Office of the Inspector 
General's Interim Report on the Department's Handling of Known 
or Suspected Terrorists in the Federal Witness Security 
Program. My comments today will be limited to the information 
contained in our public summary report.
    Our audit found significant deficiencies in the operation 
of the WITSEC program due to the failure of the WITSEC program 
to consult with national security stakeholders such as the 
FBI's Terrorist Screening Center, or TSC, when admitting and 
monitoring known or suspected terrorists into the WITSEC 
program. For example, we found that the Department did not 
definitively know how many known or suspected terrorists had 
been admitted into the WITSEC program.
    In response to our review, the Department began an analysis 
of its WITSEC program case files to determine how many known or 
suspected terrorists were admitted into the WITSEC program. 
Additionally, at our recommendation, the Department compared 
the true names, aliases and government-provided identities for 
the over 18,000 WITSEC program participants and their 
dependents to the TSC's consolidated terrorist watch list. This 
comparison identified additional known or suspected terrorists 
who were not identified in the Department's initial WITSEC 
program case file reviews.
    The failure to adequately monitor WITSEC program 
participants was evidenced by the fact that the Department 
informed us during our review that it was unable to locate two 
former WITSEC participants identified as known or suspected 
terrorists, and that through its investigative efforts it has 
concluded that one individual was and that the other individual 
was believed to be residing outside of the United States.
    We also found that the Department was not disclosing to the 
TSC the new identities provided to known or suspected 
terrorists and their dependents in the WITSEC program. As a 
result, until we brought this matter to the government's 
attention, the new government-provided identities of known or 
suspected terrorists were not included on the TSC's 
consolidated terrorist watch list. This failure meant that 
known or suspected terrorists could evade one of the 
government's primary means of identifying and tracking 
terrorists' movements and actions.
    It also meant that known or suspected terrorists in the 
WITSEC program who the TSC had prohibited from flying on 
commercial airlines were allowed to fly on commercial flights 
using their new identities with WITSEC program officials' 
knowledge and approval. Moreover, these individuals, on their 
own accord, could have flown without WITSEC program officials' 
knowledge and approval.
    Lastly, as a result of our review, we developed concerns 
about inconsistent, informal, and inadequate information 
sharing and coordination by the WITSEC program with national 
security stakeholders. Of particular concern, we found that 
prior to May 2012, the WITSEC program did not have a formal 
process to share WITSEC terrorism-related information with the 
FBI, and that the WITSEC program did not always share such 
information that could have been of potential value to the FBI.
    We believe that such information must be shared with the 
FBI immediately so that the FBI, which has the primary 
responsibility for assessing national security threats, can 
determine the appropriate action to take.
    In conclusion, the operations of the WITSEC program in 
general and the corrective actions, the 16 that we identified 
and recommended in our non-public interim report, require 
ongoing attention. A program that was designed to protect 
cooperating witnesses must be operated in a manner that also 
ensures the public safety. We look forward to working closely 
with the Department and the Congress to ensure that the 
national security vulnerabilities and other issues identified 
during our review are addressed quickly and appropriately.
    I would be pleased to answer any questions the Subcommittee 
may have.
    [The prepared statement of Mr. Horowitz follows:]
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you, Mr. Horowitz.
    Mr. Harlow?

 TESTIMONY OF DAVID HARLOW, ASSISTANT DIRECTOR, U.S. MARSHALS 
 SERVICE, U.S. DEPARTMENT OF JUSTICE; AND PAUL O'BRIEN, DEPUTY 
ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT 
                           OF JUSTICE

    Mr. Harlow. Thank you for inviting me here today, Mr. 
Chairman. Mr. O'Brien will be speaking on behalf of both of our 
parties.
    Mr. Sensenbrenner. Mr. O'Brien.
    Mr. O'Brien. Chairman Sensenbrenner, Ranking Member Scott, 
and distinguished Members of the Subcommittee, thank you for 
inviting me here today to share the views of the Justice 
Department on the admission of former known or suspected 
terrorists into the Witness Security Program. Together with my 
colleague David Harlow from the United States Marshals Service, 
we are honored to represent the Department at this hearing.
    Over its more than 40-year history, the Witness Security 
Program has played a crucial role in the protection of 
witnesses in organized crime prosecutions, enabling prosecutors 
and law enforcement to bring to justice some of the world's 
most dangerous and violent criminals, convictions that would 
not have been possible without testimony from the witnesses 
being protected by the program. As then Acting Assistant 
Attorney General John C. Keeney testified to Congress, 
``Obtaining the cooperation of insiders is crucial to the 
successful prosecution of traditional organized crime groups, 
international narcotics traffickers, and violent street 
gangs.'' That was true when Mr. Keeney testified in 1996; it is 
equally true today.
    The Witness Security Program has evolved to include 
witnesses in domestic and international terrorism prosecutions. 
These witnesses are individuals close enough to terrorists to 
have information about them, their organizations, and their 
plans. They necessarily include a small number of former or 
known suspected terrorists. Cooperation from these witnesses is 
vital to successfully prosecute those who pose the most 
significant threat to our national security.
    In deciding whether to admit these witnesses into the 
Witness Security Program, our paramount priority is the safety 
of the American public and of the United States. Among other 
investigations and prosecutions, participants in the Witness 
Security Program have provided essential cooperation and 
testimony regarding the 1993 World Trade Center bombing, the 
1995 Oklahoma City bombing, the 1998 East Africa embassy 
bombings, and the 2007 plot to bomb the John F. Kennedy 
International Airport.
    As these cases illustrate, the Witness Security Program is 
a critical tool for securing the cooperation from witnesses who 
are necessary to the successful prosecution of cases that are 
important to the government's counterterrorism mission and to 
the security of the United States. To date, the FBI has not 
identified a national security threat tied to the participation 
of terrorism-linked witnesses in the Witness Security Program.
    Nevertheless, in 2010, the Department recognized that the 
program's handling of terrorism-linked witnesses needed to be 
improved and began instituting a series of corrective measures 
aimed at, among other things, ensuring more robust information 
sharing with our national security stakeholders. Thereafter, 
the Department's Office of the Inspector General also found 
areas in which the program's handling of terrorism-linked 
witnesses needed to be enhanced.
    Since that time, the Department has worked closely with the 
Office of the Inspector General to develop and implement 
changes to the Witness Security Program to maintain its 
reliability and value while simultaneously protecting our 
citizens and our Nation from harm. Indeed, the Department has 
already complied with 15 of the 16 recommendations made by the 
Inspector General and has made significant progress toward 
completing the last recommendation.
    Among the changes made by the Department is the institution 
of formal protocols that provide for special handling of former 
known or suspected terrorists admitted into the Witness 
Security Program. These protocols ensure full cooperation and 
information sharing between the Department, the United States 
Marshals Service, the FBI, the Terrorist Screening Center, and 
the National Joint Terrorism Task Force. They mandate 
notification to the FBI when a former known or suspected 
terrorist enters the Witness Security Program, and they require 
careful supervision of each terror-linked program participant 
who is currently in the program.
    The Department is committed to closely monitoring the 
Witness Security Program, maintaining the security of the 
witnesses who provided critical assistance to the United 
States, and above all preserving the safety of the American 
public. Thank you for allowing me the opportunity to appear 
before you. Although I may be somewhat limited in those aspects 
of the program that I can discuss in this setting, I am pleased 
to answer any questions you may have either here or in a more 
appropriate forum. Thank you.
    [The joint prepared statement of Mr. Harlow and Mr. O'Brien 
follows:]














                               __________
    Mr. Sensenbrenner. Thank you very much, Mr. O'Brien.
    The Chair would remind Members of the Subcommittee that the 
5-minute rule will be in effect. Also, the Chair will place on 
the record that non-Members of the Subcommittee will be allowed 
to sit on the dais but will only be allowed to ask questions 
should Members of the Subcommittee yield them some of their 
time.
    Mr. Horowitz, your public report revealed a systematic lack 
of information sharing among DOJ entities that directly touches 
upon our national security. And we also found that out relative 
to information sharing about the Boston attacks, which are not 
the subject of this report.
    Can you comment on what you found in this respect, and are 
you satisfied, as Mr. O'Brien has said, but the holes have been 
patched in the Justice Department's information sharing?
    Mr. Horowitz. Well, we found in the course of this review 
that information was not being shared. The primary protectors 
and organization that the Congress and the executive branch 
have assigned to deal with these issues is the FBI and its 
Terrorist Screening Center. They were not receiving the 
information they needed to receive. That did not happen until 
2012.
    We believe as a result of the audit that protocols have now 
been put in place that, if followed, will in fact address the 
holes, but we have not audited against the steps that have been 
taken. So the recommendations are not yet closed, and we will 
go back and follow up and ensure that the steps that we have 
recommended, that the Department has said they have taken, were 
in fact taken.
    Mr. Sensenbrenner. Now, the public summary of your audit 
indicates that a U.S. Marshals inspector was concerned that a 
witness was collecting information from militant Muslim groups, 
but that information was not being shared with the FBI for at 
least 2 years. Has this hole been plugged?
    Mr. Horowitz. Again, our understanding is the protocols 
should address that issue, if followed, and we will do a 
follow-up audit and issue a report that determines whether, in 
fact, the steps have been taken.
    Mr. Sensenbrenner. Okay. Either Mr. Harlow or Mr. O'Brien, 
the Marshals Service, which is tasked with fugitive 
apprehension, lost at least two known terrorists who were under 
your supervision. Why did that happen, and have you found them?
    Mr. Harlow. Mr. Chairman, thank you. It is important to 
note that the Witness Security Program is a voluntary program, 
and the two witnesses in question left the program years ago--
in fact, one more than 25 years ago--left the country years 
ago. They have since been located, and our investigative 
efforts have shown that they have not tried to reenter the 
country, and the FBI has determined that they have not posed a 
threat to the United States.
    Mr. Sensenbrenner. Do you know if their names and whatever 
relevant data we know of has been entered in the State 
Department watch list so that they would not be granted a visa 
and given to Homeland Security so that if they did show up at 
the airport they would be denied entry?
    Mr. Harlow. Yes, sir. Those steps have been taken.
    Mr. Sensenbrenner. Okay. Now, another question that I have 
of both of you is are local law enforcement officials notified 
when someone under the Witness Protection Program is placed in 
their community?
    Mr. Harlow. Mr. Chairman, local law enforcement is notified 
on a case-by-case basis depending on the specifics of that 
witness' history.
    Mr. Sensenbrenner. Okay. And can you say which types of 
history would require notification of local law enforcement and 
which would not?
    Mr. Harlow. Yes, Mr. Chairman. Many times, when a 
particular witness has an extensive criminal history, local law 
enforcement might be notified that they are going to be placed 
in their area.
    Mr. Sensenbrenner. And which would not?
    Mr. Harlow. General witnesses involved in the program 
without that extensive criminal history.
    Mr. Sensenbrenner. Well, what about a terrorist who was not 
indicted or charged with any type of terrorist-related offense? 
Would local law enforcement be knowledgeable about the fact 
that that person was in the community?
    Mr. Harlow. Mr. Chairman, under our new protocols, the 
Joint Terrorism Task Force would be notified. The FBI would 
have the lead for distributing that information as they see 
fit.
    Mr. Sensenbrenner. And are they doing it with people who 
are known terrorists who are in the program now?
    Mr. Harlow. I am sorry, sir. I do not know that answer.
    Mr. Sensenbrenner. Okay. Mr. O'Brien, do you know that 
answer?
    Mr. O'Brien. Mr. Chairman, thank you for the question. 
First, the new protocols mandate that we share all information 
with the FBI when a former known or suspected terrorist is 
admitted to the program.
    Mr. Sensenbrenner. What about those that are already in the 
program prior to the new protocol?
    Mr. O'Brien. We have shared that information with the FBI, 
and the FBI has access to the files both at the Department and 
the Marshals Service.
    Mr. Sensenbrenner. Thank you. My time is up.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Following up on that last question about notifying local 
law enforcement, it seems to me that the more people you tell 
about the presence of somebody, the more likely there may be a 
breach. Who in the local law enforcement, if you tell them, 
will get this information?
    Mr. O'Brien. Congressman, the protocols mandate that we 
notify the FBI both in the new location area where the witness 
is placed, and we also notify the FBI on the national level to 
make sure that there is redundancy built into the notification 
system.
    One thing that we also have been doing----
    Mr. Scott. What about local police?
    Mr. O'Brien. So we take the lead. If the FBI determined 
that they needed to share this information with the local 
police, that is certainly something we would consider. I think 
it is important to note that these individuals are watch 
listed.
    Mr. Scott. So when you say the local, you are talking about 
the local FBI. You were not talking about local law 
enforcement.
    Mr. O'Brien. That is correct. That is correct, Mr. 
Chairman, Congressman.
    Mr. Scott. Okay. Let me ask another question. How important 
is the Witness Protection Program to the Department?
    Mr. O'Brien. The Witness Protection Program is one of the 
most important tools prosecutors have to tackle organized 
crime, whether it is traditional organized crime, international 
narcotics cases, or a violent street gang. It has been one of 
the most effective tools that we have utilized in the 
Department to bring these individuals to justice, individuals 
that pose some of the most significant harm to our communities.
    Mr. Scott. How many of the people in the program are 
dangerous criminals, and how many just happened to be 
bystanders that would otherwise be reluctant to testify?
    Mr. O'Brien. Thank you, Congressman. I think that is an 
important question. The program has effectively not only safely 
protected witnesses who have criminal histories and have 
cooperated with the government, those individuals that have 
cooperated against the organizations which they are members of, 
but the program also protects family members and innocent 
bystanders, those individuals that are also placed in peril as 
a result of, say, for example, a family member's cooperation 
with the United States. So the program is designed to not only 
protect those individuals that are testifying on behalf of the 
United States but family members that could face retribution as 
a result of the cooperation of a family member as well.
    Mr. Scott. How many people do you have in the program? Is 
that a public number?
    Mr. O'Brien. Congressman, I believe in the public summary 
there are approximately 700 individuals actively in the 
program. But as we stated, through the history of the program, 
the Marshals Service has effectively protected thousands of 
individuals.
    Mr. Scott. Now, you used the term ``known or suspected 
terrorists.'' Many of these have not been convicted of 
anything; is that right?
    Mr. O'Brien. That is correct.
    Mr. Scott. And they are free to just up and leave. There 
are no restraints on them; is that right?
    Mr. O'Brien. The program is a voluntary program, and 
individuals can leave the program at their choosing.
    Mr. Scott. And what is your response to somebody that just 
up and leaves and just disappears?
    Mr. O'Brien. Well, Congressman, the protocols address that, 
and one thing that we have implemented is that when an 
individual leaves the program, that we will provide that 
information to the FBI and notify the FBI that the individual 
has left the program.
    Mr. Scott. Do you have any estimate of how many staff 
people you have to assign to each protectee?
    Mr. O'Brien. Congressman, I think that is a question better 
left for the Marshals Service. They may not be at liberty to 
discuss those operational issues.
    Mr. Harlow. Congressman, Mr. O'Brien is correct.
    Mr. Scott. If you do not want to do it in general, are 
their budget implications to keeping track of these people?
    Mr. Harlow. Yes, sir.
    Mr. Scott. Okay. Mr. O'Brien, we have been advised that 15 
of the 16 recommendations from the Inspector General's report 
have been addressed. What is left undone?
    Mr. O'Brien. Congressman, there is one recommendation that 
we are working on. In an abundance of caution, we have decided 
to audit every WITSEC file to review those files to ensure that 
there are no other known or suspected terrorists that entered 
in the program, and if we do notice those individuals, we will 
provide that information to the FBI. That audit is underway. We 
have reviewed approximately 20 years' worth of files, and that 
process is ongoing, and we are going to continue to work on 
that recommendation to see to its conclusion.
    Mr. Scott. The other recommendations have been--you have 
completed those recommendations?
    Mr. O'Brien. The other recommendations that were in the 
report, we believe we have completed 15 of the 16.
    Mr. Scott. Okay. Mr. Horowitz, is that your understanding?
    Mr. Horowitz. The Department has reported to us that it has 
addressed 15 of the 16. As I said, until we audit against it 
and determine that, in fact, the steps were taken and that they 
were effective, we can not close the recommendation.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Inspector General Horowitz, your office discovered the 
practice of admitting known and suspected terrorists into the 
Witness Security Program while doing a routine audit of the 
program and decided to issue an interim report on the issue. Is 
it common for you to find something so alarming that you need 
to issue an interim report to stop it?
    Mr. Horowitz. Fortunately, it is not. We thought this was 
of such importance that we needed to issue the report and make 
sure steps were taken because the gaps were still there when we 
started this audit.
    Mr. Goodlatte. Assistant Director Harlow, specifically why 
did not the Department share the new names and identities that 
provided known terrorists with the FBI's Terrorist Screening 
Center?
    Mr. Harlow. Mr. Chairman, the success of this program for 
many, many years was built on the compartmentalization of 
information. As the program evolved, we failed to evolve our 
procedures and protocols. We have now changed those procedures 
and protocols and we actively embrace them. It is also 
important to note that the FBI is the sponsoring agency in more 
than 80 percent of these types of cases.
    Mr. Goodlatte. So it was an intentional decision based upon 
a flawed protocol.
    Mr. Harlow. We recognized the problem with new leadership 
in May of 2010 and started to make those changes. Yes, sir.
    Mr. Goodlatte. Deputy Assistant Attorney General O'Brien, 
the Department's response to the IG's report calls the 
participants in question ``former known and suspected 
terrorists.'' Can you tell us what a former terrorist is? Is 
there any guarantee that the participants have given up their 
bad ways when they join the program?
    Mr. O'Brien. Mr. Chairman, I think it is important to note 
that these individuals, before they are admitted into the 
program, go through extensive vetting. That vetting includes a 
risk analysis by the sponsoring law enforcement agency, and 
approximately 80 percent of the former terrorists that were 
admitted into the program, they were admitted after a 
recommendation or a sponsor by the FBI. These are individuals 
that turn on their organizations, and many of these individuals 
testified publicly against the organizations which they were 
members of.
    So we go through a very careful vetting before they are 
admitted to the program, which includes a risk assessment by 
the sponsoring law enforcement agency. And one thing we have 
done to ensure that there are no gaps in this risk analysis is 
that if it is a case in which an agency is sponsoring a witness 
into the program other than the FBI, we will ask the FBI to 
perform a risk assessment.
    Lastly----
    Mr. Goodlatte. I understand that some of them are still on 
the FBI's terrorist watch list. Is that another failure to 
share information, or is that because they disagree with your 
assessment of the individuals? What would be the reason for 
that?
    Mr. O'Brien. Some of the individuals, not all, are still 
watch listed. Some of them are watch listed in varying degrees 
of status on the watch list. I will say that the FBI, when we 
looked at this issue and began looking at this issue, the FBI 
performed risk assessments of these individuals, and as I said 
in my opening statement, currently the FBI has determined that 
there is no threat to public safety based on their program 
participation.
    That being said, Mr. Chairman, I think it is fair to say 
that we admit that the suitability and monitoring requirements 
historically employed by the program needed to be enhanced. One 
thing that we are doing now, which I think is very effective, 
is that we have quarterly meetings with the FBI and the 
Terrorist Screening Center, the Marshals Service and the 
Department, and we go over the list of individuals that we have 
identified as being former known or suspected terrorists and we 
share that information to make sure that we all have the 
requisite information that we need.
    From the beginning, we have been talking to the FBI about 
having greater involvement with the FBI with this program, and 
the FBI has unfettered access to the files both of the Marshals 
Service and the Department. So that type of robust information 
sharing is now in place.
    Mr. Goodlatte. Let me ask you a couple more questions 
before my time expires. First of all, does the fact that two of 
the people in the program disappeared, and I now understand 
they have been located but located outside the United States, 
does that call into question the soundness of the screening 
process that they were no longer a risk as a terrorist and 
could be called a former terrorist, or does it indicate that 
they cooperated in order to get away from everything and maybe 
back engaged in terrorist activities again? Do we know the 
answer to that?
    Mr. O'Brien. Well, certainly, Mr. Chairman, we have no 
information to believe that these two individuals which you 
have referenced have engaged in acts of terrorism.
    Mr. Goodlatte. Why did they leave unaccounted for?
    Mr. O'Brien. One individual voluntarily chose to leave the 
program after being in the program for a short period of time. 
That individual left the program over 25 years ago. The second 
individual, it is my understanding, was terminated from the 
program when he no longer decided to cooperate.
    Mr. Goodlatte. All right.
    Thank you, Mr. Chairman. My time has expired.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Sensenbrenner.
    Welcome to the witnesses.
    Is it accurate to say, Deputy Assistant Attorney General 
O'Brien, that the Witness Security Program is critical to two 
missions of the Department, law enforcement and 
counterterrorism?
    Mr. O'Brien. I think that is a fair and accurate statement. 
Many of these witnesses who have cooperated not only have 
provided public testimony and cooperation in cases that were 
prosecuted in our Federal courts, but they have also provided 
information and intelligence about the organizations in which 
they were previously members of. So I think that is a fair 
statement.
    Mr. Conyers. Inspector General Horowitz, by all accounts, 
none of the operational flaws identified in the Inspector 
General's report represent a current threat to public safety or 
national security. Can we conditionally agree with that, or can 
we not make that statement at this time?
    Mr. Horowitz. Well, as we indicated in our report, the 
Department has advised us that it has taken the steps that we 
have recommended in 15 of the 16 instances. Until we audit 
against that, though, we are not prepared to make a statement 
that the recommendations are, in fact, closed.
    Mr. Conyers. So then we will be waiting to find how your 
audit of the 15 items that have been completed before the 
interim report before we will know exactly how things have 
turned out.
    Mr. Horowitz. That is correct.
    Mr. Conyers. Now, one of the more disturbing aspects of the 
report is the suggestion that individuals on the no-fly list, 
Mr. Harlow, Assistant Director of Marshals, that there were 
individuals on the no-fly list that were allowed to fly on 
commercial airlines. When did the Department of Justice become 
aware of this problem?
    Mr. Harlow. Congressman, for several years now people on 
the no-fly list have not flown on commercial planes. We embrace 
the recommendations of the Inspector General's report and we 
have applied those protocols.
    Mr. Conyers. Is it possible that these individuals could 
escape detection by TSA today?
    Mr. Harlow. Sir, all members have been put on the terrorist 
screening watch list and are on the flying watch list.
    Mr. Conyers. Mr. Chairman, those are the questions that I 
have. I yield back the balance of my time.
    Mr. Sensenbrenner. I thank the gentleman from Michigan.
    This concludes today's hearing, and I want to thank all of 
the witnesses for attending.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    The Chair says he will talk to Members on both sides of the 
aisle to see if we want to have you come back for a classified 
hearing.
    And without objection, this hearing is adjourned.
    [Whereupon, at 10:43 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record






































                                 
