[Senate Hearing 111-1070]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1070
INTELLIGENCE REFORM--2010
=======================================================================
HEARINGS
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
----------
JANUARY 20, 2010
INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY
ATTACK--PART I
JANUARY 26, 2010
INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY
ATTACK--PART II
MARCH 10, 2010
THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK: WATCHLISTING
AND PRE-SCREENING
MARCH 17, 2010
THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK:
INTELLIGENCE REFORM AND INTERAGENCY INTEGRATION
APRIL 21, 2010
THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK: SECURING THE
VISA PROCESS
----------
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
INTELLIGENCE REFORM--2010
S. Hrg. 111-1070
INTELLIGENCE REFORM--2010
=======================================================================
HEARINGS
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JANUARY 20, 2010
INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY
ATTACK--PART I
JANUARY 26, 2010
INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY
ATTACK--PART II
MARCH 10, 2010
THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK: WATCHLISTING
AND PRE-SCREENING
MARCH 17, 2010
THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK:
INTELLIGENCE REFORM AND INTERAGENCY INTEGRATION
APRIL 21, 2010
THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK: SECURING THE
VISA PROCESS
__________
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
----------
U.S. GOVERNMENT PRINTING OFFICE
56-838 PDF WASHINGTON : 2011
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Washington, DC 20402-0001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts**
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois ROBERT F. BENNETT, Utah**
PAUL G. KIRK, JR., Massachusetts*
EDWARD E. KAUFMAN, Delaware*
Michael L. Alexander, Staff Director
Christian J. Beckner, Professional Staff Member
Jeffrey E. Greene, Counsel
Seamus A. Hughes, Professional Staff Member
Gordon N. Lederman, Counsel
Blas Nunez-Neto, Professional Staff Member
Jason M. Yanussi, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Robert L. Strayer, Minority Director of Homeland Security Affairs
Ivy A. Johnson, Minority Deputy General Counsel
John K. Grant, Minority Counsel
Luke P. Bellocchi, Minority Counsel
Matthew L. Hanna, Minority CBP Detailee
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
* Senator Kaufman replaced Senator Kirk on the Committee effective
March 9, 2010.
** Senator Brown replaced Senator Bennett on the Committee effective
March 9, 2010.
C O N T E N T S
------
Opening statements:
Page
Senator Lieberman.............................. 1, 49, 81, 119, 153
Senator Collins................................ 3, 51, 83, 121, 155
Senator Tester............................................... 17
Senator Burris.............................................. 20, 74
Senator McCain......................................... 22, 68, 173
Senator Ensign............................................... 24
Senator Coburn............................................... 27
Senator Akaka................................................ 30
Senator Levin................................................ 32
Senator McCaskill............................................ 35
Senator Carper............................... 37, 65, 104, 136, 176
Senator Bennett.............................................. 70
Senator Kirk................................................. 72
Senator Brown................................................ 85
Senator Voinovich............................................ 170
Prepared statements:
Senator Lieberman.......................... 185, 284, 301, 355, 453
Senator Collins............................ 188, 287, 303, 357, 456
Senator Carper............................................... 305
WITNESSES
Wednesday, January 20, 2010
Hon. Michael E. Leiter, Director, National Counterterrorism
Center, Office of the Director of National Intelligence........ 5
Hon. Dennis C. Blair, Director of National Intelligence, Office
of the Director of National Intelligence....................... 7
Hon. Janet A. Napolitano, Secretary, U.S. Department of Homeland
Security....................................................... 9
Tuesday, January 26, 2010
Hon. Thomas H. Kean, Former Chairman, National Commission on
Terrorist Attacks Upon the United States, and Hon. Lee H.
Hamilton, Former Vice Chairman, National Commission on
Terrorist Attacks Upon the United States....................... 54
Wednesday, March 10, 2010
Russell E. Travers, Deputy Director, Information Sharing and
Knowledge Development, National Counterterrorism Center, Office
of the Director of National Intelligence....................... 86
Timothy J. Healy, Director, Terrorist Screening Center, Federal
Bureau of Investigation, U.S. Department of Justice............ 88
Gale D. Rossides, Acting Administrator, Transportation Security
Administration, U.S. Department of Homeland Security........... 90
David V. Aguilar, Acting Deputy Commissioner, U.S. Customs and
Border Protection, U.S. Department of Homeland Security........ 93
Wednesday, March 17, 2010
Hon. Benjamin A. Powell, Former General Counsel of the Office of
the Director of National Intelligence (2006-2009).............. 122
Hon. Jeffrey H. Smith, Former General Counsel of the Central
Intelligence Agency (1995-1996)................................ 125
Richard Nelson, Senior Fellow and Director, Homeland Security and
Counterterrorism Program, Center for Strategic and
International Studies.......................................... 127
Wednesday, April 21, 2010
Hon. David F. Heyman, Assistant Secretary, Office of Policy, U.S.
Department of Homeland Security................................ 157
Hon. Janice L. Jacobs, Assistant Secretary, Bureau of Consular
Affairs, U.S. Department of State.............................. 159
Hon. John T. Morton, Assistant Secretary, U.S. Immigration and
Customs Enforcement, U.S. Department of Homeland Security...... 164
Alphabetical List of Witnesses
Aguilar, David V.:
Testimony.................................................... 93
Prepared statement........................................... 328
Blair, Hon. Dennis C.:
Testimony.................................................... 7
Joint prepared statement with Mr. Leiter..................... 191
Hamilton, Hon. Lee H.:
Testimony.................................................... 54
Joint prepared statement with Mr. Kean....................... 290
Healy, Timothy J.:
Testimony.................................................... 88
Prepared statement........................................... 310
Heyman, Hon. David F.:
Testimony.................................................... 157
Prepared statement........................................... 458
Jacobs, Hon. Janice L.:
Testimony.................................................... 159
Prepared statement........................................... 465
Kean, Hon. Thomas H.:
Testimony.................................................... 54
Joint prepared statement with Mr. Hamilton................... 290
Leiter, Hon. Michael E.:
Testimony.................................................... 5
Joint prepared statement with Mr. Blair...................... 191
Morton, Hon. John T.:
Testimony.................................................... 164
Prepared statement........................................... 475
Napolitano, Hon. Janet A.:
Testimony.................................................... 9
Prepared statement........................................... 200
Nelson, Richard:
Testimony.................................................... 127
Prepared statement........................................... 445
Powell, Hon. Benjamin A.:
Testimony.................................................... 122
Prepared statement with attachments.......................... 359
Rossides, Gale D.:
Testimony.................................................... 90
Prepared statement........................................... 316
Smith, Hon. Jeffrey H.:
Testimony.................................................... 125
Prepared statement........................................... 427
Travers, Russell E.:
Testimony.................................................... 86
Prepared statement........................................... 306
APPENDIX
January 20, 2010
Statement for the Record submitted by Mr. Blair.................. 214
Document titled ``Office of the Director of National Intelligence
Instruction No. 80.05,'' submitted by Mr. Leiter and Mr. Blair
for the Record................................................. 215
American Civil Liberties Union (ACLU), prepared statement........ 234
Responses to post-hearing questions for the Record from:
Mr. Leiter................................................... 245
Mr. Blair.................................................... 251
Secretary Napolitano......................................... 255
January 26, 2010
Responses to post-hearing questions for the Record from:
Mr. Kean and Mr. Hamilton.................................... 298
March 10, 2010
Responses to post-hearing questions for the Record from:
Mr. Travers.................................................. 338
Ms. Rossides and Mr. Aguilar................................. 339
March 17, 2010
Responses to post-hearing questions for the Record from:
Mr. Smith.................................................... 452
April 21, 2010
Responses to post-hearing questions for the Record from:
Mr. Heyman and Mr. Morton.................................... 484
Ms. Jacobs................................................... 515
INTELLIGENCE REFORM: THE
LESSONS AND IMPLICATIONS OF THE
CHRISTMAS DAY ATTACK--PART I
----------
WEDNESDAY, JANUARY 20, 2010
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Levin, Akaka, Carper, Pryor,
McCaskill, Tester, Burris, Collins, Coburn, McCain, Ensign, and
Bennett.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Good morning and welcome to the
hearing. As we all know, on this past Christmas Day, December
25, 2009, Umar Farouk Abdulmutallab slipped through the multi-
layered defenses we have erected since September 11, 2001, to
stop attacks against our homeland and boarded Northwest Flight
253 from Amsterdam to Detroit over which he attempted a suicide
bombing. A faulty detonator and courageous and quick action by
the passengers and crew prevented the deaths of 290 people on
board that plane and many more on the ground below. We were
very lucky.
Because it has now been 5 years since the enactment of the
9/11 Commission recommendations for intelligence reform,
Senator Collins and I decided last year to initiate a series of
oversight hearings this year to examine how well these reforms
have been implemented and whether further changes in the law,
regulation, or implementation are needed to protect our
country. That is, in fact, the inquiry we begin today, but now,
of course, we must carry out our oversight responsibilities
through the unsettling prism of the Christmas Day breach of our
homeland defenses by the terrorist Abdulmutallab.
The Intelligence Reform and Terrorism Prevention Act of
2004 (IRTPA), which is commonly known as the ``9/11 Commission
Act,'' was the most sweeping intelligence reform since the
creation of the Central Intelligence Agency (CIA) more than 50
years earlier. Among its many significant improvements, the 9/
11 Commission Act established a Director of National
Intelligence (DNI) to integrate our 16 intelligence agencies.
It also created the National Counterterrorism Center (NCTC) to
ensure that there was a single place in the government that
would assess terrorism threats using the full resources and
knowledge of the intelligence community.
Earlier, in 2002, our government's failures on September
11, 2001, also moved Congress to act on recommendations to
create a Department of Homeland Security (DHS) to better cope
with the threats our country would face in the 21st Century. I
believe these post-September 11, 2001, reforms have worked very
well. The record shows that after the creation of the
Department of Homeland Security in 2002 and the establishment
of the DNI and National Counterterrorism Center in 2004, there
was not a terrorist attack by Islamist extremists on America's
homeland for almost 7 years. No one would have predicted that
on September 12, 2001. So we have a lot to be grateful for.
Some of the most successful defenses of our homeland, in my
opinion, have been truly amazing, although the details of
these, of necessity, remain largely unknown. Two of the most
impressive of those successful defenses of our homeland
occurring in 2009 with regard to Najibullah Zazi and David
Headley. One of the most impressive cases to me was the Zazi
case, he was arrested last September with the plans and
materials needed for devastating bombing attacks on New York
City. This was the most dangerous terrorist plot on our soil
since September 11, 2001, dangerous in the sense of the
consequences it would have had, and it was only stopped by
brilliant, courageous, and cooperative work by our
intelligence, law enforcement, and homeland security agencies.
Senator Collins and I, and other Members of this Committee
and other committees, have been briefed on the details, but
everything worked just as we hoped it would when we adopted the
post-September 11, 2001, legislation. There was remarkable
agility, brilliant judgment, and total cooperation between
intelligence, homeland security, and law enforcement
communities both here within the United States and throughout
the world.
Notwithstanding these remarkable achievements over the 7
years after the enactment of the Department of Homeland
Security and some of the extraordinary defenses in the Headley
and Zazi cases, which occurred in 2009, the record also shows
that in 2009 three Islamist terrorists broke through our
defenses: Carlos Bledsoe, who murdered a U.S. Army recruiter in
Little Rock, Arkansas, in June, simply because he was wearing
the uniform of the U.S. Army; Nidal Hasan, who murdered 13
Americans at Fort Hood in November; and Umar Farouk
Abdulmutallab, who would have killed hundreds more if the
explosive he had hidden in his clothing on Christmas Day had
worked. So, clearly, there are some things about our homeland
defenses that are not working as we need them to, and we have
to find out together what is going wrong and why and then fix
it.
I know it is probably not realistic to promise the American
people that we will stop every attempted terrorist attack on
our homeland, but I feel very strongly that must be our goal.
It certainly is the standard that will guide our Committee in
this inquiry and the other we are conducting on the terrorist
attack at Fort Hood and any recommendations for Executive or
Legislative action that we make as a result of our inquiry.
Our purpose is to review the current state of our homeland
security through these cases and to make recommendations for
reform that will get our homeland--America--as close as
possible to 100-percent security from terrorist attacks.
In the Christmas Day bombing case, there was so much
intelligence and information available to our government that
pointed to Abdulmutallab's violent intentions that it is beyond
frustrating--it is infuriating--that this terrorist was able to
get on that plane to Detroit with explosives on his body. He
was able to do so, in sum, as President Obama has correctly
said, because of systemic failures and human errors.
Our responsibility is clear: We have to find what the
systemic failures were and fix them, and if the Administration
or we, in our deliberations, find that there were personnel of
the Federal Government who did not perform up to the
requirement of their jobs in these cases, they should be
disciplined or removed.
As is clear from the Christmas Day attack which almost
killed hundreds, the Fort Hood attack which did kill 13, and
the thwarting of the Zazi plot that saved countless American
lives, the decisions of the public servants who work to protect
us from terrorists every day have life-and-death consequences.
If we do not hold accountable those who made these human
errors, the probability is greater that they will be made
again.
I have not called this hearing along with Senator Collins
to knock down the new walls of homeland security that we built
after September 11, 2001. We have called it to repair and
reinforce them so that they better protect the American people
from terrorist attack. It is in that spirit that I thank our
witnesses, the Director of the National Counterterrorism
Center, Michael Leiter; the Director of National Intelligence,
Admiral Dennis Blair; and the Secretary of Homeland Security,
Janet Napolitano, for being with us today. I look forward to
your testimony and the questions and answers that will follow.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
Every day the men and women of our military, homeland
security, law enforcement, and intelligence community work hard
to keep our Nation safe. They serve on the front lines of the
war against terrorism, and over the last year alone, their
efforts have helped thwart numerous terrorist attacks.
But as the attempted Christmas Day attack demonstrates, our
government's efforts to detect and disrupt terrorist plots must
be strengthened.
We dodged a bullet in the skies above Detroit on Christmas
Day. A mere fluke--a mistake by the terrorist on that plane or
a failed detonator--prevented that attack from succeeding. The
quick action of courageous passengers and crew helped spare the
lives of nearly 300 passengers on Flight 253.
We cannot escape the cold, hard facts. Terrorists have not
relented in their fanatical quest to frighten our Nation's
citizens and to slaughter as many Americans as possible. Their
tactics continue to evolve. Attacks inspired by al-Qaeda's
violent ideology, including those by lone wolves or those
perpetrated by smaller uncoordinated cells, are incredibly
difficult to detect. The threat posed by America's enemies
continues to grow, and our Nation's efforts to defeat them must
be nimble, determined, and resilient.
In response to the terrorist attacks of September 11, 2001,
this Committee offered the most sweeping reform for the
intelligence community since the Second World War. The
Intelligence Reform and Terrorist Prevention Act of 2004 did
much to improve the management and performance of our
intelligence, homeland security, and law enforcement agencies.
The increased collaboration and information sharing have helped
our Nation prevent numerous attacks, at least nine in the last
year alone.
But reform is not a destination. It is a work in progress.
Reform requires constant focus and attention to stay a step
ahead of the threats we face.
For example, despite the considerable improvements in
information sharing, our intelligence community continues to
rely on internal systems and processes that are relics from the
days before reform. These systems did not effectively surface
intelligence information so that analysts and security
officials can effectively identify threats in real time.
The President has asserted--and I agree--that there was
ample credible intelligence on Abdulmutallab to warrant his
inclusion on the No Fly List, yet that did not occur even
though his own father warned U.S. officials about his ties to
Islamist extremists. Whether this failure was caused by human
error, poor judgment, outmoded systems, or the sheer volume of
data that must be analyzed, we simply must develop systems and
protocols to prevent these failures.
Consider what I believe to be the most obvious error in
handling Abdulmutallab's case. After his Islamist extremist
connections in Yemen were reported by his father, the State
Department should have revoked his visa. At the very least, he
should have been required to report to our embassy and explain
his activities and answer questions before he was allowed to
retain his visa.
The State Department has this authority. In fact, our law,
the Intelligence Reform Act, protects the State Department from
lawsuits when its officials revoke a visa overseas. But the
State Department failed to act. Most disturbing, the State
Department is also pointing fingers at other agencies to
explain this failure.
The President has now directed the intelligence community
to determine which of the 400,000 suspected terrorists in the
Terrorist Screening Center's watchlist have valid U.S. visas.
But that response is not sufficient.
The government should immediately identify and suspend the
visas of all persons listed in the broadest terrorist database
operated by the NCTC, known as the Terrorist Identities
Datamart Environment (TIDE) list, until a further investigation
is undertaken in each case. These visa holders with suspected
connections to terrorism should shoulder the burden of proving
that they do not intend to harm this Nation or its citizens,
and if they cannot meet this burden, then we cannot take the
risk of permitting them the privilege of traveling to our
country.
But immediately revoking the visas of suspected terrorists
is only the first step. The Department of Homeland Security has
an obligation to confirm the validity of visas held by every
foreign passenger. This is done only in some airports now.
Instead, what happens now is that confirmation of valid visas
only occurs once the passengers have arrived on our land. There
is no technological reason why this cannot occur.
We did not choose this war. It was thrust upon us by
terrorists who are determined to destroy our way of life. Our
counterterrorism efforts must be tireless and steadfast. We
must continue to build on the intelligence reforms already in
place to make America more secure. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Collins.
Let us begin the testimony with Michael Leiter, who is the
Director of the National Counterterrorism Center. Thanks for
being here.
TESTIMONY OF HON. MICHAEL E. LEITER,\1\ DIRECTOR, NATIONAL
COUNTERTERRORISM CENTER, OFFICE OF THE DIRECTOR OF NATIONAL
INTELLIGENCE
Mr. Leiter. It is my pleasure, Chairman Lieberman, Ranking
Member Collins, and Members of the Committee. It is a privilege
to appear before this Committee--again, the Committee that was
most instrumental in reforming the intelligence community and
creating the NCTC.
---------------------------------------------------------------------------
\1\ The joint prepared statement of Mr. Leiter and Mr. Blair
appears in the Appendix on page 191.
---------------------------------------------------------------------------
To open, I want to offer what I hope is an absolutely
crystal-clear assertion: Umar Farouk Abdulmutallab should not
have stepped onto a plane on Christmas Day. The
counterterrorism system collectively failed, and I, along with
Director Blair and Secretary Napolitano and others, want to
tell you and the American people the same thing we told the
President: That we have to do better.
As one of several attacks, several of which you cited, we
have been reminded again how unceasing our enemy is and how
committed they are to attacking the United States and how
committed we have to be in protecting Americans.
To begin, I would like to give a short rundown of the
bombing attempt and try to tell you from our perspective what
we did miss. And I want to start by debunking what has become
conventional wisdom to some, which is that this failure was
just like September 11, 2001. And, in fact, it was not. Now,
that does not make the failure any less significant, but it
does mean that the solutions might be very different from what
we approach in our reforms post-September 11, 2001.
It was not a failure to share intelligence. Instead, it was
a failure to connect, integrate, and fully understand the
intelligence that we had collected. Although NCTC and the
intelligence community have long warned about the threat posed
by al-Qaeda in the Arabian Peninsula, as I did in the fall
before this Committee, we did not correlate the specific
information that would have identified Abdulmutallab and kept
him off that flight on Christmas Day.
More specifically, the intelligence community, as I said,
had highlighted the growing character of al-Qaeda in Yemen and
the potential for it to strike targets not just in Yemen, but
the possibility of reaching beyond Yemen to the homeland. And
we also analyzed information that al-Qaeda in the Arabian
Peninsula (AQAP), was working with an individual who only after
the fact did we realize was, in fact, Abdulmutallab. And I
would also note that the intelligence community repeatedly
warned of the type of explosive device throughout the fall that
was used by Abdulmutallab in this attack, and the ways in which
it might prove challenging to screening in, of course, the way
it did in Amsterdam.
But despite all of that and the overall themes that we
identified, again, we failed to make the final connections--the
last tactical mile that linked Abdulmutallab's identity to this
plot. We had the information that came from his father saying
that he was concerned that his son had, in fact, gone to Yemen,
that he was coming under the influence of unknown religious
extremists, and that he was planning not to return home. And we
also had other streams of information coming from other
intelligence channels that provided different pieces of the
story. We had a partial name--Umar Farouk; we had the
indication of a Nigerian; but there was no single piece of
intelligence that brought that all together, nor did our
analysts at NCTC or elsewhere bring that information together.
As a result, as you have both noted, although Abdulmutallab
was identified as a known or suspected terrorist and his name
was entered into our database, the Terrorist Identities
Datamart Environment, the derogatory information that we
associated with him at the time did not meet existing policy
standards--those that were adopted in 2008 and promulgated in
2009--for him to be watchlisted, let alone placed on the No Fly
List or Selectee Lists.
But let me be clear again. Had all of the information the
United States had available been linked together, his name
undoubtedly would have been watchlisted, and, thus, he would
have been on the visa screening list and the border inspection
list. And whether he would have been placed on the No Fly or
Selectee List then, would have been based on the existing
strength of the analytic judgments at the time. And as I have
already noted, one of the clear lessons that I think we have
learned is the need, as the President has directed us to do, to
re-examine those standards for inclusion in those critical
lists before people reach our borders.
Finally, Mr. Chairman, Senator Collins, and Members,
without trying to make any excuses for what we did not do--
because as I think I have already stated, as I hope I have made
clear, we did not do things well and we did not do things
right--I do think it is critical that we note some context in
which this failure occurred. And I thank you for your kind
words for the intelligence community, NCTC, law enforcement,
and homeland security in noting some of the successes. But we
have to have more successes.
Each day NCTC receives literally thousands of pieces of
intelligence related to terrorism. I will tell you it is more
than 5,000 pieces a day that flow into our center, and we
review literally thousands of names each day--again, more than
5,000 names a day that we review. And every day we place more
than 350 people on the watchlist. So although in hindsight we
can assess with a very high degree of confidence that
Abdulmutallab was, in fact, bonding with AQAP, we did not do it
at the time. Although we must and will do better--because I
believe we have the people who will make sure we do better--we
must recognize, as the Chairman did, that there is no silver
bullet. And, in fact, as the terrorist threat becomes more
nimble and more multi-dimensional, as illustrated by the
threats we have seen over the past year, we as well have to
have a multi-dimensional, multi-layered set of defenses--
intelligence, technology, international cooperation, law
enforcement, and military--to keep our Nation as safe as
possible.
With that, I will turn the microphone over to Director
Blair, but I do look forward to answering the Committee's
questions and, most importantly, I look forward to getting the
Committee's guidance on how you believe we can improve the
system that we have. Thank you.
Chairman Lieberman. Thanks, Director Leiter.
Admiral Blair, it is encouraging that your cooperation has
even gone to your testimony before this Committee. Thank you.
TESTIMONY OF HON. DENNIS C. BLAIR,\1\ DIRECTOR OF NATIONAL
INTELLIGENCE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. Blair. Sir, I am glad to be here to talk about this
because you need to know and the American people need to know
what we are doing and what we need to do, and so thank you for
inviting me to talk with you this morning.
---------------------------------------------------------------------------
\1\ The joint prepared statement of Mr. Blair and Mr. Leiter
appears in the Appendix on page 191.
---------------------------------------------------------------------------
Let me echo Director Leiter's words that Umar Farouk
Abdulmutallab should not have stepped on Northwest Flight 253
for Detroit. The overall counterterrorism system did not do its
job. It is in large part my responsibility. I told the
President that I and the other leaders of the intelligence
community are determined to do better in the future.
And you have heard from Director Leiter the sequence of
events, and you would be correct to conclude that the system
that existed to protect the country was capable of stopping
this attack, but it did not do so in this case for a set of
reasons that I think we understand and that we are working
right now to fix.
And I should make it clear to this Committee that a lot of
the responsibility for pushing us forward in this area, that
the system we now have, was due in great measure to the
Intelligence Reform and Terrorism Prevention Act of 2004, which
created my position, the National Counterterrorism Center, and
other key parts of the system, such as the Terrorist Identities
Datamart Environment; the watchlists, including the No Fly
List; aggressive collection and analysis against terrorist
threats; and a great improvement in sharing intelligence
information across both the intelligence community and the
entire government. So we should not underrate the progress of
the past as we move forward. But the threat is also evolving,
and I would say we have a good capability to detect and disrupt
these sort of multi-purpose teams that take months to plan,
rehearse, fund, provide the logistics support for, and attack.
But we are not as capable as we should be of carrying out
the much more difficult task of detecting these self-
radicalized citizens of the United States, Europe, and other
countries like Nigeria, who are given a very simple mission and
an advanced bomb to carry it out, or who plan their own attacks
inspired by al-Qaeda's message but not directed by al-Qaeda.
Last year, as you mentioned, Mr. Chairman, we stopped Zazi.
We also stopped Michael Finton and Hosam Smadi. But Hasan and
Bledsoe we did not stop, and as you said, we were lucky with
Abdulmutallab. So we have to improve our intelligence system
further so that we can identify and stop these lone contacts
with a minimum of communication and, frankly, with a lot more
knowledge of how our system works due to the public discussion
of it that is taking place.
And as Secretary Napolitano will tell you, we have to
improve not just the intelligence component of this but the
active defenses which we have, some of which depend on
intelligence, but some of which cannot depend on intelligence.
So what are the improvements that we are making based on
this incident and the other things that we have learned over
the course of recent years? They really fall into four
categories. They are currently underway, but we will continue
to refine them and work on them both in the short term and
certainly over the long term.
First, changing the way we apply these no-fly criteria so
that they are less restrictive, more flexible, while at the
same time they continue to protect the civil liberties of U.S.
persons. The no-fly criteria that we were working under on
December 24 of last year had been arrived at by a bureaucratic
process that stretched across two Administrations. It started
in the summer of 2008. They were implemented just before this
Administration came in and were reaffirmed by this
Administration, and they were, frankly, a too legalistic and
rote process rather than having the flexibility to react to the
situation, which they really needed. And we have fixed that,
and that is very important.
Second, I need to assign more clearly defined
responsibilities for analysis and follow-up of the information
we now have. Frankly, we had a situation in which everybody was
responsible for working, everybody had the dots to connect, but
I had not made it clear exactly who had primary responsibility,
who had secondary responsibility, so when the time crunch comes
the people know who cannot go home at night until they carry
that out while other people are working on other things.
Third, we have to have an ability--and we are doing so--to
adjust the resources as the threat shifts. As Director Leiter
said, we had strategic warning of al-Qaeda in the Arabian
Peninsula's intent to send operatives outside of Yemen, and yet
I allowed the analytical resources focusing on Yemen to focus
more on the internal Yemen problem, where we also had active
threats to Americans and to American interests. We did not add
more resources, shift the emphasis, ensure that both priorities
were covered, and we need to do so. We are doing so. We are
adding resources immediately, and we are setting up a system so
that we can adjust more to threats.
And, fourth--you have alluded to this, Mr. Chairman and
Senator Collins--we have to improve both the technical and the
human ability to deal with this massive information that our
terrorist analysts must distill to enable them to provide
tactical level warning on individuals, which is a very tough
task. And although we have used a lot of technical tools in
recent years, we have put them in. Some were outdated, as you
said, Senator Collins. We have a priority effort to re-examine
those, make sure that we are going with the best that is
available. We are using both outside experts as well as those
that we have inside.
These improvements that we are making are not years in the
making. We are working on them now. We have already made
improvements in the 3 weeks since that attack. We have a press
on them for getting short-term ones done immediately, and, more
importantly, we will continue to work them dynamically over
time rather than waiting for artificial deadlines to take
place. And I have also convened a panel of outside experts that
will both review exactly what happened in the December case. We
have done preliminary inquiries, but we need to take a more
careful look, and also it will review the changes we are making
to see if we are getting it right, to tell us what we are not
doing that we should do.
It is important--and I share your goal, Mr. Chairman, about
the 100-percent goal that we shoot for, but we have to make it
clear that we cannot give an absolute guarantee of identifying
every single one of these terrorists. We need a system of
offense and defense, go after them where they are, push our
intelligence on all points, and then have defenses that are
strengthened by intelligence but do not completely depend on it
in order to defend our citizens. And we are dedicated to
pushing toward that 100-percent goal as quickly and with as
much determination as we can.
Thank you, Mr. Chairman. I turn it over to Secretary
Napolitano.
Chairman Lieberman. Thanks, Director Blair. Secretary
Napolitano, good morning.
TESTIMONY OF HON. JANET A. NAPOLITANO,\1\ SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
Secretary Napolitano. Good morning, Chairman Lieberman,
Senator Collins, and Members of the Committee. Thank you for
this opportunity to testify on the terrorist attack aboard
Northwest Flight 253 on Christmas Day. I am pleased to be here
today with my colleagues Admiral Blair and Director Leiter.
---------------------------------------------------------------------------
\1\ The prepared statement of Secretary Napolitano appears in the
Appendix on page 200.
---------------------------------------------------------------------------
As President Obama has made clear, this Administration is
determined to find and to fix the vulnerabilities in our
systems that allowed this attack to occur. Our country's
efforts against terrorism include the actions of DHS and of
many other agencies, as well as those of our international
allies.
I would like to take a moment to explain and describe the
DHS role in securing air travel.
First, DHS is and can be characterized as a consumer of the
U.S. Government's consolidated terrorist watchlists which we
use to help keep potential terrorists from boarding flights and
to identify travelers who should undergo additional screening.
Within the United States, DHS performs the actual physical
screening at airport checkpoints and provides further in-flight
security measures. Outside the United States, DHS works with
foreign governments and airlines to advise them on which
passengers may prove a threat and required security measures
for flights inbound to the United States. Transportation
Security Administration (TSA), of course, does not screen
people or baggage at international airports.
Regarding the Christmas Day attack, Umar Abdulmutallab
should never have been allowed to board this U.S.-bound plane
with explosives. The interagency process to fix these
vulnerabilities is well underway, and we are all working on it
jointly.
We welcome, at the Department, the opportunity offered by
the process described by Admiral Blair and Director Leiter to
contribute to improving the Federal Government's ability to
connect and assimilate intelligence, and we appreciate the work
that they have done and the ongoing relationship that we have.
We are also focused on improving aviation screening and
expanding international partnerships to guard against a similar
type of attack. I have submitted a longer written statement
describing the various DHS programs that are at work to keep
terrorists from boarding airplanes. But in terms of the DHS
role in this case, the bottom line is this: He was not on the
No Fly List, which would have flagged him to be prevented from
boarding; nor was he on the Selectee List, which would have
flagged him for secondary screening. Furthermore, the physical
screening performed by foreign authorities at airports in
Nigeria and the Netherlands did not detect the explosives on
his body.
Now, immediately after the attack, DHS responded. We
directed the Federal Aviation Authority (FAA) to alert all 128
flights from Europe bound for the United States of the
situation. We increased security measures at domestic airports.
We implemented enhanced screening for all international flights
coming to the United States. We reached out to State and local
law enforcement, air carriers, international partners, and
other relevant agencies to provide them the information they
needed on the ground.
In our reports to the President, on fixing what went wrong
on Christmas Day, we have also outlined five other areas of
action.
First, as this incident underscores, aviation security is
increasingly an international responsibility. That is why I
dispatched Deputy Secretary Jane H. Lute and other top DHS
officials on a multi-continent tour to meet with our
international counterparts about airline and airport security.
This evening, I will travel to Spain to meet with my European
Union (EU) colleagues to strengthen international security
measures and standards, and we will include in that
information-sharing technology and other related issues.
Second, DHS has created a partnership with the Department
of Energy and the National Labs to use their scientific
expertise to improve screening technology at domestic airports.
Third, DHS will move forward in deploying enhanced
screening technologies like advanced imaging technology and
explosive trace detection machines to improve our ability to
detect the kind of explosives used in the Christmas Day attack.
TSA currently has 40 of the Advanced Imaging Technology (AIT)
machines deployed now. We will deploy at least 450 more this
year.
Fourth, we will and have strengthened the capacity of
aviation law enforcement, including the Federal Air Marshal
Service.
And, finally, DHS will work with our interagency partners
to re-evaluate and modify the way the terrorist watchlist is
created, including, as mentioned, how names are added to the No
Fly and Selectee Lists.
I am glad to be working with leaders like Admiral Blair and
Director Leiter in addition to this Committee, who have done so
much to improve our homeland security apparatus, and I am also
grateful to the men and women of the Department of Homeland
Security who do so much every day to guard our country against
attack.
Last, I wish I could tell you, with all of this ongoing
work and all of these upcoming actions, that there will never
again be another Umar Farouk Abdulmutallab. I cannot do so.
What I can tell you is that this Administration and the men and
women of the DHS are working 110 percent every day to minimize
the likelihood of a successful terrorist attack against the
homeland, and I am proud to be with the Department in that
work.
Thank you for the opportunity to testify, and I look
forward to your questions.
Chairman Lieberman. I thank the three of you for the
substance and spirit of your opening statements.
I do want to indicate to my colleagues on the Committee
that the three witnesses have made themselves available for a
closed session with the Committee immediately following the
public session if there are questions that are asked here that
cannot be discussed in public session. We are going to have 7-
minute rounds of questions.
Let me just go back to the post-September 11, 2001, period
and to say what I think is common belief now, which is that our
response at that point was to the fact that there was not
information sharing going on among--there was enough
information in the Federal system that we should have found and
been able to stop the attacks of September 11, 2001. That is a
personal conclusion. But it was not, as we used the metaphor at
that time, together on the same board, so the connections could
not be seen.
One of the great goals of the 9/11 Commission legislation
was to make sure that, metaphorically speaking, all the
information came together on the same board so it could be
seen. I think what we have learned painfully now is that there
is so much information that is being collected by the
intelligence and other agencies of our government, it is not
enough to put it on the same board. We have to create systems
to find out how to connect the information that we have, either
technological or human.
As you mentioned, part of what emerges from the Christmas
Day bombing case is there was intelligence information about
al-Qaeda in the Arabian Peninsula being involved with somebody
names Umar Farouk--not the full name but the beginning of the
name. His father came into the embassy in Nigeria, and said he
was worried about his son, Umar Farouk Abdulmutallab. There are
references from conversations picked up by the National
Security Agency (NSA) from al-Qaeda in the Arabian Peninsula of
a Nigerian that they were going to use for an attack.
Obviously, the father indicates a Nigerian. And somehow that
did not all come together.
Now, here is what troubles me. We live in an age when any
one of us and our young children, our grandchildren now in my
case, can go on the computers, go to Google, and search an
enormous array of databases immediately. My impression--and,
Director Blair, Mr. Leiter, you respond to this--is that at
NCTC we do not have that ability now. You have a series of
separate databases from different parts of the intelligence
community and the government, and you have access to all of
them, plenty of sharing. But there is not a program, a search
engine right now by which you, by act or by some automatic
software programming, can have expected in this case, for
instance, that there would have been a hit and an alarm on Umar
Farouk Abdulmutallab, a Nigerian, December 25, 2009. Am I
right? Do we not have that capacity within the NCTC?
Mr. Leiter. Senator, we do not have that exact capacity,
but I would note that over the past several years we have
worked with folks from across government and some of the
private sector companies that you would expect have that
technology.
Chairman Lieberman. Right.
Mr. Leiter. And the answer uniformly has been that it is
not as easy a problem as people would expect. I think we have
some potential technological solutions on the very near-term
horizon that we are attempting to implement within weeks. And,
frankly, we were surprised, I was surprised, at the extent to
which other agencies' searches were not hitting against very
critical data sets that might have uncovered this, and then
highlighted them for NCTC and others.
Chairman Lieberman. Director Blair, do you want to add
anything to that?
Mr. Blair. I would only amplify on what Director Leiter
said, Mr. Chairman. The search tools that we now have depend on
certain characteristics, and I do not want to describe them
here, but they also have blind spots that do not allow the sort
of Google-like idea that we have from our personal computers.
Chairman Lieberman. Right.
Mr. Blair. Several of those shortcomings came up in this
case, which we can fix. I think that the other thing that I
have learned from this is that almost all of our energy was
focused on building these systems, hooking together, and
getting the search engines. We do not have enough of a testing
regime so that we do the ``what if's'' before we have one of
these incidents, put partial information in and see where it
goes, fix those and find those for ourselves. And that sort of
continued self-testing is going to be a greater part going
forward so that we can make some of these mistakes for practice
before we make them for real.
Chairman Lieberman. So you are, with a sense of real
urgency, going now after improving what I would call the search
capacity across the databases you have automatically to come up
with linkages. Correct?
Mr. Leiter. Correct. And I would just stress that this is
not actually a new problem from our perspective.
Chairman Lieberman. Right. You have been working at this.
Mr. Leiter. This is something we have been working with
vehemence on. We have obviously not gotten to the point we need
to get, and we are trying to accelerate that now.
Chairman Lieberman. Now, the other way to deal with this,
which I believe the President mentioned--or perhaps one of the
reports to him did--is to assign cases, suspected cases, to
people to follow. Now, that is a tough thing to do, so I would
like to ask you to talk about it a little bit. In other words,
presumably at some point somebody has to be concerned enough
about picking a particular matter out of the thousands of cases
that you add every day to your watchlist concerns. Let us take
this case, that somebody would have had to say, based on the
father coming into the embassy, ``We have to follow this,'' or
based on the intelligence stream that said al-Qaeda in the
Arabian Peninsula was working with somebody named Umar Farouk,
a Nigerian, and something was going to happen on December 25,
2009, somebody had to make that baseline decision.
But what then? Do you have the human capacity to assign
people to chase these down and have a responsibility, almost as
if this was a police department and you were assigning a
detective to pursue a case--except, of course, here it is not
to try to find the murderer, it is to try to prevent a murder
from happening. So what is our capacity to deal with this with
better use of personnel?
Mr. Leiter. Mr. Chairman, I think your question is exactly
right. We do a very good job at hunting down the threats when
we know it is a threat.
Chairman Lieberman. Right.
Mr. Leiter. The more difficult thing is deciding what is a
threat in the first instance and hunting it down.
There are two things that we are doing to try to improve
this. Right now, I have not had the capacity to do this in the
way it needs to be done because we are going to expand the
scale of it, the breadth of the things that we chase down. We
have been very good at chasing down those threats that come out
of Afghanistan and Pakistan. We are going to be better now at
chasing down those small bits of data that come out of Yemen,
North Africa, or East Africa.
Two, with new resources, the plan is to establish teams
that have no responsibilities other than to do that. We are
calling them pursuit teams for the very reasons you identified,
to find those small bits and hunt them down until we either
figure out what is going on or there simply is nowhere else to
go and there is no other data out there to be applied to the
problem.
Chairman Lieberman. Director Blair.
Mr. Blair. Just for context, Mr. Chairman, I would cite two
things, not by way of excuses but just by way of understanding.
The only conversation on resources that I had with Director
Leiter in the weeks leading up to Christmas was a conversation
a week before on how we were going to allocate a $30 million
cut in the Office of the DNI, part of which funds the NCTC. So
the general fiscal climate we are dealing with was one which
was reducing resources to this.
The second thing is the pressure on No Fly Lists, as you
all know, for several years before 2008 had been to make them
smaller. My cousin has a name on it and gets hassled every
time. And you can tell as you read through the guidance given
to analysts that they were expected to cast a very fishy eye on
the inclusion of lots more names, and the pressure was in the
other direction. Shame on us for giving in to that pressure. We
have now greatly expanded the No Fly List from what it was on
December 24, and have done a lot more of what is prudent; to
put names on it just in case, and then take them off as we need
to. But the pressure was quite the other direction, and as I
say, I should not have given in to that pressure, but it was a
factor, and we have certainly changed that attitude, and we
have to maintain that over a course not just of 6 years but of
12 years and until this campaign finally ends.
Chairman Lieberman. Director Blair, I cannot thank you
enough for what you have just said because it seems to me that
in the process for deciding what watchlists people were being
put on, we were using a standard that was, as you said,
legalistic. It was a legal standard. In fact, the very words,
the terms being used, ``reasonable suspicion,'' come from
Supreme Court cases that govern warrantless searches by police
in the United States. But we are at war with these people, and
it just seems to me that if somebody brings some information to
the U.S. Government that suggests in any way that a person is
involved in terrorism, it at least is justification for putting
them on a list that will subject them to secondary screening
before they board a plane to come to the United States. It is
not being used as a basis for arrest, certainly not for
conviction, but this is a classic example of the ongoing
tension between security and liberty. And I appreciate your
admission here and your commitment to change this, that I think
we were erring too much on the side of a legalistic vision of
privacy or even convenience that ultimately jeopardized the
security of the majority. So that is very good news, and I
thank you for it.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Good intelligence is clearly critical to our ability to
stop terrorist plots, and that is why I am very concerned about
the decision to quickly charge Abdulmutallab in civilian court
because I believe that we, by doing so, have lost an
opportunity to secure additional intelligence from him, not
only about his own training, but intelligence that possibly
would allow us to uncover other plots that are emanating from
Yemen.
We know that those interrogations can provide critical
intelligence, but the protections afforded by our civil justice
system as opposed to the military tribunal system can encourage
terrorists to lawyer up and to stop answering questions. And,
indeed, I am told that with Abdulmutallab, once he was
Mirandized and received civilian lawyers, that is exactly what
he did.
Mr. Leiter, were you consulted regarding the decision to
file criminal charges against Abdulmutallab in civilian court?
Mr. Leiter. I was not.
Senator Collins. Mr. Blair, were you consulted?
Mr. Blair. Senator Collins, I have been a part of the
deliberations which have established this high-value
interrogation unit which we started as part of the Executive
Order and as part of the decision to close Guantanamo. That
unit was created exactly for this purpose, to make a decision
on whether a certain person who is detained should be treated
as a case for Federal prosecution or for some other means. We
did not invoke the High-Value Interrogation Group (HIG) in this
case. We should have. Frankly, we were thinking more of
overseas people, and, we did not put it in. That is what we
will do now, and so we need to make those decisions more
carefully. I was not consulted. The decision was made on the
scene. It seemed logical to the people there. But it should
have been taken using this HIG format at a higher level.\1\
---------------------------------------------------------------------------
\1\ A statement for the Record provided by Mr. Blair appears in the
Appendix on page 214.
INFORMATION PROVIDED BY MR. BLAIR FOR THE RECORD
My remarks today before the Senate Committee on Homeland Security
and Governmental Affairs have been misconstrued. The FBI interrogated
Umar Farouk Abdulmutallab when they took him into custody. They
received important intelligence at that time, drawing on the FBI's
expertise in interrogation that will be available in the HIG once it is
fully operational.
Senator Collins. Madam Secretary, were you consulted?
Secretary Napolitano. I was not.
Senator Collins. Mr. Chairman, I think that is very
troubling. It appears to me that we lost an opportunity to
secure some valuable intelligence information and that the
process that Director Blair described should have been
implemented in this case. And I think it is very troubling that
it was not and that three key intelligence officials were not
asked their opinion.
I would like to move to another issue that I raised in my
opening statement. The facts surrounding the failure to revoke
Abdulmutallab's visa really trouble me because it appears that
ultimately no agency considered itself responsible for this
decision. The State Department spokesman said, when asked why
the State Department did not revoke the visa, ``Because it is
not our responsibility. It would be up to the National
Counterterrorism Center to make the determination on whether to
revoke a person's visa.'' That is not how I read the law.
Secretary Napolitano, part of the Homeland Security Act of
2002 gives DHS broad authority to set visa policy, and, in
fact, it vests in the Secretary the exclusive authority to
issue regulations with respect to administer, and enforce the
provisions of the law relating to consular officers in
connection with granting or refusal of visas, and it says the
Secretary shall have the authority to review and refuse visas
in accordance with the law.
So I want to get at the issue of why Abdulmutallab was
allowed to keep his visa and who has the authority to look at
those individuals listed on the broadest terrorist watchlist,
the TIDE list, identify those who have visas, and take action
to suspend those visas pending further investigation. Whose job
is it? Mr. Leiter.
Mr. Leiter. Senator Collins, I will admit that when I was
told of that authority that I do not have, I was surprised to
learn from the State Department that they thought I did have
that. And I have since spoken with Secretary Clinton, and it is
quite clear that the legal authority for revoking resides
within the State Department, and NCTC does not have any
authority to do so.
To your question about have we reviewed visas against the
entire Terrorist Identities Datamart Environment, we have,
although the initial look was at the Terrorist Screening
Center, and that number we have already reviewed, anyone who
has a visa who has any information on them in TIDE and re-
reviewed whether or not we should recommend to the State
Department that visa be revoked.
We have also been quite aggressive in applying the no-fly
criteria to individuals who have a visa, using, I would say, a
less legalistic standard in applying those standards.
Finally, I do want to note that beginning in the late
summer--July 2008, we began fully, in conjunction with the
State Department, reviewing these applications in a way that I
believe is far more advanced than that which was previously
used by the State Department, and in conjunction with the State
Department, NCTC now provides the State Department, Department
of Homeland Security, the Federal Bureau of Investigation
(FBI), and the CIA some more advanced Google-like technology to
screen these visas more effectively. And I am happy to speak
about that more in closed session.
Senator Collins. Thank you. Director Blair, whose job is
it?
Mr. Blair. I think you are putting your finger, Senator
Collins, on a characteristic of this combating terrorism effort
that we need to tighten down with the strong enthusiasm for
counterterrorism, the sense that we all ought to be working on
it. I think we did not drive some of these responsibilities as
far as we should have in terms of everybody is helping, but who
is it at the end, and I think you have identified one more
which we need to and are going to tighten right down so that
primary, support, and ultimate responsibilities are made
clearer, because there is a tendency to say, I have this new
capability, let me help you, and we ought to do that. But we
should not allow that to interfere with a clear understanding
of who has the ultimate call.
Senator Collins. Thank you. Secretary Napolitano, you do
have some broad authority in this area. Whose job is it from
your perspective?
Secretary Napolitano. Well, under Section 428, the
Department has the legal authority to refuse the issuance of a
visa. The State Department has retained the ultimate authority
to revoke a visa once issued. But I think all of us have a
role, along with the State Department, in measuring pre-
existing visas against information or subsequently acquired
information that comes into the system. I think that is part of
the tightening that Admiral Blair just talked about.
Senator Collins. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins. Those are
excellent questions. I want to make two brief points with
regard to the questions you asked.
The first is to say I share Senator Collins' concern both
about the decision to try Abdulmutallab in a regular Federal
court as opposed to a military commission because, in my
opinion, he is a prisoner of war, an enemy combatant. I am also
troubled that the three of you were not asked to be involved in
that decision before it occurred, and I want to say
particularly as the Chairman of the Homeland Security and
Governmental Affairs Committee, that I am troubled that
Secretary Napolitano was not asked to comment on that because
there are obvious homeland security implications of a decision
to try an accused terrorist in New York, Detroit, or
Washington, DC, as we can see most practically and obviously in
the recent request by Mayor Bloomberg for a first payment of
$200 million for additional security required in New York
around the trial of Khalid Sheikh Mohammed and the other
September 11, 2001, suspects.
In fact, the Committee, Senator Collins and I are going to
convene a hearing on this subject in February, the homeland
security implications of the decision to try terrorist suspects
in Federal courts.
The other point I want to mention very briefly--I apologize
to my colleagues--is that in focusing on the visa question, I
think Senator Collins has really put her finger on an important
point, and we want to come back and raise a fresh question
here, which is whether the visa processing responsibility
really ought to be with the State Department--in other words,
whether it should be with the Department of Homeland Security,
and this is not really a matter of foreign policy. In some
sense it may be a waste of the time of Foreign Service officers
to have them interviewing people to decide whether they are
eligible for a visa or not. It really is much more a question
of the law and homeland security, whether it is in terms of the
legitimacy of immigration or the threat of terrorism. So we are
going to come back and do a separate hearing on that as part of
this oversight. I am not inviting a response unless you wish
one. As a matter of fact, I am going to ask you to hold it
until my time because I do not want to intrude on my
colleagues' time.
I will call Senators in order of arrival, as is our custom.
That would be Senators Tester, McCain, Burris, Ensign, Bennett,
and Pryor. Senator Tester.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. Thank you, Mr. Chairman. I want to thank
Director Leiter, Admiral Blair, and Secretary Napolitano for
being here today.
There have been some reports coming out of Canada that
suggest an increasing concern about radicalization of some
Canadians with ties to the Middle East and the possibility of
Canada becoming a stopover point for terrorists who try to
enter the United States.
What do you think about these assessments? How seriously
should we take these reports? Canadian Television (CTV)
reported regarding the efforts to actually bringing trained
terrorists into the United States through Canada. Could you
tell me what you think of that potential threat and potentially
what we are doing about it?
Secretary Napolitano. Senator Tester, I think the answer to
that question should be discussed in the closed part of this
meeting.
Senator Tester. That would be fine.
Secretary Napolitano. I will say, however, that we have had
extensive personal discussions with law enforcement and
security officials in Canada, not just in the wake of December
25, 2009, but also in preparation for the Olympics that will be
held there.
Senator Tester. And no problem, we can do that in closed
session. You feel the same way. OK, that will be good.
Our borders are only as strong as the weakest link, and we
do not want a panic and shut down of the border because we have
trade issues and we need to have a balance there. But when
folks can come into the country with explosives sewn into their
clothes, as happened on Christmas Day, it means that we have
issues not only in our airports but also our ports, and it
means that the issues that you folks talked about in your
opening statements are critically important.
I want to talk about the technology portion of this.
Secretary Napolitano, you talked about this being an
international situation as far as the screening goes. Director
Leiter and Admiral Blair deal with the issues before they get
to the point where they walk in the airport, and if that
information is sorted through correctly and went through the
sieves right, we can catch them before they even go through the
screening.
Is the screening adequate in other countries to be able to
even catch--I mean, Admiral Blair talked about the fact that
these explosives were known about, this type of explosive. Is
the screening inadequate to catch the technologies that are
coming down the pike, even when we know about them?
Secretary Napolitano. Senator Tester, I think the point is
that there are multiple layers of security that need to happen,
no single one of which is a 100-percent guarantee or a silver
bullet. The layers, when they act properly, increase the
likelihood that you will prevent something from happening.
Once you get to the airport domestically, that includes
explosive detection machines; it includes the advanced imaging
technology; it includes law enforcement; and it includes dogs.
Now, internationally, it is different. We do not control in
that sense international airports or screening procedures.
Indeed, we do not even do the screening ourselves. What we do
is if we have somebody on the Terrorist Screening Database
list, it is advised that additional screening should be done.
What we are doing now is embarking on a very aggressive
international effort using this incident as the catalyst for
all countries, all of whom have passengers who fly, to lift
their overall screening and airport procedures because indeed
there is great variation around the world.
Senator Tester. OK. So what you are saying is at this point
in time--and we are talking generally here--the screening that
goes on in foreign countries is not as adequate as the ones
that go on here domestically.
Secretary Napolitano. It depends on which airport you are
talking about. For example, let us use Schipol, the airport in
Amsterdam. The screening there is not dissimilar from the
screening in the United States, and the screening that
Abdulmutallab went through is not dissimilar from what he would
go through in many of the airports in the United States. What
we have added and are adding domestically are more canines, and
more explosive detections, more advanced imaging technology.
Now, airports in other countries or other countries have
resisted using some of those items because of other concerns
that they have, about privacy, for example. This incident,
however, like I said, is serving as a catalyst to reopen that
dialogue, particularly with the airports in countries where we
have a large throughput of passengers to the United States.
Senator Tester. I want to come back to that, and I am
assuming there will be another round of questions. We are going
to shift totally off of this just for a second while I have you
here.
We all know what has happened in Haiti over the last 7 to
10 days. It has been devastating, and that is an
understatement. There is an issue about adoption of potential
Haiti children who have been left without their parents. We
have about five families right now that have completed all the
paperwork to get the children from Haiti. And yet they are
being held up. I need to get a commitment from you that the
Citizenship and Immigration Services, an agency within your
Department, will work with my office to help expedite our
ability to get those kids out. As you can imagine, the
constituency is very anxious. It is a terrible situation. I
just need your help in making this work.
Secretary Napolitano. Senator, you have that commitment,
but may I give a longer answer to that?
Senator Tester. Sure.
Secretary Napolitano. Because I think the public needs an
understanding of this.
Senator Tester. Yes, absolutely.
Secretary Napolitano. And this actually has been one of
the--the DHS can work at so many levels on so many things, so
the Coast Guard has been in Haiti. The Federal Emergency
Management Agency (FEMA) has been helping U.S. Agency for
International Development (USAID) get help into Haiti. Customs
and Border Protection (CBP) and Immigration and Customs
Enforcement (ICE) have been providing assistance. The issue of
orphans is one that is tragic, and I think as we go forward and
begin to learn the amount or the number of casualties, it is
going to grow.
Senator Tester. Yes.
Secretary Napolitano. It is something that needs to be
handled very carefully because there are many issues involved
in terms of making sure that people--I am not going to say
these five children, but other children that come to us are
indeed orphans until all the search and rescue is done or other
families are located.
There are other issues involved as to whether the adoptive
parents in the United States are qualified for adoption under
the applicable law.
There are issues about the health and welfare of the
children when they are brought to the United States. Many of
them need to be immediately put into the care of the Department
of Health and Human Services (HHS) and checked over thoroughly
before they can be moved.
So we have formed a team--it is the State Department, it is
us, it is HHS, as three of the big components, to really work
on this adoption issue because we all want the right things for
these children. This issue is only going to grow over time.
Senator Tester. That is correct, and I appreciate the
opportunity to work with you and your group of people on this
issue. And I thank the Chairman's indulgence for pulling off
topic for a moment. We will be back. Thank you very much.
Chairman Lieberman. Thank you very much for your questions,
and particularly the last one, Senator Tester. We are all
sharing your concern.
Next is Senator Burris. Good morning.
OPENING STATEMENT OF SENATOR BURRIS
Senator Burris. Thank you, Mr. Chairman. Happy New Year to
everyone. I was just going to say that it is crucial to
recognize the contribution of Office of the DNI, NCTC, and DHS
for making our homeland as secure as it is. So you all are to
be complimented for the work that you have done. And there have
been numerous terrorist plots foiled since September 11, 2001,
some of which have occurred in my home State of Illinois. So we
are very grateful to you all for that effort.
And I just wonder, is there a resource problem here? Mr.
Leiter or Mr. Blair, is there a resource problem?
Mr. Leiter. Senator, first of all, thank you for your kind
words. The kind words we really want are just the thank you's
when we keep doing things right, so I appreciate the kind words
now. But this is not an occasion that we are happy about in any
way.
Resources have been an issue. As Director Blair said, we
were facing cuts at the end of last year. Thankfully, with the
Director's help, those have been avoided. And in order to do
some of the enhancement of the watchlists so we make sure that
when you have an Umar Farouk, you put that together with Umar
Farouk Abdulmutallab and all the information, and you have
teams that can pursue the small bits of information rather than
just the high-profile threats, it does take more resources. And
Director Blair has been extremely supportive of that, as has
been the White House.
Mr. Blair. Senator, we have moved money and people in the
near term to put more on helping NCTC, and there will probably
have to be some adjustments in the overall budgets in order to
sustain that.
Senator Burris. I just wonder, in our democracy, as I was
watching the news on this issue of that Detroit bomber and
watched it on Media Report, I just had some concern about what
was being reported for future actions. And I do not know
whether or not this can come up in a closed hearing or not, but
I was concerned when the media was reporting where the airports
are that we are now going to be screening from. So the simple
response is, OK, if I am a terrorist, what am I going to do? I
am not going to be bothered with it. There is some information
that we have to keep classified in terms of where the
international screening is going to come from and will not be
knowledgeable to the general public. Americans demand our right
to know, but there are some things that are not going to make
us safe if we know them and everybody else knows them.
Mr. Blair. I could not agree more, Senator Burris, that the
public discussion of the specifics of the defensive measures we
take are making it that much easier for people to evade our
defenses and come in. The kind of hearings that we are having
this morning where you have responsible witnesses who think
through what could be unclassified and what is classified I
think are absolutely essential for the functioning of the
democracy. The unauthorized leaks of the NSA intercepted this
or a CIA human report said this or this airport is good, I
think, is just making the job of those who are working hard to
try to defend us that much harder. It costs the taxpayer that
much more money, and I wish people would just shut up.
[Laughter.]
Senator Burris. It makes sense to me because that was my
immediate reaction when I see this list reported on television
of what airports we are now going to be putting in special
screeners.
Which leads to another question that might not be answered
here, and I probably will not be able to attend the closed
session because I have to preside very shortly. But I am
concerned about the possibility and the techniques that are now
being used by the terrorists. I mean, I did see a movie just
recently coming back from China. There was a movie on the
plane, Mr. Chairman, and the movie was ``The Traitor.'' I do
not know if anyone has seen that movie. It is really about the
terrorists and how they were going to set bombs here in
America. And I just hope that we are anticipating all the
various processes. One time it was a shoe. This time it was
underpants. What will it be the next time? And I am pretty sure
you all cannot disclose this at this point, but please disclose
this for the record in our closed hearing. What are some of the
techniques that you all are assessing that would try to be on
the offensive, as you said, Director Blair? You have to be on
the offense and the defense, but we have to be on the offense
in these regards. And I am sure that you are, but I just want
to re-emphasize that, because I can say for the record I think
about the small towns across America. If I were a terrorist, I
would not go after Chicago, I would not go after New York. You
know where I would go? I would go to my hometown of Centralia,
Illinois, where there are 14,000 people, and raise havoc in
there which would scare Americans to death.
So, Madam Secretary, we have to be concerned about homeland
security as we look at our small communities and the resources
that they would have in case of being struck by a terrorist. Is
there a comment there, please?
Secretary Napolitano. Senator, yes. One of the criticisms
that we have talked about amongst ourselves is being reactive
as opposed to proactive all the time. Well, of course, you have
to react and fix what went wrong. Once you have identified a
problem, you have to fix it. But we also need to be thinking
ahead to be proactive.
That is why, for example, we have entered into this
agreement to really get some of the best scientists in the
world who are in our National Labs thinking well ahead about
the next generation of screening technology and what it can
show us.
The other thing is that the threat is constantly evolving,
Senator. When I came into office, I was receiving very little
information about American or U.S. citizens that were
themselves radicalized to the point of terrorism. That has
changed over the course of the year. Director Leiter has
already talked about the emergent threat out of Yemen. So there
is a constantly evolving environment that we have to deal with
and be thinking ahead.
So the challenge for us--and it is a challenge for us at
this table, it is a challenge for others, it is a challenge for
the Congress, it is a challenge for our international
partners--is to always be thinking about the next iteration
that is being conceived.
Senator Burris. Mr. Chairman, just one quick point, and I
would like to comment on something that Ranking Member Collins
made in reference to where this person would be tried. And I
understand that intelligence was gathered from this person
prior to him being given his rights. So I do not know whether
or not that could be disclosed in a closed hearing as well to
alleviate some of the anxiety in reference to whether or not we
were able to get any information from this young man, which I
understand there was substantial information acquired prior to
Miranda.
Thank you very much, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Burris. Senator McCain.
OPENING STATEMENT OF SENATOR MCCAIN
Senator McCain. Well, thank you, Mr. Chairman. I thank the
witnesses, and I thank them for their continued service to the
country.
I think everybody knows the facts of the Christmas Day
bomber. A person buys a ticket with cash, a one-way ticket. His
father has already warned the CIA. The series of missteps that
have taken place led to this near tragedy. And I thank the
witnesses for their candor and being forthcoming about these
failures.
The President said, on January 7, ``I repeatedly made it
clear in public with the American people and in private with my
national security team that I will hold my staff, our agencies,
and the people in them accountable when they fail to perform
their responsibilities at the highest level.''
I would like to ask all three witnesses who has been held
accountable. I will begin with you, Mr. Leiter. Has anybody
been fired? Has anybody been transferred? Has anybody received
a letter of admonition? Has anybody been put on leave?
Mr. Leiter. Senator, we are, in fact, conducting internal
reviews to determine whether or not any of those should be
pursued.
Senator McCain. And how long will those reviews take? It is
fairly clear the facts of what happened. Isn't it?
Mr. Leiter. Well, actually, I think many of the facts are
clear. I would correct the record on a couple of points.
In fact, the fact is not that he bought a one-way ticket.
He bought a round-trip ticket.
The fact that he used cash, frankly, in Africa is
completely and utterly----
Senator McCain. That was in Copenhagen, not Africa.
Mr. Leiter. No, sir. I believe he bought that----
Senator McCain. Did he have someone who facilitated his--if
you are defending----
Mr. Leiter. No, sir.
Senator McCain. That we should not have found--should not
have been alerted to this individual, sir, then----
Mr. Leiter. Senator, I apologize. I do not want to----
Senator McCain. All right. Has anybody been held
accountable?
Mr. Leiter. We are reviewing all the individuals, and I
think the President is reviewing my performance as well. That
is absolutely appropriate.
Senator McCain. Admiral Blair.
Mr. Blair. You and I have a Navy background, Senator
McCain, and you know that you do two investigations when
something bad happens. The first is a safety investigation to
fix the parts of the system so that you get the word out and
ensure it does not happen again. The second is the
accountability part of the investigation----
Senator McCain. Actually, it has been my experience,
Admiral, that when the captain of the ship does something
wrong, or something goes wrong on his watch, the captain is
relieved immediately. You can go all the way back to the USS
Missouri, sir.
Mr. Blair. The captain is sometimes relieved, and sometimes
he is not. It depends what happened in the cases.
Senator McCain. The captain is relieved until such time as
he is cleared. So I will be glad to go over naval history with
you. Has anybody been held accountable?
Mr. Blair. We are doing the investigations now so that we
do not hold people accountable based on bad information but we
do hold them accountable based on what actually occurred and
what the standards that they were expected to perform to were.
And that is underway.
As I said in my opening statement, the system was capable
of doing this. All the pieces did not operate the way they
should. I personally have a large degree of responsibility for
making sure those pieces are working, and we are working to
make that happen. I do not feel good about it, and I am fixing
it.
Senator McCain. I was not asking whether you are fixing it
or not, Admiral Blair. So far, it has been several weeks, and
no one has been held accountable. Secretary Napolitano.
Secretary Napolitano. Well, as you know, Senator, we do not
prepare the No Fly or terrorist list, and we do not do the
screening at international airports. However, I am the
Secretary of Homeland Security, and I think I share
responsibility for the enterprise that has to happen to prevent
this from happening again.
Senator McCain. I thank you, Madam Secretary.
I understand, Director Blair, in response to Senator
Collins, that you were not consulted as to what venue the
Christmas Day bomber would be tried in. Is that correct?
Mr. Blair. That is correct. Yes, sir.
Senator McCain. How about you, Mr. Leiter?
Mr. Leiter. No, I was not.
Senator McCain. Secretary Napolitano.
Secretary Napolitano. No.
Senator McCain. So I guess I have to ask your opinion,
Admiral Blair. Should the Christmas Day bomber be tried in
civilian court, or should it be under military tribunal? Since
they would not ask you, maybe I should.
Mr. Blair. I am not ready to offer an opinion on that in
open session. We can talk about it in closed session, Senator
McCain.
Senator McCain. Mr. Leiter.
Mr. Leiter. Senator, I honestly do not have a position. I
have been fully engaged in trying to fix this, and I have not
focused on where he would be charged.
Senator McCain. Well, unclassified information indicates
that the Christmas Day bomber was providing information that
was necessary to try to crack this case, and when he got a
lawyer, he immediately stopped that information. Now, that is
according to public documents. I do not have any classified
information. If that is the case, I think it is a terrible
mistake. I think it is a terrible, terrible mistake, when it is
pretty clear that this individual did not act alone.
Admiral Blair, in your testimony before the Committee, you
stated you would exercise your authorities to the fullest and
withhold judgment on whether the Intelligence Reform Act
provided the DNI with sufficient authority. Now, can you share
with the Committee whether you believe the DNI has sufficient
authority to manage intelligence issues that affect America's
public safety?
Mr. Blair. Senator McCain, as this job continues--it has
been 5 years now since the Director of National Intelligence
was established--I find that you discover new things that you
have to fix as you go along, and this incident is exposing some
of those.
The authorities of the DNI I think heretofore were able to
make the big pieces happen. There was lots of sharing of
information in this case, but we are finding now some
individual pieces in which I think more authority may be
required. So the overall answer to the question is I do not
know quite yet, but the authorities granted heretofore by the
Congress have been adequate to make important improvements
happen.
Senator McCain. I thank you, Mr. Chairman. I thank the
witnesses.
Mr. Chairman, I do find it interesting that apparently none
of the three top individuals were consulted on a decision
whether to put the Christmas Day bomber into civilian court or
military tribunal, and I think whoever advised them of that--
and I think this decision was a terrible mistake which could
impact our ability to defend this Nation.
I thank the witnesses.
Chairman Lieberman. Thanks, Senator McCain. Senator Ensign.
OPENING STATEMENT OF SENATOR ENSIGN
Senator Ensign. Thank you, Mr. Chairman.
Admiral Blair, you said that this HIG was not convened. Who
made the decision--since none of you were consulted, who made
the decision to go ahead and Mirandize the prisoner?
Mr. Blair. It was a decision made by the FBI team, the
agent in charge on the scene consulting with his headquarters
and Department of Justice.
Senator Ensign. Who authorized him at the Department of
Justice? How high up did this go?
Mr. Blair. I do not know, sir.
Senator Ensign. Do any of the rest of you know?
Mr. Leiter. I do not know, Senator.
Senator Ensign. Secretary Napolitano, you talked, in
response to Senator Collins' question, about you have some
responsibility, you have some authority to deal with the visas,
and we understand that the State Department, I guess, Director
Leiter, you talked about you did not know you had the
authority--or did not have the authority.
Mr. Leiter. I do not have the authority.
Senator Ensign. Has there not been a case in the past where
somebody brought to you rather, have we not rejected any visas?
Mr. Leiter. The State Department has the authority to
revoke the visas.
Senator Ensign. I understand that. Has any one in your
organization before brought you a case where you thought that
there should be a visa rejected where you actually found out
that you did not have that authority before the Christmas Day
bomber?
Mr. Leiter. We routinely provide intelligence to the State
Department to make that decision.
Senator Ensign. That is not an answer to my question. In
other words, somebody who is within your organization, they had
information, this person should be rejected, did you not then
make a recommendation and find out you did not have the
authority? Or has anybody brought that information to you
before?
Mr. Leiter. Senator, I think the spokesperson for the State
Department was simply confused, and no one in the State
Department who works these issues actually thought that I had
the authority to revoke a visa, because we do not.
Senator Ensign. That is not what I am saying. Try to
understand my question.
Mr. Leiter. I apologize, Senator.
Senator Ensign. Has somebody in your organization before
brought you information about somebody who should be rejected?
Mr. Leiter. The answer is no because no one in my
organization believes that I have the authority to reject
visas.
Senator Ensign. So they know that already.
Mr. Leiter. Yes.
Senator Ensign. You just did not know it, but everybody in
your organization knows----
Mr. Leiter. I apologize, Senator. My attempt at humor was
clearly lost. I joked with Secretary Clinton I did not realize
that I had the authority, because clearly I did not ever have
it. It was only the State Department's spokesman that was
confused about where that authority lay.
Senator Ensign. Secretary Napolitano, getting back to my
question about Senator Collins--and this has been brought up,
like who is responsible for this colossal failure. In business,
you understand that if there is not one person responsible for
making certain decisions, like if there are several people,
then no one can be held accountable, and no one makes the
decision. It has to do with whether it is the visa rejection or
whatever. It gets back to what Senator McCain was talking
about, if no one really feels that they are accountable, the
decisions are not made and people really do not know who is
supposed to make the decision.
Is that being addressed in this whole evaluation process of
what went on?
Secretary Napolitano. Senator, yes, in a variety of ways,
but I think Admiral Blair explained in his opening statement
that one of the things that is being addressed is who has the
responsibility to follow up on different lines of intelligence
as they come in.
Senator Ensign. And so are we going to have a clear set of
guidelines and know that this person is responsible for making
that decision. Is everybody going to know what they are
supposed to do and what they are not supposed to do in the
future, I guess is the best way to ask? And when will we have
all those procedures in place to where everybody knows what
they are supposed to and not supposed to do?
Mr. Blair. We have a 30-day deadline that the President
established to provide authoritative proposed pieces of paper
that could be anything from an Executive order down to an
intelligence community directive, which I would sign, or
similar authorities within Secretary Napolitano's organization.
So it will be quite clear as to who has responsibility for
what. We agree that has been loose.
Senator Ensign. As part of that, you mentioned the HIG that
was not convened, and you said in the future that absolutely
will be convened.
Mr. Blair. Yes, sir.
Senator Ensign. In any case like this, that is a guarantee
from you. That is a guarantee from this Administration that is
not going to happen in the future; this will be convened.
Now, from what I understand, even with the HIG, though, you
will only use intelligence techniques that are approved under
the Army Field Manual. Is that correct?
Mr. Blair. The type of interrogation techniques will be
calculated by the purposes for which we want to make that
information available, whether it be law enforcement or for
intelligence. If it is intelligence, then, yes, the techniques
that are in the Army Field Manual will be used by the
interrogators.
Senator Ensign. And the Army Field Manual is public,
correct?
Mr. Blair. That is correct.
Senator Ensign. This Administration stopped using any kind
of classified techniques so that terrorists basically can train
to the interrogation techniques that are in the Army Field
Manual since they are public. But if we use classified ones, in
other words, keeping the terrorists kind of guessing what they
were going to be going through, it would be harder to train.
Wouldn't you agree?
Mr. Blair. The experience we have so far is that the amount
of information that we get from somebody depends on the skill
of the interrogators, and we will have the very best
interrogators on this HIG unit.
Senator Ensign. That does not answer my question. The
terrorists are allowed to train to the techniques in the Army
Field Manual, which is a public document. Correct?
Mr. Blair. The terrorists know what the techniques are, but
as I said----
Senator Ensign. Right. But if they were classified--in
other words, what the intelligence community used to use as far
as classified techniques--it is much harder to train to those.
Wouldn't you agree?
Mr. Blair. I do not think it would make a decisive
difference, no.
Senator Ensign. You do not think that we get better
information? Why do you think the intelligence community used
classified techniques before, then, where they thought it was
better? Why do you think that throughout our intelligence
community they used those kind of techniques before if they did
not feel it was superior to the techniques used with the Army
Field Manual?
Mr. Blair. We have looked at that quite carefully, Senator,
and we do not know whether that same information that was
gained through enhanced interrogation measures could have been
obtained without them.
Senator Ensign. I guess that is something we will have to
disagree on.
I want to get to one last point, because you made this
comment that I thought was pretty stunning, that whoever it was
was more concerned about what folks were thinking overseas. You
even used the word ``duh'' when you were talking about whether
or not to try this person in civilian court and to Mirandize
this person. Can you further explain what you were talking
about, the Administration being more concerned with folks who
were overseas and what their opinion of folks overseas was?
Mr. Blair. That was not the context in which I made the
remark, Senator?
Senator Ensign. Can you further explain what you were
talking about?
Mr. Blair. It had to do with our being able to pursue both
the threat to the United States coming out of Yemen and being
able to pursue violent extremist activities or terrorist
threats within Yemen itself. We needed to be able to do both at
the same time.
Senator Ensign. Yes, this was in response to whether or not
he was going to be tried in civilian courts, and that is when
you said we were more concerned about what they thought
overseas.
Mr. Blair. Let me think back to that, right. I said that
when we put the HIG together, the main use for it we were
thinking of was when terrorists were captured overseas, and we
did not think about that case in which a terrorist was
apprehended, as this one was, in the United States, and we
should have thought of that. We should have automatically
deployed the HIG. We will now. We will make a new mistake. We
will not make that one.
Senator Ensign. Thank you. Thanks for clarifying that.
Chairman Lieberman. Thanks, Senator Ensign. I was going to
suggest that we could run the search engine on the transcript
of the hearing for the word ``duh.'' [Laughter.]
We could find that.
Mr. Blair. We have a search engine that can do that.
Chairman Lieberman. Thanks, Director Blair.
Senator Coburn is next, to be followed, if they are
present, by Senators Carper, Akaka, and Levin. Senator Coburn.
OPENING STATEMENT OF SENATOR COBURN
Senator Coburn. Thank you. I thank each of you for your
service. You have a tough job, and when things go wrong, it is
our job to help you figure out how to get it right. I think all
of you are dedicated to fixing the problems.
I have worked with my Intelligence Committee staff to make
sure that I stay within the bounds of what we can ask in here.
I was going to attend the closed hearing, but I will wait until
our Thursday meeting in the Intelligence Committee. I have a
couple of questions for both Director Blair and Director
Leiter.
The intelligence community has been largely consistent in
noting that had all the pieces of intelligence been connected,
this individual would have met the criteria for the watchlist.
However, there have been inconsistencies in views regarding
whether he would have been put on the No Fly or Selectee Lists.
You stated in your testimony that it would have been determined
by the strength of the analytic judgment, but officials in your
organization have said he would not have met the criteria for
no-fly or selectee, and that is what they have reported to me.
Can you explain the criteria in whether or not the
information would have risen to the level of no-fly or
selectee?
Mr. Leiter. Senator, it is not an easy yes-no question.
Senator Coburn. I understand that. That is why I have asked
you to explain it.
Mr. Leiter. Where he would have been placed, Selectee or No
Fly List, really would have depended on what the analytic
judgment was at the time. So looking at the signals
intelligence and looking at what the father said, you put that
together. Would the analyst have said we have a potential al-
Qaeda in the Arabian Peninsula operative, or we have a
potential al-Qaeda in the Arabian Peninsula operative who may
be boarding an airplane to use a suicide bomb, or this
individual is involved in plotting around December 25, 2009, to
attack the United States?
On that first one, under the existing standards, I think he
is likely on the Selectee List but likely not the No Fly List.
On the later analytic judgments, it is more likely that he gets
into the no-fly criteria.
It is easy after the fact to look back and say clearly he
should have been on the no-fly, but it really would have
depended on what the analysts said, putting all those pieces
together about what kind of operative he was and what his
intention was.
I think from my perspective the right answer, Senator, is
we should not try to parse it so closely in the first instance.
Senator Coburn. I agree.
Mr. Leiter. We ought to have standards that allow, frankly,
a greater degree of flexibility that you do not have to be able
to predict exactly when the individual is going to do. If he
has certain associations and is involved in any sort of
operational activity, it is a pretty clear answer, and that
should be no-fly.
Senator Coburn. Right. So we ought to err on the side of
caution.
Mr. Leiter. I think that is certainly my----
Senator Coburn. Is it not true that there was a lot of
political pressure because of so many people on the No Fly List
and duplicative names that we actually reassessed that in the
recent past and made it harder to put people on that list?
Mr. Leiter. That is absolutely correct, Senator.
Senator Coburn. Director Leiter, in your testimony today,
you said that Mr. Abdulmutallab was identified as a known or
suspected terrorist and he was entered into the TIDE list. You
went on to say that the derogatory information associated with
him did not meet the existing policy standards for him to be
watchlisted, let alone be placed on the No Fly or Selectee
List.
Can you explain how someone who you have said was
identified as a known or suspected terrorist and about whom you
have required biographic data does not meet the criteria for
him to be watchlisted?
Mr. Leiter. Yes, Senator, and I want to make clear at the
beginning, we made a mistake in not associating all that
information with him.
Senator Coburn. Right.
Mr. Leiter. And, obviously, at that point he would have
been in the Terrorist Screening Database and on the watchlist.
We have a not insignificant number, roughly 100,000
individuals, who have some association with terrorist groups.
They may be family members or the like, or they may have lower
levels of derogatory information. That standard is simply lower
than what was adopted in August 2008 and promulgated in 2009
for inclusion in the official watchlist. So it was simply a
matter of the data that we associated with him not meeting that
higher standard.
Senator Coburn. All right. Secretary Napolitano, thank you
for your service. I am pretty concerned with a couple of things
that are going on at TSA, and I would refer you to an article
by Mr. Litwack yesterday in the Wall Street Journal about body
scanners. I do not know if you have seen it.
Secretary Napolitano. I have not.
Senator Coburn. I would recommend it to you.
The other thing that I wanted to raise with you which gives
me great pause is the fact that when the inspector general (IG)
looks at what TSA is doing in terms of screening techniques, in
terms of the equipment, what we have is a failure to meet your
own standards as we install equipment. I would caution--and I
will have this conversation with you privately based on the
information we have looked at and gleaned from IG reports and
also experience that we have seen--that as we respond to the
public outcry for us to do more, the potential to waste a ton
of money on something that is not going to be qualified to
actually change the outcomes of this past December 25, 2009. I
would just raise with you that I am highly concerned about
that.
As a medical doctor, I am highly concerned about the
exposure we are going to expose people to. I also am highly
concerned that the technology we have today would not have
stopped this even if we had had full-body scanners in use--in
fact, we would not have. I would love your comments on that.
Secretary Napolitano. Right. Without commenting on a Wall
Street Journal article that I did not read yesterday, I can say
with respect both to a Government Accountability Office (GAO)
and an IG report on the scanners that they were looking at a
limited sample of an earlier iteration of the technology. The
technology has clearly evolved rapidly over time, but we are
continuing to push the technology. That is why we have asked
not just our Department but the Department of Energy and the
National Labs to get involved.
From the objective evidence, the scanners that are being
deployed now clearly give us a better chance of picking up be
it metals, non-metals, powders, or liquids that somebody may be
trying to get onto a plane.
Senator Coburn. Externally?
Secretary Napolitano. We can talk in a classified setting
about that, sir.
Senator Coburn. What I will do then is, based on the
analysis of my staff on the operational testing of your
screening technologies, I will send you follow-up questions, if
I may, and if you would get those back to me fairly soon, I
would appreciate it.
Secretary Napolitano. We would be happy to do so.
Senator Coburn. Thank you. And thank you again for your
service.
Chairman Lieberman. Thank you very much, Senator Coburn.
Senator Carper had to leave for a moment. Senator Akaka,
you are next.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Mr. Chairman, for
having this hearing, and I want to add my welcome to the
witnesses who are here.
I have been concerned about privacy and civil liberties in
all of this. As President Obama has made clear, weaknesses in
our counterterrorism systems and human errors have created gaps
in our Nation's defenses. It is vitally important that we
address these gaps, of course, quickly. However, we should not
sacrifice our principles nor undermine our long-term strategic
efforts against al-Qaeda and other terrorists. So I would like
to make two points.
First, Congress, working closely with the Administration,
must protect privacy rights and civil liberties while trying to
improve our Nation's defenses.
Second, we should be mindful that passenger screening
technologies, better databases, and different procedures alone
cannot ensure the safety of our flying public. I believe that
we should enhance our international partnerships, use
imagination and risk-based thinking in exploring potential
threats, and give our security workforce the range of tools,
training, and support it needs to protect the American people.
Secretary Napolitano, you are tasked with quickly
increasing the use of technology in air passenger screening
consistent with privacy and civil liberties. How involved will
DHS' Privacy and Civil Liberties Offices be as new technology
such as whole-body imaging is deployed more widely?
Secretary Napolitano. They are involved, Senator, right now
and have been involved from the beginning in terms of how we
deal with privacy and some of the objections raised
particularly with respect to the advanced imaging technologies.
I would iterate the face is screened, the person reading the
image is not at the place where the screening is done, so there
is a great deal of privacy in that regard with respect to an
individual identity already built into the system. But even as
we move forward, we have our Office of Privacy and the Office
of Civil Rights and Liberties engaged in the process and the
decisionmaking.
Senator Akaka. Director Blair and Director Leiter, the
Corrective Action Statement also requires your organizations to
improve technology related to intelligence and to enhance
watchlisting capabilities. Unfortunately, the Privacy and Civil
Liberties Oversight Board, which was created by the
Intelligence Reform Act to protect Americans' privacy and civil
liberties, has not been set up.
How will your agencies ensure that corrective actions in
response to the Christmas Day plot take privacy and civil
liberties into account?
Mr. Blair. Senator, let me say that I think that panel
should be manned up and started. It would provide a very
valuable service. We do have our civil liberties and privacy
officer very much involved as we consider the changes that I
described in my testimony.
But I would take your question one other direction, and
that has to do with families and the personal effect of what we
are talking about. We have been pretty much about talking
standards, regulations, screening, and so on. The Chairman
introduced me to members of the families of some of the
September 11, 2001, victims before this hearing, which reminds
us there are real people involved in this stuff, not just big
bureaucracies.
I am also reminded that it was a father who came into the
embassy in Abuja and talked about his son that he was worried
about who had gone to Yemen and was potentially falling under
radical influence.
We know that last fall there were five young men from
Northern Virginia who went to Pakistan, and it was their
parents, their families who came in and told authorities about
them so that they could be identified.
And while we talk about all of the responsibility of
government and everything we are doing at the bureaucratic
level, I think concerned, aroused citizens, families, are an
absolutely key part of keeping ourselves safe and, that we
should not either underrate or neglect this, and that it is a
very proper emphasis. And so when we are dealing with families,
we need both to rely on their help and to make sure we are not
violating their civil liberties that they expect as Americans.
Senator Akaka. Director Leiter.
Mr. Leiter. Senator, I fully agree with the view that we
have to have civil liberties as a central tenet in all of this.
In the Director's Review Panel that he set up, it includes four
individuals, one of whom is the civil liberties protection
officer. We have had the civil liberties protection officer
review the watchlisting changes we have made. The one thing I
would note, though, is it is very easy for me to recommend to
Secretary Napolitano to put everyone on the watchlist or on the
No Fly List. There are enormous and I think unacceptable costs
to doing that. So what we need to have is an agreement among
the Executive Branch and Members of Congress about what the
proper balance is because there is a balance that was struck
prior to December 25, 2009, and I think, frankly, we are now
being told that a different balance should be struck.
So I am very eager to engage in that discussion with this
Committee and other committees to make sure we hit the right
balance because I do not want to be here after the fact again
saying, well, if only we could have done this.
Senator Akaka. Director Blair and Director Leiter,
according to the 2009 Information Sharing Environment Report to
Congress, DNI and NCTC had not completed their Information
Sharing Environment privacy protection policies. DHS has
developed its policy.
What is the status of DNI and NCTC developing their
policies?
Mr. Blair. Senator, I am not sure exactly what policy that
refers to. I will have to check and get back to you. But we are
very vigilant about getting those policies out, so let me find
out where the shortcoming is that was referred to in that
report.
Senator Akaka. Thank you. Director Leiter.
Mr. Leiter. Senator, I believe it is actually one
consolidated policy. We are working on that, and we will supply
that for the record. And, clearly, especially in light of these
events, that has to be completed so you understand what the
rules are we are applying.\1\
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\1\ The document submitted by Mr. Leiter and Mr. Blair appears in
the Appendix on page 215.
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Senator Akaka. Thank you so much for your responses. Mr.
Chairman, thank you.
Chairman Lieberman. Thank you, Senator Akaka. Senator
Levin, welcome.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Thank you very much, Mr. Chairman, and I add
my welcome to our witnesses.
Apparently, somebody at DHS flagged Mr. Abdulmutallab for
extra immigration screening while the plane was in flight. Is
that correct?
Secretary Napolitano. Yes.
Senator Levin. What triggered that?
Secretary Napolitano. Let me, if I might, Senator, explain
the process. Customs and Border Protection, when it gets the
passenger list, pushes out to the immigration group known as
the Immigration Advisory Program (IAP) in a foreign airport
anybody that appears on the terrorist watchlist or the No Fly
List. The No Fly List is a list given to the carrier, and
basically it says do not put this guy on a plane. The terrorist
list says to a foreign airport, a foreign government, you
should put this person into more secondary screening, whatever
that happens to be.
Now, there is other information that Customs has that
involves whether that person should be questioned before they
are admitted into the United States. It is the difference
between whether they should be allowed on a plane, which is
really a TSA, a national, a different standard than----
Senator Levin. This was an automatic process.
Secretary Napolitano. Yes. Versus is there other
information that should be explored when they are here, before
they are actually admitted into the United States.
Senator Levin. I understand. This was a regular routine
process that----
Secretary Napolitano. It was a regular routine process, and
based on the regular routine process at that time, the
information on the text list that would have led to the State
Department note was something that they would have pursued when
he got to Detroit.
Senator Levin. Right. Now, your DHS agent in Amsterdam, did
he have access to that same information?
Secretary Napolitano. No. He has access to the No Fly and
the terrorist watchlist.
Senator Levin. But should he not have access to the TIDE
list? Your DHS agents in seven cities, or whatever the number
is----
Secretary Napolitano. It is nine. Yes, nine airports.
Senator Levin. Should they not have access to the TIDE
list?
Secretary Napolitano. Senator, let me, if I might, take
that in two parts.
One, with respect to that particular portion of a State
Department list that listed him--it is known as the P3B--we
have changed that in light of December 25, 2009, to push that
forward like we do the terrorist watchlist, like we do the No
Fly List.
Senator Levin. So would your agent in Amsterdam----
Secretary Napolitano. But the entire TIDE list, the entire
TIDE list includes people who, were previously accused of
bringing in the wrong type of ham across the U.S.-Mexican
border. It is a huge list. And the question or the
understanding we need to have with the Congress is, where is
Customs done, where is admissibility, where are all those types
of questions done. The staff, the resources, etc., for those
questions is domestic.
Senator Levin. The information that was pushed forward to
your immigration folks here in this case now is being pushed
forward to your DHS agents in other cities. Is that what you
are saying?
Secretary Napolitano. Yes, sir.
Senator Levin. So that this man would have been subject to
extra inquiry in Amsterdam if the current system had been in
place then?
Secretary Napolitano. Yes, sir.
Senator Levin. OK. Now, Great Britain did not apparently
allow this man to have a visa. Do we share information with
Great Britain or other EU countries as to who is on their
lists?
Secretary Napolitano. We share some, but that is one of the
reasons that we have embarked on an international effort
because that information sharing needs to be tighter more than
it is, more real-time than it is, and more complete than it is
in the air environment.
Mr. Leiter. And, Senator, if I may, just to clarify, he was
denied his visa for non-terrorist reasons, and the British did
not share--and I have spoken with my British counterparts--did
not have information that he was associated with terrorism
other than that which we have talked about in the signals
intelligence----
Senator Levin. Other than that, though, we are now working
out arrangements with other countries to share information
about people who are on or should be on watchlists. Is that
correct?
Mr. Leiter. Absolutely, Senator.
Senator Levin. How many people were recommended for the
watchlist the way he was by our embassy that were not added to
the watchlist in 2009?
Mr. Leiter. Senator, I will have to take that for the
record. I will say it is quite routine that the field simply
makes a blanket recommendation for an individual's inclusion in
all levels of the watchlist, and it is the headquarters
components that then apply those standards to figure out if
that individual qualifies.
Senator Levin. I understand. I just want to know
approximately how many people were recommended to go on the
watchlist by our own people in our embassies that were not
added to the watchlist.
Mr. Leiter. And, Senator, I will take that for the record.
I honestly do not know.
Senator Levin. You do not have that approximate number with
you?
Mr. Leiter. No, sir.
Senator Levin. All right. How many that were on the
watchlist last year, approximately, were allowed into the
country?
Mr. Leiter. A very significant number was on the watchlist.
Just to give you a snapshot, of course, the watchlist is
approximately 400,000 names. Out of those, I believe only
approximately 14,000 were selectees and only 4,000 no-fly's. So
a very significant number, had they traveled to the United
States, at most would have been met at the border with some
sort of secondary inspection.
Senator Levin. It would have been a large number that would
not have been allowed in.
Mr. Leiter. It would have been a very large number eligible
to come in. Whether or not they were ultimately turned away at
the border, I cannot give you that number.
Senator Levin. That is sort of instinctively troubling, is
it not?
Mr. Leiter. Senator, I think in one way it is, and I think
that goes right back to the standards, which are the standards.
Have we set the standards so low that we really have too high a
bar to get somebody onto the No Fly and Selectee Lists before
they get to our shores.
Senator Levin. I am talking about the watchlist who were
allowed--we do not know exactly how many came into the country
who were on the watchlist.
Mr. Leiter. No. I will tell you that when people come to
the country if they are on the watchlist, it is because we have
generally made the choice that we want them here in the country
for some reason or another.
Senator Levin. All right. The White House report says that
ultimately placement on the No Fly List would have been
required to keep Mr. Abdulmutallab off the plane inbound from
the U.S. homeland, that he would have had to have been on the
No Fly List, according to the White House report. However, in
the next section of that report on the visa issue, the report
acknowledges that Mr. Abdulmutallab's visa might have been
revoked if he had been successfully watchlisted.
Now, if his visa had been revoked, he would have been
prevented from boarding the plane. So is there not an
inconsistency in those two comments in the White House report?
Mr. Leiter. No, sir, because, in fact, as a general matter,
individuals who have had their visas revoked, this may not be
known to the people who put them on the aircraft. So not only
must the visa be revoked, in many instances they must also be
placed on the No Fly List.
Senator Levin. And that is not automatic.
Mr. Leiter. I would be happy to talk about it more in
closed session, those processes are being modified.
Senator Levin. That is a classified question as to whether
someone whose visa is revoked is automatically put on the No
Fly List.
Mr. Leiter. I can tell you the processes have definitely
been changed.
Senator Levin. Not the process. I am saying that is the
goal.
Mr. Leiter. Yes. The goal is to make sure that anyone who
does not have a visa does not get on an airplane.
Senator Levin. And the process is intended to achieve that
goal.
Mr. Leiter. Correct.
Senator Levin. OK. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Levin. Senator
McCaskill.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. Thank you, Mr. Chairman.
To some extent, if any of this has been covered I
apologize, but I want to make sure I understand about--and
maybe you guys are not the right witnesses for this, and this
may not even be the right Committee for this. It may be the
Armed Services Committee, but the decision as to where
terrorists that try to do our country harm, where they are
tried and where they are processed. And I want to make sure I
understand what the precedent was before December 25, 2009.
It is my understanding that there is no precedent in this
country that anyone has ever been apprehended on our soil for a
terrorist act and immediately gone into the military system. Is
that correct? Do you all know?
Mr. Blair. I think the right witness is from the Department
of Justice, Senator McCaskill. I do not know the answer to----
Senator McCaskill. It is my understanding that, obviously,
a number of terrorists have been prosecuted in civilian courts
in this country and that there were a couple under the Bush
Administration that ultimately were taken to military court,
but after they were initially arrested and arraigned in our
civilian criminal courts. And I guess what I am trying to
figure out is the process here and if we have a process.
It is my understanding, Mr. Blair, that earlier you
testified that you were not consulted about the decision as to
whether or not this terrorist was going to go through a
civilian court or through a military court.
Mr. Blair. That is not quite right, Senator. I was not
consulted whether the high-interest interrogation group was
deployed so that the questioning of Abdulmutallab would be
either admissible in Federal court or was being exploited for
intelligence purposes. That is related to where they would be
tried, but not exclusively. We would like to be able to do
both. We would like to get the information that would help us
for intelligence purposes and have evidence that could be used
against the person in a Federal court. If we have to make a
choice, then that ought to be made at a higher level with all
of the considerations that you are talking about.
Senator McCaskill. Well, I think my sense is what the
American people want is for our military and our intelligence
and our law enforcement community to have all the tools
possible to get both good information and justice.
Mr. Blair. Exactly. That is the goal.
Senator McCaskill. And I think all the tools are very
important, but I think we are going to lose the ability to use
all those tools if we do not reassure the American people that
there is a process in place that these decisions are being made
with the right people in the room.
I do not mean to be derogatory to my friends at the Justice
Department, but I have had experience in my life where FBI
takes over and nobody can talk to them. They just take over.
And what I am worried about is can we reassure the American
public that at these moments of decision--now, it is my
understanding also that this suspect was not Mirandized for a
long period of time.
Mr. Blair. Not for the initial interrogations, that is
right.
Senator McCaskill. And the reason he was not Mirandized is,
first of all, we did not need his confession or his statements
because we had plenty of witnesses in terms of prosecuting him;
and, second, we had an opportunity to get more actionable
intelligence information by not Mirandizing him.
Mr. Blair. I do not know if the decision was made on the
scene. The interrogation was done, and then the decision was
made on the scene again that evidence ought to be taken for
trial after consultation which was not complete. So, yes, that
is basically what happened, and it should have been a wider
process than was being made on those narrow grounds.
Senator McCaskill. I am very proud of our justice system in
this country. I am very proud of our military in this country.
And I know if the two of them work together, we can punish
these people the way the American people expect them to be
punished, and we can get good information. These are not
mutually exclusive goals. But I do think that what is
happening, because we do not have enough information about how
these decisions are being made, people are assuming the worst,
that we are immediately calling a public defender and saying we
want to make sure you do not say anything that could
incriminate yourself and how can we coddle this guy who tried
to blow up these people in this airplane.
Now, I know that is not happening. I have been around too
many interrogations to know that ``coddle'' is not the word
that would come to mind. But I think that we are failing in
explaining to the American people how this process is working,
and I would certainly ask you, Secretary Napolitano, and all of
you in your high-level meetings to discuss this process of the
decisionmaking at the point of apprehension. If we are going to
go down the path of immediately going into military custody--we
have never done that before, I do not believe, in this
country--then I think we need to flesh that out. And I think
even though there are a lot of things we cannot share with the
American public because it will hinder our ability to catch the
bad guys, there is a process we can share with the American
public that they will understand that all everybody wants is
the same thing. We want to catch these guys, and we want to put
them away where they can never hurt anyone for as long as we
can possibly do it. And in some instances, we want the death
penalty.
I think that we need to be very clear that we all have the
same goal here. This goal should unite our country, not divide
it. But it is being used to divide our country because we do
not have enough information.
Mr. Chairman, the remainder of my questions I have for
closed session.
Chairman Lieberman. Thanks, Senator McCaskill.
We are going to do a quick second round and see if we still
have time within the generous commitment of time you have given
us to go into closed session.
Senator Carper, though you are aging, you remain very
agile. I heard you were on the way and moments away. Why don't
you go ahead and ask your questions?
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thank you very much.
Let me just start off by saying I know one of you pretty
well; the other two I do not know, but I know you by
reputation. You have excellent reputations, and nothing you
have said or done here today serves to demean those
reputations. You have handled yourselves well. I appreciate not
just your service but your forthright responses to us.
In my old job, the job that Secretary Napolitano and I once
shared, one of my cardinal principles was to focus on
excellence in everything we did. I was an old naval flight
officer, too, for a number of years. There was focus on
excellence in everything we did. I used to say to my cabinet
and folks on my staff in the governor's office, ``If it is not
perfect, make it better.''
My family and I traveled outside the country over the
holidays, once we left here, and I had a chance to see
literally thousands, tens of thousands, maybe hundreds of
thousands of people trying to move in and out of this country
from all directions, going through security, checking their
bags, being ticketed, having their identification checked again
and again. And I thought to myself, My God, what a challenge to
try to know who all these people are, to make sure they are who
they say they are, to make sure they do not have on their
bodies or in their luggage stuff that is going to harm somebody
else. What a challenge.
It has been over 8 years since September 11, 2001, and we
have been facing these challenges literally every day since
that time. And we have been lucky, but we have been smart. But
we are not perfect, and we need to be as close to perfect as we
can be. You know that and I know that.
Our job here is to conduct oversight, to point out and help
you point out what you have not done well, and to find out what
you need to do differently to reduce the likelihood that we
will have another guy with something in his shoes or in his
underwear coming at us with the intent to do harm.
What do we need to do differently to enable you to do more?
We have spent many a day together here several years ago with
the 9/11 Commission sitting right where you are sitting giving
us a whole bunch of recommendations and ideas. We acted on
almost all of them. And I think we have come along and funded
pretty well most of them.
It seems to me--and I will close with this--among the
mistakes that occurred, one, when a distraught father, came
into our embassy in Nigeria to report that his son was going
the wrong way, whoever took that information down, as I
understand it, may have passed along the information with the
name of the person, the son, misspelled, and I am told that
created some problems within the intelligence community and
made it more difficult for us to connect the dots.
I understand in a back and forth between one of my
colleagues and, I think, Admiral Blair that the idea that
somebody was using cash to pay for an airline ticket coming out
of Nigeria, frankly they do not all have credit cards, and the
idea that they are using cash may not be that much of a strange
thing.
The idea that this person had no luggage coming out of
Africa with a one-way ticket, or maybe it was a round-trip
ticket, I could understand how in Nigeria that might not raise
a lot of eyebrows. Maybe it should have in Amsterdam, but if we
had the right spelling of this guy's name and if somebody along
the line maybe in Amsterdam had picked up that this was a cash
purchase and there is no luggage, that maybe should have helped
us.
The last thing I want to say is on the full-body scan, the
technology side here. We have a pretty good idea how to stop
guys like this fellow that tried to blow up the plane over
Detroit. The technology is there. I know there are privacy
concerns. I think they could be addressed, have been addressed.
We need to buy them, we need to fund them, and we need to
deploy them. We need to make sure that the folks that need to
be trained to use them properly with respect to private sector,
that they are in place.
Now, what can we do to help?
Secretary Napolitano. Well, Senator, I will just say thank
you for your comments, and I think that there will be budget
implications moving forward looking at that.
Second, my view is that--and I want to go back to a point
that Senator Akaka asked me, the privacy versus security issue
that gets raised in connection with the whole-body scanners. We
do, as I said, look at privacy issues from the get-go, but
ultimately the question is what do we need to do to protect the
security of the flying public, even as we take some measures to
deal with privacy. But security is the No. 1 concern.
One thing that this Committee and the Congress can do,
however, in addition to that is setting public expectations. We
are doing and will continue to do everything we can to prevent
this kind of event from ever happening again from whatever
source, anywhere around the world, domestically. But there is
no one silver bullet.
Yes, we can push some more State Department material out to
nine airports around the world, and we have. But even if we
had, that is just a tool for additional screening. That does
not necessarily prevent someone from getting on a plane.
Yes, we can put more people into secondary screening, but
that totally clogs up the travel system unless that is informed
by intelligence that has been connected.
So helping the public understand that everyone is working
on this, there are multiple layers involved, but no single one
will be the sole answer. If there were, it would already be
employed.
Senator Carper. Mr. Leiter.
Mr. Leiter. Senator, I will offer a couple of comments. And
as a former naval flight officer myself, I appreciate that if
you have a bad day, it might be your last day. And I can tell
you that the men and women who are doing this counterterrorism
mission feel that way. And, frankly, the hardest thing about
this entire experience for our organization has been the people
saying, this is not a 9 to 5 job. I have not met somebody who
thinks it is a 9 to 5 job yet.
But in terms of specific actions, I think the issue about
standards for inclusion in the watchlist and the need to have a
good conversation between the Executive and the Congress on
determining what that balance should be between security and
civil liberties is incredibly important, and this Committee
plays a key role in helping us set that spot and that balance.
Second, I think screening, as Secretary Napolitano knows so
well, remains critical. It is a critical tool because, frankly,
I simply am not going to find all the bad guys. And I do not
want us to overlearn the lessons of this case where we did have
pieces and we should have connected on Umar Farouk because
there will be other instances where with a different name, a
different passport, we might not identify them. So we need to
have that multi-layered defense.
Finally, in terms of making sure we learn lessons from
several incidents and not just one, going back to issues of
Fort Hood and domestic radicalization, we have to--and the
Congress plays an enormously important role in ensuring that
our American Muslim population understands that we need a
partnership between the government and these communities to
identify individuals like Nidal Hasan or Carlos Bledsoe before
they actually pick up a weapon or pick up an explosive and
strike. That is not a lesson directly out of December 25, 2009,
but I think as we see a morphing threat--and we need the same
agility you showed in jumping in your chair--we need to be
agile, and that is going to require a partnership with these
communities and not an adversarial relationship. And I believe
the Congress plays a critical role there.
Senator Carper. Closing words, Admiral Blair.
Mr. Blair. Sir, I would just add the request that you
continue to keep the pressure on us.
Senator Carper. That I promise we will do. That is an easy
one.
Mr. Blair. Well, frankly, I think the pressure was sort of
going the other way in the last couple years: ``Things are
going pretty well. You have too many people on the No Fly List.
Why are you searching grandmothers? These guys are broken up.''
I think we are really learning from this incident, in
which, thankfully, nobody was killed, and we will make a
tremendous leap forward. Of course, the tragedy of September
11, 2001, impelled us to do things that have made a great deal
of difference. The trick, as you know from being an executive,
is how to keep the pressure on when the crisis does not happen.
And I think congressional oversight, I think leadership from
our point of view have to be the keys to doing that so that it
does not take a near tragedy or a tragedy to make the
improvements, but we make them as we go.
Senator Carper. Mr. Chairman, I think that is a good note
to end on. Thank you very much.
Chairman Lieberman. Thank you. I agree with you, Senator
Carper. I appreciate the statement that was made, and I agree
that in different ways there may have been not quite a
``Mission Accomplished'' feeling around Washington, both
branches of government, but a feeling that the war had reached
a different level of intensity. It has not, and as the records
show, we had a greater number of attempts to attack our
homeland last year than in any year before. So it was a painful
way to be awakened, but here we are.
I appreciate very much the forthrightness of the witnesses
today. Like a lot of other people, I was raised with parental
wisdom that everybody either falls or slips in life. The
question is how you get up, and most important of all, if you
slipped and made a mistake, the only way you are going to deal
with it effectively is to acknowledge it, acknowledge there is
a problem, and then go on. I think that is the spirit of what
your testimony has been today.
I have a couple more questions. I know Senator Collins does
as well. I want to come back to the watchlist because I
appreciated again, I want to say, Admiral Blair, what you had
to say. I think this has gone too much in the other direction,
and, of course, we do not want Grandma being harassed, but
there ought to be a pretty simple way to stop Grandma from
being harassed without leaving out of pre-screening people
about whom somebody has information that suggests that they may
be terrorists. Again, all we are asking--we are not on the
basis of their presence on the TIDE list going to arrest them
or convict them. We are going to do a secondary screening to
make sure they do not blow up the plane or come to the United
States with evil intention. And I appreciate the remarks you
have made, Director Leiter.
What is the process now by which the Administration is
reviewing the watchlist? We are going to perform oversight here
continually. We want to have involvement in this with you.
Director Leiter.
Mr. Leiter. Senator, to begin, immediately after the event
we took some near-term actions which were looking at categories
of individuals, rescrubbing their records, and, frankly,
elevating large numbers of people, based on certain
characteristics, that I can talk about more in closed session,
to at least the selectee level, further scrubs of that
involving people with visas and the like, so there were some
immediate steps taken.
In the slightly longer term--and I really should not say
``long term''--this week--I expect that we will obtain
interagency guidance out of this process, so within the next 30
days to more formally revise those standards so we can have
routine inclusion of people at higher levels of that
watchlisting. And certainly as we develop those standards,
which I hope are simple for everyone to understand, we have to
engage in real consultation with this Committee and other
Members of Congress to make sure that, again, we are hitting
the right balance.
Chairman Lieberman. OK. We want to be involved in that. If
I may, since you are here, just suggest that it seems to me
that the watchlist system is too complicated, that having four
levels--TIDE, watchlist, Selectee, No Fly--may be complicated--
is more complicated, in my opinion, than we need. There ought
to be a category where there is some basis for concern about
contact with terrorism and then some higher category where
there is some greater evidence where you really want to stop
somebody from getting on the plane.
Mr. Leiter. And, Senator, I have heard that a lot. I can
tell you that we have, to a vast degree, eliminated one of
those levels, which are those who are on TIDE that are not in
the watchlist at the Terrorist Screening Center. Not
completely, and I can explain that more fully in closed
session, but fundamentally that step does not exist.
I will say that one of the good things about the watchlist
is this ability--and this did work in this case. We simply had
not watchlisted someone at the right level. But what we do have
is something that did not occur before September 11, 2001,
which was a seamless connection of information flow from that
top secret level at the National Counterterrorism Center down
to the screeners.
Now, again, we had a different problem here, which was
someone was at the wrong level of the watchlist. But the
information did flow so that basic structure was not, in this
case, one of the flaws.
Chairman Lieberman. OK. And, Secretary Napolitano, perhaps
I should ask you this question because it goes to TSA and maybe
CBP. These questions of Grandma getting screened or this young
boy, Michael Hicks--the name sticks in my mind. Apparently
there is somebody on one of the lists with a similar name
getting screened all the time. There has just got to be a
common-sense way when there is a little boy coming through to
not subject him to this. It is not a terrible price to pay,
frankly, to protect the country, but we ought to try to avoid
it if we can.
Secretary Napolitano. Indeed, Mr. Chairman, but I can talk
about that particular case in a classified setting.
Chairman Lieberman. OK.
Secretary Napolitano. What we are going to have to build or
have as we make the actual watchlist and No Fly List more
robust is a greater ability to have redress and remove people
who are improperly on the list from the list and a clearly
understood non-bureaucratic process by which to do that. That
is something we are looking at.
Chairman Lieberman. OK. Let me ask you a question about how
the lists are used, and Senator Levin touched on this, and you
have described it. This is a question of pre-screening of
international air travel passengers to the United States. In
the current system, Customs and Border Protection accesses the
airline's passenger name record 72 hours before a flight is set
to depart. But those records do not typically include important
identifying information like passport or visa numbers, which
obviously makes it harder to match the passenger manifests with
the government databases, the terrorism watchlists.
Customs and Border Protection currently does not receive
that important identifying information about passengers on a
U.S.-bound flight until they begin the check-in process and in
some cases not until 30 minutes before the airplane's door
closes.
Also, although we are checking the No Fly and Selectee
Lists in real time as passengers check into a flight, we are
not running, as we described earlier, visa revocations in real
time.
Now, once the airplane's door closes and CBP receives that
batch of passenger information, officials at what we call the
National Targeting Center begin a more in-depth analysis of the
people on the flight to determine who will require additional
attention once the flight lands.
On Christmas Day, as you know, it was that in-depth
analysis that led CBP to uncover Abdulmutallab's father's
concern about him and to determine that he would require a
secondary inspection once he landed in Detroit, but, of course,
that was far too late to stop what he intended to do.
So I wanted to ask you whether waiting until the airplane's
doors are closed to begin an in-depth check of our databases is
too late and whether we need to thoroughly screen each flight's
passenger manifest list against all of our databases, such as
we have described, at least 24 hours, if not longer, before the
airplane is set to depart a foreign country to the United
States.
Secretary Napolitano. Mr. Chairman, I think some of that
should be held for our classified briefing in terms of how that
flow of information works. Obviously, where we want to get to
is if we have derogatory information that someone is a threat
to aviation, they never get on a plane.
Chairman Lieberman. Right.
Secretary Napolitano. The problem here is when they put all
the dots together, that derogatory information was enough to
advise the carrier not to put him on a plane. That was the
problem here.
In terms of the entire movement of information across the
system with the millions of passengers that move every day, I
would like to be able to talk with you about that a little more
in-depth in the classified setting.
Chairman Lieberman. You understand my point.
Secretary Napolitano. I do.
Chairman Lieberman. That if prior to boarding the plane
what we have is basically the passenger identifying
information--that is, his name, or her name--but not other
information like passport or visa numbers, it may be that we
are not going to be able to effectively match them on that
basis against the watchlist, and, therefore, they will get on
the plane. But we will continue this conversation. Thank you.
Secretary Napolitano. Indeed.
Chairman Lieberman. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Chairman, before I ask a couple of final questions, I
want to clarify an issue raised by the Senator from Missouri,
and I told her as she was leaving I was going to do this. There
is, in fact, precedent for detaining someone on American soil
as an enemy combatant in the military system, and that is Jose
Padilla. Jose Padilla was first arrested in 2002, and he was
subsequently detained by the military for 3\1/2\ years before
being charged in civilian court. Whether that was the right way
to handle the case or not, it is indeed a precedent. So it
would not have been unprecedented to detain Abdulmutallab, who,
unlike Jose Padilla, was not an American citizen. So that
could, in fact, have been done and would not have been
unprecedented.
The second point my friend from Missouri raised had to do
with the amount of information that was given by Abdulmutallab.
That is obviously classified and not for discussion here. But
it is evident to me that you are going to get more information
over a lengthier period of time than you are over just a few
days, and it is clearly not a coincidence that Abdulmutallab
stopped cooperating once he had his Miranda rights read to him
and once he had lawyers who advised him to cease answering
questions. So I have a very different view from my friend from
Missouri on this issue, but I did want to establish some facts
on Jose Padilla as being a precedent.
I want to follow up with another issue with Mr. Leiter that
Senator Levin raised, and this is just to clarify the record.
On the terrorist watchlist that contains 400,000 names, you had
an exchange, Mr. Leiter, with Senator Levin in which you and he
talked about potentially significant number of those
individuals would be able to travel to our country because they
are not on the No Fly List or even the Selectee List. But, in
fact, as I understand it--and, again, I realize the actual
number is classified, but very few of those 400,000 would have
valid current visas. Isn't that correct?
Mr. Leiter. That is correct, Senator, but approximately 2
percent of the people who are in the Terrorist Identities
Datamart Environment (TIDE) are U.S. persons, so clearly that
is an issue. Also, there are a significant number that are from
visa waiver countries and could enter the United States without
a visa.
Senator Collins. That is an excellent point, and it is a
point that has been of great concern to the Chairman and me for
some time, particularly when we are looking at individuals in
Great Britain who may have dual citizenship with Pakistan and
England and may be using one passport to travel to Pakistan and
then the British passport to travel to our country. I realize
that is an issue for another day, but it is of great concern.
Mr. Leiter. Well, I actually do not consider it an issue
for another day because, as I said, we have to learn the
lessons of this case, but we cannot overlearn the lessons. And
I think Secretary Napolitano and I have spoken previously and
view the issue of visa waiver and using Electronic System for
Travel Authorization (ESTA) data appropriately to detect
individuals who might want to do harm to the United States is
very much integrated in this equation.
Senator Collins. Secretary Napolitano, in my remaining time
let me ask you about a question that concerns me. When DHS was
established in 2002, Congress authorized the Secretary of
Homeland Security to assign DHS personnel to visa-issuing
diplomatic posts overseas to review individual visa
applications and to initiate investigations of visa security-
related matters. Well, fast forward 8 years. It is 8 years
later, and as I understand it, DHS personnel are only in about
15 out of the 220 State Department posts around the world. And
that small number is even more disturbing when you consider
that DHS and the State Department have identified 57 posts as
being high risk.
I also understand that requests to expand to three more of
these high-risk posts were waiting in your office for more than
a year, waiting for approval by the Secretary--I realize part
of that preceded you, but you have been in that office for
about a year--and that you signed them just recently.
Why the delay? Here you have a need in a high-risk area for
DHS personnel. Why let it languish for a year?
Secretary Napolitano. It was not languishing, Senator, and
let me talk about this in several ways. It was being evaluated
in light of all the work being done at the Department about
where our people need to be to have their highest, most
effective use around the world, and in conjunction with the
work we were doing on the Quadrennial Homeland Security Review
(QHSR), which is due to the Congress this month.
Let me, if I might, though, talk about the Visa Security
Program. Senator Carper asked, what we could do. Well, both at
the IAP level and at the Visa Security Program level, there is
a difficulty, and the difficulty is that they make the
Department a little bit pregnant. Either we run visas or we do
not. Either we do the revocations or we do not. But we live in
kind of a half-caste world right now, and I think it is
important--and that is something that we ought to be--that is
part of our review, but it also should be part of our ongoing
dialogue with this Committee.
Last, the Visa Security Program is a screening/
investigative program where, in the embassies where we have it,
with the agreement of the Department of State, they go out and
do further research. But as you have mentioned, it is limited.
It does not cover all of the embassies, nor can it by itself be
more than and should be more than one of the many layers to be
constructed here.
So I would simply suggest to the Committee that this is one
of the things we really need to look at, and areas of the
Department where we kind of have authority but we kind of do
not, we kind of have personnel, but we kind of do not.
Senator Collins. But you did have the authority to deploy
people to these high-risk posts. You had a request for these
three, and I cannot publicly say what the three are, but they
do not seem like hard calls from my perspective.
If they did not languish for a year, are you saying that it
took a year to evaluate the request? I mean, why the delay?
Secretary Napolitano. No. What I am saying, it was not a
delay. It was an ongoing process within the Department, led by
leadership in the Department to look at this in conjunction
with everything else we were doing internationally.
Senator Collins. Was the request made a year ago?
Secretary Napolitano. I do not know when the actual date of
the request was.
Senator Collins. It is my understanding that the request
has been in your office for a year, and I will follow up with
some additional questions.
Secretary Napolitano. I do not think that is accurate. We
will be happy to have some correspondence with you and to get
you the information.
Senator Collins. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Collins.
Senator Akaka, do you have any further questions?
Senator Akaka. Mr. Chairman, I do have further questions,
but I know there is a vote.
Chairman Lieberman. There is a vote, but if you would like
to start, go right ahead. I think there are about 13 minutes
left on the vote.
Senator Akaka. Well, thank you, Mr. Chairman. This is
becoming so obvious now, what has been going on with this
Administration and with different agencies and departments
working together.
Director Leiter, NCTC has a Directorate of Strategic
Operational Planning to support effective governmentwide
counterterrorism planning, which is essential to preventing
attacks. Yet Congress also directed the State Department's
Coordinator for Counterterrorism to conduct overall supervision
and oversight of resources for international counterterrorism
activities. NCTC's and State's authorities appear from our
perspective to overlap.
Are the State Department and NCTC cooperating in
counterterrorism planning? And, how are you doing this?
Mr. Leiter. Senator, I think we are cooperating well, but I
would go back to something Director Blair said earlier. There
are so many people involved here, and I do not think the
legislation that created NCTC's Strategic Operational Planning,
as I have discussed with this Committee before, I do not think
the legislation gave clear authority--in fact, it did not give
us clear authority to direct action, so we have become a
negotiator and mediator of sorts rather than director of
action.
I think the President's Directive of January 7, 2010, which
asked or directed NCTC to design a process whereby there would
be follow-up of priority threat streams, will be empowering of
strategic operational planning, not to direct operations,
contrary to the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA), but at least to empower us to demand
accountability at a more tactical level for more, and a broader
range of threats than we see. I think that will require a new
level of cooperation from the State Department, also not just
the State Department, but Homeland Security, FBI, Justice, and
the military. I believe the events of December 25, 2009, at
least give us the impetus to do that.
Senator Akaka. Thank you for that.
Secretary Napolitano, the public, of course, has been very
concerned about what has been happening, and we are trying to
put different measures in place. In your testimony, you state
that, as an interim measure, you will deploy law enforcement
officers from across DHS to serve as Federal Air Marshals to
increase security aboard some international flights.
When will these officers be deployed? And, what training do
they receive to ensure that they are fully prepared to provide
security inside an aircraft?
Secretary Napolitano. Senator Akaka, if I might reserve the
details of the deployment for the classified briefing.
With respect to training, there is specialized training.
Indeed, we have a new, enlarged group that started training
this week that will begin deployment on February 1. But it
includes things, for example, about how to take down a
passenger in a plane and keeping the other passengers safe
while you are doing it, because you are in a closed
environment; how to take down a passenger in a plane without
yourself causing damage to the structure of the plane. There
are other things, but that gives you a flavor. There are some
different things from a law enforcement perspective that happen
in that airplane setting that are different than a normal
setting.
Senator Akaka. Finally, this came to me while you were
talking about working with other countries. You testified that
TSA's security directive requires passengers who are from or
who pass through 14 countries to undergo additional screening
at international airports prior to being allowed on flights to
the United States. I am concerned that requiring additional
screening of all passengers from certain countries may impact
our relationships with those countries as well as the countries
charged with providing the additional security and could divert
attention from other possible threats.
Have you heard concerns about this directive from other
nations? And what is being done to address those concerns?
Secretary Napolitano. Senator, that list was developed from
the State Department's state sponsors of terrorists list plus
add-ons to it in conjunction with the State Department. It is
of concern to several of the countries that have been put on
the list, recognizing that the enhanced screening is happening
for over half of the passengers from all other countries who
are embarking for the United States.
So this is a very aggressive, very all-inclusive method.
Nonetheless, we are talking with members of some of those
countries and talking about ways or things that they could do
that would alleviate concerns and allow them to be removed from
the 100 percent list and go onto the list where we still do
over half of the passengers.
Senator Akaka. Thank you very much for your responses.
Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Akaka.
I would say to the witnesses that there is a vote on the
floor now, and you have been really generous with your time. So
I think it would be a mistake to go into the classified session
now. It would take more of your time. We will try to reschedule
it. It is even possible, in the spirit of cooperation and one
of the unadopted recommendations of the 9/11 Commission Report,
that we might sit in with another committee in a closed session
with the three of you.
I want to thank you--incidentally, just to say in public
session, I know it is controversial. I have heard pushback from
some of the 14 countries, but stay tough on this. I am just
saying that what is on the line here is so critical, which is
the life and death of Americans, that, yes, it is inconvenient
but, again, basically you are talking about just some more
screening before you get onto a plane. It is done to achieve a
public good. So I think you started out with the right
position. I have already had people, friends of mine in other
countries, complaining about it. But that is the world we live
in.
Secretary Napolitano. Indeed, Mr. Chairman. And as I
responded to Senator Akaka, our job is to make sure that the
air environment is as safe as it can be.
Chairman Lieberman. Good. I appreciate it.
Again, I thank you. You have been forthright. We are in a
world war with the Islamist extremist terrorists who attacked
us on September 11, 2001, and have been coming at us in various
ways from a diversity of places ever since. You had a little
exchange with Senator McCain before. I think one thing we all
agree about war is that mistakes are constantly made, and when
they are made and when the enemy breaks through your defenses,
immediately you are tough about it, as you said; you close the
gaps. You do hold people accountable, as is appropriate, and
you go on with the aim of securing the country that we are all
here to defend and the freedom that we are all here to defend.
So it is in that spirit that I appreciated very much your
testimony. We have covered a lot of ground. We have learned a
lot. I appreciate what you are involved in now to fix what did
not work in these cases. And we are going to keep going with
these oversight hearings. Next Tuesday we will have Tom Kean
and Lee Hamilton and some other witnesses, and we are going to
then go on to separate subject matter hearings in this
oversight. We will issue some recommendations. But we want to
work with you every step of the way. We obviously have a common
goal, which is the greatest possible homeland security for the
American people.
I thank you very much. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Chairman Lieberman. We are going to keep the record of the
hearing open for 15 days for additional questions and
statements from the Members. With that, I thank you again. The
hearing is adjourned.
[Whereupon, at 12:13 p.m., the Committee was adjourned.]
INTELLIGENCE REFORM: THE
LESSONS AND IMPLICATIONS OF THE
CHRISTMAS DAY ATTACK--PART II
----------
TUESDAY, JANUARY 26, 2010
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Carper, Burris, Kirk, Collins,
McCain, and Bennett.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. The hearing will come to order.
Good morning and welcome to this second in a series of
hearings during which our Committee will examine how the
intelligence reforms passed by Congress in the wake of the
attack of September 11, 2001, are working, and examine the
reforms in the light of recent terrorist attacks and the
ongoing threat, and what parts of what we have done earlier may
perhaps need further reform so that we can fulfill our
responsibility to protect the homeland security of the American
people.
I want to just go back to last week's first hearing in this
series of hearings before I focus on this one and say that I
very much appreciated the fact that all of our witnesses in
last week's hearing--Director of National Intelligence Dennis
Blair, Director of the National Counterterrorism Center Michael
Leiter, and Department of Homeland Security Secretary Janet
Napolitano--acknowledged that mistakes were made with regard to
the Christmas Day attack on the plane over Detroit, and all
three of them offered to work with each other and with this
Committee to make our existing multi-layered counterterrorist
defenses quicker to react and harder to penetrate.
I thought Admiral Blair was especially forthright, and I
thank him for that. My guess is his forthrightness has probably
brought him some criticism and made him the target of some
displeasure, but it was definitely the right thing to do
because it was the way he felt and he spoke in what he believed
to be the national interest. It is self-evident that our
homeland security intelligence and law enforcement agencies did
not work as we on this Committee--and as Governor Kean and
Congressman Hamilton in their work post-September 11, 2001--
would have wanted those agencies to work. The point is that
unless the people in charge admit that, as our three witnesses
did last week, the problems will never be fixed. And when they
do deal with their shortcomings forthrightly, then we have some
hope that the problems will be fixed, and obviously whatever
mistakes were made will not recur again.
I do want to say that one of the most troubling revelations
at our hearing last week was that none of the three witnesses
was consulted before the Christmas Day bomber was turned over
to our criminal courts rather than to the military where I
believe he should have been held, since he was trained,
equipped, and directed to attack America by al-Qaeda.
Now, the fact is that since our hearing last week, Osama
bin Laden himself has boasted of al-Qaeda's sponsorship of the
Christmas Day attack on America. And so while al-Qaeda claims
credit for this attack, Umar Farouk Abdulmutallab, whom I think
we can fairly describe as a soldier in al-Qaeda, and obviously
not an American citizen, now enjoys the constitutional
protections of an American citizen, including a lawyer who
immediately counseled him to remain silent, even though he may
have information that could protect the American people from
another terrorist attack. To me this is outrageous--a kind of
``Alice in Wonderland'' situation turning the world of common
sense on its head.
And that is why yesterday Senator Collins and I wrote to
Attorney General Holder and Deputy National Security Adviser
Brennan, urging them to immediately turn Abdulmutallab over to
the Department of Defense, where he can be held as an enemy
combatant, as a prisoner of war, which he is, acknowledging
with some certainty and gratitude that this also means that he
will be held and given rights far in excess of what the Geneva
Convention requires enemy combatants or prisoners of war be
given. Senator Collins and I, and our Committee, are going to
stay on top of this and other aspects of it to make sure that
this mistake, the failure to consult with intelligence and
homeland security officials before deciding how to handle
Abdulmutallab and then the decision to turn him over to the
civilian courts, is never made again.
I do believe our homeland security intelligence gathering
and analysis have remarkably improved since the attacks of
September 11, 2001, and that the sharing of intelligence, as we
said last week, at all levels of government is vastly improved.
This is due in no small measure to the work of two gentlemen
who we are proud to have as our witnesses today: Chairs of the
9/11 Commission Governor Tom Kean and Congressman Lee Hamilton.
The passage of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA) has played a critical and extremely
positive role in driving the changes that make the American
people more secure today than they were on September 11, 2001.
It is the work of these two gentlemen that leads us in part
to refer to the Act I have just referred to as the 9/11
Commission Act--in part that is the reason. The other part is
that it sounds a lot better than saying IRTPA, which is the
acronym. The fact is that Act implemented most of the
bipartisan recommendations of the Commission, and Governor Kean
and Congressman Hamilton have been unique, not only in their
bipartisan service in this regard on the Commission, but in
continuing to track the implementation of their recommendations
persistently over the last 5 years.
They are testifying before us today in their current
capacity as co-chairs of the National Security Preparedness
Group. I welcome both of you, and I thank you very much for
your service.
Your 9/11 Commission's recommendations were comprehensive,
both in terms of long-term actions we can and should take to
blunt the terrorists' appeal and to stop their ability to
recruit, and also more short-term actions that we need to take
to defend our Nation against further attacks.
One of the challenges revealed in our hearing last week was
the overwhelming amount of information that is collected by our
intelligence and law enforcement agencies for analysis. It has
been estimated, as you gentlemen know, that the National
Security Agency alone collects on a daily basis four times more
information than is stored in the Library of Congress. Hard to
imagine, but that is how much is being collected.
I know that Governor Kean and Congressman Hamilton have
been considering this challenge, and I will be interested to
hear their thoughts on how we can better organize our
intelligence-gathering and analysis efforts so that crucial
information can be mined more quickly from the vast mountain of
data we build. I mean, after September 11, 2001, we were
saying, correctly I believe, that the dots that we were
collecting did not come together on the same board, as it were.
I think now, thanks to your recommendations and the legislation
that followed, the dots are coming together on the same board.
But there are so many millions, billions of dots, the question
is how do we see the patterns to help us act preemptively to
stop attacks against our country.
Another question I would like to explore in more detail
with our witnesses relates to the authorities that we provided
to the Director of National Intelligence and the National
Counterterrorism Center in the 9/11 Commission Act. Bottom line
question: Do we need to give the Director of National
Intelligence (DNI) and the National Counterterrorism Center
(NCTC) additional authorities, or do we need to push them
harder to use the authorities they already have?
And, again, I know that the two of you have done some
preliminary work on this, and I look forward to the guidance
that you can offer our Committee as we go forward with this
series of hearings which is aimed at coming up with a status
report and perhaps recommendations for legislation or further
executive action.
I cannot thank you enough for your unflagging efforts to
secure our Nation against terrorism, particularly Islamist
terrorism--a rootless and shadowy enemy, driven by theological
extremism and unbound by any sense of morality or respect for
life. That is the challenge of our time, and because of your
extraordinary service, we are doing a lot better than we
otherwise would have done in meeting that challenge.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman. I, too, join in
welcoming our two distinguished witnesses back to our
Committee. But for their efforts and the efforts of the
families of the victims of September 11, 2001, many of whom are
also here today, we would not have accomplished as much as we
were able to.
Nevertheless, we are hearing these words today:
``Intelligence failures,'' ``calls for reform,'' ``lack of
accountability,'' ``failure to connect the dots''--testimony by
Governor Kean and Congressman Hamilton. As Yogi Berra once
said, ``It sounds deja-vu all over again.'' But, in fact, there
are significant differences between now and then.
When our Nation was attacked on the morning of September
11, 2001, our intelligence community was hampered by an
organizational structure that undermined unity of effort. It
was led by a Director that had little authority over its
various elements and little incentive to focus beyond the
mission of the Central Intelligence Agency (CIA). It was
burdened with a culture that promoted parochial agency
interests over the intelligence needs of a Nation.
The Intelligence Reform and Terrorism Prevention Act of
2004 fundamentally changed our intelligence community. Working
with the families of the victims and with our two distinguished
witnesses as well as the rest of the members of the 9/11
Commission, this Committee was able to pass the most
substantial reforms of our intelligence agencies in more than
50 years. In fact, my favorite name for the bill is the
Collins-Lieberman Intelligence Reform Act. [Laughter.]
In the 5 years since this Act became law, information
sharing and collaboration among the 18 elements of the
intelligence community have improved dramatically. And in 2009
alone, the intelligence community, working with Federal, State,
and local law enforcement and homeland security agencies, has
helped to detect and disrupt numerous terrorist attacks
targeting our Nation. Two of these successes were the arrests
of David Headley and Najibullah Zazi in two separate terrorist
conspiracies. Other successes also were made possible in part
by the reforms that this Committee spearheaded in 2004.
But, standing alone, a law cannot accomplish
transformation. At the end of the day, even the most powerful
laws are just words on paper. They rely on the President and
leaders within the Executive Branch to produce reform, to
aggressively carry out the authority that they have been given.
And to fight the war on terrorism, the President, the Director
of National Intelligence, the Secretary of State, and other
leaders must use the laws we pass to their fullest extent.
Unfortunately, the terrorist attack at Fort Hood and the
failed Christmas Day plot are stark reminders of what can
happen when those authorities are not used effectively.
Let us just look at some of the authorities given under the
2004 law. The DNI has the clear authority to determine
requirements and priorities for the management and tasking
collection analysis and dissemination of national intelligence.
Yet the initial analysis shows that the DNI failed to respond
to the growing threat that al-Qaeda in the Arabian Peninsula
posed to the United States and apparently failed to target
sufficient resources at this threat.
The Intelligence Reform Act also provides ample authority
to ``ensure maximum availability of and access to intelligence
information within the intelligence community.'' Yet
intelligence regarding the threat posed by Major Hasan
apparently remained stovepiped at a Federal Bureau of
Investigation (FBI) Joint Terrorism Task Force instead of being
provided to officials within the Department of Defense who
might have been able to act to prevent that attack.
Similarly, we saw failure to connect the dots, the streams
of intelligence reporting with regard to the Christmas Day
attempted attack.
The law directs the DNI to ``ensure the development of
information technology systems that include . . . intelligence
integration capabilities,'' yet here again the intelligence
that may have allowed us to identify Abdulmutallab as a
terrorist remained undiscovered in multiple intelligence
community databases--disseminated, as the Chairman pointed out,
those dots were out there. They were disseminated, but they
were not connected.
The law provides the Secretary of State with clear
authority to revoke a visa ``at any time, in [her]
discretion,'' yet Abdulmutallab's visa remained valid when he
boarded Flight 253. It remained valid despite the fact that the
State Department had already decided to question him about his
ties to extremists if he chose to renew his visa. I would ask:
How could he have been a threat to the United States in the
future based on these extremist ties, but not a sufficient
current threat to cause his visa to be revoked? That defies
logic and common sense.
And, finally, despite the President's authority to hold
Abdulmutallab as an enemy belligerent and subject him to a
thorough interrogation for intelligence purposes, the
Department of Justice, as we learned at our last hearing,
unilaterally decided to treat him as a common criminal, as an
American citizen, advise him of his right to remain silent, and
grant him a lawyer at the taxpayer's expense. It is outrageous
that our Nation's top intelligence officials were never even
consulted on this vital decision. And Senator Lieberman and I
introduced a bill last week to try to prevent that from ever
happening again.
My point is that the President must empower his senior
officials to use every authority available to them to defeat
the terrorist threat. Doing so does not require action by
Congress. That is not to say that further reforms are not
needed, but correcting those problems is possible under the
current law. It is just a matter of using the authority. They
do not require a 60-day review or more studies. They should be
implemented now. Nothing less than the security of our Nation
hangs in the balance.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Collins.
I also want to note with gratitude the presence of members
of the families of some of those we lost on September 11, 2001,
whose persistence has not just matched those of Governor Kean,
Congressman Hamilton, and Members of Congress, but really
surpassed it. And it is just great that you are here. They are
in the front row, various organizations, particularly Voices of
September 11th. We thank you, and we are going to stick with
it. I have often said it but it is true. If it was not for
these folks, we never would have had the Commission. If it was
not for the Commission, we never would have had the
legislation. So thank you.
Do you two toss a coin as to who goes first in the spirit
of bipartisanship?
Mr. Hamilton. I will go first.
Chairman Lieberman. Congressman Hamilton, it is great to
see you and welcome.
TESTIMONY OF HON. THOMAS H. KEAN, FORMER CHAIRMAN, AND HON. LEE
H. HAMILTON,\1\ FORMER VICE CHAIRMAN, NATIONAL COMMISSION ON
TERRORIST ATTACKS UPON THE UNITED STATES
Mr. Hamilton. Well, good morning to the Committee, and
thank you very much for inviting Governor Kean and myself to be
with you again. We are very cognizant, of course, of the fact
that were it not for this Committee, many of the
recommendations of the 9/11 Commission would never have been
enacted. Really, the Committee has shown extraordinary
leadership on these questions over a period of years, and I
know that the country is safer, and the country should be very
grateful because of the work of this Committee. We thank you
for it.
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\1\ The joint prepared statement of Mr. Kean and Mr. Hamilton
appears in the Appendix on page 290.
---------------------------------------------------------------------------
Senator Lieberman, I want to say that you are exactly right
about the families. This law would never have come into effect
had it not been for them, and Governor Kean and I have had a
marvelous relationship and support from them over a period of
years.
As you suggested, we are appearing today because of the
Bipartisan Center's National Security Preparedness Group. Our
written testimony gives the membership of that group. I will
not go over them. I know their names are familiar to you. But
it is an extraordinary group of national security professionals
that joined Governor Kean and me in this review of the 9/11
Commission recommendations.
At the National Security Preparedness Group, we have been
studying the implementation of the 9/11 Commission
recommendations. We are still pretty early on in that review.
But we do have at least some tentative conclusions to present
to you today.
The Christmas Day event and Fort Hood, as well, give us the
opportunity to make two important points. One is an obvious
one, but still very important, and that is that the threat from
al-Qaeda and radical Islam remains very strong.
One of the members of our group--you know him by name if
not personally--Bruce Hoffman has observed that ``al-Qaeda is
on the march, not on the run.'' And all of us agree with that.
We have expressed, Governor Kean and I, over and over again our
sense that the urgency on terrorism has been too low, and we
have to reject complacency and recognize that we still confront
a very serious threat. That is not a reason for panic, but it
certainly is a reason for a comprehensive, concerted effort.
The second observation we would make is that we see that
the determination of the terrorist to attack the homeland
remains unabated, but it reminds us of the need for
establishing the Director of National Intelligence and the
National Counterterrorism Center in the first place. We need to
support these entities and build them into strong and enduring
institutions. It is imperative, in our view, that the DNI and
the NCTC be successful in their vital missions that they have
been asked to undertake for the country.
We have been pleased that your Committee has initiated this
series of hearings on how well intelligence reform has been
implemented, and that is exactly the kind of congressional
oversight that we called for in the report.
There has been a debate within the intelligence community
on the state of intelligence reform and the effectiveness of
the DNI. The DNI has been hobbled by endless disputes over its
size, mission, and authority. We are concerned about the
criticism that is sometimes made about the growth and
bureaucracy of the DNI, and we support, as I am sure this
Committee does, an ongoing vigorous reevaluation of its
functions to assure its leanness. But such a review must occur
with the recognition that the Congress and the President gave
the DNI a massive to-do list, a great deal of authority, as
Senator Collins has pointed out, in the wake of the
intelligence failures of September 11, 2001, and the weapons of
mass destruction.
It is not enough to say simply that the DNI bureaucracy
should be reduced. We need to take a fresh look at how the DNI
has performed on the essential tasks, clarify the mission, and
then seek to adjust accordingly.
In recent months as we have studied the effectiveness of
the DNI, we have come to some preliminary conclusions. We have
a lot more work to do, but we believe that the DNI has achieved
a meaningful measure of success in its first years. It has been
worth the inevitable turmoil. But it is a work in progress,
closer, I think, to the beginning than the end of reform.
Since September 11, 2001, the NCTC and other government
agencies have repeatedly connected the dots and shared the
information necessary to defeat terrorist attacks. Improvements
have clearly been made on this point of sharing the
information, although we continue to believe that sharing is
not as prompt and as seamless as it should be.
But many of the successes of the DNI have been heavily
dependent on key personalities within the Executive Branch,
both under the Bush Administration and the Obama
Administration. We want to continue to look closely at the
authorities of the DNI to make sure he has the authority to do
his work, but it is our sense that the success of the DNI in
the short term will not rise or fall on whether we make
additional statutory adjustments to the Intelligence Reform and
Terrorism Prevention Act. In other words, that was a difficult
piece of legislation to get enacted. It is on the books now. It
is going to be the governing statute for a period of time,
probably a long period of time, and so you have to work with
it.
I think there probably are some ambiguities in the law,
although you can argue, as I think Senator Collins was doing in
her opening statement, that it is more a failure of exercising
authority than ambiguity. But certainly, for example, Section
1018, the passage designed to ensure the chain of command in
departments and agencies will not be abrogated--that is a
provision in the law--raises some question of authority. And
certainly there have been some problems resulting from that
section. We hope those have been cleared or at least improved
by Executive Order 12333 put into effect in the final weeks of
the Bush Administration.
Now, the greatest challenge facing the DNI then relates to
his authorities and his role. From my point of view--and I
think from Governor Kean's as well--the burden is clearly on
the President to be very specific as to who is in charge of the
intelligence community and where final authority lies on
budget, personnel, and other matters. Now, obviously you need a
strong DNI as a leader of the intelligence community. That
person has to drive interagency coordination and integration,
which we all know in this intelligence community is a massive
task.
At the same time, the DNI's authorities must be exercised
with discretion and consideration of the priorities and
sensitivities of the other intelligence agencies. You really do
need a diplomat in this job because you have 16 strong-willed
agencies that are involved. But the President's leadership is
the key. It is crucial and must be continuing, or we run the
risk of mission confusion and decrease the prospect of the long
and lasting reform that was recommended after September 11,
2001. The DNI's ability to lead the intelligence community
depends on the President defining his role or her role and
giving them the power and the authority to act.
Chairman Lieberman. Thank you very much for a very strong
and thoughtful statement. Very helpful to the Committee.
Governor Kean, thank you. Welcome back.
Mr. Kean. Thank you, Mr. Chairman, and I will just echo
something Mr. Hamilton said. I remember when we were all
lobbying to our best to get this massive bill passed, and I
talked to one of your colleagues, and they said, ``This bill is
going to pass. You know why?'' And I said, ``Why?'' And he
said, ``Because of the leadership that has taken control of
this bill in the Senate. Because of the respect for them, this
bill is going to pass.'' And so thank you. Thank you very much
for your leadership in that area and, of course, again the
incredible families of September 11, 2001. They were the wind
in our sails on the Commission. They are still with us every
day. They are still supporting the other families. They are
still here lobbying to make this country safer. And every time
I come here and see them--they are here more than I am, and I
just echo Mr. Hamilton--and the Committee in saying thank you
so very much to Mary Fetchet and to all of you.
Much has been said about the lessons from the Christmas Day
attack. I would like to highlight just a couple of issues.
First, the greatest single challenge that arises from this
incident, in our view, is the urgent need to strengthen the
analytic process. The President himself said there was a
failure to connect the dots. With more rigorous analysis, we
might have been able to connect disparate pieces of
information, and that, of course, might have foretold that
Christmas Day plot.
We are pleased the President asked the DNI to look at this
issue. The DNI was charged by you to ensure the highest
analytical standards within the intelligence community. The DNI
is properly situated within that community to assume a
leadership role in applying the most rigorous standards to
their analytical tradecraft.
Congress should also support these entities by giving the
DNI and the NCTC the resources they need and, above all, the
ability to recruit and to keep the very best people available.
Another part of improving analysis is judging sources of
potential attacks properly. As the President's review has
shown, we had what he described as ``a strategic sense'' that
al-Qaeda in the Arabian Peninsula (AQAP) was becoming a threat,
but, again, ``we didn't know they had progressed to the point
of actually launching individuals here.''
Now, we collect an enormous amount of intelligence, and we
need the very best people not only sorting through it for
tactical details, but in a strategic sense taking that and sort
of making a decision as to where is the next attack liable to
come from and what is happening out there.
You talked about more information coming in, Senator, than
in the Library of Congress. It is absolutely incredible what
comes in every day, and the intelligence community is awash
with data. So in this age when we are collecting more
information than ever before, the real challenge is how do we
understand it, how do we manage it, how do we integrate it. The
DNI needs to develop ways of dealing with intelligence
information overload. At the same time, we need to do a better
job of pushing information to the right people within the
intelligence community. We welcome President Obama's order to
distribute intelligence reports more quickly and more widely.
We need better management of the data and to look to technology
to help us better sort through massive amounts of information
to ensure that the right people are seeing it, and seeing it in
time to make a difference. The technology we use must be state
of the art, must be constantly upgraded to quickly put
information together, and it must be properly placed
instantaneously so better analysis can occur.
We heard a number of times during testimony back 5 years
ago before the 9/11 Commission that the analysts were sometimes
treated as second-class citizens in the intelligence community.
Hopefully that is not happening today. But these people are
probably if not the most important, among the very most
important people in the whole community, and we should do
everything we can to support them, to value their
professionalism, and to get the best of them to stay in
government and to attract others like them to the same job.
A second lesson from the Christmas Day attacks is that it
reminds of the importance of eliminating terrorist sanctuaries.
When we found out that the attackers from September 11, 2001,
benefited so much from the time, space, and command structure
that existed at that point in Afghanistan, the 9/11 Commission
placed great emphasis on identifying and prioritizing actual
and potential terrorist sanctuaries. We recommended strategies
employing all elements of national power because the more we
can keep terrorists insecure and the more we can keep them on
the run, the better off we are, the less able they are to
attack us. We are very fortunate that the attack on Christmas
Day emanating from Yemen did not succeed, but this episode
reminds us again, let us look where are these people developing
sanctuaries.
Again, Bruce Hoffman, our colleague, observed, al-Qaeda is
aggressively seeking out, destabilizing, and exploiting failed
states and any other area they can find of lawlessness, and
over the past year has increased its activities in places such
as Pakistan, Algeria, the Sahel, Somalia, and, of course,
Yemen. The United States should take a fresh look at these
areas and deepen our commitment to ensuring al-Qaeda cannot
exploit those territories to launch attacks on our homeland.
Then just a couple of matters that are left over in a sense
from our report. We have talked a number of times, all of us,
about balancing the need between civil liberties and national
security, and we have to get that balance right. It is
absolutely important. To do that, we recommended and you
enacted a Civil Liberties Board located in the White House
which would look at the implications of whatever laws were
passed from a civil liberties point of view. That board was
staffed and became operational in 2006. Congress further
strengthened it in 2007, made it an independent agency outside
the White House.
Now, the board held at that point numerous sessions with
national security and homeland security advisers, the Attorney
General, and the FBI Director, among others, on terrorist
surveillance and other issues that might arise from the
collection of information.
But that board has disappeared. It has been dormant since
that time. We have now a massive capacity in this country to
develop data on individuals, and the board should be the
champion of seeing that collection capabilities do not intrude
into privacy and civil liberties. We continue to believe, Mr.
Hamilton and I, that the board is critical in the overall
functioning, and we urge President Obama to reconstitute it, to
appoint its members, and to allow them once they are appointed
full access to the information and the authority to perform
what we consider an essential function.
Let me give you one more leftover recommendation
from the 9/11 Commission Report. When those of us who are
citizens come down to Washington and we want to find out about
transportation, environmental protection, or education, we can
go and we can hear from the various committees, and we listen
and we can participate as much as we can as citizens as part of
our democracy. For a lot of the information on intelligence we
cannot do so because it is secret. And yet as we know, the
functioning of the intelligence agencies is absolutely
essential to this fight we now have and will be essential in
the future. So the public cannot really get involved because of
the nature of the information, so we are dependent in this area
more than any other on congressional oversight. And that is why
we made such a point in our report of saying how important we
thought congressional oversight was.
In talking about it, we used the word ``dysfunctional.''
Now, that was not our word. That word came from members of both
parties on the Intelligence Committees.
Now, we made recommendations and Congress decided not to
pursue those recommendations. But it is too important to just
let it sit. It is too important that Congress' oversight be as
good as it possibly can be.
When we interviewed this Secretary of Homeland Security,
she made exactly the same point that her predecessors have
made: That she has to report to 60 to 70 congressional
committees and subcommittees and, therefore, spent almost one-
third of her time and the time of her deputies in testifying in
this complex system rather than working to actually improve our
overall security in this country.
We also have suggested that perhaps the Intelligence
Committees have more authority, particularly over the finances,
so that they could do a better job and command the answers we
need from the intelligence communities.
We point this out because we think it is so very important
that congressional oversight ensures the intelligence community
is operating effectively, and also, by the way, to help resolve
disputes about conflicting roles and missions. So we would urge
the Congress to look at this issue again and take action to
strengthen the oversight capabilities of the Intelligence
Committees.
Thank you very much.
Chairman Lieberman. Thanks, Governor Kean. Let me begin
just by saying ``amen'' to what you have just said. As you look
back at the 9/11 Commission's recommendations and Congress'
response to them, Congress was really quite effective at taking
on some of the status quo, and notwithstanding the resistance
of different elements of the intelligence community, the
Department of Defense, existing agencies, we pushed through in
the national interest to achieve the reforms we did. The one
existing institution that Congress proved itself less willing
to reform was Congress itself. So you are absolutely right. As
you remember, Senator Collins and I tried on the floor a couple
of times to adopt the reforms, we recommend the reforms that
you have gone back to this morning, and in an uncharacteristic
experience for us, we lost miserably.
But I want to challenge you, and I accept this challenge
myself. Let us figure out with the families again if we can
make another run at this, because it really is important and it
does hamper the conduct of our homeland security and
intelligence communities by those involved. And there is no
excuse for it except turf protection, frankly. So I thank you
for bringing that up, and let us come back to it.
Let me say that last winter we noted 5 years of the post-9/
11 Commission Act, 5 years of the existence of the reforms.
Senator Collins and I decided then actually to begin a 5-year
oversight review this year, and then, unfortunately, it came
after both the Fort Hood and the Christmas Day bombing. So we
naturally begin this in the context of that.
But the fact is, as we try to pull back from those two
events particularly--and we should not pull back all the way
just for the moment--the reforms really worked to protect us.
Maybe we had some good fortune, obviously good luck. But the
truth is that there was not a successful terrorist attack
really since September 11, 2001.
But then in 2009, it seemed to us that the pace of the
attempted attacks against the United States picked up. There
were at least 12 that are publicly known. There were some
others that have been not been discussed in public. And most
troubling, of course, is that three attempted attacks actually
successfully breached our homeland defenses: Carlos Bledsoe in
Arkansas walked into an army recruiting office, killed an army
recruiter just because he was an army recruiter; Major Hasan at
Fort Hood; and then the attempt on Christmas Day.
So I wanted to ask either of you or both of you to step
back a little bit and give us your best judgment about what is
going on out there, what happened in 2009 to increase the pace
of attacks against our homeland. Is it just, as you said,
Congressman Hamilton, a loss of the sense of urgency here? Is
something different going on that we in Congress and the
Executive Branch need to respond to?
Mr. Hamilton. Senator, I think the immediate thought I have
in response to your question is that al-Qaeda has changed. The
September 11, 2001, attack, as all of us know, was a highly
sophisticated effort.
Chairman Lieberman. Right.
Mr. Hamilton. It took a lot of planning. It took a lot of
people. It did not take an awful lot of money, but it really
was impressive from the standpoint of planning and execution.
And I think the attacks that you referred to in 2009 have been
largely solo performances.
Now, in some respects that probably indicates progress, and
it means that our aggressive actions with regard to al-Qaeda
have been successful, at least in part. And it is more
difficult for al-Qaeda to organize the complicated attacks. But
their intent remains, and perhaps their capabilities have been
diminished.
I do not have any doubt at all that they are sitting there
somewhere plotting how to get at us. And they are going to do
it any way they can, with any capability that they have. And if
they cannot organize an effort to fly airplanes into the World
Trade tower, then they can get one person to get on an airplane
and try to blow it apart. So our guard has to stay up.
Now, I think, second, that our defenses and our offenses
with regard to the terrorist threat have improved. We are a lot
better than we were. And that is no reason for patting
ourselves on the back or complacency, but it is a fact. You
have a lot of people in the government today who are very
talented, and they are working very hard to block these
attacks, not just the Federal Government but in city and State
governments as well. We all know the efforts going forward in
New York City, for example. So I think both factors are
present.
Chairman Lieberman. Governor Kean, do you want to add
anything?
Mr. Kean. Just a little bit. I think traditionally, at
least, al-Qaeda used to talk about big things.
Chairman Lieberman. Right.
Mr. Kean. And after September 11, 2001, they talked even
about doing something, if they could--Osama bin Laden himself
talked about nuclear attach and what have you. The last big
attack, I think, they seem to have attempted was that one in
Britain where they were going to blow up the airliners.
It does say something that they have not succeeded in any
of those things or not been able to pull them off, and now they
are obviously saying, all right, in a sense, let us try the
smaller stuff. And for bin Laden himself, if that was bin Laden
in that tape, to take credit for a failed bomber from Yemen,
that is not all bad. It shows he has not much else to talk
about at this point. But I suspect we are going to have to be
aware that while they would still like to plan the big one, now
they are going to let loose whatever they can because they want
to show some success, I think, in our homeland.
Chairman Lieberman. I appreciate that response. It gives us
all something to think about. Let me just, in the time I have
remaining, focus in a little bit on the DNI.
When we were having the legislative battles over creating
the DNI, I think that a lot of us would have guessed that the
toughest battles that the DNI would have, once created, would
be with the defense intelligence community. In fact, that seems
not to have happened, and if there have been battles
internally, it has actually been within the intelligence
community.
Though I think you raised reasonable questions in your
testimony about whether the DNI has become too large, you also
are very strong in saying that we gave them a lot to do. But,
bottom line, I want to just draw from you what I assume from
your statements is your position, that you have no second
thoughts about creating the DNI. Am I right about that?
Mr. Kean. Yes, absolutely right. We believe that the DNI is
exactly what we need right now.
Chairman Lieberman. And, second, that though you raised
questions about the efficiency of spending money. I take it
that when you are talking about clarifying mission, you are not
talking about weakening the DNI.
Mr. Hamilton. That is exactly right. We want to strengthen
the DNI with regard to key authorities--budget, personnel, and
other matters. We are not talking about weakening him in any
way.
I must say, I saw an organizational chart of the DNI's
office the other day. Perhaps you have seen it. I was quite
surprised at things they have taken on. It is worth a quick
glance if you have not seen it. And to ask the question, is
this really necessary to be done by the DNI, and I think valid
questions can be raised about some of those efforts.
For example, they have a university. I do not know what
that is. I know what a university is, but in this context, I do
not know what it is. And I am not sure that is the job of the
DNI. But, anyway, I think all of that needs to be explored, but
we have no second thoughts.
Look, this is a great big, sprawling, aggressive, massive,
hugely funded enterprise, the intelligence community.
Chairman Lieberman. Right.
Mr. Hamilton. And you have to have somebody at the top of
it with authority, or it just is not going to work. Now, that
authority obviously has to be accountable authority. But
somebody has to knock heads together to get over this mind-set
of ``I can have the information, you cannot,'' and get outside
the stovepipe and to force--I think the word is appropriate--
the integration of the intelligence community. That authority
should be given in the DNI. I think he cannot exercise it, no
matter what the statute says, without very strong presidential
backing.
Chairman Lieberman. Well, I agree. I do not mean to ask an
awkward question, but I will. Is it too early to evaluate
President Obama's relationship with the DNI and whether that
measure of leadership that you would like to see from the
President has been seen thus far in this Administration?
Mr. Hamilton. It is my impression that the intelligence
community is relatively new to the President. I think he began
to receive intelligence somewhere along the campaign. Senator
McCain can tell you when that happens. And my impression is
that his instincts are probably good, but he is still kind of
feeling his way. His preference may be--he said, ``I have
appointed good people here,'' and he has done some good
appointments, I think. But I do not think he has a firm grasp
yet of the intelligence community, and, therefore, I am pretty
strong in my thought that he has to step in pretty hard here,
or some of these tensions which have surfaced will exacerbate.
Chairman Lieberman. Thank you. My time is up. Senator
Collins.
Senator Collins. Mr. Chairman, let me follow up on exactly
the point that you just raised.
The law is clear on who is in charge of the intelligence
community. I remember the debates we had and how difficult they
were in establishing the quarterback, the one person who was
going to be accountable. And yet in spite of what appears to be
a very clear legal mandate, the DNI and the Director of the CIA
still seem to be engaged in significant turf battles.
In just the past year alone, reports indicate that the
White House has had to intervene in disputes over the CIA's
role in Afghanistan, the chain of command over covert action,
and the designation of the chief U.S. intelligence officer in
overseas posts. Those conflicts undermine the unity of effort
that was the goal that we shared and the very reason we created
the DNI. And I am concerned by reports that the President may
have inadvertently undermined the DNI by siding with the CIA in
these disputes. So I have two questions for you.
First, does the President need to more clearly indicate to
the intelligence community that the DNI is in charge and has
his full support?
And, second, do you believe that the relationship needs to
be further clarified in law? Or is this a matter of the law
being adequate for the most part and the President needing to
lay down the law, if you will? Governor Kean, we will start
with you.
Mr. Kean. Yes, I think we have always thought--and Mr.
Hamilton has been very articulate in this over the years--that
the success of the DNI is going to depend totally on the
leadership of the President. He has to make it absolutely
clear.
Now, in a way, this Christmas Day bomber did us a favor. I
think we were not paying close attention to this, and it is
understandable. We were talking about health care, cap-and-
trade, certainly the economy, and we should have been. But we
got distracted a bit. I think everybody from the President on
down got distracted, and were not paying full attention to this
area, and so these things were allowed to develop and cracks
were allowed to form, and things got a little off track. Now I
think we have a wake-up call, and I think the President in his
statements, in his news conferences, in this area has been
clear. And I assume that the actions are going to follow the
statements and that he is going to pay now strict attention to
this problem, and no matter what else is going on, his
leadership is going to be called for in this area, and I assume
he is going to exercise it. But it is not going to happen
without that. I mean, he has to stay on top of this. He has to
make clear what he believes the authorities are, and where
there is any kind of dispute, he has to step in right away. He
cannot allow it to fester.
Senator Collins. Congressman Hamilton.
Mr. Hamilton. My answer to your first question obviously is
yes. I have tried to make that clear. The President does need
very clearly to make it crystal clear to everybody in the
intelligence community that the DNI is in charge.
As I said in my testimony, the exercise of that authority--
but the DNI requires a lot of diplomacy and sensitivity. And
that is a real challenge in how you exercise that leadership,
but he should be in charge.
Now, do you need a change in the law? That is a little
tougher. In the short term, it does not make any difference.
You are not going to change this law. The threat is out there
now. The flaws have been revealed. You have to deal with those
flaws right now. You cannot wait to change the law. So it does
not make any difference in the short term.
In the longer term, this is not the first law ever passed
by the U.S. Congress that may have had some ambiguity in it.
And it might very well be that you can refine it down the line.
I do not have specific language to offer to you today, but I
guess my central feeling is this is the law, it is going to be
that way for a while, and you have to make it work.
Senator Collins. Thank you.
Last week I questioned the DNI, the head of the National
Counterterrorism Center, and the Secretary of Homeland Security
about whether they were consulted in the decision to charge
Abdulmutallab as a criminal and give him his Miranda rights and
give him a lawyer, which caused him to immediately stop
cooperating and answering questions.
I was shocked to hear from each of these top officials that
they were not consulted about a decision that had such
implications for our Nation's ability to better understand what
may be further plots emanating from Yemen.
Governor Kean, what was your reaction to learning that our
Nation's top intelligence officials had not been consulted
about that decision?
Mr. Kean. I was shocked and I was upset. It made no sense
whatsoever to me that here is a man who may have trained with
other people who are trying to get into this country in one way
or another; who may have worked with some of the top leadership
in Yemen and al-Qaeda generally, and we do not know the details
of that; who may know about other plots that are pending, and
we have not found out about them.
This is not just about prosecuting an individual. This is
protecting the American people. And decisions of this kind
should never be made without the full input of the greater
intelligence community, particularly the DNI, but also the CIA,
the FBI, and other members of the intelligence community. And
the fact that this was done without that kind of consultation
was to me upsetting and shocking. And, by the way, I come from
the New York area. Regardless of how we feel about whether that
trial should be going on in New York, again, I gather that the
Attorney General did not consult any member of the intelligence
community before making that decision, which also has security
implications.
So I think we have to get our act together and recognize
that we should not make any major decision like this without
first consulting the members of the intelligence community. And
I just do not believe this individual should have been given
all these rights or the lawyers before he was questioned fully.
Senator Collins. Thank you. Congressman Hamilton.
Mr. Hamilton. Well, I agree with Governor Kean's comments.
I think we have to be guided by the principle, and we need to
get all the information we can out of these people. That is the
principle.
Now, what concerned me in the answers that you referred to
and the questions you put was there did not seem to be a policy
of the government as to how to handle these people, and that
has to be clarified. I am not surprised the FBI stepped in.
They are there when the plane lands. They go in. But there has
to be a policy. It has to be clarified.
Your legislation or your proposed bill, which, as I
understand it, mandates consultation with the DNI----
Senator Collins. Yes.
Mr. Hamilton [continuing]. Makes all kinds of sense to me.
The Director of National Intelligence surely should be
consulted, but, importantly, there must be a policy.
One of the things we learned in the 9/11 Commission Report,
as we got into this question of interrogation, is that this is
a difficult business, interrogating people, and you better be
very sure that you have the right people asking the questions.
Now, we can have differences of opinion as to what kind of
pressure ought to be put on a suspect. But interrogating people
takes patience and it takes skill, and you have to train an
interrogator very carefully.
I am attracted to the idea of a High-Value Interrogation
Group (HIG). I do not think we have paid enough attention to
the professionalism, if you would, of the interrogator. And I
am not acquainted with the details of that, but I hope it is
developing highly skilled people who know how to interrogate.
An awful lot is at stake in finding out all you possibly can.
Senator Collins. Thank you.
Chairman Lieberman. Thanks, Senator Collins.
I would just say briefly that one of the surprising sort of
facts we learned afterward is that there was a recommendation
and I thought an announcement at the beginning of a High-Value
Interrogation Group. As a matter of fact, one of the witnesses
last week referred to it by the initials HIG. We are going to
ask this question, but as far as I can determine now, the group
was never fully operational, never set up, so it was not in a
position to be called on to do exactly what we would have
wanted it to do, as you both have said, after Mr. Abdulmutallab
was apprehended. Thank you.
The remaining Senators will, as always, be called in order
of appearance here at the hearing room, and it will be Senators
Carper, McCain, Bennett, Kirk, Burris. Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thank you, Mr. Chairman. Again, gentlemen,
welcome. It is great to see you again. Thank you for the
wonderful work you continue to do for our country.
I am going to ask a question later in my allocated time
that will draw on, I think, the great success and extraordinary
leadership you provided for the 9/11 Commission to see what we
can garner from that experience and as we prepare to move
forward this week on legislation on a different commission,
either a statutory commission that focuses on deficit reduction
or perhaps a commission set up by an Executive Order. But I
want to just bat some ideas around and just to ask for your
thoughts given, I think, the extraordinary success that we
realized under your leadership.
I like to say that the road to improvement is always under
construction, and that is certainly through when it comes to
finding ways to stop the bad guys from doing bad things to our
country. When your Commission completed its work and made your
recommendations to us, I know you made a large number of
recommendations, dozens of recommendations. The number 40
sticks in my mind, but I am probably wrong. But do you recall
how many recommendations you made to us? And I think they were
pretty much all bipartisan and unanimous.
Mr. Hamilton. About 70.
Senator Carper. How many, 70?
Mr. Hamilton. Seventy.
Senator Carper. Yes. Do you recall roughly how many we
adopted?
Mr. Hamilton. We have calculated, Senator Carper, that 80
percent of the Commission recommendations have been adopted in
whole or in part, and I think ``in part'' covers a lot of
ground. But most of those--and about 20 percent--well, a little
less than 20 percent outright rejected. Some may still be
pending in one way or the other.
Senator Carper. One of you said earlier in response, I
think, to Senator Lieberman's questions, you mentioned it has
been 8 years since September 11, 2001, every day terrorists are
targeting us here and around the world trying to create
mischief, create mayhem, and they have so far not had a whole
lot of luck. They have had some luck, bad luck for us, but they
have missed opportunities as well.
Something that we have done, something that you have
recommended, something that we have adopted, something that has
been implemented by the Executive Branch, is being pursued by
our men and women all over the world, something is working. And
that does not mean, as I think Congressman Hamilton said, that
we sit back and rest on our laurels.
But when you look at what we have done, including the
things that you have recommended that really seem to be
working, what really stands out for you? When you look at what
you have recommended that we have passed, that has been
implemented by the Executive Branch, that does not meet muster,
maybe that is incomplete, gets an incomplete, what might that
be? Again, what do you think is really working well, is
important to keep up? And where are some areas that maybe we
did not follow up and recommendations were made but have not
been implemented well?
Mr. Kean. Well, I will start. Obviously, the creation of
the DNI under the congressional legislation with the NCTC was
the heart of our recommendation to force information sharing
because the lack of information sharing was one of the things
we found that probably led to September 11, 2001, as much as
anything else. And at least if we had shared information, there
is a good possibility it might have been prevented. So that was
key. That has been done, and we have talking about today how
well it is functioning, and I am sure your Committee will
continue to do that.
I mentioned two areas before where recommendations have not
been implemented. One is the Civil Liberties Commission, and we
think that is very important, and basically it does not exist
because the President has not appointed its members. And,
second, congressional oversight, and we still do not believe--
and we hear again from bipartisan people on both sides of the
aisle that they are not satisfied in the Intelligence Committee
that they have the ability right now to do the kind of
oversight this country needs. And that is deeply disturbing
because if they are not doing any oversight, nobody is doing
the oversight.
Senator Carper. Right.
Mr. Kean. And that cannot continue to exist in this kind of
problem.
Those would be the three things I would mention. I could
mention a number of others, but those would be most important,
I think.
Senator Carper. Thank you, Governor Kean. Congressman
Hamilton.
Mr. Hamilton. Well, Governor Kean is on the mark. On the
plus side, I would think the recommendations we made with
regard to the intelligence community, including the DNI and the
NCTC and other aspects, I would judge them broadly successful,
not completely but broadly successful.
I think a lot of the recommendations we made in the
transportation sector, the watchlists can certainly be
improved, but we recommended that. Better detection equipment,
we recommended that. We have been a little disappointed in the
slowness of the adoption of some of the detection--improvement
of some of the detection mechanisms. Cargo screening and all
those kinds of things I think are underway, taking a little
more time probably than we wanted to, but basically have been
approved.
We had a whole chapter in the book on the 9/11 Commission
on foreign policy recommendations on the question of how do you
deal with the Islamic world. That was not so much legislative
recommendations as foreign policy recommendations. And I think
we have a ways to go in implementing those because our
relationship with the Islamic world is a huge foreign policy
challenge, and will be for decades to come, in all likelihood.
I want to emphasize the Civil Liberties and Privacy Board.
Look, you have the capability today of surveillance and
intrusion into the lives of people that is incredible, what the
government can learn about you today, and all of these fancy
technological devices we have to intrude into private lives.
And we all support it. We think that is necessary. But if you
have an argument today in the bureaucracy between the security
people and the civil liberties people, I will tell you who is
going to win the argument. It will be the security people every
time.
We picked up the paper the other day, and we found out the
FBI had been violating the law for 5 or 6 years. And it was not
ever called to the attention--the inspector general finally
found it out. This was the FBI, which is supposed to be
sensitive to these matters.
The point here is that you need somebody out here in the
government that is checking everything that is done with regard
to security and asking themselves, can it be done better with a
little more respect for privacy and civil liberties?
We all know that privacy and civil liberties are going to
be invaded. We understand that. You cannot walk through an
airport without understanding it. But we have to, I think, have
a group with robust powers to be a counterbalance to the
argument for security. And so Governor Kean and I, and I think
all of our Commissioners, were very solid on that point.
Mr. Kean. Very strong on it in a very bipartisan sense.
Senator Carper. Mr. Chairman, could I take just one more
minute and go back to the other question I wanted to ask? When
I look at commissions that have been extraordinarily
successful, I go back to 1982 Commission on Social Security
which Congressman Hamilton, Senator McCain, and I voted for--I
had the opportunity to vote for after they made the
recommendations, not binding recommendations but
recommendations which I think have served us well.
We have before us this week the idea of a statutory
commission that gives us recommendations that are binding
unless there is some kind of override that exists. The proposal
would say most of the commissioners would be sitting Members of
Congress. Another approach would say, no, they could be folks
like you who bring a world of experience to it. Just given the
success of this commission, just give us a little bit of advice
as we go forward this week on a different, equally important
challenge.
Mr. Hamilton. Pick a chairman like Governor Kean.
[Laughter.]
Senator Carper. But how about the vice chairman?
Mr. Hamilton. Let me tell you the first thing Governor Kean
said to me--he was chairman, I was vice chairman--we knew each
other by reputation, but we did not know each other well.
Governor Kean walks into the room, and he says, ``Lee, we are
going to make all of these decisions jointly. We will not hire
anybody, we will not fire anybody, we will not make any
decisions unless we do it together.''
Mr. Kean. Look, Mr. Hamilton often said one of the
fortunate things we had going for us is we were, as I think he
used to put it, ``reformed politicians''?
Senator Carper. I describe myself as ``a recovering
governor.''
Mr. Kean. There was nobody on the 9/11 Commission who had
any interest in running for anything. Or I do not think anybody
particularly was looking for an appointment of any kind. So our
minds were clear in a sense. Our agenda was trying to protect
the country. And that fact probably enabled us to get over the
kind of partisan--we met at a terrible time. This was going
into one of the most divisive presidential elections in our
history. And we started off with a Republican sitting here and
a Democrat sitting over there, and the first time I walked in,
Democrats were sitting in one corner. He and I walked into the
room, and basically said, ``Break it up.'' And after that I
said Republicans are going to sit next to Democrats and
Democrats are going to sit next to Republicans. We are never
going to meet again unless we have that kind of seating
arrangement.
But it helps to have your mind clear of any other problems
so you can concentrate on whatever the task is, and not to care
very much, personally, try to do the right thing, and we
figured, as a Commission, we would try to do the right thing,
and that was our mantra. You know, we would argue about these
things, and then somebody would say, ``Well, what do the facts
show? What is the right thing here?'' And that was usually how
we came out.
Chairman Lieberman. Thanks, Governor Kean. That was very
helpful.
Senator Carper. It was. And thank you for being so generous
with the time. Thank you both very much.
Chairman Lieberman. I know you will thank Senator McCain,
too, because he is next. Senator McCain.
OPENING STATEMENT OF SENATOR MCCAIN
Senator McCain. You are not welcome. [Laughter.]
I want to thank our witnesses for their continued service
to the country; especially, I would like to again welcome the
September 11, 2001, families, without whom the 9/11 Commission
would never have come into being and these much needed reforms
would never have been enacted.
Congressman Hamilton, I was struck when you said 80 percent
of the recommendations probably had been enacted into law. On
page 419 of the 9/11 Commission Report, it says, ``Strengthen
congressional oversight of intelligence and homeland security.
Of all our recommendations, strengthening congressional
oversight may be among the most difficult and important. So
long as oversight is governed by current congressional rules
and resolutions, we believe the American people will not get
the security they want and need.''
It seems to me we have not implemented that very strong
language contained in your report. Is that accurate?
Mr. Hamilton. Unfortunate, you are totally correct.
Senator McCain. Then it seems to me, Mr. Chairman, that we
ought to go back at it, and we ought to keep going back at it
until we shame our colleagues into being more concerned about
national security than they are about turf. And so I hope at
the next opportunity we will join and try to push the changes
that have been recommended by the Commission. Would you say it
is probably the most important failure of all the
recommendations that you made?
Mr. Hamilton. Yes.
Mr. Kean. I would, and we were told, by the way, by Members
of the Congress who were on our Commission, four Members of
Congress, and they all said when we proposed this, ``This will
be the most difficult recommendation to get implemented.'' And
we said, ``Yes, but it is the right thing to do,'' and
everybody agreed it was the right thing to do, so we went
ahead.
Senator McCain. Well, I will ask the September 11, 2001,
families to go into battle again for us. [Laughter.]
If anybody can get it done, you all can. I thank you.
I was disturbed by the events--and some of it was revealed
in the hearing that the Chairman and the Ranking Member held
just a short time ago--the 50-minute interrogation, the
decision to give the Christmas Day bomber Miranda rights and a
civil trial. All accounts--and I only know press accounts; I
have no classified information--were that this individual was
talking, and then there was a pause, and when he woke up, he
had a lawyer. And, understandably, the lawyer did what lawyers
do. That is their job. So I am not blaming the lawyers.
But how we could have made a decision the way we did brings
me to a larger issue, and that is the whole issue of the
disposition of detainees--Guantanamo, the trials, and under
what circumstances. And it seems to me that the overall policy
is so--the word may be ``incoherent,'' or certainly, ``not
coordinated,'' I guess is a kinder description--that we now
have an ad hoc decision making process regarding the treatment
of detainees.
We still have not resolved the issue of enemy combatants,
which we cannot bring to trial because of insufficient
evidence, but yet we know we cannot release them. We have
learned that there is a certain percentage--it varies, 10, 15,
or 20 percent--of detainees, depending on who you talk to, that
are back in the fight, including some in leadership roles.
So does this information make the argument for Congress and
the Administration, or Congress alone, to develop legislation
that addresses all these amorphous areas of trials, of
detention, and particularly in this issue, the treatment of
enemy combatants that you cannot bring to trial but at the same
time cannot release? For example, an annual review of these
cases. But so far, none of these have been translated into a
policy that Members of Congress understand.
So Senator Lieberman, Senator Graham, and I are working on
legislation to try to address this very important issue, and we
want to work with the Administration to prevent another
situation such as the Christmas Day bomber. Furthermore, we
also want to resolve the existing situation where enemy
combatants are going to be tried in New York, which you have
already expressed your opinions about; some are going to be
tried in Guantanamo; some may be tried in other places.
Does this whole Christmas Day bomber issue focus the
absolute requirement that we address this issue in a
policymaking and perhaps a legislative manner?
Mr. Hamilton. I very much agree with your conclusion. These
people present a real challenge for us within our
constitutional system. The problem is you have a detainee; you
cannot prove a criminal charge against him, let us say. At the
same time, he could kill you. It does not fit in the American
constitutional system, and we have not figure it out yet.
I think the most important thing you said was that you,
Senator Lieberman, and Senator Graham are working on it. I am
delighted to hear that. I did not know it.
I think we hear a lot about how government does not work
very well today, how dysfunctional it is. This has been an area
where the Legislative Branch and the Executive Branch have
failed, flat-out failed. We have had this challenge now for a
good part of a decade, or maybe more. Neither President Bush
nor President Obama has dealt with it, and the Congress has not
dealt with it. I think it is a very tough bill to draft.
The important characteristic that is needed in the bill,
however the details are--and you have to look to lawyers who
know a lot more about it than I do for the details. But the law
has to be perceived as being fair, perceived by Americans as
being fair, whatever that may mean; perceived by the foreign
international community as being fair; and I think that is what
you have to strive for. That does not mean you give them all
the rights of an American citizen. I am not arguing that.
But, Senator, I applaud that initiative. I think this has
been a failure of the U.S. Government as a whole to deal with
this very tough problem, and I certainly wish you well on it.
Mr. Kean. Senator, once again, thank you for your
leadership. I could not agree with Mr. Hamilton more.
Senator McCain. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator McCain. I appreciate
your leadership on this. It has been very good to work with you
and Senator Graham, and I think we are trying to make the
point, and the witnesses have been very helpful, which is that
the choice for our country in deciding how to deal with
terrorism suspects we take into incarceration is not a choice
between applying the rule of law and not applying the rule of
law. We are a country of laws. It is a question of which rule
of law. Is it the rule of domestic criminal law, or is it the
rule of the laws of war? And, of course, I believe it is the
second. That was a very important exchange. I thank you.
Senator Bennett, you are next.
OPENING STATEMENT OF SENATOR BENNETT
Senator Bennett. Thank you very much, Mr. Chairman, I
appreciate the dialogue, and I appreciate very much the
witnesses and the important subjects you have discussed.
Rather than go back over some of those, because I think the
record is now clear, Congressman Hamilton, let me pick up on a
comment you made. It may appear to some to be a somewhat
smaller issue, but you raised it--and I have an interest in
it--when you talked about the necessity for better detection
equipment.
I spend a lot of time going through airports, as do we all,
but I have personally experienced higher technology with
respect to body imaging. We have one of those on a trial basis
at the Salt Lake City airport. I went through it without any
bodily harm or any psychological embarrassment, no displays of
any embarrassing fashion anywhere. And I am drafting language,
planning to introduce shortly legislation that would require
Transportation Security Administration (TSA) to adopt and
deploy advanced technology like the body imaging technology at
an accelerated pace.
As you pointed out, it has been 8 years, and we are still
using the old ``mag and bag'' technology, the magnetometer and
searching the bags, which is not very effective, quite
intrusive, and very slow. And I think we should get TSA to
deploy technology with the capability to detect plastic
explosives and liquid explosives, non-metallic threats and so
on of this kind.
And, by the way, I very much support what TSA has done with
respect to privacy in these technologies, and we need to make
sure that we go as far as we can to see to it that is balanced
as well.
We do that in the United States. Now, somebody gets on a
plane in Yemen, transfers in Amsterdam. What kind of threat do
we have in the world transportation network that says fine for
TSA to be doing this, but it is not going to have any impact on
the kind of thing that we saw in the form of the Christmas Day
bomber. Give me your reaction to how technology can be used and
how influential we can be in getting other countries to use it?
Mr. Hamilton. I do not know anything that has frustrated me
personally more than the inability over a period of years to
develop adequate detection equipment. The most serious thing in
my mind is the inability to detect nuclear materials, and I
know we have spent a lot of money at that, and this is a
problem that goes back well before September 11, 2001. But we
still have not come up with it. And so I think there has to be
a crash effort, if you will, in the research and development in
the scientific community to develop better technology here.
The hijackers got on those planes on September 11, 2001,
with 4-inch blade knives.
Senator Bennett. Right.
Mr. Hamilton. They knew you could not get on with 8-inch
blades. These folks were very sophisticated about our
vulnerabilities, and whenever we make a change, they begin to
adapt to it. So the technology has to try to keep out in front.
I personally do not have any problem with the body images.
I think they ought to be used. I am not dead sure they would
have caught our December Day bomber and stopped that incident.
In other words, people have said to me that even with body
imaging, it might be he would have gotten through. But, in any
case, they are clearly better than the metal detectors. Our
adversaries here figured out a long time ago that they have to
do something other than metal in order to cause problems.
Now, the international problem is a very difficult one,
exceedingly difficult, and I know our people have spent a lot
of time talking to other countries about strengthening their
procedures. I think we have to get to the place where we do not
let people into this country unless they have gone through a
security process that is rigorous, however defined.
Senator Bennett. Governor Kean.
Mr. Kean. Our biggest defense now is not in technology in
that area. It is technology in identifying people who are bad
people, should not get visas, and should not get into this
country anyway. And as you know, if you go to these centers,
you can see every person who is getting on a plane at that time
heading for the United States, and little stars or whatever, if
any of them are suspect in any way. That is probably, at the
moment, the best defense we have. And, in fact, the Christmas
Day bomber obviously should have been on those No Fly Lists if
things had been done properly.
Having finished with that, I think I am for upgrading any
technology we can, and recognizing that the people who are
enemies, as Mr. Hamilton said, are going to try to upgrade
their methods of getting through the technology at the same
time we upgrade our technology as best they can. And so I think
we should do that. But the best defense we have is still do not
let the bad people get on the plane to begin with, do not let
them get visas, do not let them get to the airport, and do not
let them even approach getting on the plane to the United
States.
Senator Bennett. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Bennett.
Next we have Senator Kirk. It is possible that a vote will
go off soon. Maybe it already has. When it does, I think I
might go over and try to vote early and come back, but if I am
not back when Senator Kirk finished, then, Senator Burris, why
don't you go right ahead, because you are next.
OPENING STATEMENT OF SENATOR KIRK
Senator Kirk, thank you.
Senator Kirk. Thank you, Mr. Chairman. Thank you for your
leadership and continuing oversight of this important matter we
have addressed over time.
Let me thank our witnesses for their selfless and patriotic
service throughout your public careers. It has been
inspirational, I think, to all who know and have followed.
I also want to salute the families for their valor and
persistence and recognize Carie Lemack, who worked closely with
Senator Kennedy on help for the victims, and you folks deserve
enormous praise and gratitude for your courage.
My question basically goes to this impression of almost
information overload at NCTC. We have talked about and you
quite rightly recognize the need to recruit and retain analysts
of the highest talent and caliber and to recognize their
prominence in this whole dilemma.
Do you have an impression that, given the amount of
information, there are sufficient or adequate numbers of
analysts of that caliber that are dealing with this?
Mr. Kean. My information, frankly, is not recent enough to
make that conclusion. I know last time I was deeply involved in
this there was certainly not enough analysts, and certainly not
enough good ones. And one of the problems I said was they were
not promoted or recognized the same way, and we were not
attracting the best people. I hope that has changed. I have no
information. I just have not been into it one way or the other
since that time.
Senator Kirk. Congressman Hamilton.
Mr. Hamilton. Well, I agree with that. This is one of the
things we in the National Security Preparedness Group, need to
look at. As Governor Kean said in his testimony, he drove home
the importance of the analysts, and that is absolutely correct.
I do not really know whether we have enough. I do not know
whether the ones we have are sufficiently trained.
I do not think you produce an analyst quickly. I think it
takes several years. And it is tough work. I mean, you are
sitting there watching millions and millions of bytes of data
come across the screen, and 99.9 percent of it is useless. And
then there is the nugget in there. So you have to have not only
first rate analysts, but you have to build into the system
redundancy. I am not the least bit worried if you have two
different agencies of the government doing similar work with
regard to analyzing intelligence. But I think the question you
have raised is really critical and needs to be followed up very
carefully, and Congress needs to give full support to whatever
the intelligence community needs to get top-flight analysts.
Senator Kirk. Thank you. Thank you both.
The other aspect of this analysis of our intelligence and
the vast volume that we have is technology; this is apart from
detection technology. This is about the technology that helps
analysts synthesize, integrate, and read a pattern, if you
will. Do you know or do you have an impression as to whether we
really have the kind of state-of-the-art technology that allows
us to do that and to share it with the various agencies of
foreign responsibilities, the domestic responsibilities?
Because it seems to me that the grid, if you will, or that
state-of-the-art technology, combined with the kind of human
resources you both talked about, is really the key to this
whole puzzle.
Mr. Hamilton. Absolutely. I very much agree with that, and
I do not know the answer to the question, do we have the state-
of-the-art technology? I have a suspicion we do not, but I may
be in error. I hope I am.
In any event, what I do know is that we have to find the
best people in this country on the question of data management.
I mean, you are handling data--it has been cited several times
here--in massive amounts, and you have to sort through that in
order to have the best protection.
I do not know whether those people are in the government or
in the private sector today, but wherever they are, we better
find them and we better put them to use.
Senator Kirk. Anything to add, Governor Kean?
Mr. Kean. That is absolutely correct. I remember when I was
talking to President Clinton when we were doing the
investigation, and he pointed out that our data management was
so inferior in government compared to the data management in
the private sector, and he mentioned credit card companies and
he mentioned some other outfits that he had in Arkansas that he
said could have identified these people right away. And we just
did not have that technology at that point. I hope we are
better at it. I just do not know.
Senator Kirk. Thank you very much. Thank you, Senator
Collins, for my time.
Senator Collins [presiding]. Senator Burris.
OPENING STATEMENT OF SENATOR BURRIS
Senator Burris. Thank you, Madam Ranking Member. Gentlemen,
I echo the comments of my colleagues in reference to your work.
I was almost in your situation as a retired public official,
but duty called and I am back. But you all indicated that you
are not going back in it and you were able to do great work for
the country, which we appreciate. And to the September 11,
2001, family members, I extend my heartfelt thanks to you for
your persistence.
I have not been able to read your report. You know, as a
new Senator, I am just going to have some general questions. I
wonder, did you all take into consideration anything with
reference to homegrown terrorists? I hear a lot about al-Qaeda
and what will be coming from the foreign service. Did your
Commission take into account homegrown actions?
Mr. Hamilton. The 9/11 Commission did not because it really
was not within our mandate. But since the 9/11 Commission and
the development of the phenomenon of terrorism, it is quite
clear that the homegrown or the lone-wolf terrorist has become
a major threat and concern to the country. So, yes, in the
National Security Preparedness Group, we certainly will be
looking at that threat and seeing how we can improve our
defenses against it. Not all of the bad guys, unfortunately,
are from abroad. We have a few here.
Senator Burris. You are right, Congressman. Governor Kean,
the same thing?
Mr. Kean. I would simply agree with him.
Senator Burris. And, gentlemen, I just wonder, if we go
back to the al-Qaeda situation now, what I tend to pick up
there is that they are going to put chatter out through the
various pipelines into all our security agencies that is
misleading, misdirected, and you will never be able to tell
what is really in fact a possible threat.
I understand that they are going to try to spend us into
oblivion with costs, that they are going to have us try to come
up with every contingency to try to protect ourselves, which is
naturally going to impinge, Congressman, on the civil liberties
that will be coming. And so you have these actions that are
taking place, the chatter that is misleading, and the attempts
to spend us into oblivion with all of these various ideas. They
will come up with something so it is tit for tat, and that tat
is going to tap us out eventually financially. Are there any
comments on that, gentlemen?
Mr. Hamilton. I think it has become quite clear that the
approach that you are mentioning--in other words, trying to
make us spend more and more by way of defense--is part of their
strategy. And maybe even it is a successful part of their
strategy. And maybe it is even one of the reasons they think
they are winning in some areas.
The really dramatic example is September 11, 2001, itself.
Governor Kean, what did we figure that cost?
Mr. Kean. Huge.
Mr. Hamilton. A very modest amount of money caused it, and
just think of all the changes that have occurred in America
since September 11, 2001. So, yes, but what your question
raises for me, Senator, is one that does not ordinarily come
into the debate on terrorism, and that is the question of cost-
effectiveness. The security people can come up with an endless
number of ideas as to what you should do, and you really find
it very difficult to argue against any of them because they
have truth to them.
I think as we move along and as our costs continue to rise,
the question you raise will become much more a part of the
debate. Is it cost-effective?
Now, obviously, you want to err there on the side of
security, and we clearly have. But I do not know what this
country spends to fight terrorism today. I am not sure anybody
has made a calculation of it. If they have, I have not seen it.
But it is a huge amount of money, and so the cost-effectiveness
question comes to the front.
Senator Burris. And, gentlemen, I have about 5 minutes to
go and vote, so what we are going to do is to call a recess
until Chairman Lieberman returns. Thank you.
[Recess.]
Chairman Lieberman [presiding]. The hearing will come back
to order. Thanks to the witnesses for putting up with this. I
think probably my other colleagues are not going to return. If
you have the patience, I will go one more round of questions.
Then I will go back for a second vote.
You have really been extraordinarily helpful. Perhaps I
should save my flattery until after I ask this round of
questions. I will come back to it.
I want to talk just briefly with you about the National
Counterterrorism Center, which we focused, understandably, more
on the DNI and the general problem and some of the facts of the
Christmas Day bombing. But, obviously, the 9/11 Commission Act
created the NCTC ``to serve as the primary organization in the
U.S. Government for analyzing and integrating all intelligence
possessed or acquired by the government pertaining to terrorism
and counterterrorism.'' And an intelligence community directive
designated NCTC as the mission manager, a literal term.
However, the report made to the President about the
Christmas Day bombing states that there is analytic redundancy
between the National Counterterrorism Center and the CIA. We
referred to this a bit earlier, that responsibility was not
designated to tracking threat streams from Yemen, and that
analytical roles and responsibilities across the intelligence
community need to be clarified.
In your testimony, as I have mentioned, you reinforce these
points and note that ``we need to do a better job of ensuring
that someone within the intelligence community is designated as
in charge of running down all leads with a particular threat
stream.''
Generally, what is your assessment of why counterterrorism
analytical roles or analytic roles and responsibilities are
unclear 5 years after the 9/11 Commission Act was adopted into
law? Congressman Hamilton.
Mr. Hamilton. Now, I am not sure I understand the question,
Senator.
Chairman Lieberman. Well, I guess it is a general question
about looking back 5 years, because the law really put a
charter in place. Why do you think that the analytic roles and
responsibilities still seem to some extent to be unclear 5
years afterward?
Mr. Hamilton. I think we simply do not yet realize the
importance of the analyst in the system. If terrorism is the
threat and if you have massive amounts of information coming to
you, collection is one part of intelligence; analysis is the
other part. The collection side we are very good at, the
analyst side less good at. And I think the reason for it is
because we simply have not given it the priority it deserves.
I am on a group that works with Director Mueller at the
FBI, and he certainly has given great priority to
counterterrorism. But in the FBI culture, the top man is the
agent in charge, and if you are an FBI person, that is the job
you have an ambition to achieve. And it is only in very recent
years that they have begun to elevate the analyst to a
comparable position as the agent in charge.
When you really think about it, the analyst drives what the
FBI does. If their principal function is counterterrorism, the
analyst has to drive the activity of the FBI. I do not think
you have in the Federal civil service the incentives that you
need, maybe we do not have the pay that we need to elevate the
job of the analyst. I think it is a very tough job, and it
takes a while for the Federal bureaucracy to respond to the
need.
Chairman Lieberman. Governor Kean, do you want to add
anything to that?
Mr. Kean. Yes, just also remember in this 5 years you are
talking about--with the exception of the FBI, you had rotating
people in every one of those positions.
Chairman Lieberman. Right.
Mr. Kean. When you passed the Act, I envisioned a DNI that
would stay for a while. We have not had that, and I think we
need that. We need somebody to focus, and some of these
problems I think are unresolved simply because of a change in
leadership.
Chairman Lieberman. Yes. Is that something we should think
of attempting to do by way of statutory amendment, to give the
DNI a longer term? We actually argued this out during the
legislative consideration of your Commission's work.
Mr. Kean. Well, the first DNI left voluntarily. A term
would not have kept him, I do not think.
Chairman Lieberman. Right.
Mr. Kean. So I think maybe the way to do it is rather
through legislation or otherwise, have the understanding when
somebody gets the job that, providing that you are doing the
job well, we expect you to stay.
Mr. Hamilton. It appeals to me, Senator. You have a 10-year
term for the FBI Director.
Chairman Lieberman. Right.
Mr. Hamilton. And Director of National Intelligence, it
seems to me, is in a comparable position. Intelligence ought to
be as removed from politics as possible. And so it makes sense
to me.
Chairman Lieberman. I am glad to hear that. I had not
really thought about that going in, but that might be something
to do to strengthen the DNI. And it has worked really pretty
well overall with the FBI Director. We see it in this case with
Bob Mueller who made a transition quite seamlessly between
administrations.
Let me go back to the NCTC and ask if you would talk a
little bit about what you think its role should be in
relationship to other analysis organizations and to the so-
called operators or intelligence collectors in the community.
In other words, if I can borrow from what we were discussing
earlier about the DNI, or should the National Counterterrorism
Center be the leader of the intelligence community's
counterterrorism activities or just a coordinator?
Mr. Hamilton. I think the analyst is the person who has to
spot the problem and to spot the threat, and then there has to
be an assignment of responsibility to someone to pursue
vigorously that threat.
I do not think that is likely to be the analyst, but
somebody has to be in charge. In other words, the analyst says
we have five strands of information here that point to X as a
threat. You cannot stop there. You have to pursue it. And
somebody has to be assigned the responsibility of saying you go
after X and make sure that X does not cause any problem.
I do not think that is the role of the NCTC. I am not quite
sure where that responsibility lies, but the assignment of
responsibility to investigate and to pursue a suspect has to be
very clear.
You mentioned a moment ago the word ``redundancy.'' I
answered in response to Senator Kirk, I think it was,
redundancy does not bother me particularly because if you have
the CIA doing analytical work on the threat and the NCTC, that
is OK, because the thing that impresses me about the analyst is
the work can be boring, I mean really boring, sorting through
massive amounts of data and trying to figure out what is right
or what is significant. And somebody is going to be asleep at
the switch now and then, so some redundancy does not bother me.
Chairman Lieberman. Yes, I agree. This is a military
concept, of course, both for personnel and for systems, in case
one system breaks down. It is not a bad word to say that you
have a redundant system. It is there to protect the life of the
military person.
Governor Kean.
Mr. Kean. I was just thinking one thing we ought to check
on--I do not know the answer to this--is with these various
agencies, who is attending the NCTC? What kind of priority are
these agencies giving it? Are the people who are showing up
people who are so junior in the line that if they come back
with something, is it not going to be paid much attention to
anyway? Are they sending some of their top people to the NCTC?
Again, I do not know the answer. But that was one of the
problems we had that we talked about a little bit at the time
of the legislation, that these agencies have to give top
priority and send their top people for the NCTC to be
effective. And I do not know whether that is happening or not.
I do not know the answer.
Chairman Lieberman. It is a very good question. You know,
we are going to follow up these two introductory hearings with
a series of subject matter hearings, and we are going to do one
on the NCTC, and that is a question we will ask. I probably
said to both of you that when Senator Collins and I first went
over to the NCTC after it was established in its new quarters,
I remember that its then-Director took us around and said,
``Look at this. This is where the CIA people sit. This is where
the FBI people sit. And note there are no walls between them.''
So that was a big breakthrough. [Laughter.]
But now it is reasonable for us to ask exactly how they are
working together, who are the people they are sending over, are
they top-notch people. Of course, we all wanted, as you know,
to make sure that just as the military does, we would encourage
jointness and reward it in career paths. In other words, if you
are in the FBI and you are sent for a term over at the NCTC, it
should be something good for your career, not something bad.
The 9/11 Commission Act also gave NCTC the authority to
conduct ``strategic operational planning for counterterrorism
activities.'' The memories I have of the arguments over that
particular provision and the fear could fill a book. But
insofar as you know, I wanted to ask you--we are going to focus
on this in one of our hearings. What is your assessment of how
these authorities have been used by NCTC up until this time?
Mr. Hamilton. My assessment, Senator, is that the
intelligence community is overwhelmed by the tactical needs. In
other words, you have a large number of military commanders out
here who want intelligence on the enemy.
Chairman Lieberman. Right.
Mr. Hamilton. We are pretty good at getting that
information. Or you have a diplomat who wants to sit down and
talk with their counterpart in another country on whatever. We
are pretty good at giving that diplomat information. Where we
are less good, it seems to me, in the intelligence community is
just the question you are raising, longer-term thinking.
Yemen probably is a pretty good example of it. We were
behind the curve on Yemen. We simply did not realize how
advanced they were in terms of striking the United States. But
we need to have a significant element of the intelligence
community thinking 5 years, 10 years ahead as to where the
threats will come from. And that is even a tougher job, I
guess, than the imminent threat. But it is very important that
the United States not be surprised by these developments to the
extent that you can possibly avoid it.
So I look upon our intelligence community as being very
good, but if there is a weak spot, I think it tends to be in
longer-term matters.
Chairman Lieberman. Well said. Governor Kean.
Mr. Kean. I would agree with that.
Chairman Lieberman. Well, that is it, and I thank you very
much for your time. What I was going to say before, thinking
while walking over and back, that I remember a former Secretary
of State once aroused a lot of interest when she said America
is the indispensable Nation in the world. I say by way of
compliment and warning that I fear that the two of you have
made yourselves indispensable. It is really quite an
extraordinary act of service you have performed, and all the
more important in this particular moment in our political and
governmental history that you have formed such a collaboration
in which--it is not just bipartisan. It is nonpartisan. I do
not think either one of you think about your party label when
you do the work you are doing because you know how important it
is to the national interest. And as a result, it continues to
make you very important and influential.
Your testimony today has been very substantive. I do not
want to make you feel too mature if I say I felt it was
actually wise and very helpful to the Committee. So I thank you
for it.
As I said, Senator Collins and I want to go to a series of
subject matter hearings, and I would like to invite you and
your staff at the National Security Preparedness Group, that we
consult with you about the directions in which we are going,
and we would welcome your advice. But I honestly cannot thank
you enough, and this has been a very constructive hearing for
us.
We will keep the record of the hearing open for 15 days for
any additional questions and statements. With that, I thank you
and the hearing is adjourned.
[Whereupon, at 12 noon, the Committee was adjourned.]
THE LESSONS AND IMPLICATIONS OF
THE CHRISTMAS DAY ATTACK:
WATCHLISTING AND PRE-SCREENING
----------
WEDNESDAY, MARCH 10, 2010
U.S. Senate,
Committee on Homeland Security and
Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Carper, Burris, Collins, and
Brown.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. The hearing will come to order. Good
morning and welcome to everyone.
Let me first express my pleasure at welcoming to this
Committee as a Member, and attending a hearing for the first
time, our colleague from Massachusetts, Senator Scott Brown.
This is a Committee that Senator Collins and I have been on for
some years now. We are proud of what we have been able to do.
It is, as you know, a very bipartisan Committee and I think
that is part of why we have been able to accomplish a lot over
the years. I would say with particular regard to this
Committee, it is very hospitable to independent-minded
Senators. [Laughter.]
Senator Collins. From New England.
Chairman Lieberman. From New England. [Laughter.]
Welcome. It is a pleasure.
This is the Committee's third hearing in a series that
Senator Collins and I have begun to examine the extensive
reforms made to our intelligence systems both after September
11, 2001, but particularly at the 5-year point from the
enactment of the 9/11 Commission reforms.
Our goals here are to review where we have been, and how we
are doing, to identify weaknesses that remain in the system and
to make recommendations for administrative reform or
legislation that are needed to correct those weaknesses.
Of course, these hearings have taken on added significance
in the aftermath of the Christmas Day attempted terrorist
attack in which Umar Farouk Abdulmutallab unfortunately exposed
some serious weaknesses in our Nation's homeland defenses.
The last two hearings that we have done in this series gave
us a broad overview of the human mistakes and systemic or
structural shortcomings that contributed to the Christmas Day
attack. Today, we are going to look at two of the most
important components of our government's efforts to deny
terrorists the ability to travel to the United States, and that
is the creation and use of terrorism watchlists and the
passenger pre-screening mechanisms that use these lists to
identify potentially dangerous individuals and if, in fact, we
determine they are such, to stop them from getting on airplanes
coming to the United States.
On Christmas Day, our government was unable to pull
together all the intelligence in its possession to stop
Abdulmutallab before he got on that plane. This was not a
failure to collect information. And unlike the missteps leading
up to September 11, 2001, it was not a failure to share it. We
knew that Abdulmutallab's father had concerns about his son's
growing extremism and presence in Yemen. We had separate
intelligence that there was a Nigerian--unnamed, unidentified,
but a Nigerian nonetheless--training in Yemen with al-Qaeda on
the Arabian Peninsula (AQAP). We heard separately of plans for
a Christmas Day, or Christmas-time, attack on the United
States. And again, separately, we knew of a reported telephone
intercept that identified a man named Umar Farouk, without his
last name, as a terrorist.
All those dots, so to speak, were on the same table, but
our government was unable to connect them, in that sense, to
separate this information out of the enormous mass of
information our government collects and shares so that this
terrorist could be stopped before he acted. We were just plain
lucky, as we have said over and over again, that the device he
had on him did not effectively explode on that plane.
In our first hearing, the Director of the National
Counterterrorism Center (NCTC), Mike Leiter, acknowledged that
the Center's information collection and sharing systems need to
be smarter, as he put it, and I would add that in an era when
Google, for instance, can aggregate information for anybody who
goes on Google from scores of Web sites and databases
throughout the world very quickly, it is just unacceptable that
NCTC does not have the same ability to search and aggregate
information across our government's intelligence databases.
I think we also need automated mechanisms to connect
disparate data points 24/7, 365 days a year, and flag potential
threats for analysts to examine. These systems are widely used
in the private sector and need to be adopted by our
intelligence community as soon as possible with our help.
The Abdulmutallab case also exposed weaknesses, I think, in
our watchlisting system. Our intelligence agencies obviously
need to view some of the tips or finger pointing that is sent
them, given to our government, with skepticism. The fact is
that some informants may be motivated by spite or rivalry. But
most are not, and it is just unacceptable, in this case, that
Abdulmutallab's father--not just his father, but a respected
business leader in Nigeria--was not considered a credible
enough source for his information to have put his son on the
watchlist without corroborating evidence. So I hope to hear
from our witnesses today how the watchlisting process has been
modified to ensure that this kind of error will not be made
again.
Another watchlisting problem, I think, concerns the
screening of individuals on the watchlist who are not U.S.
citizens or permanent residents. We are historically one of the
most welcoming countries in the world to visitors and legal
immigrants. But travel to the United States is a privilege, not
a right. In my opinion, if the government concludes that there
is any reason to believe that someone may have ties to
terrorist activities, that person should be required to undergo
secondary physical screening, at least, before being allowed to
board a plane bound for the United States of America.
And finally, we need to dramatically expand our ability to
pre-screen travelers, both internationally and domestically.
Right now, the government only begins to receive important
identifying information about international travelers when they
check in for their flight. In fact, most of this information is
conveyed to the Department of Homeland Security (DHS) only
after an airplane's doors close, or are about to close, which
obviously makes it practically impossible for DHS to fully vet
passengers before a plane takes off. In fact, that was the case
on Christmas Day, and it argues loudly that we must find a way
to start in-depth vetting in advance of a passenger's arrival
at the airport using modern information gathering technology.
We need to ensure, I think, that the DHS has the
identifying information it needs about international passengers
at least 24 hours before departure and that it fully implements
Secure Flight procedures to ensure that all passengers on all
flights are systematically checked against the terrorism
watchlist.
So this hearing is, in our opinion, an important
opportunity to examine the next steps we need to take to
continue to strengthen these watchlists and pre-screening
systems that have been adopted after September 11, 2001, and
particularly after the passage of the 9/11 Commission
legislation.
The fact is, we are doing much better at this than we did
on September 11, 2001, but what the Christmas Day bombing
attempt shows is that we have to do better yet to ensure that
the next Abdulmutallab is not allowed to get on a plane to the
United States.
We have a very good group of witnesses before the Committee
today. I want to say to you before we call on you that I think
you have some of the toughest jobs in the U.S. Government, and
therefore, you are subjected to disappointment or criticism
periodically. I want to thank you for your commitment and
service to our country.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
Let me start by joining you in welcoming Senator Brown to
our Committee. We are delighted to have you, Senator, join this
great Committee. I think you will enjoy it very much.
I understand on the other side of the aisle we are also
going to be gaining a member. A second Delaware Senator, I
believe, is coming our way.
Chairman Lieberman. This is true. I am tempted to make a
joke about Senator Carper, but I think it will only get me in
trouble.
Senator Collins. I thought I was giving you a good
opportunity.
Chairman Lieberman. Yes. I was going to say that one is
enough---- [Laughter.]
But Senator Kaufman will be a great addition to this
Committee, and along with Senator Brown, really strengthens our
membership.
Senator Collins. Thank you.
Today's hearing focuses on two fundamental questions. Why
was the Christmas Day bomber allowed to travel to the United
States? And why was his name not included on the terrorist
watchlist?
We know, as the Chairman has pointed out, that
Abdulmutallab's father had informed the American Embassy in
Nigeria of his Islamist extremist connections in Yemen more
than a month before he boarded the flight to Detroit. We also
know that his name was included in the broadest terrorist
database known as the Terrorist Identities Datamart Environment
(TIDE). But despite this alarming information, the system
failed to bar Abdulmutallab from boarding Flight 253 to
America.
As I look at this case, over and over again, I see missed
opportunities. From my perspective, the State Department
clearly had sufficient information to revoke Abdulmutallab's
visa. State Department officials already had decided to
question him about his ties to extremists if he chose to renew
his visa.
It is baffling to me that Abdulmutallab could have been
considered a threat to the United States in the future based on
his extremist ties but not a sufficient current threat to
suspend his visa. That defies both logic and common sense. Had
the State Department taken the action to revoke or suspend his
visa, it would have prevented him from traveling to our
country, a missed opportunity.
Another missed opportunity occurred in Amsterdam. Amsterdam
is one of those rare airports in Europe and throughout the
world where a small number of U.S. immigration advisory
officials are stationed. These officers can ask an airline not
to board a passenger who will be prohibited from entering our
country upon arrival. They receive a list of passengers of
concern, including those whose visas have been revoked or
flagged by the State Department. This was another missed
opportunity to stop Abdulmutallab.
Another missed opportunity to stop him apparently occurred
at the National Counterterrorism Center. The President has
stated that there was ample intelligence on Abdulmutallab to
warrant his inclusion on the No Fly List, yet this did not
occur even after his father's warning. It did not occur because
other streams of intelligence mentioned by the Chairman were
not connected until it was too late.
A basic question about this missed opportunity is why did
the intelligence community fail to analyze all the available
information related to Abdulmutallab? Some intelligence experts
tell me that outmoded computer systems are a factor. Despite
the vast improvements in information sharing since 2001, and
particularly since the bill that we authored in 2004, our
intelligence community continues to rely on internal systems
and processes that are relics from the days before the
Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA). These outdated systems apparently do not effectively
surface intelligence information so that analysts and security
officials can identify threats in real time.
I would like to know what the Administration's plans are
for upgrading these systems to allow for more effective
searching of terrorist information, for Google-izing, if you
will, information across the government. For starters,
identifying individuals in the terrorist databases who have
valid U.S. visas should not be that complicated a task.
We must also examine how we can better identify individuals
who should be on watchlists for additional screening at
airports. For example, we know that Abdulmutallab was
identified for additional screening, but only once he arrived
in Detroit. This identification, as the Chairman has pointed
out, was done while the flight was in the air or just after the
door had closed. Why was that same information not used to
identify him earlier, before he boarded his flight, for
additional screening and an interview, as well? Another missed
opportunity.
As this case demonstrates, waiting until a suspect
terrorist arrives in our country to conduct additional
screening is waiting too long, another missed opportunity.
We must continue to strengthen our watchlisting and
screening systems, including evaluating the standards that are
now used to include an individual on watchlists and look at
which standards are used for which watchlists and whether they
need to be strengthened, as I think is evident.
The bottom line is, until these systems work more
effectively, work more seamlessly, we will not be able to
prevent terrorists from traveling to our Nation.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Collins.
Senator Brown, it is our custom just to have Senator
Collins and me make an opening statement. If you have anything
you would like to say here at the outset, I would be happy to
give you the time.
OPENING STATEMENT OF SENATOR BROWN
Senator Brown. Thank you very much. I would just like to
thank you for your warm welcome. Obviously, I have worked
closely with both of you, and obviously, Senator Burris, as
well. I want to say that I am honored to be on this Committee,
having served, and still serving in the military for 30 years,
it is something I think about every single day. So I am hoping
that I can add a little bit to what you are doing and I look
forward to serving. Thank you.
Chairman Lieberman. Thank you. I am sure you will add a
lot.
Let us go to our witnesses now. We will begin with Russell
Travers, Deputy Director for Information Sharing and Knowledge
Development at the National Counterterrorism Center, Office of
the Director of National Intelligence. The National
Counterterrorism Center is probably one of the least known,
most important agencies in our government. We are very proud of
its establishment in the 9/11 Commission legislation and the
work that it has done since then to protect our homeland
security.
Thank you, Mr. Travers. We welcome your testimony now.
TESTIMONY OF RUSSELL E. TRAVERS,\1\ DEPUTY DIRECTOR,
INFORMATION SHARING AND KNOWLEDGE DEVELOPMENT, NATIONAL
COUNTERTERRORISM CENTER, OFFICE OF THE DIRECTOR OF NATIONAL
INTELLIGENCE
Mr. Travers. Thank you, Mr. Chairman, Senator Collins, and
Members of the Committee. It is certainly a pleasure to be here
to talk about NCTC's role in the process of screening.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Travers appears in the Appendix
on page 306.
---------------------------------------------------------------------------
I would like to first build on your opening comments and
drill down a little bit. I want to put you in the shoes of
terrorist identities analysts to give you a sense of the three
main challenges that we confront every day.
Challenge one, you have already alluded to. It is, in fact,
the quantity and quality of information that comes in every
day, literally terabytes, sometimes petabytes of information
that come in, sometimes described as vastly exceeding the
holdings of the Library of Congress. It is an immense amount of
information. And, of course, we have many tools that will sort
and sift and cull and highlight those billions of electrons
that come into the community. In the case of NCTC, we do have
30 or so networks that come in, bringing in terrorist
identities information, and we net that down every day to many
thousands of individual intelligence reports dealing with
terrorism.
The important point with respect to watchlisting is that
every day, approximately, plus or minus, 10,000 names are
coming into the terrorist identities analytic community.
Our 24-hour operations center certainly helps to net that
information further down. I will just give you a sense of what
they do. The size of my morning read book on Monday morning
when I walk in, is 842 pages, 1,520 pieces of information. And
we further will net that down and have daily video
teleconferences with the Committee, and what we try to do is to
discuss the two or three dozen highest-level threat scenarios
that are ongoing at the time. We will have situation reports.
We have a daily threat matrix and so forth and video
teleconferencing across the center. And with the community,
Abdulmutallab never made any of that discussion. He was
literally down in the noise, and that is an issue that we need
to confront.
Related to the quantity of material is the issue of
quality, and here I would fall back on the rather overused
metaphor of dot connecting, I think. If you do envision a huge
field of dots, many have something to do with terrorism for
sure, generally fragmentary, often ambiguous, but a large
percentage are simply wrong, some combination of circular
reporting, poison pens, mistaken identities, lies, and so
forth, and that can be kind of difficult for us to distinguish.
So that is challenge one.
The second major challenge you would confront--remember
those 10,000 names I talked about. If we are dealing with Sunni
extremism, then they are Arabic names. And now you have to get
past a Western convention of first, middle, and last. Instead,
you are dealing with patronymics, ethnic and tribal
affiliations, and honorifics. Different names will be used for
different purposes. It is complex, even assuming that they do
not want to hide their identity. The September 11, 2001,
hijackers, as you remember, used 362 name variations.
A more recent case, Abu Musab al-Zarkawi, the former, now
deceased leader of al-Qaeda in Iraq, had 60-some aliases that
we knew of, and then each one of those names could be spelled
in upwards of 100 different ways.
Commonality of names, also a problem. Let us assume that we
have good intelligence that one Mohammed al-Shammari is a
terrorist. I asked one of my Arab linguists to take a look at a
Middle Eastern phone book, 500,000 names. There were 480 exact
matches for that name, and that, of course, is a big issue when
it comes to false positives.
And we often get partial names. Abu Mohammed from Peshawar
is a terrorist. That is the functional equivalent of saying
that the father of John from Boston is a terrorist. It is a
huge problem for us.
And that brings me to the third challenge. What exactly is
a terrorist? He swears loyalty to bin Laden. He attacks U.S.
interests. He went to a camp in the Federally Administered
Tribal Areas (FATA). Those are easy. What if he is an associate
of a terrorist or an affiliate? What if he just gave money to
an extremist cause? Those are a little grayer. What if he gave
money to a non-governmental organization (NGO)? That NGO
supports legitimate and extremist causes. What if he owns a
bookstore that sells mainly extremist literature? What if he is
in a chat room or on a web forum espousing ``extremist
rhetoric''? What if he is under the influence of extremists and
he goes off to practice not jihad, but dawa, proselytizing?
They get very gray in a hurry.
The point is, we go from very easy cases to very hard. They
are, in fact, gray areas, and that gets to the issue of
standards that Senator Collins talked about and that is one of
the issues that the community is working its way through.
Mr. Chairman, none of this is intended as an excuse. As
Mike Leiter said, we are endeavoring very hard to do better.
The analytic and watchlisting communities are, in fact, working
hard to improve on the gaps that were identified on December
25, 2009.
At the President's direction, NCTC is focused on improving
the capability we have to pursue fragmentary information as
well as to enhance TIDE records. And that builds on the
business processes and technical enhancements that have been
ongoing at NCTC for many years.
I would, however, caution against the belief that there is
any silver technical bullet. We utilize a lot of tools and
search capabilities and we have looked at many, many more.
Because of the challenges I alluded to before, notions of a
Google-like search or a federated search are actually of
relatively limited value. We have significant Google-like
searches that will go across many message-handling systems and
we still would not have come across Umar Farouk.
Frankly, the further you move in the direction of
commingling foreign and domestic data in a single enclave where
you can effectively apply tools, the harder the legal, policy,
and privacy issues become, and perhaps we can talk about that
in the question and answer rounds.
In closing, let me just reinforce a couple of points from
my prepared statement. First, it is important to highlight what
December 25 was not. I agree with you entirely. It does not in
any way call into question the basic watchlisting architecture
that was set up by Homeland Security Presidential Directive 6.
In NCTC's view, the basic plumbing is right. We can, in fact,
pass the right information to the right organizations.
Standards and procedures, they are being looked at. From our
perspective, there could be significant resource implications.
We can talk about that.
Nor is December 25 about information sharing. We certainly
have some hard information sharing issues, as I suggested, but
in this case, virtually every analyst within the intelligence
community had access to the two pieces of key information to
which you alluded. Rather, December 25 highlights a
longstanding and very difficult problem, and that is how you
identify and integrate fragmentary information when nothing is
blinking bright red. That is the key challenge for us and we
look forward to discussing how NCTC is addressing those in the
question and answer rounds.
Chairman Lieberman. Thanks, Mr. Travers. You actually raise
a number of provocative questions which we will look forward to
discussing with you.
Timothy Healy is the Director of the Terrorist Screening
Center (TSC), which is located in the Federal Bureau of
Investigation at the Department of Justice. Mr. Healy, we thank
you for returning to the Committee and welcome your testimony
now.
TESTIMONY OF TIMOTHY J. HEALY,\1\ DIRECTOR, TERRORIST SCREENING
CENTER, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF
JUSTICE
Mr. Healy. Thank you, sir. Chairman Lieberman, Ranking
Member Collins, Senator Brown, and Senator Burris, thank you
for the opportunity to talk about the Terrorist Screening
Center and our role in the interagency watchlisting process.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Healy appears in the Appendix on
page 310.
---------------------------------------------------------------------------
The attempted terrorist attack of Northwest 253 on December
25 highlights the ever-present terrorist threat to our
homeland. Over the past 7 years, the TSC has played a vital
role in a fight against terrorism by integrating terrorist
information from law enforcement and intelligence communities
into a single database known as the Terrorist Screening Center
Database (TSDB), or the terrorist watchlist. This watchlist
populates various screening systems used by the government.
Following the Christmas Day attack, or attempted attack,
intense scrutiny has been placed on the requirements to
nominate individuals to the watchlist, particularly the No Fly
or Selectee List, which are subsets of the TSDB. This
requirement or standard has 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
public while simultaneously protecting privacy and civil
liberties. As our efforts continue to evolve in response to the
new threat and intelligence, your support has been outstanding
and it is necessary in our continued successful mission.
Let me begin by telling you about the watchlisting process,
but before that, the watchlisting process for the TSC is about
half our job. The other half is how we handle encounters when
we do encounter the terrorist subject and that coordinated law
enforcement or operational response.
But for the watchlisting nomination process, it can be best
described as a watchlisting enterprise because it is a constant
collaboration between the intelligence community, the National
Counterterrorism Center, the FBI, and the TSC. NCTC relies upon
information that is provided by the intelligence and law
enforcement communities. The TSC relies on NCTC to do the
analytical work and provide the accurate, credible information
that we forward to our screeners. The screening community
relies upon the TSC to make sure that the information is
efficiently disseminated to their systems.
Once a known or suspected terrorist has been identified and
included into TSDB, the TSC ensures the timely dissemination of
that information to our screening partners. The utility of the
watchlisting process is only effective when it is efficiently
disseminated to those partners. The TSC has subject matter
experts composed from experienced analysts from designated
agencies that review the nominations to determine if they meet
inclusion into the screening process.
There are four major U.S. Government systems that are
supported by the TSC and the TSDB: (1) The Department of
State's Consular Lookout and Support System (CLASS), is used
for passport and visa applications. (2) Department of Homeland
Security Traveler Enforcement Compliance System (TECS) is used
for border and port entry systems. (3) The No Fly and Selectee
Lists are used by the Transportation Security Administration
for air passenger screening. (4) And the FBI's National Crime
Information Center is used for domestic law enforcement
encounters. The criteria for inclusion into each one of these
systems is tailored by the mission, the legal authorities, and
the information technology requirements and limitations of
those systems.
Before December 25, 2009, the TSC had not received the
nomination for Umar Farouk Abdulmutallab, and as a result, he
was not watchlisted, as you have mentioned. Following the
attempted terrorist attack, the President has initiated a
review of why Umar Farouk Abdulmutallab was able to board on
Northwest Flight 253.
As a result, the TSC was given two instructions. The first
was to conduct a review in the TSDB of any individual within
the TSDB that had a visa, beginning with the No Fly List and
all the way down. That process has been completed.
The second was to develop recommendations on whether
adjustments are needed to the watchlisting nomination guidance,
including biographical or derogatory criteria, for inclusion
into TIDE and TSDB, as well as the No Fly and Selectee Lists.
To do so, the TSC convened its Policy Working Group, which
consists of representatives from the National Counterterrorism
Center, Central Intelligence Agency, National Security Agency,
the Federal Bureau of Investigation, Department of Homeland
Security, Department of Defense, Department of Justice, and
Department of State to achieve this interagency consensus. That
process is underway and the TSC is working with the interagency
partners to develop recommendations for consideration to the
President.
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 very specific threat that was
observed on Christmas Day. As a result, the threat-related
target group was identified and individuals from specific high-
threat countries already residing in TIDE and TSDB were added
to No Fly and Selectee Lists or upgraded into TSDB.
The TSC remains focused on fulfilling the presidential 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, to increase our technical capabilities, and to
continue to protect Americans from terrorist threats while
protecting civil liberties and protecting privacy issues.
The TSC and the terrorist watchlisting has been a vital
tool in the counterterrorism effort in the United States and
will continue to do so.
Chairman Lieberman, Ranking Member Collins, I look forward
to any questions that you may have.
Chairman Lieberman. Thanks, Mr. Healy. I appreciate it.
Next, we will go on to Gale Rossides, Acting Administrator,
Transportation Security Administration (TSA), at the Department
of Homeland Security. Thanks for the work you have been doing
as the Acting Administrator. As you know, the President made a
nomination which will come before this Committee and the
Commerce Committee to be Administrator and we hope to move that
as quickly as possible. But we appreciate your excellent work
in the interim.
TESTIMONY OF GALE D. ROSSIDES,\1\ ACTING ADMINISTRATOR,
TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF
HOMELAND SECURITY
Ms. Rossides. Thank you, Mr. Chairman. Good morning,
Chairman Lieberman, Ranking Member Collins, and distinguished
Members of the Committee. I thank you for the opportunity to
appear today to testify on behalf of the Transportation
Security Administration.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Rossides appears in the Appendix
on page 316.
---------------------------------------------------------------------------
I would like to begin by saying that TSA's core mission is
one of counterterrorism. We continue the work we began 8 years
ago with the establishment of TSA to close vulnerabilities with
new technology and new processes in a complex aviation security
regime. TSA operates in a high-threat environment day in and
day out, which drives our officers and ourselves to be ever
vigilant.
The attempted attack on Northwest Flight 253 on Christmas
Day was a stark reminder that there are still those intent to
do us harm. As we continue to harden elements of the system, we
know that terrorists will look for gaps or exceptions they can
exploit. The unthinkable is an opportunity for them.
Looking at the device used on December 25, it was very
cleverly constructed, and it was intentionally hidden in a very
sensitive part of the individual's body to avert detection. We
know that terrorists are studying our security measures and
will exploit our social norms to their advantage. The men and
women of TSA live with that threat every day.
The threat of an improvised explosive device (IED), getting
onto an airplane is a significant focus for us. In 2006, we
overhauled the training of our Transportation Security Officers
to focus on finding IEDs. In 2007, we used proven science to
train and deploy our first Behavior Detection Officers to
identify people with hostile intent and refer them for
additional screening.
We also began testing advanced imaging technology in 2007
to detect both metallic and non-metallic threats hidden on the
body. TSA developed the requirements for this technology with
the Transportation Security Lab at DHS and with the private
sector. Because of the nearly 3 years of work we have already
put into this, we currently have 43 machines already in place
at 20 airports, and we will field approximately 500 units
systemwide by the end of this calendar year.
Because IEDs can be hidden both on the body and in bags, we
have also deployed bottled liquid scanners, advanced technology
X-ray, and explosives trace detection units to enhance our
officers' capability to find explosives. The U.S. Government is
actually the world leader in testing and deploying these
technologies. We are working with the national labs and the
private sector to push the detection capabilities to even
greater degrees, and we will continuously test and train our
personnel. We are also sharing information with our
international partners to assist other nations in raising their
levels of security.
We are giving this mission every ounce of our energy. We
continue to employ our layered approach to security to deter,
disrupt, and stop attacks. What we are facing is not one man on
one plane, we are facing a patient enemy who is determined to
attack U.S. assets and the U.S. homeland.
Beyond the 450 U.S. airports, TSA also works with our
international partners to secure the entire global aviation
network. Because TSA does not conduct the actual screening
overseas, we instead rely upon foreign governments, airport
authorities, and carriers to conduct such screening. TSA does
conduct inspection of foreign airports with the last points of
departure for flights inbound to the United States. These
inspections are to the standards set by the International Civil
Aviation Organization (ICAO). TSA also imposes additional
screening measures for all carriers flying into the United
States.
Both before and after the Christmas Day incident, we have
enjoyed a very strong working relationship with air carriers,
foreign and domestic, and we greatly appreciate their
commitment to keeping air travel safe. It is a testament to the
strength of that relationship that on December 25, 2009, within
5 hours of TSA issuing new security directives to increase
screening of passengers coming to the United States, 95 percent
of our foreign partners were in compliance.
One of the key tools we have to keep known terrorists off
of airplanes is Secure Flight. I am pleased to say that many
large carriers are now participating, with the rest scheduled
to be onboard by the end of this calendar year.
Chairman Lieberman. Why don't you do us a favor and just
take a moment and describe Secure Flight for the record and for
those who are watching or listening.
Ms. Rossides. Yes, sir. Once Secure Flight is operational,
it will actually vet all of the passengers booked on every
flight 72 hours in advance of the flight. That will actually
give both TSA and our law enforcement, airport, and air carrier
officials 72 hours to determine and further inspect somebody
who shows up that would be of interest, either somebody who
shows up as a No Fly or a Selectee.
The program is also going to help with passengers who have
false positive matches, where they have the same name, because
the system will actually vet using additional data elements,
including the date of birth, a passport number, and a redress
number if the passenger has filed for redress. That will ensure
that passengers who are actually cleared will no longer have
difficulty printing boarding passes. It will also provide much
greater consistency, because today, the air carriers vet
against the No Fly and Selectee Lists, and once Secure Flight
is fully operational, TSA will do that vetting, which should
give us a higher quality of the vetting.
TSA is an end user of the No Fly and Selectee Lists, and we
will continue to work very closely with our law enforcement and
intelligence partners to improve the information sharing
efforts. Our mission requires us to continuously challenge
ourselves, and we are dependent upon the cooperation and
participation of stakeholders and passengers in order to keep
this complex aviation system secure. We are extraordinarily
grateful to the support of our partners at all levels of
government, industry representatives, our international
partners, the private sector, and especially the traveling
public.
I would like to express my appreciation for this
Committee's support of TSA and our programs, and I am
particularly honored to serve alongside the everyday heroes in
TSA. I am happy to answer your questions.
Chairman Lieberman. Thanks, Ms. Rossides. I appreciate your
testimony.
Finally on this panel, David Aguilar. Again, we have an
Acting Deputy Commissioner. The nominee for Commissioner awaits
action in the Finance Committee of the Senate. We hope to have
him soon. We are pressing for it to happen. But in the
meantime, thank you for your excellent service. As you said, I
usually see you in uniform.
Mr. Aguilar. Yes.
Chairman Lieberman. It is a pleasure to see you either way
and we welcome your testimony now.
TESTIMONY OF DAVID V. AGUILAR,\1\ ACTING DEPUTY COMMISSIONER,
U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND
SECURITY
Mr. Aguilar. Thank you, sir, and good morning. Chairman
Lieberman, Ranking Member Collins, and Senator Burris, thank
you for the opportunity to appear here today as a part of this
team to discuss the steps that U.S. Customs and Border
Protection (CBP) has taken in response to the attempted
terrorist attack on Northwest Flight 253.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Aguilar appears in the Appendix
on page 328.
---------------------------------------------------------------------------
The attempted attack on December 25, 2009, was a powerful
reminder to all of us that terrorists will go to great lengths
to defeat the security measures that have been put in place
since September 11, 2001. Today, I would like to take a little
bit of time to describe the role that CBP currently performs in
aviation and national security and the enhanced security
measures implemented in the aftermath of the attempted
Christmas Day bomber attack.
As part of our efforts to screen passengers bound for the
United States, CBP is a consumer of the U.S. Government's
Consolidated Terrorist Watchlist, which we use to help keep
potential terrorists off flights bound for the United States
and to identify travelers that require additional screening.
Travelers bound to the United States are required to either
have a visa issued by the Department of State, or if traveling
under the Visa Waiver Program, an electronic travel
authorization issued through the Electronic System for Travel
Authorization (ESTA) system. ESTA is a web-based system to
which individuals must apply for travel authorization prior to
traveling to the United States. It enables CBP to conduct
enhanced screening of Visa Waiver Program Country applicants in
advance of travel to the United States in order to assess
whether they could pose a risk to our country.
When a traveler purchases a ticket for travel to the United
States, a Passenger Name Record (PNR) may be generated in the
airline's reservation system. PNR data contains various
elements, including itinerary, co-travelers, changes to the
reservation, and may include payment information and type of
payment information. CBP receives PNR data from the airlines at
various intervals beginning 72 hours prior to departure and
concluding at the scheduled departure time. CBP officers
utilize what we call the Automated Targeting System for
Passengers to evaluate the PNR data against targeting rules. It
is important to note that PNR data received by airlines differs
and may be incomplete and is inconsistent.
On the day of departure, when an individual checks in for
their intended flight, the basic biographic information from
the individual's passport is collected by the air carrier and
submitted to CBP's Advanced Passenger Information System
(APIS). APIS data is far more complete than PNR data. DHS then
screens APIS information on international flights to or from
the United States against the TSDB, the watchlist, as well as
against criminal history information, records of lost or stolen
passports, and prior immigration or customs violations.
At nine airports in seven countries, CBP officers are
stationed under the Immigration Advisory Program (IAP) that
Senator Collins mentioned. Working with CBP's National
Targeting Center, IAP officers are provided information on
certain passengers who may constitute security risks to our
country. These officers can then make no-board recommendations
to carriers and host governments, but they do not have the
authority to arrest, detain, or prevent passengers from
boarding the planes themselves.
While flights are en route to the United States, CBP
continues to evaluate the APIS and PNR data submitted by the
airlines. At this point, a further assessment on individuals'
admissibility into the United States is conducted and a
determination is made as to whether an individual requires
additional screening prior to admission.
Upon arrival in the United States, travelers present
themselves to a CBP officer for inspection. Based on the
information garnered during the in-flight analysis as well as
the onsite CBP officer's observations, a determination is made
as to whether the traveler should be referred for a secondary
inspection or admitted to the United States.
Since Christmas Day, CBP has undertaken a number of steps
to enhance our current processes. CBP has expanded the
information referred to our IAP officers to include any State
Department records that contain any national security exclusion
realms, something that was not done in the case of December 25.
Chairman Lieberman. Give us an explanation of that in plain
language. In other words, what did not happen with
Abdulmutallab which would happen now under the change?
Mr. Aguilar. What did not happen back then, Senator, was
that the information provided by the visa office that had
information related to what the father had provided----
Chairman Lieberman. The father said, right.
Mr. Aguilar [continuing]. Was not provided to our IAP
officers. That kind of information, which is basically called a
quasi-refusal, is now passed on to our IAP officers as a matter
of everyday business.
Chairman Lieberman. Right away.
Mr. Aguilar. Yes, sir.
Chairman Lieberman. What happened to it with Abdulmutallab?
It went to the State Department?
Mr. Aguilar. The State Department provided it by way of
their CLASS system----
Chairman Lieberman. Right.
Mr. Aguilar [continuing]. Into our TECS system, but it
never got to our IAP officer because he was not on the
watchlist and----
Chairman Lieberman. Tell us what IAP is.
Mr. Aguilar. I am sorry, sir. That is the Immigration
Advisory Program officer that was stationed in Amsterdam----
Chairman Lieberman. So that is a foreign-based American----
Mr. Aguilar. Yes, sir.
Chairman Lieberman [continuing]. Federal Government
employee.
Mr. Aguilar. A CBP officer stationed in Amsterdam.
Chairman Lieberman. Right. So now, that information would
go immediately to that person----
Mr. Aguilar. Yes.
Chairman Lieberman [continuing]. From the embassy?
Mr. Aguilar. It goes from the embassy to our TECS system
into what we refer to, our National Targeting Center, for
aggregation, if you will, with all the other information that
we have----
Chairman Lieberman. Right.
Mr. Aguilar [continuing]. And then that information in
total is passed on to our officer stationed foreign.
Chairman Lieberman. Is there a filter applied--I am going
to give you a little extra time. I apologize. Is there a filter
applied at that point, in other words, standards as to whether
it should be included? In this case, we all agree, I think,
looking back, his father came in, a respected man. It should
have gone right on the watchlist. But, I mean, it is possible
somebody could have come in who said they did not know him very
well, thought he was acting suspicious. What would happen?
Mr. Aguilar. Given the same situation, any kind of
derogatory information related to terrorism----
Chairman Lieberman. Right.
Mr. Aguilar [continuing]. That is captured by the
Department of State abroad and now put into our system. That is
a quasi-refusal that is now captured and provided to our
officers. Yes, sir.
Chairman Lieberman. Good. Go ahead and finish your
statement. I will give you extra time.
Mr. Aguilar. On January 10, 2010, we also began additional
pre-screening of passengers traveling from non-Immigration
Advisory Program locations. Officers assigned to our Regional
Carrier Liaison Groups working with our National Targeting
Center now make recommendations to foreign carriers to deny
boarding to individuals traveling to the United States who have
been identified as being national security-related threats that
are ineligible for inadmission or who are traveling on
fraudulent or fraudulently-obtained documents.
CBP has enhanced reviews of all incoming passenger
manifests based on current threats and has increased pre- and
post-primary operations. Through intelligence sharing
agreements, CBP continues to work with our counterparts in the
United Kingdom, Canada, and Mexico, as well as CBP attaches and
representatives around the world, to share information as
necessary and appropriate.
While we addressed the circumstances behind the specific
incident, we must also recognize the evolving threats posed by
terrorists and take action to ensure that our defenses continue
to evolve in order to defeat them. We live in a world of ever-
changing risks and we must move as aggressively as possible
both to find and fix security flaws and anticipate future
vulnerabilities.
Chairman Lieberman, Ranking Member Collins, and Members of
the Committee, thank you for the opportunity and we look
forward to any questions that you might have.
Chairman Lieberman. Thanks, Mr. Aguilar.
We will start with 7-minute rounds of questions.
I appreciate the testimony and particularly the things that
have been changed since December 25, 2009. One of the things
that is in the process of review, and I will ask you in a
moment what the deadlines are, is this question that Mr. Healy
referred to directly and Mr. Travers referred to which is how
do people get on the Terrorism Watch List and then how are the
lists used?
Let me say that as I heard you describing the kinds of
information, Mr. Travers, that we might have about somebody
being a terrorist or associated with terrorist activities, part
of my reaction--you are right. The first two or three you
mentioned were pretty clear-cut cases. When you got to the
grayer areas, I would say that they were grayer if the question
was whether you were going to arrest somebody or capture them
in a war on terrorism context. But for me, they were not grayer
if the question is whether they raise enough suspicion to be
put on a Terrorism Watch List and subject that person to a
secondary review, including a secondary screening of his or her
body before letting them enter a plane.
Do you understand what I am saying? I invite a reaction to
you on that.
Mr. Travers. Yes, sir, certainly, and that is part of the
issue that I am sure Director Healy will talk about with
respect to our evaluation of standards. The question for us, I
think, eventually comes down to one of balance. If we provide
every individual and alternative spelling and alternative name
variant, and if they are pushed to the airlines for eventual
secondary, given the way the mathematics works out, you are
starting to look at the potential for millions and millions of
names. At what level does that become too difficult for the
airlines to handle? I think that is one of the issues that we
are struggling with in the interagency group that is looking at
this particular problem.
Chairman Lieberman. Yes. My own point of view is this. I
understand this can be inconvenient, at some point even
burdensome for the airlines, but after all, we are looking at
questions of national security here, of homeland security. I
mean, at some level, frankly, I say, too bad that the airline
has to do that extra work to stop somebody from getting on a
plane who might blow up the plane and kill everybody on it and
a lot of people on the ground, as would have been the case if
the bomb went off on the Detroit-bound plane on December 25.
So it is not that there is not a concern, but I think,
ultimately, in just the terms that Mr. Healy mentioned, the
classic balance that we need are the weighing of security on
the one hand and liberty or privacy, or in some sense
convenience or business operations, on the other. It seems to
me in these cases, that the great weight has to be given to
security.
Mr. Travers. Yes, sir, and I would just make one last
point. Certainly, I believe the entire Federal Government is
leaning very far forward on putting people on lists, and that
has been a bit of a sea change since December 25. I have been
doing this now for several years and I will say I am 100
percent certain I never had anybody tell me that the list was
too small before Christmas.
Chairman Lieberman. Yes.
Mr. Travers. It is getting bigger and it will get much
bigger.
Chairman Lieberman. Well, I appreciate that and I think
that is the right way for it to go.
Mr. Healy, one of the things that struck me after December
25, and unfortunately, we all learn from that, is that there
were these four levels of lists. TIDE was the largest, and if
you were on the TIDE list, it did not subject you to any
secondary screening or closer look if you try to get on a
plane, which we are focusing on that for a moment. If you were
on the TSDB, the Terrorist Screening Database, it seems
apparently you were not--they are either subjected to
screening, but if you got onto the Selectee List, it required a
higher level of evidence, and then the No Fly List, of course,
you just were not allowed to get on the plane automatically if
you were one of those people.
Picking up in a way from the exchange I just had with Mr.
Travers, to me it seems, based on the weighing of the
consequences of letting a terrorist on a plane as opposed to
the inconvenience of stopping them, if only for a secondary
screening--I wonder why we are not consolidating those lists. I
mean, obviously, if there is so much evidence that somebody is
on a No Fly List, then that is a separate question and that
ought to be a separate list. But to my way of thinking, the
next list ought to be a real broad one, including the TSDB,
which is that there is any evidence of a connection with
terrorism, we ought to at least protect everybody else by
subjecting that person to a secondary screening. Do you agree
or disagree?
Mr. Healy. I would agree and respectfully disagree at the
same time----
Chairman Lieberman. Go ahead.
Mr. Healy [continuing]. And let me explain. I was under the
same position when I first got to the Terrorist Screening
Center several years ago as a deputy. The challenge, Senator,
is with the list and how we screen it. Right now, the
limitation that we have is that the airline is screening. As
Ms. Rossides talked about, Secure Flight is going to come
onboard, and I think that is a discussion that we need to have
between TSA, DHS, and the Terrorist Screening Center, about the
advantages that you have with Secure Flight.
Unfortunately, the limitation that we have with Secure
Flight, with the Selectee List, and the No Fly List is we rely
upon the airlines to do the screening. As we all talk about, it
is a balance between civil liberties and protection of the
American people. The problem is that when we share that list,
we share it not only with the domestic carriers, but we also
share it with the foreign carriers.
Chairman Lieberman. Right.
Mr. Healy. If you share the entire list with the foreign
carriers, you have the problem of the security of the list and
individuals knowing that they are watchlisted. That is a
tremendous security problem. So, again, it is the balancing act
right now. Prior to Secure Flight, and again, I think we need
the dialogue then, when Secure Flight is on board--and I
believe that is going to be at the end of this year and we have
been working very diligently with TSA on that--but right now,
with the limitations that we have on the screening without
Secure Flight, we give it to the airlines, and that includes
foreign airlines----
Chairman Lieberman. OK.
Mr. Healy [continuing]. And that includes potentially
giving up the list to foreign carriers----
Chairman Lieberman. All right. So what you are saying is
you worry that if somebody is on a terrorism watchlist and they
get subjected to secondary screening, then they know they are
on a terrorism watchlist. Is that what you mean?
Mr. Healy. No, sir. If they are on the No Fly List and a
terrorist tries to get on a plane----
Chairman Lieberman. Yes.
Mr. Healy [continuing]. And he is not allowed on the plane,
he clearly knows he is watchlisted.
Chairman Lieberman. Right. But you were talking about the
privacy of the list when they go to foreign carriers. I thought
you meant that some of the people that were on the list might
learn they are on the list and that would tip them off that
they are being watched.
Mr. Healy. Right now, TSA and the air carriers randomly
screen people.
Chairman Lieberman. Right.
Mr. Healy. The vast majority of people, like 78,000 that
have applied for redress, believe they are watchlisted. The
vast majority of them, like 99.3 percent, are not. They are
randomly screened.
Chairman Lieberman. Right.
Mr. Healy. Just because you are subject to additional
scrutiny does not mean that you are on the watchlist.
Chairman Lieberman. That is an important point. Right. You
are not just screened because you are on the watchlist.
Mr. Healy. That is correct, Senator.
Chairman Lieberman. Actually, that is a good cover for the
watchlist.
Mr. Healy. Right, and the issue is not the screening. The
issue is that we are giving the complete list. I do not think
it is prudent to give the complete list to the air carriers
with the problem that it may be exposed to different countries,
to foreign countries. That is the challenge.
Chairman Lieberman. But here is the other challenge,
obviously, and I know we share this goal. If you do not give
that list to a foreign carrier, then it is possible somebody on
that list who is a suspected terrorist will get on the plane.
Mr. Healy. And that is the balance that you strike. That is
why there is a particular criteria for Selectee, a particular
criteria for No Fly, and because of the limitations with the
list and who we have to share it with, that is the balance.
I could give you an example of an individual who knew he
was watchlisted, came into the country, and changed his
identity because he knew he was watchlisted.
Chairman Lieberman. Right.
Mr. Healy. We only found out because we give the list to
the National Crime Information Center (NCIC). The individual
was arrested. His fingerprints were taken. It went to our
Criminal Justice Information Services Division (CJIS), the
FBI's fingerprint department, and he was identified as one of
the known or suspected terrorists. He knew he was watchlisted,
actively changed his identity because of that. And so that
balance is that I would caution the Committee about giving away
the entire list. That is going to create hazards and security
issues for us, as well.
Chairman Lieberman. Yes. I hear you, but I still feel that
the obligation we have to everybody else on the plane is to
check anybody we have reason to suspect of being a terrorist
because of the immediate threat of action on that plane.
But my time is up. We will come back to that. Senator
Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Healy, let me pick up where the Chairman left off. I
understand that given how many people are listed on the TIDE
list and the fact that the quality of information is not
necessarily verified on this broadest of terrorist databases,
that it is not practical or perhaps even fair to subject
everyone who is on the TIDE list to secondary screening.
However, there is a subset of the TIDE list that are foreign
individuals who hold visas to come to the United States, and it
seems to me that it is imminently fair to subject them to
additional screening because as the Chairman indicates,
traveling to our country is not a right, it is a privilege, and
they have the means to do so because they have a visa.
So in the wake of the December 25 attempted bombing, are
you taking a look at that subset of the TIDE list for
additional scrutiny?
Mr. Healy. In short, Senator Collins, yes. And in fact,
that is part of the deliberation that this interagency group
has discussed and is making a recommendation to the
Administration about how to deal with now.
Senator Collins. I also want to talk further about the
standards that Mr. Travers referred to in his testimony. This
is difficult, because you do want to treat people fairly and
also you do not want to create a system that is so burdensome
and so immense that if you are trying to watch everybody, you
miss people you should be watching, and I understand that.
On the other hand, when I look at the minimum standards for
getting listed on the various watchlists, they trouble me
because they clearly exclude Abdulmutallab. You followed the
standards. And indeed, the information in the cable from
Nigeria from our embassy did not meet the minimum standards.
There is an implementing instruction that actually says that
those who only associate with known or suspected terrorists but
have done nothing to support terrorism are ineligible for the
No Fly List or the Selectee List. So it is easy to see why he
did not make the list. He was associating with known
terrorists, but you could not pinpoint a specific action.
That troubles me, though, that that is the standard. So I
would like to ask you, Mr. Healy, and you, Mr. Travers, I know
you are looking at that standard, but in your judgment, is that
standard too high for listing someone. Does it exclude people
who should be on the Selectee List?
Mr. Healy. Again, Senator Collins, some of the lessons
learned because of the Christmas Day event, we take into
consideration, some of the things that you have already
mentioned, such as giving credibility to a source and allowing
the individual that is interviewing that source to be able to
identify credibility. We are taking a look at the single-source
reporting and adding things to it like if you have a respected
member of the community, a father talking about his son, that
is something that we should take into consideration.
And so, yes, ma'am, all of those issues that we identified
as points of learning and lessons learned from the event were
taken into consideration and coming up with recommendations
again to the Administration about not necessarily how to change
the standard. The reasonable suspicion standard is reasonably
low, and essentially if you have credible information and
reportable intelligence that this individual is associated with
terrorism, they are going to go on the watchlist. But how we
implement it and some of the restrictions that we had
specifically about single-source reporting, labels, things like
that, we are looking at and making recommendations.
And candidly, we have been working very hard at that. We
have been meeting two, sometimes three times a week and we have
very short deadlines and I think we are going to have a product
within the next couple weeks, if not the end of the month, or
the next month.
Senator Collins. Mr. Travers, should an individual who is
known to associate with known terrorists be on at least the
Selectee List for additional screening?
Mr. Travers. I do not know that I have a solid answer for
you. I would associate myself with Director Healy's comments,
that we are looking to add flexibility into the system so that
we can deal with single-source reporting and individuals who
might not fall within the black letter description you had
there.
We have asked the collectors, what does this mean? What
would this mean for you if you were being tasked to provide
into the system nominations on individuals who are just
described as associating with a terrorist, and we do not have
an answer to that.
I have been an analyst in the community now for 30 years.
My guess is that is going to be a very large number, and I
would come back to the comment you made to open the
conversation, which was you do not want to have so many people
on this list that you stop looking at important ones because
you are looking at those that are really way down in the noise.
But in general, we are enhancing the level of flexibility that
any individual has to put somebody on the list, and that is a
good thing.
Senator Collins. One of the issues that really troubles me
is a conversation that I had with a member of the intelligence
community who said, you do not understand. We get reports all
the time from disgruntled relatives. And I am sure that is
true. But in this case, it is a highly respected member of the
community whom Nigerian officials have vouched for and referred
to our embassy officials, and that is very different and we
have to be able to weigh credibility.
I want to quickly, Mr. Travers, ask you one more question
in this round. You mentioned in your testimony, and I have
heard this before, that thousands of analysts, everyone in the
intelligence community who is an analyst, had access to those
two critical data pieces about Abdulmutallab. But there is a
big difference between everybody having access to this huge
database versus the individuals who are tasked with connecting
the dots.
So I would like to get a better sense so I can understand
this. I do not think it is a good answer to say, well,
thousands of people could have found this information, because
that is not the job of thousands of people. Whose job--I do not
mean specific names--was it to connect those data pieces?
Mr. Travers. It is a very complicated question, so you are
going to have to indulge me for a second. My only point during
my opening statement was that I do think this highlights that
information sharing, while very important, is not sufficient.
The information was shared and people did not connect the dots.
Now, clearly, the function of NCTC and the Terrorist
Identities Group and my people in particular who support the
watchlisting function, in a perfect world, when we set up the
TIDE list and the Homeland Security Presidential Directive
(HSPD-6) implementation back several years ago, I envisioned
that we would build dossiers on people and that if Russ Travers
was an international terrorist, that my people would go out and
they would go through all the databases and they will
continually update that database and ensure that Russ Travers's
record was as complete as it possibly could be.
Three years ago now, we came to the conclusion that because
of the growth in the data coming into NCTC, indeed, the
community, because the collectors were surging, we were getting
these thousands and thousands of reports a day, that we were
not even close to being resourced adequately to be able to
research Russ Travers in depth, and that is the Umar Farouk
problem, the personal name that existed out in the ether that
did not get linked with the Abuja cable.
So we made a decision. It was a risk decision, and as a
result, we focused far more on populating information into TIDE
that was being pushed to us, quality controlling it and not
being able to do in-depth analysis. What that meant in practice
was that the young analyst that received the Abuja cable with
the nomination on November 20 did her dutiful search. She
searched Umar Farouk Abdulmutallab and got exactly zero hits
because that name did not exist anyplace else in the
intelligence community traffic. So, what do we do?
Two responses at NCTC. Conceptually, what we are trying to
do is lower the bar. So again, you have this sea of dots. A lot
of them are not exploited. We believe NCTC's role is to do
that. How do you deal with those 10,000 names that are out
there, those 10,000 cables? And NCTC has taken two approaches,
one within my group and one within our analytic element.
Within my group, what we are doing is building, per the
President's direction, an effort that will do directed sort of
enhancement of records, so that we are building the proposal
that will have analysts that will do nothing but that. When
Umar Farouk's name comes in, whether or not the standard
changes in any dramatic way, you have somebody who is below the
noise level. They will be focused on going out and searching
across all of the databases to see if we as a government know
something more about Umar Farouk Abdulmutallab that can get him
pushed to Director Healy's watchlists.
The other function that we are doing with respect to ``dot
connecting'' is building something called pursuit teams, and
those exist within our analytic element, currently about 40
people drawn from the community as well as NCTC, and they have
kind of a quasi-targeting function in that they are not
producers of intelligence, is what NCTC generally does, but
instead, they are taking straws in the wind. This is something
that is kind of interesting, Nigerians going to Yemen, or an
interesting phone number, or something.
And they are digging down into that noise level, that sea
of data, and they are following through on that to completion.
Completion may be they nominate him for a watchlist. Completion
may be that the Bureau opens a case on them or something. This
is an experiment, but it is born of the belief that there is so
much information out there that somehow we need people that are
going to go down and focus in on that information that is below
that which is readily identifiable as terrorism.
So those are the approaches that we are taking.
Senator Collins. Thank you.
Chairman Lieberman. Thanks, Senator Collins. Senator Brown.
Senator Brown. Thank you, Mr. Chairman.
As I mentioned earlier, and thank you once again for
allowing me to make a brief statement, this is something I
think about every day, and especially since we had that issue
around Christmas-time. I have often wondered, is it a
resourcing problem? Is it a tools and resources problem? Do you
need more of both to expand the type of coverage we need to
help? Is there something that we are missing that we can
provide to the various agencies in terms of tools and
resources? Let us start with that question, if we could, to
anyone who feels it is appropriate to answer. I am looking at
all the agencies.
Mr. Travers. I think it is a whole series of issues. As I
mentioned to Senator Collins, there is partly a resource issue.
If you want to start exploiting more and more of that noise
level, the information that just is way below the surface, then
there is a resource issue to it.
There is a limitation of the names-based system, so all of
us are moving towards biometrics as quickly as we can because
that is part of the answer.
There are some technical issues, for sure. Those technical
issues merge with policy and privacy issues in a hurry, in that
I mentioned the 30 networks that we have coming into NCTC. You
can not just commingle that data. Why? Because you have
tremendous amounts of U.S. persons data in some of those
networks. And so this gets into a very difficult area for us in
terms of the bleeding over of foreign and domestic, and those
are some of the issues that Mike Leiter is looking particularly
hard at.
And that gets to the issue of kind of Google-like searches.
As I mentioned, we can do Google-like searches across some of
the foreign networks, but you can not do a search that goes out
against the FBI stuff or a search that goes out against the CIA
material and pull things back. And so those technical
limitations are born of privacy, policy, and security issues.
Mr. Healy. If I may add, the challenge is also, as Mr.
Travers pointed out, trying to identify these terrorists. There
is no Driver's License Bureau where bin Laden goes to and says,
``I need my terrorist card.'' These individuals are identified
by fragments of information. They are identified by overheard
conversations. They are identified by a source saying, this guy
is involved in it. So it is not a black-and-white system. It is
a system that we continue to search and try to identify these
nuggets of information so these individuals are watchlisted. It
is a balancing act between civil liberties and the protection
of the American people.
So it is a challenge, and because of the name-based system,
it is always going to be a challenge. In some cases, on the No
Fly List, you need name and date of birth. The reason for that
is because that is how we identify people. So it is a challenge
just with the whole process and trying to identify these
individuals.
Every day, I talk to my staff and tell them, if you make
one mistake, people could die, and all we have to do is make
one mistake. We have to be right every single time, and all the
terrorist has to do is be right one time. So it is always going
to be a challenge. Resources are always a challenge----
Senator Brown. I guess what I am trying to ask is,
obviously, we are dealing in budgetary issues coming up. The
safety and security of anyone traveling in the United States is
one of my top priorities. It would be helpful to me to know in
real numbers and in real needs, what do you need to do your
job? Are we missing something? Do we need to do more in one
area or less in another? Do we need to shift? I mean, fact
versus fiction. What do you need to do the job the best you
possibly can?
That is one of my main concerns. So if there is anything,
maybe offline I can meet with somebody to let me know what that
is, because we are formulating those priorities and I want to
make sure that we can keep people who are traveling in our
country safe. So thank you for those answers.
I just had one other question. If there is somebody who is
actually on the various lists and they are--in fact, I get a
lot of these calls, even when I was a State Senator. How do
they get off of it? If they clearly do not have any terrorist
ties, it is just by some similarities of names. Is there a
process or somewhere where you can direct me where I can direct
these people to get off that list?
Mr. Healy. There actually is, and we work with DHS. Did you
want to go over that?
Ms. Rossides. Yes, sir. DHS has a redress process where
persons who think that they are on either the No Fly or
Selectee List can apply. It is an online process. And we work
with the TSC to make sure that the individual is actually
cleared. They then get a letter saying that they are cleared.
They get a redress number so that when they book travel in the
future, they can actually reference that redress number, and it
should automatically clear them so they do not have a
continuing problem.
Senator Brown. Where do I direct them?
Ms. Rossides. You could direct them to the TSA Web site
where there is a link there for the application to apply for
redress.
Senator Brown. Thank you. Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Brown
I appreciate Senator Brown's question. These questions do
come up and it does seem to me, though there clearly is a
problem of false positives, such as the case with an Arab name
where there are a lot of similar names in the phone book, or
the cases we have heard about here where Grandma gets stopped
because she has a similar name, or the young boy who was
stopped a few times, but that can not be an excuse for limiting
the names on the watchlist because there is some reason to put
somebody else with that same name on the watchlist and they
belong there.
And so I think the redress process you have set up is a
good one. I do not know what latitude you can give your TSA
people at the site, CBP at the site, or airlines at the site of
entry. I guess anytime you have any latitude, it is a problem.
But it just seems to me if you have a 7, 8, or 9-year-old boy
and he has the same name as somebody on the list, it is pretty
obvious that he is not the one and he ought not to be stopped
from getting on the plane.
Ms. Rossides. Exactly, Senator. In fact, what will happen
is--particularly when a child shows up at the ticket counter--
there is an actual call made between the carrier and TSA to
immediately rectify that problem.
Chairman Lieberman. That is very good.
Ms. Rossides. We try to do it in real time, as well, so
that we can clear up those kind of situations.
Chairman Lieberman. So that case would not happen again.
Ms. Rossides. It does not happen that frequently, sir.
Chairman Lieberman. Yes. So it has become an urban myth. It
keeps being cited. Thank you.
Senator Carper, we have welcomed in absentia for the moment
Senator Kaufman and commented on the disproportionate
representation that the State of Delaware now has on this
Committee.
Senator Carper. Our Congressman wants to be on it, too,
probably. [Laughter.]
That is a story for another day.
Chairman Lieberman. All right. Thank you.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. So does our County Executive from Northern
Delaware.
But we welcome Senator Kaufman. I just came from a meeting
with him and a bunch of folks from our State. I am sure he will
get here if he can.
I want to certainly welcome Senator Brown. I am delighted
you are with us and we are going to take one of those
congressional delegations (CODELs) and go to Afghanistan and
Pakistan next month. Sometimes our staffs go on staff
delegations (STAFFDELs) and we have had a couple of them who
went over from our staff, I think Senator Lieberman's and
Senator Voinovich's staffs also, among other places they
visited were Yemen and Saudi Arabia and they spent a little bit
of time in Holland and in Germany.
I will not get into Saudi Arabia and Yemen, but one of the
things that they heard about in Holland, especially with
respect to the Amsterdam airport, was the kind of behavior
assessment or profiling that takes place at some of those
airports. The Israelis are, I think, especially noted for these
techniques.
But I am told that you have airport security officials who
try to identify and prevent bad guys from getting on airplanes
and causing trouble. They do it, in part, by observing the
passengers, I think before they get to the gate, maybe after
they leave the gate. I understand that the airports position
well-trained personnel at various points before and after
ticket counters to ask questions politely, to scrutinize facial
expressions, to check out body language and speech pattern.
I do not know if this is a good idea or not. The Israelis
think it is and some other countries do, as well. But I would
just be interested in hearing the thoughts of our witnesses
today on this type of screening and to ask if you think there
is something that we can learn from what some of these other
countries are doing.
Ms. Rossides. Yes, Senator. Actually, TSA has worked with
the Israelis and other countries, and we do have a Behavior
Detection Program in TSA that we have deployed across U.S.
airports. We have several hundred officers that are trained as
Behavior Detection Officers, and they actually look for the
behavior anomalies that you describe.
Senator Carper. Could you be more specific? I do not want
you to talk out of school, but could you give us some idea of
what you are looking for?
Ms. Rossides. Most of it is sensitive security information
that I could not give you and----
Senator Carper. I understand.
Ms. Rossides [continuing]. We would be happy to provide you
a briefing in a closed session.
Senator Carper. OK.
Ms. Rossides. They do look for anomalous behaviors that
should not be displayed by the everyday traveler. When they do
that, they will respectfully approach the passenger, engage
them in some simple conversation. Depending upon what they
glean from that discussion, they may actually refer them for
secondary screening in the checkpoints. We have several hundred
of these across most of the largest airports here in the United
States.
I also would say that some of what we are continuing to
learn is really sharing best practices from our counterparts
like the Israelis. This really is a global effort, and
particularly in the aftermath of December 25's event, what we
have seen is the willingness of our global partners to actually
come to us and the Israelis to learn about our Behavior
Detection Program and also to learn about the technology that
we are now deploying across U.S. airports. And I am happy to
say that since December 25, we have had at least eight, if not
closer now to a dozen, countries that are going to be deploying
this advanced technology at U.S.-bound gates and terminals.
So there is quite a bit of information sharing and best
practices that we are doing.
Senator Carper. Good. Do any other witnesses want to
comment on this, please?
Mr. Aguilar. I would just add, Senator, that with Customs
and Border Protection, both foreign and domestic, at locations
where we are foreign deployed, the same type of training is
given. It may vary a little bit, but the same type of basic
training is given to the officers in order to detect that
anomalous reactions, if you will, to being confronted by
officers.
Senator Carper. Thank you.
Dr. Stephen Flynn, of the Center for National Policy, who
is, I think, fairly well known and a respected homeland
security expert, recently met with my staff and with me. He
said something that hit home regarding aviation security. He
said basically, and I am going to quote him, ``In searching for
that needle,'' like a needle in a haystack, ``we need to take
some hay off the stack and ensure that the screeners be logical
in their approach.''
And this may follow up on something that Senator Brown was
saying, but I asked him to explain what he meant. He is
essentially saying that, for example, if you see a great-
grandmother and a 6-year-old child, you might want to place a
little less scrutiny on them than someone else who is maybe
younger or maybe older and someone who might realistically pose
more of a threat.
Ms. Rossides, if you would please just comment on what Dr.
Flynn said.
Ms. Rossides. Yes.
Senator Carper. And let us know if the screeners are
trained to adapt their techniques based on the age of the
passenger.
Ms. Rossides. Well, sir, the challenge that we have is
balancing the requirement to screen all passengers and to
actually focus our officers' attention on the right passengers
per se as you describe.
I will tell you, based on the intelligence that I see every
day, that I would not sit here and say that there would never
be an elderly person that could be used to be a carrier of a
bomb on an airplane. I have seen around the world people used
for this purpose who are in wheelchairs. I have seen them use
young people. And that is our challenge.
But what we have designed here in the United States and
what our global partners are doing with us is a multi-layered
approach so that we really do, through our Behavior Detection
Program, through our use of advanced technologies, through what
we are doing randomly with Explosives Trace Detection
Technology, look at passengers maybe a second time or give some
random unpredictability to the system. We are not always
predictable, and you can not always guarantee that somebody of
an age type or certain characteristic will or will not be
screened.
But it is a challenge, and we will modify what we do, and
sometimes TSA does get criticized, as to why are we focusing on
toys or something. I will tell you, what we do is based on the
intelligence that we are getting.
Senator Carper. Would it be appropriate to share with us
and the broader public, just some examples of things that you
have found? Were there toys and things that are in wheelchairs?
But is there something you can share with us? I heard on
National Public Radio (NPR), I do not know if it was NPR, but I
was driving to the train station last week and they were
reporting outrage. A young child, maybe a 2-year-old child,
maybe handicapped, the father was a policeman and was
scrutinized. Can you give us some examples of why it is
actually important that we do that scrutiny?
Ms. Rossides. Yes, sir. Every day, I will tell you that we
see things coming through checkpoints in the United States that
are amazing, that people are trying to secrete on their
persons, in wheelchairs, and in canes. People will conceal long
knives or swords in canes. At least a couple of times a year,
particularly around the holidays, we find guns in teddy bears.
We find component parts in children's toys. It is amazing what
we see. We actually do put out on our Web site information that
will identify things that we are looking for and why,
explaining at least why we have to take a closer look at some
of these things. The officers get information on a daily basis
in their shift briefings about those kinds of very common items
that we are actually seeing people conceal things in, trying to
get on board the aircraft.
One of the things that we see as our responsibility,
particularly this year as we are rolling out this advanced
imaging technology, is our very significant responsibility to
educate the traveling public about the benefits of this
technology, about their options to go through this technology
or not, and really to understand why this is an increased
detection capability for us that will actually ensure their
greater safety.
We do try to inform the public when we can on things that
we are seeing and why things are subject to the screening as
they are.
Senator Carper. All right. That was very helpful. Thank you
very much.
Thanks, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Carper.
That was helpful. I will bet the traveling public will be
encouraged to hear about the behavior identification work that
is being done without apparent knowledge. It is important.
The other thing I do want to say, and Mr. Travers referred
to this briefly in another regard, that the more we move to a
biometric system of identification, obviously, the problem of
false positives is reduced or eliminated totally, and that is
another reason to try to do that as quickly as we can.
Mr. Healy, I want to clarify. Did I hear you say that you
thought the process of review of the standards for inclusion in
the use--terrorism watchlists and the use of the watchlists
that is being carried out pursuant to President Obama's
directive post-Christmas Day bomber, that you thought it would
result in recommendations by the end of this month, or were you
referring to something else then?
Mr. Healy. No, sir. I do not want to cut the group off--but
we have been working very hard and I think we are wrapping it
up right now. We have some very tight deadlines, much tighter
than I would have expected, but the team is working very
diligently and I expect to have some recommendations very soon.
Chairman Lieberman. So this is an interagency process. Are
you chairing that as the head of the TSC?
Mr. Healy. Yes. I would say it is a joint between myself,
Mr. Travers, and the White House, going through the issues that
were raised and specific issues of the threat issues that we
have.
Chairman Lieberman. Right.
Mr. Healy. We have representatives from everyone here that
participates in that, as well.
Chairman Lieberman. So will you make a recommendation to
Homeland Security Advisor John Brennan or the President, or
will you actually adopt a change yourself?
Mr. Healy. We are actually making a series of
recommendations to the Deputies' Committee that Mr. Brennan
chairs----
Chairman Lieberman. Right.
Mr. Healy [continuing]. That will be obviously forwarded up
to the White House. We have had a couple of sessions with the
Deputies' meetings, just basically giving them an indication of
where we are at, some interim issues that we have identified,
and gotten some very specific guidance about how to proceed. So
that process is ongoing and continue to mature.
Chairman Lieberman. Well, we look forward to the results of
that. I appreciate your work on it.
But Mr. Travers, I just want to clarify something in that
regard. Director Leiter, when he was before the Committee last
time, I am pretty sure said that the No Fly List, that is the
top category, was expanded in the aftermath of the Christmas
Day bombing attempt. Can you describe for us, generally
speaking, what has changed?
Mr. Travers. I will actually defer to Director Healy. There
have, indeed, been significant numbers of people added to the
No Fly List, and since Mike Leiter was here, far more.
Chairman Lieberman. Yes. OK. Mr. Healy.
Mr. Healy. Right. Just so we are clear, the criteria for No
Fly-Selectee has not changed.
Chairman Lieberman. Right.
Mr. Healy. What has happened that I think Mr. Leiter was
referring to is based on the intelligence as a result of that,
we were directed to move a number of people on Selectee and No
Fly, very similar, Senator Collins, to what your concerns were.
As a result of that----
Chairman Lieberman. In other words, to move them from
Selectee to No Fly, or from----
Mr. Healy. Move them from TIDE into TSDB, TSDB into
Selectee, Selectee into No Fly----
Chairman Lieberman. So it was all up the chain of the list.
Mr. Healy. And it was not just ticks. It was, if you
identify this particular----
Chairman Lieberman. What is a tick?
Mr. Healy. Stages. You did not go into the TSDB and then
move to Selectee. Based on the threat reporting, individuals
were moved onto No Fly. Based on the reporting, individuals
were moved into Selectee. Based on the reporting, individuals
were moved from TIDE----
Chairman Lieberman. So there was new reporting, or was it
that you went back and took a second look without changing the
standards?
Mr. Healy. It was a culmination of the threat that we had
and the intelligence, and as a result of that, we were directed
by the White House to move a number of people, and the process
right now in that movement is a deeper dive on all those
individuals that the agency and the FBI are participating on to
determine if there is any additional information, and that
process is ongoing.
Chairman Lieberman. Right. But the other process that you
are working on that we talked about a moment ago, that you will
report to Mr. Brennan and the Deputies' Committee at the White
House, is standards for inclusion on the various lists----
Mr. Healy. Yes, sir.
Chairman Lieberman [continuing]. And the way in which those
lists are used.
Mr. Healy. Yes, and to address issues that Senator Collins
pointed out, that if you have a single source reporting----
Chairman Lieberman. Right.
Mr. Healy [continuing]. Should you allow that individual
that is talking to that potential source to be able to judge
his credibility.
Chairman Lieberman. OK.
Mr. Healy. Issues like that have been raised up and are
being forwarded.
Chairman Lieberman. Let me ask, I guess primarily Mr. Healy
or Mr. Travers, for some clarity on these technological
questions, because I was surprised in your opening statement. I
do not think it was an absolute statement, Mr. Travers, when
you kind of indicated that the Google-like searches that
Senator Collins and I referred to cannot be done by the
National Counterterrorism Center. In other words, we are
accustomed to this remarkable ability to search an enormous
number of databases quickly and have the information come up
through a search process like Google.
My impression from Mr. Leiter when he testified here is
that now, your analysts at the National Counterterrorism Center
cannot--and let us simplify this. Let us just take the name
Umar Farouk Abdulmutallab. They can not search that across all
the databases like that. They have to sort of dig down into
each database. Am I correct?
Mr. Travers. Yes, sir. As I mentioned, there are 30 or so
networks that come into NCTC. We clearly cannot do a Google-
like search across all 30 of those networks for some of the
policy-privacy reasons I suggested. My analysts within the
Terrorist Identities Group can do a Google-like search that
will take them out to the terrorist message traffic that will
come in from many of the organizations that will go into a data
repository. They can search across that. And with TIDE,
actually what they find is the same problem you have if you do
a Google search at home. You may get so many reports back----
Chairman Lieberman. Yes.
Mr. Travers [continuing]. That you get thousands, and that
does not help you very much, either. There is no question that
an analyst could have after-the-fact fashioned a query that
would have been very precise and you would have gotten the
limited reporting that exists on Umar Farouk. The challenge is
knowing what you are searching for.
Chairman Lieberman. I understand all those problems and I
accept their reality, but when you answered the question just
now, you referred again to the privacy concerns about searching
all the databases at once. But do we have the technological
capability at the National Counterterrorism Center to quickly
search all the 30 networks of information you have coming in?
Mr. Travers. The technological capabilities flow from the
policy enablers and there are some unanswered questions on both
the operational side as well as the privacy side that limit our
ability to implement a technological solution. I think if our
chief information officer (CIO) was here, she would tell you
that the technical issues are not the long pole in the tent.
Chairman Lieberman. Well, that is sort of both encouraging
and discouraging, I must say, because I do not want to diminish
privacy concerns, but to me, they must be secondary to the
quest--just as you said, one mistake and people get killed. One
time a terrorist breaks through the networks and that is all
they have to do, one time and they are successful.
The reason it is encouraging, I thought it was that we did
not have the right equipment, the right information technology,
but in a way you are saying to me now, if I hear you correctly,
that it is really more a question of the standards that we have
that stop your analysts from searching all the networks at
once.
Mr. Travers. Yes. Our CIO Office for a number of years now
has been looking forward to how do you build a data layer that
will allow you to do searches that will get you to all of the
data.
Chairman Lieberman. Yes.
Mr. Travers. I mean, if you carry this to its logical
extreme, people begin to think you are talking about Total
Information Awareness (TIA), and Admiral Poindexter and so
forth. Well, clearly, that is not the direction you want to go.
However, you do want to get to the point where you can search
across all data that might have a terrorism nexus. Some of that
data may be DHS data. It may have asylum seekers, refugees, and
U.S. persons in it. Where is the right balance? And those are
some unanswered questions.
Chairman Lieberman. My time is up. I must say, and I think
the whole Admiral Poindexter brouhaha ended up sending some
wrong messages, because I thought--it may have been because of
his personal background, too--he was asking reasonable
questions. They may not have been perfect questions, but he was
trying to push the technology to make it maximally helpful to
us in our quest to stop people from----
Mr. Travers. Yes, sir.
Chairman Lieberman [continuing]. Doing us damage.
Mr. Travers. We would agree that there is no question that
a human being is not going to be able to go through all that
data.
Chairman Lieberman. Yes, exactly.
Mr. Travers. You have to use technology.
Chairman Lieberman. Yes. Thank you. Senator Collins.
Senator Collins. Mr. Chairman, I am going to yield to
Senator Brown first because he has a scheduling conflict.
Senator Brown. Thank you, Senator, and Mr. Chairman, I
appreciate it.
I just had one quick question, probably to Mr. Healy. When
you are making that recommendation to the President, I am not
sure if this is the appropriate vehicle to do just that, but do
you recommend how the people who are actually caught trying to
hurt us, such as the Christmas Day bomber, should be treated in
terms of prosecution or interrogation? Will there be that type
of recommendation within what you are doing?
Mr. Healy. No, sir. I was specifically asked to take a look
at the watchlisting standards and No Fly, the Selectee, how
that particular process worked, and that is where I am focusing
it. With regard to what you just asked, no, that is beyond----
Senator Brown. Who will be responsible for making those
recommendations to the Administration?
Mr. Healy. I am not sure, sir. I would defer that question
and I would like to get back to you, if I could.
Senator Brown. If you could, that would be great.
Senator I appreciate you deferring, and thank you, Mr.
Chairman.
Senator Collins. Thank you.
Ms. Rossides, I think you preformed a very important
service today by reminding us that we cannot have profiles in
our mind of what a terrorist looks like and that a terrorist
can use a young child or an elderly person in a wheelchair. We
should all be reminded of that by the story that broke in the
news today, where a blonde, green-eyed woman from Pennsylvania
turns out to be suspected of terrorist acts. So I think that is
a very good reminder to all of us.
I recently was returning from Zurich and had to go through
a full pat-down and I thought, what a waste. I have shown my
ID. It is clear who I am. Why am I having to go through this?
But the fact is, that random quality of selecting people is
important, and I think you have given us a good reminder of
that today.
I want to give you a chance today to respond to concerns
that have been raised by various outside groups--I think one is
the Electronic Privacy Information Center--about the full-body
scans. I would like you to address not just the privacy
concerns that have been raised, but also the health concerns. I
happen to know that TSA looked at the health concerns and did
an analysis of the exposure to the radio waves, but I do not
think the public at large knows that. So if you could comment
on both of those issues.
Ms. Rossides. Yes, Senator. First, with respect to the
privacy, from the very beginning when we started to test this
new technology, we filed a Privacy Impact Assessment, and we
held a lot of meetings with privacy groups and various interest
groups in our wide net of stakeholders. We have gone to the
point where, today, where we have this technology deployed,
there is a clear separation between the Transportation Security
Officer (TSO) or the officer who is facilitating the passenger
going through that technology and the actual officer who is
seeing the actual image of that passenger. The two officers
never overstep so that the officer that is with the passenger
never sees the image of the passenger in the technology and the
officer that is viewing that image is located in a remote
viewing room.
The standards for the officers who are viewing those images
is very high. They are not permitted to bring cellphones into
the viewing area. They are not permitted to take a picture. And
most importantly, the technology is set up such that the
operator cannot store that image, they cannot copy it, they
cannot transmit it electronically to another work station. So
we have taken a lot of measures from a privacy standpoint to
protect the traveling public.
In addition, the passengers are advised that it is
optional. If they do not want to go through this technology,
they can have alternative means of screening.
The health and safety aspects of it were also very
important to us from two standpoints--first, from the traveling
public's standpoint for every passenger, as well as for our
officers who would be near that equipment all day long. We had
a number of Federal agencies, including the Food and Drug
Administration, and the National Institute of Standards and
Technology (NIST), look at the standards that the manufacturer
certifies to in terms of health and safety. We also asked Johns
Hopkins University's Applied Physics Lab to take an independent
look at the technology and give us their independent assessment
of its safety.
And in essence, for the two different types of technology,
the exposure is equivalent to less than 2 minutes of air time
in an airplane at full altitude or less than 10,000 times your
radiation or your exposure when you are on your cell phone. So
it is very minimal. You would have to fly, I believe the
standard is, 15,000 times a year to be exposed to anything that
would reach the very baseline of a question in terms of the
health and safety standards.
Senator Collins. Thank you. That is very helpful testimony
for us to have.
Mr. Aguilar, I want to first tell you and thank you for the
extraordinary service we have had from a detailee, Matt Hanna,
from your agency. He has really added to our knowledge of CBP
and we appreciate it.
I want to talk to you about the screening computer program
that is known as the Automated Targeting System. This is
intended to identify travelers for additional screening even if
they are not on the terrorist watchlist. So again, it is part
of this layered approach to security.
Now, following the Christmas Day attempted attack, DHS
started requiring passengers who are citizens of or traveling
from one of 14 countries to undergo additional physical
screening before boarding a flight to the United States. What
worries me about that approach is it seems to me to not really
be risk-based and to encourage terrorists to travel through
other countries or use citizens of countries that are not on
the 14-country list.
I can understand why we would want to put Yemen, for
example, on that list, and that may make sense. But it seems to
me that we know that terrorists are smart. They are adapting
constantly. And when we advertise that these 14 countries are
going to be subjected to additional screening, we just
encourage them to go around that.
Why instead would not we make increased use of the
Automated Targeting System to identify high-risk travelers
rather than doing this blanket approach?
Mr. Aguilar. Senator, you hit on something that is
absolutely critical to helping secure this Nation, and that is
what you are referring to is addressing the unknowns. When we
talk about the watchlisting, when we talk about the biometrics,
when we talk about the knowns, that is, frankly, in our world,
the easy part of finding the bad people. What you are referring
to is finding the unknowns.
Taking Umar Farouk Abdulmutallab, for example, had his
father not come in with that piece of information, he would
have been completely unknown to us. But by utilizing the
Automated Targeting System (ATS), the targeting system that we
utilize, we take into account tidbits of intelligence that may
or may not be in the TSDB. We take what we believe to be known
or might be known travel routes coming into the United States,
origins, things of that nature.
So that is managing risk. That is what that system is
specifically used for in order to address the unknowns that
might be coming into our country. We use that on a constant
basis. It has been very successful.
Now, as to the 14 countries, and I will leave the rationale
for the 14 countries' delineation to my partner from TSA, but
after December 25, 2009, we needed to do everything possible to
ensure that not only the knowns, the unknowns, but any other
gap could have been closed, and that was the original reason
for the 14. But again, you hit on something that is absolutely
critical that we not forget about, and that is the unknowns
trying to get into this country that we have absolutely no
idea. We have just tidbits of information that we basically
address by focusing our intelligence, by focusing our efforts
on what we do know of modes, means, or rationale as to how they
try and get into this country.
Senator Collins. Thank you. Mr. Chairman, just one closing
comment, if I may.
Chairman Lieberman. Go right ahead. I actually have a few
more questions----
Senator Collins. Oh, you do? OK.
Chairman Lieberman [continuing]. So if you want to do
another round, Senator Collins, fine.
Senator Collins. That sounds great.
Chairman Lieberman. Good. Thank you.
In the last round of questions, I asked about the ability
to do a Google-like search of a similar name or subject across
all the networks, but I wanted to ask you also--we talked about
this last time with Mr. Leiter and others who were here, and
this, I did not understand very well--I know that in the
private sector, there are some computer programs that do not
search for the exact same name but have the capacity to make
connections of words or topics.
In this case, part of the frustration was, as I mentioned
in my opening statement, we knew from one intelligence source
that there was a Nigerian training with al-Qaeda in the Arabian
Peninsula. We had another intercept that suggested something
might be happening around the Christmas holidays. We had
another intercept that identified a man by only his first two
names, Umar Farouk. And then, of course, we had the father come
into the embassy.
And then this problem we have now is this enormous amount
of data that you said--the numbers are stunning, 10,000,
essentially, new names suggested every day, more data
collected, primarily by the National Security Agency (NSA), I
presume, every day than is in the Library of Congress. So this
is impossible for humans to sift through in a timely way.
To your knowledge, are there systems, software, programs
that we can or should acquire that can make a stab at not the
same name everywhere, but bits of information that a quick
search may tie together?
Mr. Travers. Yes, sir, and as I suggested, we are utilizing
many tools and are always looking at others. The issue of
alternative names is a relatively simple one, I think, that
probably all of us at this table have capabilities resident in
our departments and agencies that will deal with cultural
differences and spellings and so forth, and so we have that
one, I think, relatively licked. It does present problems when
you are trying to do this on a massive scale and correlate it
with other data because now you have 100 different spellings of
one name and they reach out and touch other data and now do you
have false positives? Absolutely.
Chairman Lieberman. Yes, but what about the case that we
had with Abdulmutallab. Is there a computer system that might
conceivably have picked out those similarities that I just
mentioned--Nigerian, Umar Farouk, then the father comes in and
cites Umar Farouk Abdulmutallab?
Mr. Travers. If you tailor a query, absolutely. Then it is
a very simple process.
Chairman Lieberman. Give me an example of such a----
Mr. Travers. If you had searched on ``Umar Farouk'' and
``Nigeria'' and allow it to use alternative spellings, then it
is an easy question. It was, just as Mr. Aguilar indicated, if
you know what you are looking for, then the query is easy.
Chairman Lieberman. Yes. So we have the equipment to do
that kind of search now across the databases?
Mr. Travers. That is correct. My analyst could have, in
fact, found that linkage if she had known to make the query.
Chairman Lieberman. Right.
Mr. Travers. There are things, latent semantic indexing,
that will allow you to generate new knowledge, you can pour in
many cables, and they don't necessarily find a direct linkage,
but because they can learn, if we are smart enough to program
the algorithms, that they can connect pieces of information. We
are certainly experimenting with that, as well, and certainly
there is the next generation of analyst notebook kind of things
which make pretty pictures and link a lot of people together.
Chairman Lieberman. Right.
Mr. Travers. Frankly, any analyst will tell you that is
just the beginning. Now you have a tremendous amount of
information. Now you have to burrow down into one correlation
between two individual points.
Chairman Lieberman. Well, technology has taken us very far
very rapidly, so hopefully it can help you sift through all
that information that comes on your desk every day.
Commissioner Aguilar, let me go back to that question about
when you get the information about passengers coming on a
plane. A lot of times, including with Abdulmutallab, we
actually did not have the information until he was on the
plane. I wonder what you think about creating a rule that we
thoroughly screen each flight's passenger manifest against all
our databases at least 24 hours, if not longer, before the
airplane is set to depart, understanding that not everybody
will be on a database 24 hours before, but most of the
passengers probably will be.
Mr. Aguilar. Right. Yes, sir. The more information we have
available to us quickly is going to enhance our capabilities to
affect the intent of anybody trying to board a plane coming
towards us.
Today, we use what is known as a Passenger Name Record, the
PNR.
Chairman Lieberman. Right.
Mr. Aguilar. But as I stated earlier, it does not give us
all of the elements that we need. We are working with the civil
aviation industry to try and get them to get us the information
that will get to us up to 72 hours before so that we can start
running the passengers against our systems.
I believe you are aware, also, that prior to actual
boarding, 30 minutes before, we do get the full biographical
information of the passengers when they either swipe their
passport or the carrier provides us the batch information that
will give us those capabilities. But to the degree that we can
get more information as quickly as possible, it will be a
tremendous enhancement to our capabilities to run against all
the databases.
Chairman Lieberman. I appreciate that answer. So, really,
you are pushing it now to see if you can get that information
up to 72 hours before flight departure.
Mr. Aguilar. Yes, sir. The PNR data, yes. We start at 72
hours, at 24 hours, 8 hours, and one hour before, and then we
get the APIS data at 30 minutes before boarding.
Chairman Lieberman. I guess it is a question of whether you
can get the APIS data earlier than 30 minutes before, because
that is really the more helpful data.
Mr. Aguilar. That is going to be the data that gives us the
full information on the passengers that are going to be on the
manifest, yes, sir.
Chairman Lieberman. Please let us know if there is anything
we can do legislatively to expedite that process for you. That
is really important.
Mr. Aguilar. Thank you, sir. We are working closely with
the industry right now, but we will get to you if that does not
work out.
Chairman Lieberman. Good.
Administrator Rossides, I want to ask you a final question.
It is my understanding that, and you refer to this somewhat in
your opening statement, on Christmas Day last year, shortly
after that Northwest Flight 253 landed in Detroit and
authorities began to investigate the incident, somebody at NSA
determined that a pilot should be alerted to what authorities
knew at that time. What I have been told was that TSA alerted
all transatlantic flights that someone had tried to light a
combustible substance and that pilots should notify passengers
that all carry-on items needed to be stowed one hour prior to
arrival. The message was sent by TSA via the Federal Aviation
Authority (FAA), by the FAA alert system in every cockpit of
every plane, and I think two subsequent messages were also sent
which contained some additional information.
So I wanted to ask you two questions, both looking back but
also looking forward. Obviously a lot of this is quite
commendable. Who at TSA made the determination to send those
particular alerts? And then my question looking forward is, if
my information is right, why was a decision made to send them
to only the transatlantic flights? In other words, given the
imperfect information we had at that point about what was going
on and the knowledge that we had of sometimes these attacks
being sequenced, not just one at a time, why didn't TSA send
those alerts to all aircraft flying into, across, or out of the
United States?
Ms. Rossides. Yes, Senator. Actually, I made the decision.
I was on the call in the aftermath, as we got word of the
flight in Detroit. We had FAA on the bridge call with TSA and I
made the decision to have FAA notify those pilots.
We did, as the information was very rapidly coming in to
us, we did a very quick assessment of how many flights for the
next 8 hours were inbound to the United States, and 128 of them
were inbound from Europe. It was my decision to notify those,
based on the intelligence that we had, based on the fact that
this particular flight had come from Europe.
As part of our process after every one of these incidents,
we do a hot wash and look at what should we do differently, and
we have already added it into our Critical Incident Plan, that
if we were to face another incident like that, we would notify
additional carriers beyond those that we had in our window in
those 8 hours in that specific region. It is one of the lessons
learned from that day.
Chairman Lieberman. Very good. So in other words, if that,
God forbid, happens again, you would notify carriers flying in
the United States as well?
Ms. Rossides. Right.
Chairman Lieberman. Thank you. Thanks for the initial
decision you made and thanks for the lessons learned.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Ms. Rossides, you looked as if you wanted to comment when I
was having the exchange about the 14 nations that were listed
versus greater use of the ATS. Would you like to comment on
that issue?
Ms. Rossides. Yes, Senator. It was actually TSA's decision
to identify those 14 countries in the immediate aftermath of
the Christmas Day event. Most of those 14 countries are listed
on the Department of State's Counterterrorism Report. It is the
Counterterrorism Report from 2008. It is actually on their Web
site, and those are reported and identified as state sponsors
of terrorism or safe havens for terrorism. That was part of
what we looked to do.
We were looking to do some very immediate things to
literally blunt what could have been another attack, and so
that was one of many measures that we put in place in literally
the days and hours after the Christmas Day event and in the
subsequent weeks. It is something that we do all the time, and
we are now in the process of reviewing that list with the
Secretary as part of the initiatives that she has to look at in
building more of a global information sharing capability.
So something that we will continue to look at is those
countries. But it was a blunt measure because we just did not
know who else was traveling and where they were traveling from.
Senator Collins. Thank you.
Ms. Rossides. Thank you.
Senator Collins. Mr. Travers, I just want to pose my final
question today to you. I was a bit concerned in the discussion
you had with the Chairman about the databases across government
that you pointed to policy and privacy reasons why there could
not be a search across these databases rather than technical
reasons. And the reason I am concerned about that is we are
trying to get away from the stovepiping. We want that exchange.
Now, I recognize the concern with U.S. persons versus
foreigners, but we tried to break down a lot of those walls
when we passed the 2004 landmark law. What are some of the
specific policy and privacy standards that prevent you from
searching across databases?
Mr. Travers. I do not pretend to be a privacy lawyer, but I
will tell you that we have been working for many years to get
data sets from different departments and agencies. We have had
a fair amount of success with getting an analyst native access.
That is, they can go in and log onto one of those 30 networks
and access another department or agency's data set.
What gets to be far more complicated is if we want to
actually ingest a full data set so that we can apply the kinds
of tools that we were talking about earlier. That gets harder
for departments and agencies because now they are basically
giving up control of that data, and generally, it is not either
foreign or U.S. persons. Increasingly, we have data sets that
are commingling data. They have both there. And so this
provides a complicated problem set for the different privacy
advocates and lawyers at the different departments and agencies
about how far they can or should go with respect to allowing
individuals like me, an intelligence community officer, to be
pulsing around their data.
And so we have been working with probably 12 or 14
different departments or agencies. We have had some success
with some, lesser success with others.
Senator Collins. That is an issue, Mr. Chairman, that I
think we are going to need to proceed to pursue further.
Chairman Lieberman. No, I agree. It has been a little
unsettling to hear some of the answers.
And again, I appreciate everything the four of you have
done. Of course, I am very proud of NCTC. I do not minimize the
difficulty of these decisions, but I do think, ultimately, in
these cases, security has to be given much more weight than
privacy because of all that is involved.
My guess is, if you ask the American people what they would
want us to do, they would say, I want you to protect my
security. I am willing to give up a little of my privacy for
that.
We will continue this discussion. But again, this review
began on the 5-year anniversary of the 9/11 Commission
legislation, which established the Director of National
Intelligence (DNI) and the NCTC, and, of course, we have now
been longer than that into the experience in the Department of
Homeland Security. So we are way more protected. The American
people are way more protected than they were on September 11,
2001. That is the good news.
But we can do better, and that is part of our job to
continue as the oversight committee to push on this. So the
changes that you have made in various ways across the agencies
represented here since Christmas Day are constructive and
helpful and increase security, and I look forward to the report
and changes in policy on the watchlist, and, of course, as
Secure Flight is implemented, it will be even a better
situation.
But anyway, I thank you for what you do every day. Please
continue to do it, and we will continue to push you and
question.
The record will remain open for 15 days on this hearing for
additional statements and questions.
Senator Collins, do you want to add anything?
Senator Collins. No. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much.
The hearing is adjourned.
[Whereupon, at 12:06 p.m., the Committee was adjourned.]
THE LESSONS AND IMPLICATIONS OF THE
CHRISTMAS DAY ATTACK: INTELLIGENCE
REFORM AND INTERAGENCY INTEGRATION
----------
WEDNESDAY, MARCH 17, 2010
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:32 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Carper, Kaufman, and Collins.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Good morning. The hearing will come to
order. Senator Collins and I apologize that two votes went off
that we obviously had to be on the floor for, but we thank you
for your patience.
Today, we continue our Committee's inquiry into the
intelligence reforms adopted after September 11, 2001. We do so
in the fresh context of the failed terrorist attack on
Christmas Day, which exposed continuing gaps in our homeland
defenses.
Today's hearing, our fourth in this series, will
specifically examine the authorities of the Director of
National Intelligence (DNI) and the National Counterterrorism
Center (NCTC). Our purpose is to determine if those authorities
are sufficient or in need of additional reform. Creation of the
DNI and the NCTC were the most critical recommendations made by
the 9/11 Commission to improve our ability to protect the
American people against the threat of terrorism.
More than 5 years have passed now since the Intelligence
Reform and Terrorism Prevention Act, the so-called 9/11
Commission Act, was signed into law, and that is why last fall
our Committee began this series of oversight hearings. The
Christmas Day incident only added urgency to our task and
underscored, I think, how much this is a continuing effort to
strengthen our ability to detect and counter potential
terrorist threats.
In recent weeks, we have held hearings on issues raised by
the Christmas Day bomber attempt, most recently examining our
watchlist and pre-screening systems. Next month, we are going
to hold hearings on our visa issuance procedures and
intelligence analysis and information sharing. But today, as I
said, we are going to focus in on DNI and NCTC. We want to
consider instances in which these two entities have had
difficulty carrying out their intended missions as well, of
course, as the many times in which they have done exactly what
we hoped they would do. We want to discuss also what, if
anything, Congress should do to strengthen the abilities of the
DNI and NCTC to respond to terrorist and other national
security threats, perhaps different threats that have emerged
since 2004.
The 9/11 Commission concluded that no single person or
agency was in charge of our sprawling intelligence community
and therefore recommended creation of the Director of National
Intelligence to lead the 16 intelligence agencies of our
government, including, of course, the Central Intelligence
Agency, and to act as principal adviser to the President on
matters of intelligence. The 9/11 Commission Act gave the DNI a
range of authorities to better integrate the intelligence
community to promote what the 9/11 Commission called the unity
of effort that they found was absent before 9/11.
The 9/11 Commission further concluded that no one was
responsible for coordinating the critical activities of key
agencies involved in the fight against terrorism. As the
Commission memorably concluded, no one was in charge of the
various efforts that had been ongoing to capture or kill Osama
bin Laden.
So the Intelligence Reform Act created the National
Counterterrorism Center and gave it the responsibility to
conduct a new but critically important function in our
government which the statute called Strategic Operational
Planning, that is, planning counterterrorism activities on a
government-wide basis, integrating all elements of our national
power to fight terrorism, and assigning roles and
responsibilities to departments and agencies for specific
activities based on that planning.
In many instances, the DNI and NCTC have used their
authorities very well and implemented critical policies and
organizational initiatives to improve intelligence functions
and better protect the American people. The NCTC has played a
vital role in coordinating Federal, State, and local agencies
to prevent an ongoing series of terrorist plots against the
United States, including some recent remarkable acts of
prevention, including the arrest of Najibullah Zazi and David
Headley.
But in other instances, such as the Christmas Day bombing,
Umar Farouk Abdulmutallab, failures have occurred in key areas
and the progress of fully implementing reforms has been slow,
perhaps due to institutional or bureaucratic resistance from
some of the 16 agencies that report to the DNI, or perhaps due
in other cases simply to insufficient resources or inadequate
leadership. Those are the questions that we want to ask today
about where there are shortcomings, why they have occurred.
I also want to discuss the policy and legal framework for
intelligence community information systems. Last week, the
Deputy Director of the NCTC testified that policy, legal, and
privacy-related matters impede the development of advanced
search and discovery tools that could help analysts spot
potential terrorist plots in a way that may have prevented
Abdulmutallab from ever boarding that Northwest Flight 253.
This is really a question, as we have discussed after 9/11,
everyone concluded that there was an inability to connect the
dots, in part because various intelligence agencies and other
agencies of our government were not sharing information and the
dots were not on the same table. I think our feeling now is
that the dots are on the same table, there is a lot of sharing
going on, but there are so many dots on the table that it is
hard to many times make the connections that are necessary
between them. We are focused now on the capacity of technology
to assist us in doing that, because for humans, it is very hard
to do it, particularly in a timely way. So I think some of the
barriers that were cited last week are ones we have to find a
way to overcome in the interest of the homeland security of the
American people.
I want to thank the three of you, who each bring very
relevant and extensive experience to us, for appearing before
the Committee and sharing your perspectives on this, on the
issues I have mentioned and others, as well, and I look forward
to the discussion after your testimony.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
Over the past several months, this Committee has examined
the intelligence failures surrounding the attempted terrorist
attack on Christmas Day. As part of our due diligence, as the
Chairman has indicated, we are also evaluating the impact of
the Intelligence Reform and Terrorism Prevention Act of 2004 on
our Nation's efforts to combat terrorism.
Today, we focus anew on one of the most significant issues
that we grappled with in the drafting of the Intelligence
Reform law, and that is the extent of the authority granted to
the Office of the Director of National Intelligence (ODNI).
The DNI was established to be, in Secretary Powell's
memorable words, the ``quarterback'' of the intelligence
community to coordinate the activities of the 16 intelligence
agencies scattered across the Federal Government. Those 16
diverse components carry out an array of missions, and each
component has its own view about how best to carry out its
assignment.
The intelligence community is resistant to change, but
change is precisely what the Intelligence Reform Act directed
the DNI to achieve. To that end, we provided a set of
authorities that the DNI would use as tools to encourage,
cajole, and in some cases compel action. These authorities
included the ability to access all intelligence information
collected by the Federal Government; the lead role in
developing the annual National Intelligence Program budget and
in ensuring its effective execution; some ability to transfer
funds and personnel within the intelligence community--not as
much authority in that area as I would have liked to have seen;
the ability to manage and direct the tasking, collection,
analysis, production, and dissemination of intelligence; and
the authority to develop standards and guidelines to ensure
maximum availability of intelligence information within the
intelligence community.
These authorities should be largely sufficient for the DNI
to accomplish its mission, provided that they are wielded
effectively and with the strong support of the President. As
Governor Kean and Representative Hamilton testified before this
Committee in January, the DNI's ability to lead the
intelligence community depends on the President defining the
role and giving him the power and authority to act.
The question is, however, whether or not these authorities
have been used as often, as effectively, and in the manner that
Congress intended. For example, does the institutional
resistance of agencies like the Central Intelligence Agency
(CIA) make the use of these authorities such an onerous ordeal
that the DNI is hesitant to embark upon the journey? Is the DNI
concerned that exercising these authorities more aggressively
might create ill will that will make it even more difficult to
coordinate activities in other areas? Or are these authorities
being undercut by insufficient support from the President or
the National Security Council, both of which need to be active
to ensure that the DNI works as intended?
As the Chairman has indicated, we are also taking a close
look at the National Counterterrorism Center. I think that is
as important a reform as the creation of the DNI, and I think,
as the Chairman has indicated, we have seen great successes
from the Center, such as pooling information that led to the
Zazi and Headley cases being brought to the attention of law
enforcement and the individuals arrested. I do not think that
would have happened prior to the creation of the NCTC. On the
other hand, we have also seen the NCTC not work as well as
intended as in the case of Abdulmutallab.
So our witnesses today offer a great wealth of practical
experience in the day-to-day operations of the intelligence
community, both pre- and post-reform, and I look forward to
hearing their insights on these important questions.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Collins.
Senator Collins is right that our three witnesses have been
in the system and continue to follow it, so they speak from
some experience. In other words, their judgments are informed
by experience. One could disagree or agree with them, but they
come with some background.
At some point in these deliberations, we are going to speak
in open or closed session with some of the people who are
running the agencies now, but we thought this would be a very
good way to start.
Mr. Powell, we will ask you to testify first, former DNI
General Counsel, and currently a partner in the law firm of
Wilmer Hale.
TESTIMONY OF HON. BENJAMIN A. POWELL,\1\ FORMER GENERAL COUNSEL
OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (2006-
2009)
Mr. Powell. Thank you, Senator Lieberman and Senator
Collins. I appreciate the opportunity to appear before the
Committee to discuss intelligence reform and interagency
integration. I am particularly honored to appear before this
Committee given the historic role in intelligence reform played
by this Committee under the leadership of Senator Lieberman and
Senator Collins.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Powell with attachments appears
in the Appendix on page 359.
---------------------------------------------------------------------------
I should also note I am honored to appear with Jeff Smith
and Ozzie Nelson. Jeff is one of the finest national security
lawyers and policy experts in the world on these matters. He is
an example to all of us who have worked in this area. Ozzie
Nelson is an experienced operator and the Nation is simply
safer because of his long service in the military and his work
at the National Counterterrorism Center.
I appear before the Committee in my personal capacity and
the views I express are my own. I have separately provided the
Committee my biography and would refer you to it for my
background.
As General Counsel to the first three Directors of National
Intelligence, I have seen the implementation of the
Intelligence Reform Act at the ground level. And while the work
of intelligence transformation and integration can appear quite
distant from the daily operational activity of the intelligence
community, the September 11, 2011, attacks and subsequent
events have made clear that this is work with real-world
consequences. The Christmas Day attack was another vivid
example of the importance of an integrated intelligence
community.
Transformation of the intelligence community is not a zero-
sum game. The goal is not to diminish the authorities or the
capabilities of one organization in favor of another
organization, such as the DNI. The goal is to have an
integrated intelligence community that is more than the sum of
its parts.
I wanted to briefly highlight three points from my written
statement. First, the DNI needs senior-level support to
succeed. Second, the DNI initiatives to date have been
important, some vital to our security. And finally, since it
has been the subject of much discussion over the years, I
wanted to briefly touch on the size of the DNI organization.
First, the DNI needs support to succeed. This means support
from the senior national security team, the Executive Branch,
and the Congress. If he does not have that support and backing,
transformation will fail. The reform legislation set up a
matrix management structure.
The DNI must be part director, part coordinator, and part
diplomat. The Nation has been fortunate to have excellent
leaders of the intelligence community, in my experience, both
the current leaders and the former leaders, and the Nation is
truly blessed that there are brave members of the intelligence
community willing to undertake difficult missions around the
world at peril to themselves and, at times, their families and
their careers. The workforce is talented, mission oriented, and
wants to succeed. Our goal should be to give them the tools for
success and free them from the ironclad rules of bureaucratic
behavior that distract from the one shared goal of protecting
our country.
Second, the leadership of the DNI has been absolutely
necessary for a number of fundamental initiatives. The DNI did
not undertake these initiatives in a vacuum. Their success or
failure is dependent on other parts of the intelligence
community and the government. But make no mistake, the DNI's
Office was the necessary organization, even if not sufficient
alone.
Some observers have claimed that the Reform Act and the
subsequent implementation merely added another layer of
bureaucracy and accomplished little. That simply does not
reflect the reality of the past 5 years. Instead of fairly
meaningless charges about another layer of bureaucracy, I would
hope that questions would focus on substance, such as are these
intelligence community initiatives useful? Historically, how
did alternative structures perform? Did they produce the needed
integration and transformation of the intelligence community?
Some of the initiatives are discussed in my statement in
greater detail. These include reform of the Foreign
Intelligence Surveillance Act (FISA), stand-up of the National
Counterterrorism Center, implementation of joint duty, security
clearance reform, deployment of technologies in innovative
ways, such as the Analytic Space and Intellipedia, and critical
work in the cyber area that culminated in the Comprehensive
National Cyber Security Initiative. This list, of course, omits
classified areas that took up significant time and resources of
DNI leaders.
A few points: Without a DNI, FISA legislation would not
have been enacted. Serious collection gaps would remain and
would have worsened and the Nation would face greater risk.
Joint duty is critical and its implementation will be a long-
term project. It is an example of the investment of time and
effort required to formulate and implement workable policies in
the intelligence community structure of matrix management.
Security clearance reform: This area has been a particular
focus of this Committee's Subcommittee on Oversight and
Government Management, the Federal Workforce, and the District
of Columbia. The cost and delays present in the security
clearance process impose a large cost on the intelligence
community and the larger Federal Government.
In November 2005, top secret investigations took 314 days
to complete, with only 8 percent being completed in 90 days. I
understand that, currently, 90 percent are completed within an
average of 91 days. In November 2005, secret and confidential
investigations took an average of 153 days, with just 44
percent completed within 90 days. I understand that currently
90 percent are completed within 49 days. I also understand that
the decades-old backlog of investigations, which as recently as
October 2006 stood at 100,000 cases, has been eliminated.
Without the DNI's Office, the Nation would not have a
Comprehensive National Cybersecurity Initiative and be less
prepared for the cyber threat that Director Blair recently
discussed in his testimony to Congress.
Finally, a quick note on the size of the DNI Office.
Director Blair has talked about the DNI's responsibilities for
guiding a 200,000-person, $75 billion national enterprise in
intelligence. Some facts about the size of the core DNI staff.
As of January 2009, Director McConnell spoke in public about a
core group of intelligence professionals of 650 people. Under
any method of calculation, the DNI is a very small proportion
of the entire intelligence community population.
Second, perhaps the proper size of the staff is larger or
smaller than the 650 persons that Director McConnell has
discussed. I am sure, as with most organizations in government,
there are many efficiencies and improvements in staffing that
require examination. But the debate over the right number of
personnel pales in significance next to the questions
concerning information sharing, collection requirements, multi-
billion-dollar acquisition program oversight, analytical
excellence, and a host of other issues on the DNI's lengthy
list of responsibilities.
Finally, implementation of the matrix management structure
created by the Intelligence Reform Act has presented numerous
challenges. Many tasks remain undone, and progress on building
an integrated, innovative, and more effective intelligence
community is likely to be uneven in the coming years. But
continued attention on these issues and support for these
efforts from the President, the Congress, and senior national
security officials is vital if the DNI is to successfully lead
the intelligence community into the 21st Century. Thank you.
Chairman Lieberman. Thanks, Mr. Powell. Excellent statement
and gets us off to a good beginning.
Next, Jeffrey Smith. We welcome you back to the Committee,
back to Congress. We are glad to see you again. Former General
Counsel at the CIA and currently a partner at the law firm of
Arnold and Porter. Good morning.
TESTIMONY OF HON. JEFFREY H. SMITH,\1\ FORMER GENERAL COUNSEL
OF THE CENTRAL INTELLIGENCE AGENCY (1995-1996)
Mr. Smith. Mr. Chairman, it is an honor to be here, and
Senator Collins, a treat, as always. I am very pleased this
Committee is looking hard at the question of how the statute
that created the DNI has worked, and I must be candid. It is
not working as well as it should.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Smith appears in the Appendix on
page 427.
---------------------------------------------------------------------------
To prepare for these hearings, I spoke to many senior
intelligence community officers, including in the ODNI. What I
found was disturbing and leads me to believe there is an urgent
need for a serious in-depth look at the organization and
functioning of the American intelligence community.
Congress gave the DNI broad responsibility, but not clear
authority to carry out many of these responsibilities. This
confusion over authorities lies at the heart of the problem.
Senior officials tell me they spend far too much time arguing
about these authorities. This creates friction and occasionally
anger that distracts from the accomplishment of their important
missions. More disturbingly, some officers even speak about
mistrust among agencies. That must be addressed.
One of the most prescient observations I heard was that we
are slowly replicating the problems of the old DNI. Many
believe the dual responsibilities of providing intelligence to
the President on the one hand and managing the intelligence
community on the other are sufficiently distinct that they
should be separated. In a sense, it is the reasoning of the
Goldwater-Nichols Act that streamlined the chain of command and
clarified that military service chiefs were not to exercise
operational control over their services. That responsibility
rests with the combatant commanders in the field.
But all is not gloom. As Mr. Powell said, a lot of good
things have been accomplished but problems remain.
I believe the Director's authority should be strengthened
in those areas that are essential to the effective management
of the community. I think we should focus on two areas in
particular: Information sharing and acquisition. I think the
Director's authority should be clarified in operational areas
where there is some overlap and inconsistency, and that goes to
what is his basic role? Is he the strategic adviser to the
President on intelligence? Does he do the President's daily
brief? Or does he manage the community? Those are two jobs that
are full-time jobs in themselves and a lot of people think one
person cannot do both.
There is talk about the DNI staff being too large. One
problem, I think, is the frustration with the proliferation of
contract employees, not government officials who task the
agencies. One example illustrates this point. A senior agency
official told me that contractors at ODNI had recently
requested detailed information about an operation. The agency
responded that they were not able to comply with the request
because the individuals involved in that operation simply did
not have time to set aside the mission and respond to the
request. The response from the contractors at ODNI was to offer
to send another contractor to the agency in order to answer the
questions put by the contractors in the first place. The senior
agency official expressed frustration that, to the best of the
officer's knowledge, there was not a single government employee
in the loop with respect to that particular request.
Now, I have talked to Director Blair about this. He does
not seek to micromanage the community or make excessive demands
for information. But he points out that there is a mismatch
between his responsibilities in the statute and his authority
to carry them out, and I agree with Senator Collins. Some of it
is the manner in which they are exercised and the support from
the President that, as Mr. Powell said, is key.
On information sharing, as this Committee knows, I am
privileged to serve on the Markle Task Force, which has spent a
lot of time looking at this. I am happy to talk about this in
response to your questions. But I think there are some things
that can be done with technology in terms of making information
more discoverable, adopting an authorized use standard, and
permitting data to find data so that we can not only spot the
dots that we need, but then we can connect them.
Finally, I think on the issue of privacy, we need some
clear privacy guidelines. What I found in my conversations is
that there is a lot of uncertainty with respect to U.S. person
data, what we can do with it. My privacy colleagues on the
Markle Task Force think that the government is being overly
cautious in some circumstances, that with this technology, more
can be done, but this is a question of guidance and, frankly,
leadership and support from the Congress.
Given my role on the Goldwater-Nichols Act when I was on
the Senate staff many years ago, you have asked me to think a
little bit about how could we have a Goldwater-Nichols Act for
the intelligence community. I think there are a lot of things
in the Goldwater-Nichols Act that could be adopted, and one of
them would be to streamline the chain of command, to think of
the DNI a little bit as the Chairman of the Joint Chiefs and a
little bit like the Secretary of Defense. I would also think of
the CIA, which is one of the most difficult management issues
here, as a combatant command for purposes of providing all-
source intelligence to the President and conducting covert
operations. If we think of it that way, it helps in my mind a
little bit with some of the challenges that we have had with
respect to management.
I also think we should think about creating a separate
National Intelligence Program. The Administration is taking
some steps in that direction, but I encourage them and the
Congress to go even further.
Mr. Chairman, I think the time has come to take a fresh
look at this statute and I am very pleased that this Committee
is asking the hard questions. I think that there ought to be a
systematic look at it. It could be done by the Congress. It
could be done by the President, using, for example, the
President's Intelligence Advisory Board. Or it could be done by
an outside group with the support of Congress and the
President. I have talked to Congressman Hamilton. As you know,
they are very interested in pursuing this. The Kean-Hamilton
Commission would be a place to do it. But I think it is
important to do it. This is a good opportunity to do it. And I
am delighted again to be here this morning and I look forward
to answering your questions.
Chairman Lieberman. Thanks, Mr. Smith. Some really
provocative things you said, which I look forward to taking up
as we discuss what you said.
Next is Richard Nelson, who is known as Ozzie.
How many people in the room remember Ozzie and Harriet? You
see, we are limited now. [Laughter.]
I should ask how many remember Ricky. Maybe that would be
better. [Laughter.]
Anyway, to return to the seriousness of the moment, Mr.
Nelson is a former official in the National Counterterrorism
Center's Strategic Operational Planning Directorate. He is a
retired Navy officer and currently is the Director of the
Homeland Security and Counterterrorism Program at the Center
for Strategic and International Studies here in Washington.
Thank you for being here this morning.
TESTIMONY OF RICHARD NELSON,\1\ SENIOR FELLOW AND DIRECTOR,
HOMELAND SECURITY AND COUNTERTERRORISM PROGRAM, CENTER FOR
STRATEGIC AND INTERNATIONAL STUDIES
Mr. Nelson. Chairman Lieberman and Ranking Member Collins,
and distinguished Members of the Committee, thank you for the
opportunity to discuss this important topic. I am not sure if
it is good or bad to go after the lawyers, but I appreciate the
opportunity to testify with them. [Laughter.]
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Nelson appears in the Appendix on
page 445.
---------------------------------------------------------------------------
I was one of the inaugural planners assigned to direct
strategic operational planning, so today, I am going to focus
my remarks on NCTC and its legislatively role, mandated role in
that capacity.
The Intelligence Reform and Terrorist Prevention Act
(IRTPA) addressed some serious weaknesses in our Nation's
intelligence community and its ability to combat terrorism. In
creating the DNI and the NCTC, the landmark legislation sought
to improve collaboration among numerous departments and
agencies that deal with our threats to our Nation's security.
Among the Act's most significant contributions was its
recognition that our Nation's Cold War national security
organization was no longer sufficient to address the complex
and myriad transnational threats we face today in the 21st
Century.
As with any innovative idea, achieving the aims of
legislation will come through evolution. Valuable lessons can
and should be learned when ideas and concepts meet
implementation. Those lessons should be leveraged to improve
upon the original ideas and ensure the vision of its creators
is being met. This is the case with NCTC and particularly with
the Directorate of Strategic Operational Planning (DSOP).
Why do we need a stronger and more effective DSOP? In
short, while numerous departments and agencies work
aggressively to counter threats as they emerge, the
intelligence community, and arguably the government as a whole,
still lacks a truly interactive process for addressing
terrorism. One need look no further than the failure to
``connect the dots'' on December 25 to understand why
coordination is so important.
Furthermore, because so much of the effort is channeled
toward the immediate exigencies of the day, the government has
not devoted sufficient long-term thinking to how to develop a
common and ultimately strategic framework for dealing with
terrorism and other threats. This has become only more
important as we move forward and coordination with State and
local governments becomes more critical and the lines between
the private and public sector continue to blur.
Elements of DSOP must be addressed in three key areas:
Mission, authorities, and personnel. DSOP's mission must be
refocused to ensure its role in and value to the interagency
counterterrorism architecture is understood. DSOP was given the
broad guidance to conduct strategic operational planning. The
intent was for DSOP to fill the void in counterterrorism
planning between strategic level policy making and tactical
level operational activities.
To attempt to close this gap, the term Strategic
Operational Planning was created and tasked to DSOP. The
conflating of these terms, strategic and operational, has
hindered DSOP since its inception and remains a significant
problem. These are terms of art, and those with background in
planning understand clearly that they are separate and unique
requirements. By merging these terms, DSOP is stranded in what
I call a planned no man's land between high-level policy and
strategy development and operational and tactical-level
planning.
We have a chance to refocus DSOP's mission before it
becomes ingrained and irreversible and I recommend that we
split it into two distinct branches, one that focuses on
strategic and one that focuses on operational. The strategic
part should focus on high-level counterterrorism policy,
strategy, and resource allocation. It should lead interagency
policy and strategy making, including efforts that require
White House approval. The element should also have an enhanced
and a more assertive role in resource allocation and drive the
input to the Office of Management and Budget (OMB) to resource
counterterrorism prioritization investments. While this mandate
currently exists, DSOP's role should be strengthened and
enhanced to ensure that requirements are tied to strategic
outcomes.
A second part of DSOP should focus on operational plans
against terrorist groups. Such a construct provides attainable
goals: Defeat of a group. The National Implementation Plan
should be amended so that it can be executed geographically.
Whether justifiable or not, the Cold War-based security
infrastructure executes geographically and not functionally.
Authorities--the IRTPA gave the DSOP the authorities to
conduct its specific mission, yet no authorities were taken
from any other department or agency in support of DSOP's
creation. Not only does this create overlapping authorities,
but it established no compelling reason for departments or
agencies to participate in the DSOP process, as they could
continue their counterterrorism efforts under extant power.
These overlapping areas of responsibility must be clarified.
Without this, departments and agencies will continue to spend
time fighting turf battles when they should be focused on the
enemy at hand.
The question of authorities is raised regularly in
discussions regarding DSOP. The recent Project on National
Security Reform Study offers a comprehensive assessment of this
issue. A comparison of authorities between the Office of Drug
Control Policy, DNI, and DSOP, three organizations chartered
with similar tasks, highlights the disadvantage from which DSOP
operates and notes that DSOP is the only entity of the three
without authority over people or money.
Many cite DSOP's explicit prohibition from directing
operations as a key reason for its struggles, while some call
for empowering DSOP with additional authorities in this area.
This should not be done, as DSOP lacks the capability and
capacity to assume such a role and would fall far short of
expectation. With no authority over personnel, resources or
operations, DSOP has a limited ability to compel interagency
participation and thus remains a relatively powerless
organization. It also relegates DSOP to the unenviable role, of
leading process-oriented approaches to substantive problems.
Departments and agencies that actually control operations,
personnel, and resources address substantive counterterrorism
problems under their own authorities.
To solve this problem, the authorities issue must be
addressed across the entire government counterterrorism
enterprise. Specific to DSOP, it should be given authority to
influence both resources and personnel.
In personnel, DSOP should be given the personnel to conduct
its mission. The issue of personnel remains a significant
factor limiting the evolution and ultimate effectiveness of
DSOP. To succeed, NCTC must have the right talent. A clear
mission with ample authority rings hollow if the appropriate
personnel are not brought together to execute what is required.
DSOP has been hindered by a lack of planning talent since
its inception, and unlike its analytic and knowledge management
counterparts in NCTC, no standing cadre of interagency
counterterrorism planners existed from which a terrorism-
specific capability could be created.
While the process of building a capacity has begun, it has
been slowed by two key factors: The lack of interagency
participation and high personnel turnover. First, the
interagency must become fully invested in NCTC and DSOP
concepts. By being fully invested, it includes not only
recognizing and embracing DSOP's mission, but also detailing
the appropriate number and type of personnel and ensuring
robust participating in the planning. The old adage that plans
are nothing and planning is everything is only valid when those
that are conducting the planning are actually involved in the
execution of those plans. Since DSOP does not execute plans, it
is imperative that its efforts include robust participation by
the departments and agencies.
Participation in interagency planning efforts such as DSOP
must be made part of the government intelligence community
human capital system. Personnel, particularly those with
operational experience, must be rewarded through pay and
promotion to incentivize service in such entities as DSOP.
And second, personnel turnover at DSOP must be limited.
This will occur, in part, by changing perceptions regarding the
value and credibility of DSOP, but we also must establish a
standing career pipeline for interagency counterterrorism
planners. This will incentivize talent to pursue careers
interagency.
I have submitted more comprehensive remarks for the record,
and again, I appreciate the opportunity to speak today and I
look forward to your questions.
Chairman Lieberman. Thanks very much, Mr. Nelson. That was
really interesting.
As I listened to the testimony, particularly of yours--
Senator Collins probably had the same reaction--I can remember
the extensive debates about the various terms that we put into
the 9/11 Commission legislation. It is almost as if, but not
quite as neat, that we were architects or a construction
management operation deciding how best to build a building. And
not as neat because there were more interests at the table than
the design-construction teams, because in some sense, the
people at the table wanted to preserve the existing parts of
their building. But anyway, having gone through that self-
analysis, I will thank you for your testimony and we will begin
the questions with 7-minute rounds.
Mr. Powell, let me go to the first point you made, which is
the importance of senior-level support, government-level
support, for the Director of National Intelligence for the
position to succeed. I think that is a very important and
strong point. This is not the kind of thing you put in a
statute or has to happen, but we are creating something new. It
has new supervisory authority and the natural inclination of
agencies to resist any losses in their own autonomy.
So from the unique perspective you have had, would you say
that the DNI has received, since the creation of the office,
the support that it needs from the two Administrations under
which it has now begun to function?
Mr. Powell. Yes. Thank you for the question, Chairman
Lieberman. It is a critical question, as I mentioned in my
statement. Although I did serve some number of months in the
current Administration, obviously, I can speak most directly to
the former Administration, and as I noted in my written
statement, some myths about the founding of the DNI and former
President Bush's support for the DNI. Whatever happened in the
summer of 2004 and whatever different testimony was coming from
the Administration, I do know where former President Bush
ultimately came down on the issue, and where he came down in
December 2004, and I observed most directly in discussions----
Chairman Lieberman. And how would you describe----
Mr. Powell [continuing]. His support for the DNI----
Chairman Lieberman. He supported it, yes.
Mr. Powell. Well, in a number of ways. There was discussion
about whether or not the DNI needed to be in the Oval Office as
part of the briefing team. And I think that there was a feeling
among the senior national security team that given some
questions about the matrix structure that was set up, that it
was important from an intelligence perspective, but it was
important as a message to the Administration and to the senior
leaders of the intelligence community that this was the person
who the President was counting on to lead an integrated
intelligence community.
When you look at these initiatives, the Foreign
Intelligence Surveillance Act, Executive Order 12333, the work
in the cyber area, and any number of initiatives, those
depended not just on the DNI making a decision, but having the
backing of the President to make that decision.
Executive Order 12333 is a bit obscure to people out in the
public, but it is the foundational Executive Order that was
signed in 1981. It was very out of date. It was not applicable
to the current intelligence community that we had in terms of
its organization, particularly post the Intelligence Reform
Act. Why had it not been updated since 1981? Endless attempts
to update it failed because of interagency disagreement. So it
is an example. In that one, the former President had to bring
that to a close.
Chairman Lieberman. Yes.
Mr. Powell. There were issues that had to go to the former
President and he had to rule on them. So it is just absolutely
vital. I mean, it is vital for any department head----
Chairman Lieberman. Sure.
Mr. Powell [continuing]. To have direct control and
authority over everyone in their department. If they do not
have the backing of the President, they have trouble
succeeding. In a matrix management structure like the DNI, it
becomes even more critical.
My experience, although limited in the current
Administration, seemed to be supportive of intelligence
transformation, where it was going. But again, I can really
only speak until essentially the beginning of March 2009, from
an insider perspective.
Chairman Lieberman. Right. So your impression from outside
has been that the current Administration has continued that
support of the DNI?
Mr. Powell. Well, I hesitate, because most of my
information is just based on press accounts, and having been on
the inside, I hesitate to rely on press accounts.
Chairman Lieberman. Yes.
Mr. Powell. I mean, I think it has been challenging. The
Administration has had a lot on its plate. They have had a lot
of other very important priorities, obviously things completely
different--health care, a number of issues that are on the
plate. But every President has a lot of issues at the same time
on their plate.
I guess I would say that I think the Christmas Day attack
has brought it into greater focus, the importance of these
issues. It is one thing to understand how important they are
and to understand how the country is at threat. It is another
thing when you actually have a situation that was, frankly,
minutes away from there being 300 empty chairs at the dinner
table that evening in Americans' homes. So I think that brings
a greater urgency and a focus in a way that talking about the
threat simply can not. So I think you have seen renewed focus
on it and it is fortunate that event was not successful.
Chairman Lieberman. Agreed. Mr. Smith, let me ask you to
pick up there and go to the most public, not necessarily the
most important, but the most public manifestation of this
question of not only where the White House is in backing the
DNI, but how the DNI has merged with other agencies of our
government.
I will tell you that when we were struggling to put the DNI
together in the legislative process, the greatest push and pull
of the people around the table was from, frankly, people
representing the Department of Defense worried about incursions
that the DNI might make. In fact, perhaps that has not been a
problem in implementation. Some of that may be because the
simple twist of fate that Bob Gates, a former leader in the
intelligence community, turns out to be the Secretary of
Defense and it works out better.
But there seems--not that we were naive about the potential
for tensions within the intelligence community with a new
overseer, but look, I am speaking about the public blowup over
whether the DNI would have the authority--and this was last
year--to appoint senior intelligence officials in foreign
countries with the CIA, and the public impression is that the
DNI lost that fight. I wanted you, to the extent that you want
to get into that fight, welcome that, but take off from it to
the larger question of whether, in your opinion, the national
leadership in both Administrations has supported the DNI, and
two, about the extent to which there remain tensions between
components of the intelligence community and the Director of
National Intelligence.
Mr. Smith. That gets to the heart of the issue, Mr.
Chairman, and I am glad you raised it. With respect to the
particular dispute over the DNI's authority to appoint his
representative overseas----
Chairman Lieberman. Right.
Mr. Smith [continuing]. I think it is deeply unfortunate
that it had to be referred to the White House. I think
everybody involved now would have preferred that to have been
worked out internally, but that was not the case, and I can
only imagine that the people at the White House did not enjoy
having to referee this dispute. Nevertheless, I think the
decision by the President was to split the issue a little bit.
In some respects, the DNI won, and in some respects, the
Director of the Central Intelligence Agency won.
But in general, my impression from talking to senior
people, including people in the White House, is that there is
no doubt that this President supports a strong DNI. They also
wish to deal directly with the CIA on those matters for which
the CIA is responsible, and I think that is understandable. The
CIA is the operational arm of much of the intelligence
community. It conducts covert operations, which are very
important to the President. It is the only agency that is still
``central,'' and is largely responsible for production of all-
source intelligence.
So I think we have to recognize that fact and find a way to
give the DNI the authority that he or she needs to manage the
agency, to manage the community, but without interfering with
this relationship between the President and the CIA. And that
is why the notion of a combatant command appeals to me, because
the President deals directly with General Petraeus, as he
should, and yet the Chairman of the Joint Chiefs and the
Secretary of Defense are very much involved in that
conversation, and we have been able to work out those
relationships in the Defense Department. We ought to be able to
do it in the intelligence community.
One more thought, Mr. Chairman, on your point about the
defense agencies.
Chairman Lieberman. Yes.
Mr. Smith. It has worked out for a variety of reasons,
including the fact that we have men occupying these positions
who have worked together in the past who have strong military
backgrounds. Another element is that we are at war, and when
that happens, a lot of the issues kind of fall to one side, and
within the military, we find a way to work these problems.
There is another concern I heard expressed, which was that
the role of the Defense Department and the role of supporting
the warfighters among these defense agencies is now so dominant
that there are some, including in the military, who worry that
they may have drifted a little bit from their national mission,
that is to say, broader support of foreign policy. What is
happening in those areas of the world that we care about beyond
just Iraq, Afghanistan, and al-Qaeda? So these are issues,
again, that we need to look at and be alert to.
Chairman Lieberman. That is very helpful. Thanks. My time
is more than up, but I look forward to continuing in the next
round. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
I, too, had flashbacks as I was hearing Mr. Nelson's
testimony and reading your testimony, Mr. Smith, about the
abrogation word, which I so remember in December of that year,
calling Senator Lieberman after my Chief Counsel came up with
the word ``to abrogate'' as being the way to stop the House
Armed Services Committee from sinking the entire bill. So a lot
of the issues that you have raised have a complicated history,
and without some of those admittedly awkward compromises, we
never would have gotten a bill through. It was an
extraordinarily difficult achievement but an important one.
I want to talk about information sharing. Last week at our
hearing, the Deputy Director of the NCTC surprised me, at
least, by saying that there was limited ability for the
intelligence community to search for information across the
many databases maintained by intelligence and law enforcement
communities, and those of us who have used Google every day and
put in names that were not spelled right and then Goggle tells
us, ``Did you mean X,'' were really surprised to learn that a
misspelling flummoxed the search on Abdulmutallab at one point
in the information systems.
The Deputy Director, however, was very emphatic in warning
us that there was no silver technological bullet, and that was
at odds with a lot of presentations that our staffs have had on
this issue and the work that you have done, Mr. Smith, on the
Markle Foundation, which I think has been terrific work, that
you and Zoe Baird and others have done. He said, ``notions of a
Google-like search or a federated search are actually of
relatively limited value due to legal, policy, and privacy
issues.'' And I would like to get a better understanding of
what those barriers are, because it is really troubling to me
that we cannot design a system that respects privacy concerns--
which I care deeply about--and yet does not prevent us from
accessing information.
So, Mr. Smith, I am going to start with you, and then Mr.
Powell and Mr. Nelson, I would like to hear your views, as
well.
Mr. Smith. Senator, you put your finger on a really
critical issue. We were a little surprised to hear Mr. Travers'
testimony, and so actually Mr. Powell and I met with him on
Monday afternoon to talk about this in a little bit of detail
and we have talked about it within the Markle Task Force,
because we, too, wanted to drill down and understand what he
said.
Some of it, I think, may touch on some classified
information and some classified systems, so I want to be a
little bit careful here, but clearly, with respect to getting
access to databases outside of the intelligence community in
some of the other departments, some of these lists and so on,
he has felt that he has not been able to reach into databases,
particularly in the Department of Homeland Security and other
places, where he would like to be able to have his analysts
reach in.
In the Markle Task Force, we think that there is technology
that would permit that and protect privacy at the same time. So
we intend to spend a little bit more time on this. Mr. Travers
has been extraordinarily generous with his time with us and we
are going to get some of our technical people, as well,
involved to see if we cannot craft a solution that can get at
this because as a matter of principle and policy, we believe
that privacy can indeed be enhanced by these technologies
because of things like anonymization and authorized use. We
think this is an important issue and we are going to continue
to work on it. We look forward to working with this Committee.
Senator Collins. Thank you. Mr. Powell.
Mr. Powell. It is an absolutely critical question, Senator
Collins. Let me discuss it from the perspective of trying to
lay out a little bit of the issues that are faced by NCTC and
faced by us in the DNI's Office in trying to obtain data sets
for NCTC. As I talk about in my statement, at NCTC, since its
stand-up, we have put over 30 different networks--military, law
enforcement, and other types of networks--into NCTC with data
sets that exceed that number being accessible to NCTC.
I think the Committee would want to think about examining a
couple of different areas. First, you would want to look at the
Memorandum of Agreement between the Attorney General and the
Director of National Intelligence on the search, use,
retention, and dissemination of data sets containing terrorism
and non-terrorism information, or information exclusively
pertaining to domestic terrorism. Now, that is a mouthful, and
what does it mean in practice?
Those guidelines lay out three primary areas in which NCTC
can get access to data sets that contain non-terrorism
information, and let me be very specific about examples of what
I am talking about. Here, I am talking about data that may be
obtained by DHS or other agencies that is not acquired from
people who are known or suspected or even that there is any
reasonable suspicion of terrorism activity in there. So
basically, you are talking about information from Americans and
non-Americans that are obtained for travel or other reasons.
They are not obtained because these people have no suspicion
about them.
That agreement is going to set out three ways that NCTC can
access data. One, account-based access, so think of that as you
go to a terminal, log in, do your search, log off, and then go
back to your terminal.
Two, search and retention, and what I mean by that is that
I give a search to the data set owner, so think of it as, for a
hypothetical, DHS. They do the search in a batch or some other
method and then they give me the results.
Finally, the third area, and that is called data set
replication, and what we are talking about there is actually
ingesting the data into NCTC. That is perhaps the most
effective way, which allows that Google search capability. What
you will find in those guidelines is you will only be allowed
to do data set replication if, for some reason, account-based
access or the search and retention areas do not work.
So what does that mean in practice? I guess the best way to
describe it is when you do a Google search on your computer, it
goes out and searches the Internet and returns your results
from the Internet. Depending on your settings, it probably does
not search Committee databases or Senate databases that are
internal to the Senate, nor does it search your individual
offices' databases. So Google, itself, is not a true federated
search that searches all of the information technology systems
that you are connected to.
So there is, in my experience, Google-like search
capability at NCTC. The problem is the number of data sets that
it is allowed to touch. So we have this Memorandum of Agreement
that lays out for Fourth Amendment and privacy concerns with
this different criteria of access.
Two other areas that are absolutely critical when thinking
about this. This data was obtained under specific agreements
and arrangements. Each one of those databases needs to be taken
on its own terms, and there may be restrictions associated with
them that were the only reason we are able to get that data. So
it is a little bit like the reform legislation. Compromise is
entailed.
There has been a lot of public discussion about European
PNR data and what the arrangements are at the diplomatic level
between the United States and Europe, and there were agreements
made and those agreements, frankly, have consequences
throughout the government for accessing that data. There has
been public talk in the area of financial terrorism information
and general financial information and agreements placed in
those areas.
Finally, the FISA Court. You cannot go out and grab
unminimized FISA data. There are FISA minimization guidelines
that require the data be minimized according to FISA guidelines
before it is given to NCTC and be made available for anyone to
search.
So these are some of the practical things I think you would
want to look at at a baseline level when you are looking at
this. We spent a lot of time looking at the U.S. person
guidelines across the agencies to see if we could make them
more uniform. It is a slog to go through them.
Senator Collins. Thank you. Mr. Nelson.
Mr. Nelson. Senator Collins, thank you for that question.
Regarding information sharing, we are never going to have
perfect information sharing, but we need to continue to do
better. In my operational experience, it was always a source of
frustration to me: The amount of data, the number of systems,
and people trying to bring it all together. It was always
astronomical, and very challenging.
And I also think we have to overcome this culture of
secrecy, as I call it, in the intelligence community.
Certainly, it is important and it has its place, but it
continues to prohibit information sharing especially when
individuals with the same clearance level will not share
information because there is not a need to know, which is
determined by the individual who actually knows the
information. I do not know how some assessments like that can
be made.
But why the information sharing piece is even more
important, and I cannot talk too much about the civil liberties
part, not being a lawyer, is that the Federal part of this is
the relatively easy part. We are going to have to come up with
ways to share information better with our allies, which is
still a huge weakness. And better ways to share it with State
and local governments, especially as we deal with issues such
as homegrown extremism, which has been in the media recently,
and with the private sector. When 85 percent of the
infrastructure is owned by the private sector, we are going to
have to overcome information sharing obstacles. It is going to
be so critical that we accelerate the use of technology at the
Federal level because the problem is only going to get worse
when we have to share with other folks. Thank you.
Senator Collins. Thank you.
Chairman Lieberman. Thanks, Senator Collins. Senator
Carper, good morning.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Good morning. Looking at this sea of green,
it is like a puddle of green, would not you say? Maybe some
folks did not get the memo, but it is nice to be with all of
you on St. Patrick's Day.
To our panel, welcome. Thank you for joining us.
In my own view, the Intelligence Reform and Terrorism
Prevention Act that we adopted about a half-dozen or so years
ago has done a fairly good job of streamlining the intelligence
community's command and control authorities. With this Act, all
of the Federal Government's various intelligence entities
report to the Director of National Intelligence, as you know.
And so while the organization has improved, I think, I hear
there remains a serious turf battle--we talked a little bit
about that here today--between the Directorate of National
Intelligence and the Central Intelligence Agency. One example
of that is between the CIA's Directorate of Intelligence and
the National Counterterrorism Center analysts when presenting
intelligence issues to the rest of the Federal Government.
I would just ask if each of you could take a minute or so
and just comment on this particular turf issue. Let me know if
you agree with those observations and share with us any
recommendations you might have for our Committee, how to deal
with it.
Mr. Nelson, why don't you lead off.
Mr. Nelson. Thank you, Senator. I appreciate the question.
I am not an analyst by trade, so I will just keep my comments
brief. I will say my personal assessment is the NCTC is one of
the areas of the ODNI which I think has been extraordinarily
successful, and I think that they have actually been producing
some significant work and have made major improvements along
those lines.
But as far as comparing it to the agencies, I would have to
defer to my colleagues here. Thank you.
Senator Carper. All right. Thank you.
He is passing the buck to you. What do you all have to say?
Mr. Smith. I am a little bit like Mr. Nelson. I do not
have----
Senator Carper. You are going to put a lot of pressure on
Mr. Powell. [Laughter.]
Mr. Smith. Well, with respect to the critical question of
analytical support to counterterrorism, in preparing for these
hearings, I talked to a lot of people and that issue did not
surface, interestingly enough. It may be an issue, but it was
not raised in my conversations.
However, there were a lot of other concerns raised that I
talked about in my prepared remarks, namely there is a lot of
tension within the intelligence community over the issue of
authorities. And in my judgment, senior officials spend far too
much time arguing about authorities. Some of that is an
inevitable result of the way the intelligence community worked
in the past, compromises made in the legislation to get it
adopted, and I understand the importance of that. But my
suggestion has been that this is a time to take a look at those
authorities. We have had 5 years of experience. We know what
works, what does not work, and see if we cannot adjust those
and enhance the ability of the DNI to manage the intelligence
community and at the same time enhance the capacity of the
individual agencies to function more effectively.
So there are some problems and I am pleased this Committee
is looking at them.
Senator Carper. Well, good. You did not answer the question
I asked, but that was a pretty good answer. Thank you.
Mr. Smith. Well, I beg your pardon. I am happy to try
again, sir.
Senator Carper. No, that was good. Thanks. That was
helpful. Mr. Powell.
Mr. Powell. Senator Carper, this is a critical issue which
I dealt with extensively. I think it is far better than it was.
When the DNI was initially stood up, there was considerable
frustration on two counts, I think, at the senior levels. One,
that the President himself personally remained the integrator
between foreign and domestic intelligence, and I did not think
that was a role for the President, for the foreign threats and
the domestic threats to be landing in the Oval Office for
everyone to have that discussion right there. I thought the
President deserved better.
There were still exactly what you pointed out, difficulties
in lanes of the road of different organizations producing their
own version and take on urgent threats to the Nation in the
counterterrorism area. I believe in diverse intelligence and
diverse views. I do not believe in giving different factual
scenarios to the President. I think we should be able to get
our facts together.
So there was a lot of effort and lanes in the road. Who
produces homeland threat reports? Who has the responsibility
for putting out the alerts, for putting out the senior
briefings, for kind of getting the global picture? You now
have, of course, three times a day, the secure video-
teleconferences run by NCTC. You had some initial issues on
resources, both the CIA Directorate of Intelligence and the
NCTC need to have al-Qaeda analysts and people who speak the
language and can take a longer-term view of things. There were
some transfers of personnel made over some not inconsiderable
public and private controversy.
Admiral Redd, the Director of NCTC at the time, came up
with lanes in the road documents about who was going to do
what. I mean, you could argue about the decisions made in those
lanes of the road. I think it is a lot better than it was. I do
not hear as often today about the problems, and it may reflect
that I would not because so much of it is classified, where
different agencies are duplicating the same work unnecessarily.
So I think the lanes in the road are far better worked out
than they once were. It may be that there is some still
duplication out there, but we spent a lot of time, a lot of
meetings, a lot of debates about who exactly was producing the
picture for the national security team and the Congress.
Senator Carper. Thank you. One more question, if I could.
Chairman Lieberman. Go right ahead.
Senator Carper. Thank you. I believe each of our witnesses
today are in the private sector now, is that correct?
Mr. Powell. Yes.
Mr. Smith. Yes.
Mr. Nelson. Yes.
Senator Carper. All right. And in part as a result, I think
you are maybe better able to present a unique perspective and
to speak with candor about the current Administration's
counterterrorism policies. You have done this already in part
in your testimonies, but I am going to ask you to come back to
this again--I was wondering if you all could take a moment to
share with us how things have changed since your Federal
Government experience, and based upon current events, such as
the shootings at Fort Hood and the attempted Christmas Day
bombing last year, just briefly discuss some steps that the
intelligence community ought to be doing to close the
intelligence gaps we have been talking about over the course of
the last several months.
Mr. Powell. I can go first. Thank you for the question,
Senator Carper. I have reflected a lot on this subject. I
mentioned to Chairman Lieberman earlier that I think the
attempted Christmas Day bombing of the jetliner brought the
issues I talked about in the statement and that we are talking
about today a new urgency and a focus. I think, for good or
bad, we were very seized with the issue on a daily basis, and
obviously the former President, having been through September
11, 2001, was very seized with the issue and made it an
extremely high priority. We could discuss whether that was too
high a priority or whether that was good or bad, but as a
result of that, the intelligence community and the DNI, I would
say, occupied a very central place at the table and these
issues were very central on the Administration's agenda.
Obviously, this Administration, President Obama has talked
about how critical it is, how important it is, but there is a
lot going on and some of these issues take time and you need to
work through them.
What I have observed, at least through the press and
talking with people, is a new urgency and focus as a result of
the Christmas Day bombing, really bringing home--when you are
discussing whether or not NCTC can get access to a database,
when you need the Attorney General to change some guidelines to
enable an intelligence operation or to enable some information
sharing to happen. It is far less academic, I think, post-
Christmas Day bombing than perhaps I noticed before.
There are some issues that I would probably differ with
some decisions that were made that I think have perhaps caused
some difficulty for the intelligence community. They were made
for global and diplomatic and reasons that I think the
President and the Administration felt very strongly about. I
think they have had impacts on the intelligence community, and
that is just a byproduct of those decisions. They may have been
the right ones overall for the country, but they have had some
negative impacts on the intelligence community.
Senator Carper. My time has expired. Mr. Chairman, should I
yield back?
Chairman Lieberman. I think you have no time to yield.
Senator Carper. That is fair enough. Mr. Smith, Mr. Nelson,
each of you, thank you for your testimony today.
Chairman Lieberman. Thanks, Senator Carper.
Senator Carper. I will come back another day for that
question.
Chairman Lieberman. Thank you. Mr. Smith, you said some
things at the outset of your opening statement which are really
important, which is the general statement that the DNI statute,
in your opinion, is not working as well as it should, and that
is disturbing, that is the word you used, and I agree. And the
general statement you made was that the Office of the Director
of National Intelligence has broad responsibility, but not
clear authority. You called on us then to strengthen the
statute.
And I know you have invited a process, either within this
Committee or the Foreign Intelligence Advisory Board or perhaps
some outside group. But talk a bit, if you can, about where you
would begin to strengthen the authority of the DNI.
Mr. Smith. I think it is largely on the management side,
Mr. Chairman. The two or three areas that I looked at in
preparing for this were, one, information sharing, and we have
talked about that and I think there does need to be some
strengthening of authorities and/or clarification of those
authorities, particularly with respect to privacy.
A second area is the acquisition area. There is confusion
over some areas, particularly on independent cost estimates,
who is responsible for them and so on. Now, some of that is in
the legislation, but what I have discovered is there is still
some confusion, namely; is it yours, is it mine, who is
responsible?
A related area is reprogramming. Again, there is some
uncertainty there. The House and Senate intelligence
authorization bills have, as I understand it, some language to
try to clarify that, but that is an indication, and when I
talked to the staffs of the various agencies, they would tell
me, well, there is a big fight going on right now about some
issue or another, most of which could be traced to some
uncertainty in these authorities. Now, these are men and women
of goodwill. They really want to do the right job. We should
all be proud of how hard they are working and how dedicated
they are to doing it.
Chairman Lieberman. Agreed.
Mr. Smith. But the flip side of doing that is they are very
proud of what their responsibilities are and their organization
and they tend to think it is my responsibility, let me do it.
So as a general matter, I think there are maybe a half-a-dozen
or so areas where I would begin to concentrate.
Chairman Lieberman. Would you add to the budget authority?
Mr. Smith. Yes, I would. I think that serious consideration
should be given to further separating the National Intelligence
Program, and that includes some budgetary authority. Now, the
DNI does have, and Mr. Powell is better able to speak to this
than I am, some budgetary authority over the authorization of
budget.
Chairman Lieberman. Right.
Mr. Smith. And it goes to Senator Collins' point earlier
about whether that authority has been used, and the risk of
having authority that you either do not use or try to use is
then it gets taken away from you through some other process. In
my conversations, it has gotten better over the last 2 or 3
years. That is in part because of personalities and in part
because of some leadership from the White House and DOD that
says, look, we should not be having these fights.
But the statutory language remains, and as long as some of
that uncertainty is there, another set of leaders might not be
quite so accommodating. Both, by the way, in the previous
Administration and in this Administration, I think there has
been a lot of progress. So I would like to have a situation
that is less personality-dependent and where the authorities
line up a little bit more with the responsibilities.
Chairman Lieberman. Let me ask you, continuing in this
focus, on a particular idea you raised in your testimony, which
is to separate the DNI as the manager of the intelligence
community from the role that was also given to the DNI under
the statute, which is as essentially the chief advisor on
intelligence to the President, and therefore responsible for
the daily briefing to the President. I mean, the argument then,
to a certain extent, repeated by Mr. Powell this morning in
terms of judgments that were made early on by President Bush,
is that unless the DNI is in there every morning with the
President, that he does not have the stature. So weigh the
balances here and why you think it is still a better idea to
separate those two functions.
Mr. Smith. This is not to say, Mr. Chairman, that the DNI
should not be in the room with the President during the
briefing. Perhaps not every day, but certainly be there.
Chairman Lieberman. Right.
Mr. Smith. The question is whether or not the DNI has the
responsibility not simply to be there, but be the person who is
actually directly and personally responsible for preparing it,
giving it, following it up, and so on. And I do not know how it
is presently working. Let me be very clear about that. But the
concern I have heard expressed is that different DNIs have done
it differently. Different Presidents want it done differently.
But the fact of the matter is that the responsibility of
personally briefing the President and, as you know, the
President's Daily Brief (PDB) is also seen by other senior
cabinet officers----
Chairman Lieberman. Right.
Mr. Smith [continuing]. That responsibility is so huge and
the follow-up to those discussions is so huge and the
participation in the policy-level discussions about what to do
is so huge that no single individual can do that and
effectively manage the community. And that is why what appealed
to me was beginning to think of it a little bit as we had done
in the Goldwater-Nichols Act, which is to separate the
operational responsibilities to actually do the warfighting in
the field from the responsibility to train, equip, and maintain
the forces that are then assigned to the combatant commanders
in the field.
It is by no means a perfect analogy and I am not sure it
lends itself necessarily to statute. But nevertheless, one
hears that perhaps DNIs, and this may be as a result of the way
the President wants to do it, but if that is going to take the
majority of their time--it is a hugely important
responsibility--that means that necessarily there is less time
to devote to management. So that is an area where I think
people need to give some serious thought as to what that
balance is, what the authority should be, and what the law
should be.
Chairman Lieberman. I understand it better. Incidentally, I
think the Goldwater-Nichols strategy is a helpful one and one
that we will think about.
So as you have thought about this question--I understand
what you are saying. The responsibility for the daily briefing
of the President is a big one, and I presume takes the time of
the DNI to get ready and to follow up. But if the DNI did not
do it, who would do it in the best of all worlds, as you see
it?
Mr. Smith. In the past, the practice had been that there
was a senior--this was before the DNI was created----
Chairman Lieberman. Yes.
Mr. Smith [continuing]. There was a very senior
intelligence officer from the CIA----
Chairman Lieberman. But not the Director of the CIA.
Mr. Smith. Not the Director. Now, the Director would
occasionally go, but it was on occasion, just to sort of be
there----
Chairman Lieberman. Right.
Mr. Smith [continuing]. Or where a particular subject would
come up. But there was a whole PDB staff. There was a whole
bureaucracy that had grown up. When I was at the agency, there
were meetings where we would decide what went in the PDB.
Different agencies would make presentations.
Chairman Lieberman. And the Director would have some part
in that, I assume.
Mr. Smith. Very little.
Chairman Lieberman. Very little.
Mr. Smith. It was the senior analysts that did it. I have
even heard some concern expressed, Mr. Chairman--I have no
personal knowledge of this, but there is some concern that as
you try to bring more agencies into the production of the PDB,
the advice a President is getting begins to look a little bit
like the advice that the President got prior to Goldwater-
Nichols from the Joint Staff, which was the least common
denominator where it is a committee product----
Chairman Lieberman. Right.
Mr. Smith [continuing]. Which is another reason I am
attracted to the idea of having the CIA and/or the National
Intelligence Council (NIC), be the combatant command with a
very direct responsibility to the President, like General
Petraeus, to do that mission.
Chairman Lieberman. Right.
Mr. Smith. And they are ultimately in charge of deciding
that. Now, the DNI has to make sure that, ultimately, he or she
has a voice in that, but it is a huge responsibility and I
understand DNIs are too frequently drawn into that.
Chairman Lieberman. So I am going to wind this up, but just
by saying it sounds to me that what you might prefer here is
that some senior person in the Office of the DNI----
Mr. Smith. Yes.
Chairman Lieberman [continuing]. Handle the presidential
daily briefing.
Mr. Smith. That is correct.
Chairman Lieberman. Thanks very much. Senator Collins.
Senator Collins. Thank you.
I want to make just one comment on the information sharing
before leaving that issue and before going on to another
question. Mr. Powell was going through the various
restrictions, some from the Attorney General's guidelines, some
from memoranda of understanding that were worked out to get
information, some from FISA Court decisions. So obviously, this
is complex. But what that tells me is some of the restrictions
are the result of law, some of them are the result of policy
choices, some of them are the result of negotiations in order
to get information. Mr. Powell, just quickly, is that generally
a fair assessment?
Mr. Powell. Correct, Senator Collins.
Senator Collins. So I really want to work with you after
this hearing to better identify a solution. I think both the
Chairman and I, at the risk of speaking for the Chairman, were
alarmed when we heard the testimony that we did from the NCTC
Deputy Director because it certainly seems to be interfering
with accessing information that needs to be accessed, and I
think, Mr. Smith, your point that you can design systems that
actually enhance privacy while allowing this access is
absolutely a critical point.
I want to move on to the relationship between the DNI and
the CIA. We have talked previously in this hearing about the
friction between the two, the White House having to get
involved in resolving disputes. That really concerns me when it
gets to that level. But there has also been this, I would call
it an urban myth in some ways, that the Intelligence Reform Act
did not define that relationship, and Mr. Smith, you referred
to it in your written testimony. To me, it is just so crystal
clear because, as one of the authors of the language, to me,
when it says that the Director of the CIA shall report to the
Director of National Intelligence regarding the activities of
the CIA, it says ``shall.'' It does not say ``may.'' It says
``report,'' which to me clearly defines the relationship.
But I am gathering that some people argue that information
or interpretation is ambiguous, and Mr. Powell and Mr. Smith, I
want to ask the two of you about this issue. And Mr. Powell, I
will start with you because I would be interested to know, in
practice, when you were at the DNI, did the CIA attempt to use
that language to suggest that there was ambiguity in the
relationship between the Director of the CIA and the DNI?
Mr. Powell. Senator Collins, there was discussion that
there was ambiguity. I would say this: The answer to your
question is, yes, there was at times discussion that somehow
the statute was ambiguous.
A couple of points about that. First, I would refer you to
the confirmation hearings of Director Hayden and Director
Panetta where they do not suggest that there is any ambiguity
in the statute in the answers to the Congress. That said, the
Intelligence Reform Act was a seismic shift, and still we would
hear people claim that there was ambiguity there.
I can say this. As the Chief Legal Counsel to the Director
of National Intelligence, I did not see ambiguity. I spoke to
the Department of Justice as to whether they saw ambiguity to
it. I never had to go to the formal step of requesting a formal
opinion from the Office of Legal Counsel. I did offer that
option up to individuals at the Central Intelligence Agency if
they continued to find ambiguity. They decided that they would
rather that I did not go to the Office of Legal Counsel. I
advised them as to what the oral advice was from the Department
of Justice as to whether the ambiguity of the statute was there
and whether they would like me to pursue it on a written basis.
They said that there was no need and that we could work out the
issue that we had.
So that was my experience with the statute. It is certainly
consistent with what every Director of the CIA has testified
about the statute. That said, there is no doubt that there are
cultural and organizational issues that are going to take a
decade to work out to make this community gel.
Senator Collins. Mr. Smith.
Mr. Smith. Mr. Powell has said it well, but there have been
instances of which I have heard, and I did not serve in
government after the creation of the statute, so these are only
things that one is told, that people at the CIA have pointed to
the langauge and CIA supporters elsewhere around government
have pointed to the language in the statute that says they
report regarding activities of the CIA. That is different from
the kind of language that ordinarily appears in a statute that
creates a department that says the head of the department
directs and controls the particular agency.
Does that language make a difference? Not really in strict
legal terms, but it is enough of a difference that if an agency
wishes to not adhere to the directions of the Director, there
is something they can point to and give them an argument. It is
unseemly, in my view, to have these kinds of arguments, but
again, I think the Committee could benefit from some very frank
discussions--not in public--with former Directors, both DNI and
Directors of CIA, who could tell you how some of these have
played out and I encourage you to do that.
Senator Collins. Thank you.
Mr. Nelson, just one quick final question for you, and
unfortunately, I am going to have to leave. I am concerned
about the difficulties that you faced in the Directorate of
Strategic Operational Planning, and as I said, I readily
concede that those words were a compromise. They sound
contradictory. You mentioned that counterterrorism entities
that do not participate face no penalty. It would help them
participate, or encourage them to participate if they saw more
value, and so there is a tradeoff there. But what do you think
we should do with that responsibility?
Mr. Nelson. Well, with the strategic operational planning,
as I suggested, I would split it into two. On the strategic
part, you have to give them control over some lever. There is
operations, there is the resources, there is the personnel. On
the strategic level, you give them an opportunity to drive
high-level policy and you give them levers over resources. And
it is not only advising perhaps OMB, but it is perhaps giving
them something like some sort of 1206 or 1207 type of ability
to actually allocate funds in support of their operational
plans. And they should be the ones writing the national
strategy to combat terrorism or the national strategy against
al-Qaeda. The White House should serve as the approval process
and kind of massaging it, but it should come from NCTC.
And then from the operational perspective, we still in the
U.S. Government lack a coordinated planning effort against
terrorist groups. We have the National Implementation Plan,
which you are very familiar with, that has these broad,
sweeping concepts, but they are very difficult to implement in
a government that executes geographically. So we look at the
homegrown extremists, for example, they came from or were
recruited by various entities--Lashkar-e-Taiba, al-Shabaab, al-
Qaeda in the Arabian Peninsula (AQAP). Who in the U.S.
Government is saying this is the group that we need to go after
first, and this is the holistic approach against it? Who is
assessing that we are succeeding and what is working and what
is not working? And then who is moving funds around once
certain checkpoints have been reached saying, OK, now that we
have neutralized this group or this threat, we need to move to
the next group? That is not happening, primarily due to
interagency infighting and, again, questions about authorities.
Those overseas in the embassy teams will say they have the
priority over there and folks back in D.C. do not.
Senator Collins. Thank you. That is very helpful. Thank
you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Collins. I know you
have another commitment you have to go on to. I appreciate your
presence here, and I am going to hold the witnesses a while
longer for questioning, promising the best I can not to violate
in any way the Geneva Convention. I will try not to torture
you. [Laughter.]
I want to pick up with Senator Collins's questioning of
you, Mr. Nelson, because the picture that you painted of NCTC's
authorities and capabilities in this area of strategic
operational planning is troubling, but it is very important for
us to hear.
You had an interesting sentence, and I am going to look for
it. NCTC ``is stranded in a planning no man's land between
high-level policy and strategic development and operational and
tactical planning.'' So as I guess Senator Collins has
suggested or said, we identified that there was, in fact, a no
man's land as we were trying to do the legislative reform and
that it was one that the government needed to inhabit in some
way, that there was not sufficient connectivity between the
strategic level planning and the tactical and operational
planning, and that is why we created what we did.
So I wanted to ask you a couple of questions about that.
You know, at that time, because we were still so close, really,
to September 11, 2001, we kept coming back to this question of
who is in charge of the hunt for Osama bin Laden. I know that
that is not typical, and yet it is instructive in some way
because we saw a lot of different activities going on, not a
plan. So I want to ask you, from your experience, and you have
had widespread experience at the National Security Council, the
NCTC, and the Joint Special Operations Command, would you say--
let us take bin Laden--who is in charge of the search?
Mr. Nelson. I think it is a great question, and again,
taking it back to more theoretical and not commenting on,
obviously, the operational aspects----
Chairman Lieberman. Yes. Go ahead.
Mr. Nelson [continuing]. But more generally speaking, this
is a problem that continues to plague the government and the
counterterrorism community. There is conflict. There is no one
who is actually leading these efforts or who is prioritizing
these efforts.
I use the example of Osama bin Laden, we can talk about him
today, but let us talk about the next al-Qaeda. What is the
government entity that is going to do that? It is not being
done. If it is a threat that emanates from a particular
country, say for AQAP, it would be the embassy there that will
say they are responsible for it. If it is happening under Title
X authorities in Iraq or Afghanistan, the Department of Defense
would claim that they have authority.
I would just reference the Special Operations Command
(SOCOM), example, where they were given authority as the
supported commander in the war on terrorism. Recall how much
difficulty they had in trying to get the combatant commanders,
the geographic ones, to actually coordinate with them.
So this remains a significant problem. I think that until
we get some sort of planning process in place that is attached
to the execution and the assessment of those plans, and funds
can be moved once you determine how well you are doing against
a group or individual, we are going to continue to struggle----
Chairman Lieberman. OK, but as I have heard you, you
recommend splitting strategic from operational and having NCTC
do both kinds of planning separately, is that correct?
Mr. Nelson. Well, that is right. When we tried to implement
the legislation, we got beat back from the interagency on
multiple occasions. Every time we trended towards the
operational, there was resistance. Every time we trended
towards the strategic, there was resistance from a multitude of
organizations--the State Department, CIA----
Chairman Lieberman. Yes.
Mr. Nelson [continuing]. Even at times, the Department of
Defense, and even DHS.
Chairman Lieberman. Because your statutory authority was
not clear enough?
Mr. Nelson. Not clear, because what is a strategic
operational plan?
Chairman Lieberman. Yes.
Mr. Nelson. And because of that ambiguity, it gave them the
tool to minimize or marginalize what DSOP's effect could be and
impact how they actually operated. If you started doing an
operational plan, they would say that is too operational, that
is too tactical. You are supposed to be focused more on the
strategic. If we trended towards the strategic, they would say,
no, you should be focused more on the operational. So simply
adding a conjunction in there clears up a multitude of issues.
Chairman Lieberman. At one point, you recommend that NCTC
have some authority to control and allocate funds to the
departments. Is that one way to establish its primacy here?
Mr. Nelson. Well, we do. We have to give them some sort of
lever to compel the interagency to participate, and if we are
not going to give them operational authority, then we need--to
look at resources and personnel. Giving them some input, a
direct input over resources, hopefully would encourage
interagency participation in these plans.
Chairman Lieberman. Let me give you an example which is
obviously not so far from reality, leaving aside bin Laden. But
let us say that in Somalia, there is an American who has become
a radical Islamist cleric. He runs Web sites which are in
English and he is communicating a lot with people in America
and people in America are communicating with him. He is helping
to radicalize them. Sometimes, he brings them over. They come
to see him. He has become dangerous to the United States and,
in fact, has been implicated in some terrorist attacks on our
country.
So let us just sort of clear the deck of what exists now.
It would certainly seem to me that it would be in the interest
of our government to have a plan to capture or kill that
person, and so how would you organize that if you were
redrawing the structure now?
Mr. Nelson. I think NCTC has the authority to do this under
the current structure. I just think that they are having a
difficult time getting agencies to participate.
Chairman Lieberman. Right, because, obviously, NCTC does
not have the resources itself to carry out an operation.
Mr. Nelson. Absolutely. They have no authority.
Chairman Lieberman. Yes.
Mr. Nelson. And as I said, planning is everything, but
those planners have to be the ones that are executing. In NCTC,
a role I think, that is underutilized, is that of arbiter. We
have discussions on many issues for example, the Web site
issue--do you take the Web sites down? Do you keep the Web
sites up? How does that work? Some of those decisions go to the
very highest levels of government, and as my colleagues
mentioned, some should not. Somebody should be arbitrating
those decisions at a much lower level and that is a role that
NCTC could undertake, but it cannot do because it does not have
the credibility and the authority currently to do that.
Chairman Lieberman. Let me ask Mr. Smith and Mr. Powell if
you have an opinion on this question. There is a problem, which
is how do we coordinate the various branches of our government
in planning and carrying out coordinated operations.
Mr. Smith. Mr. Chairman, that is one of the reasons I am
attracted to the Goldwater-Nichols model.
Chairman Lieberman. Yes.
Mr. Smith. In Goldwater-Nichols, a combatant command is
given the responsibility for a geographic area to go do
something, to carry out a mission. The only one that does not
have that is SOCOM, which has a global mission. And by the way,
we just saw in Afghanistan General Stanley McChrystal decide
that he needed greater authority over forces under SOCOM for
the very reasons that we are talking about----
Chairman Lieberman. Right.
Mr. Smith [continuing]. One of the first things you learn
in military life is unity of command and that has to be, and it
seems to me it has to be here, as well.
I am not remotely able to talk with the kind of expertise
that Mr. Nelson has spoken with respect to planning. However,
instinctively, I would think that a mission such as the one you
described should be given to an operating entity and that
operating entity should have the responsibility to develop the
plan and then run it by NCTC, much as a combatant command
consults with the Joint Staff about any plans they develop.
Chairman Lieberman. So how do we do that in this case? Let
us take the radical cleric that I described, and I put him in
Somalia for the sake of it being hypothetical. Who would be the
combatant commander in that case?
Mr. Smith. I think, in my view, it should be Africa Command
(AFRICOM).
Chairman Lieberman. AFRICOM? Fascinating. So to go to the
military command and then have that person coordinate with all
the resources--intelligence, State Department, all the rest?
Mr. Smith. That is correct, because I think at the moment,
the Defense Department has the greatest reach, the greatest
capacity.
Chairman Lieberman. Right.
Mr. Smith. But they cannot over-militarize it, if I could
use that expression.
Chairman Lieberman. Yes.
Mr. Smith. And that is where the role of the NCTC has to
come in, much as the role of the Joint Staff has to come in, to
say, your plan does not take adequate account of this or that
and that then has to represent other--and the advantage of NCTC
stepping in is they represent--and there are representatives on
there--of other departments and agencies of government that
would bring a perspective to it, that would bring information
to it to refine that plan, but that it would ultimately have to
be executed by AFRICOM.
Chairman Lieberman. Mr. Powell, that was very interesting.
Your reaction?
Mr. Powell. I think that on the specific operational
tasking and coordination of them, there are operational
deconfliction agreements in place between agencies that I think
work fairly well in the field. It may just reflect the lack of
knowledge on my part, but I did not see in the field--I saw the
agencies working together. The closer you are to the mission,
the more some of these debates go away.
I would be very concerned and want to think heavily about
bringing a tactical operational type of planning function away
from those agreements that I, frankly, think in my experience
have worked well in specific operational tasks of the kind of
hypothetical that you are talking about, Mr. Chairman. I think
the NCTC has a lot of value to add on the broader issue of not
just an operation about a specific person or more at the
tactical level, but more what are we doing as a government to
counter the fact that there are people here in America who are
going to visit this cleric in your hypothetical----
Chairman Lieberman. Right.
Mr. Powell [continuing]. And becoming radicalized or
becoming self-radicalized or accessing Web sites. And, of
course, these are by far what we have seen recently some of the
most dangerous threats and the most hardest to detect are
people self-radicalized, not necessarily connected to al-Qaeda,
AQAP, or some of the other organizations we can talk about, and
obviously the attention that those organizations draw from the
U.S. Government. But there is a large value in thinking about
at the level that NCTC can about what do we do about that
phenomena and problem. Obviously, there has been talk about
problems in prisons. Here in the United States, we can talk
about any number of these things.
I think at the tactical hunt level, and obviously Mr.
Nelson has far more experience in this than I do, but just
going back to my military experience and other ways, and I
certainly was very concerned from the Director of National
Intelligence standpoint, any time that we seemed to veer into
tactical operational issues or had to become involved with
them, I did not think that we had the rules, the guidelines,
the capabilities present to get involved. Now, some major
national issues at times may draw in some of the senior staff,
but that was very unusual and rare.
Chairman Lieberman. That is a very helpful answer.
Let me ask you just one or two more questions. I will
start, Mr. Smith, in your prepared statement, you discussed
complaints by officials in various agencies that the DNI staff
often acts as micromanagers and issues time-consuming requests
and data calls to agencies for information for reasons that are
often not very well understood. You also note that this
information request process quite often appears to be driven by
contractors at the DNI.
Well, first I will ask you, Mr. Smith, because you say that
from your perspective, the current Director, Admiral Blair, is
not interested in micromanaging intelligence agencies. I wonder
if you would speak a little about that and whether you know
whether he has taken steps to address the issue you raise of
what you might call over-tasking.
Mr. Smith. The answer is, I believe, yes to all your
questions, Mr. Chairman.
Chairman Lieberman. [Laughter.]
Mr. Smith. Director Blair does not intend to micromanage.
He understands he cannot do that. On the other hand, he has a
great many responsibilities under the statute and he has
inherited a structure where there are already a lot of
contractors in place. I cannot begin to speak for him, but he
is aware of this issue. There are ways that one could try to
get a handle on the tasking that ODNI does so that it is
coordinated and that only tasks are issued are those that
senior leadership truly believes are necessary. I cannot speak,
because I simply do not know what the Director might be doing
to address that issue, but I do know he knows it is an issue.
Chairman Lieberman. Mr. Powell, was this a problem, to the
best of your recollection, when you were at the ODNI?
Mr. Powell. It was continually at the front of issues that
were raised with former Director Negroponte, former Director
McConnell, and now----
Chairman Lieberman. Yes.
Mr. Powell [continuing]. Director Blair. It was an issue of
continual discussion every week, about the issue of tasking,
about the complaints we would read in the newspapers about
this, about issues we would hear in the Congress about these
issues.
My first response to those would often be, please give me
the specific example that you are speaking about.
Chairman Lieberman. Right.
Mr. Powell. I often had a very difficult time of finding
what the specific example was.
Second, the issue was, if the DNI's Office sends out
something that is inappropriate, well, you should call the
Deputy Director of National Intelligence, one of them, and tell
them that something inappropriate is going on and it needs to
be put to a stop----
Chairman Lieberman. I am sorry. Do you think it was real,
or do you think this was just bristling by the agencies that
were getting used to dealing with the new Office of the ODNI?
Mr. Powell. There is no doubt that there were, I am sure,
requests that were sent out that I did not think were
appropriate to be sent out.
Chairman Lieberman. Right.
Mr. Powell. That said, for the first time, we did a
contractor inventory of the entire intelligence community and
could tell you the functions of what these contractors are
doing.
Chairman Lieberman. Yes.
Mr. Powell. The Congress found that very interesting.
Chairman Lieberman. Yes.
Mr. Powell. The intelligence community found that very
interesting from a budget perspective.
Chairman Lieberman. Too many?
Mr. Powell. I will just say that we did the contractor
inventory, Chairman Lieberman, by the function, and I do not
want to make any broad generalizations about it, but it gave
you an idea and you could then look to see by function what are
people doing in the community, and that gave you data points
then to make budget decisions. That, in my experience, is the
very first time you got a picture of what the workforce looked
like, who speaks what languages across the intelligence
community.
So all these things did require data calls. The law on
joint duty is a perfect example. There are a number of things
in there by law about promotion rates, that people who
participate in joint duty cannot be promoted at a rate lesser
than their peers who do not participate in joint duty.
So it is a fine balance. I am sure that there are examples
where the DNI's Office overtasked or did something that they
should not have. There were rules put in place. At one point, I
think any data request of this type had to go through a three-
star general on the DNI staff to do this. So this was not
something that did not have the Director's attention.
Chairman Lieberman. Right.
Mr. Powell. I think if you look at the Secretary of
Defense's Office, the Secretary of State's Office, or the
Attorney General's Office, I suspect at times perhaps they send
out tasking requests that are not needed.
Chairman Lieberman. I am sure that is right.
Let me ask you a final question. When Governor Kean and
Congressman Hamilton testified before us in late January, they
raised the idea, kind of floated it, of whether the DNI should
have a fixed term of service similar to that of the FBI
Director on the theory that would improve continuity and to a
certain extent remove the DNI, to whatever extent he is
involved in the political process now, from that process, or at
least from the transition of government. I am interested in
just getting a quick reaction from the three of you. Mr. Smith.
Mr. Smith. It is a good idea, very worthy of consideration.
I think it has worked at the Director of the FBI and I think it
is a good idea. Some of the downsides, however, are it is hard
to find somebody willing to commit to an extended period.
Chairman Lieberman. Right.
Mr. Smith. You want somebody who is close to the President,
who can pick up the phone and say, Mr. President, you have a
problem here, and not be intimidated because he or she does not
have a relationship with the President.
So it is a serious question that should be examined. If I
were to vote today, I am a little like the Supreme Court. I am
five-to-four against it----
Chairman Lieberman. OK.
Mr. Smith [continuing]. But I could be persuaded.
Chairman Lieberman. Mr. Nelson, how does your Supreme Court
rule?
Mr. Nelson. I actually think it is a very intriguing
decision. I would be in support of it. To finish the kind of
change that you put forward in the legislation, the IRTPA, it
is going to require some china to be broken and that individual
needs some political top-cover to make that happen. I was very
disturbed and disappointed in the decision that was made
regarding the appointment authority of the DNI representive
overseas. I think that was the wrong call. I think maybe
something like this would have been able to address that.
Chairman Lieberman. Mr. Powell.
Mr. Powell. I am probably seven-to-two or eight-to-one
against it. [Laughter.]
I should note, I clerked for a Justice who was often on
that one side, so----
Chairman Lieberman. The only time I got to argue a case
before the Supreme Court when I was Attorney General of
Connecticut, we lost eight-to-one, so I am sympathetic to that
Justice. [Laughter.]
Mr. Powell. I think the Director of the FBI is a very
special case. There is a history there. I worked at the FBI.
There is a history behind that. The FBI Director has access to
information on the law enforcement side in terms of
investigating senior officials of the government and other
things that are very distinct from the DNI.
My concerns would be: One, you do have a statute that does
require the President's backing. I would be very concerned if
you had, for whatever reason, a place where the DNI was kept
out of the national security circle----
Chairman Lieberman. Yes.
Mr. Powell [continuing]. And seen as really apart from it.
I think the information is so critical, the operational issues,
the issues we are dealing with on intelligence, whether it is
Iran, North Korea, Afghanistan, Iraq, cyber threats coming over
the horizon, issues in Africa, all those things.
I worry about having a lengthy term could really impact
that and have a problem. I think it would raise the bar to the
extent that you had somebody who was not performing up to
perhaps the full capabilities that they needed to be. It would
be a very difficult thing to remove them. It would then be seen
as a very political move. There would be all kinds of
allegations.
Chairman Lieberman. Right.
Mr. Powell. So I would be very concerned about any type of
lengthy term for a DNI. In my experience, having served the
three Directors of National Intelligence, I just have not seen
this evidence of politicization or changing the intelligence or
trying to rework it. I think, frankly, given the diversity of
who produces that intelligence, that is a very difficult thing
to do with the National Intelligence Board and the other
analysts who are involved in the process.
Chairman Lieberman. Thank you. Thoughtful responses. Thanks
very much for your testimony. This has been very helpful.
Do you want to add something?
Mr. Smith. Just as a matter of personal privilege, Mr.
Chairman----
Chairman Lieberman. Yes, please.
Mr. Smith. At the outset of his remarks, Mr. Powell said
some extraordinarily kind things about me.
Chairman Lieberman. Yes.
Mr. Smith. I am not sure they were justified----
Chairman Lieberman. Do you want to deny them? [Laughter.]
Mr. Smith. I would like to correct them for the record, but
I do appreciate them greatly, especially coming from Mr.
Powell, who has had himself an extraordinary career of
contributions to this country.
Chairman Lieberman. Well, that is nice of you to say, very
gracious. Really, it could be said of all three of you. We
appreciate it very much.
You have been very helpful today. Senator Collins and I are
quite serious about this review, and we are not intent on
legislating unless there is a reason to legislate, but if there
is, we are not going to hesitate if we think it can improve and
strengthen what was begun with the 2004 Intelligence Reform and
Terrorism Prevention Act.
I appreciate also that the three of you did some work in
preparing for this testimony today, which matters a lot to us,
and obviously the full text of your statements will be entered
into the record. But Senator Collins and I and our staffs
really would like to continue to be in touch with you as we go
forward with this oversight. We are now going to talk to some
of the people who are at the agencies now and probably best
start that in closed sessions so that we can get maximum
information.
I am going to leave the record of this hearing open for an
additional 15 days for any statements or questions that others
may have.
And with that, I thank you for your continuing service to
our country. The hearing is adjourned.
[Whereupon, at 12:20 p.m., the Committee was adjourned.]
THE LESSONS AND IMPLICATIONS OF
THE CHRISTMAS DAY ATTACK:
SECURING THE VISA PROCESS
----------
WEDNESDAY, APRIL 21, 2010
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Carper, Collins, McCain, and
Voinovich.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. The hearing will come to order. I
apologize for keeping everyone waiting for a moment or two.
This is the fifth in a series of hearings our Committee has
held to examine our intelligence and security systems that,
despite all we have done to strengthen them, allowed Umar
Farouk Abdulmutallab to board a U.S.-bound airliner and attempt
to blow it out of the sky over Detroit last Christmas Day.
I want to welcome our witnesses here today, each of whom
has a critical role to play in helping ensure that this type of
failure does not happen again, and I would also say each of
whom has become quite familiar to our Committee.
The purpose of this hearing is to review the enhancements
to our visa security system that have been made over the last
few years, the last 5 years particularly, but specifically to
get a progress report on enhancements that have been put in
place post-Christmas Day, including changes to how the State
Department processes and disseminates information it receives
about terrorism in its consulates abroad and also to have a
good discussion about what additional changes may be needed.
The failures that allowed Abdulmutallab to board Northwest
Flight 253 are by now familiar to us all: Warnings from the
father which went unheeded, threats from Yemen which were not
run to ground, and information in different databases that was
still not connected.
However, one of the most frustrating failures was one that
would seem to have been easiest to avoid, which is the
misspelling of Abdulmutallab's name during a check of the State
Department's visa database, which led the government to believe
that he did not have a visa and so did not pose an immediate
threat.
I think we all need to understand that while America has
been and remains probably an open country that welcomes
visitors, international travel is a privilege in our time and
not an absolute, unlimited right.
My concerns about the security of the visa process were one
of the reasons that we advocated giving the Department of
Homeland Security (DHS) more authority over the visa-issuing
process during the debate and legislative action during which
we actually created the DHS. The events of Christmas Day, I
must say, have brought me back to some of those ideas.
Nine years after September 11, 2001, we still do not have
an automated system in place to check for revoked visas as
individuals board airplanes. I understand that the State
Department and DHS are working to accomplish this in an
expeditious manner, and I hope to hear reports on that today.
When the Department of Homeland Security was created, as
another example of the overlap of the two Departments and what
we can do to deepen it and expedite it, Congress included a
provision establishing the Visa Security Program (VSP) and
giving DHS the authority to set visa policy and to deploy law
enforcement officers to consulates in order to oversee the
visa-issuing process because of the post-September 11, 2001,
added security dimension.
The idea was to ensure that security considerations were
given the weight they deserve in visa issuance. Eight years
later, I am sorry to come to the conclusion that the program
has not been a priority for either Department, and I would like
the witnesses to comment on that.
Here is why I reach that conclusion. DHS and the State
Department have identified 57 high-risk consular posts around
the world. That is out of a total of more than 200 posts that
issue visas. But only 14 of those ports have received, or had
stood up in them, Visa Security Program Offices.
The President's fiscal year 2011 budget submission does not
include any new money for continuing to expand this vital
program.
I understand that one of the main impediments to expanding
the program, aside from funding, has been reluctance by some of
our Ambassadors to allow the Visa Security Program Offices to
be established at their posts, and I would like to hear about
that if that is true.
I gather that on at least seven separate occasions,
ambassadors have told the Department of Homeland Security that
they would not support expansion of the VSP at their embassy.
And some of those posts are ones that are really key in
fighting against terror, such as the United Kingdom, Turkey,
and Indonesia. It was not our intention when we put this
provision into the Homeland Security Act to give Ambassadors
veto power over this important program.
So I look forward to hearing from the witnesses and to
working with DHS, the Department of State, and our colleagues
on Foreign Relations to ensure that the VSP program does move
forward.
Finally, I am heartened that for travelers from visa waiver
countries, the Department of Homeland Security has now fully
implemented the Electronic System for Travel Authorization
(ESTA), and is making progress in signing the international
information-sharing agreements that are required by law. That
is a significant accomplishment.
The Christmas Day attempted attack has underlined for us
all the importance of effectively sharing information. I
believe that expanding this information sharing to include our
allies should be one of the Department of Homeland Security's
main priorities moving forward, and so I hope the State
Department will expedite implementation of the agreements to
ensure that information is being shared in real time.
Securing our homeland is now really a global enterprise. It
begins well before people come to the United States, and that
is why it is so important that the Departments of State and
Homeland Security are working closely and effectively together.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
Today's hearing will examine the fundamental question of
why the Christmas Day bomber, Abdulmutallab, was allowed to
retain his visa, even after his father had informed the
American embassy in Nigeria of his Islamist extremist
connections.
From my perspective, the State Department had sufficient
information to revoke Abdulmutallab's visa. State Department
officials already had decided to question him about his ties to
extremists if he chose to renew his visa. That he could have
been deemed a threat to the United States in the future based
on his extremist ties but not a sufficient current threat
defies both logic and common sense. Had the State Department
taken this action, it would have prevented him from traveling
to the United States. This was a missed opportunity to stop the
terrorist more than a month before his flight.
At the very least, Abdulmutallab should have been required
to come to an American embassy and explain his activities
before he was allowed to travel to our country. The State
Department has this authority, and, in fact, the Intelligence
Reform Act protects the State Department from lawsuits when its
officials revoke a visa for a visa holder overseas. But the
State Department failed to act.
Visa holders with possible connections to terrorism should
shoulder the burden of proving that they do not intend to harm
this Nation or its citizens. I agree with the Chairman's
statement that traveling to our country is a privilege. If they
cannot meet that burden, then we cannot take the risk of
permitting them the privilege of traveling to our country.
Following the attempted attack on Christmas Day, the
intelligence community has reviewed the visas of all persons
listed in the broadest terrorist database, known as the
Terrorist Identities Datamart Environment (TIDE), to determine
whether or not they should be permitted to retain their visas.
In my judgment, they should keep their visas only in
exceptional circumstances that are carefully considered by the
State Department, intelligence community, the Department of
Justice, and the Department of Homeland Security.
There are essential policy issues that we will explore
today. First, is there now an ongoing policy to check the TIDE
list for individuals who hold U.S. visas? Second, what is the
Administration's current policy on the revocation of the visas
held by individuals listed on the Terrorist Identities Datamart
Environment TIDE list? Third, what is the policy on visa
revocation for individuals that are on the terrorist watchlist?
I was surprised to learn recently from the Government
Accountability Office (GAO) that more than 1,000 individuals on
the narrower terrorist watchlist had U.S. visas.
Revoking the visas of suspected terrorists is, however,
only the first step. The Department of Homeland Security also
should confirm the validity of the visa of every foreign
passenger who attempts to board an airplane to this country
rather than waiting until his arrival in our country. There
does not appear to be a technological barrier since DHS already
confirms whether a passenger is on the No Fly or the Selectee
List before the passenger boards the plane.
Like the Chairman, I also want to know how the State
Department will ensure that minor misspellings do not prevent
its officers from discovering immediately that a suspected
terrorist has a valid visa, as initially happened with
Abdulmutallab. Computer algorithms have been around for a long
time that can find close name matches to uncover a misspelling,
and the State Department should expeditiously adopt such tools.
In general, I believe that the Department of Homeland
Security must provide greater oversight of visa issuance and
revocation, as it was authorized to do in the Homeland Security
Act of 2002. That Act requires DHS to deploy trained visa
security officers to overseas posts, but DHS has only reached
14 of the 57 high-priority foreign posts--with plans to reach
another four. Why has the joint effort of DHS and the State
Department to expand this program been so slow?
One important way that DHS is enhancing the security of the
visa process is through the implementation of a requirement
that Visa Waiver Program travelers receive an electronic travel
authorization, as the Chairman mentioned in his opening
remarks. This additional step should add an important security
layer for travelers from countries that are currently not
required to obtain a visa.
It is clear that terrorists will continue to seek to
exploit any vulnerabilities in our visa system. We must,
therefore, continue to work to strengthen our visa process.
Since this is the primary means of preventing terrorists from
traveling to our country, it must work effectively, and it must
be a priority.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Collins.
Let us begin the testimony, Mr. Heyman, with you, I think
by consent of the witnesses. David Heyman is the Assistant
Secretary of Homeland Security for Policy. Please proceed.
TESTIMONY OF HON. DAVID F. HEYMAN,\1\ ASSISTANT SECRETARY,
OFFICE OF POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Heyman. Thank you, Chairman Lieberman, Senator Collins,
Senator Voinovich, and other Members of the Committee. I
appreciate the opportunity to appear before the Committee.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Heyman appears in the Appendix on
page 458.
---------------------------------------------------------------------------
The work in the area of promoting and overseeing secure
travel to the United States is very important, and specifically
securing the visa process and related lessons and implications
of the Christmas Day attack, which is the focus of this
hearing.
Targeting terrorist travel is one of the most powerful
weapons we have to counter the ability of terrorists to
operate. Travel security involves a series of tools or layers
to help identify and disrupt terrorist travel. It begins with
international travelers obtaining legitimate identity documents
from national authorities--a passport--and should a visa be
needed, the international traveler then applies for one at a
U.S. embassy or consulate and undergoes a personal interview
and checks against law enforcement, terrorism, and immigration
databases. Travel security also includes passenger and baggage
screening prior to travel and during travel flight security
through air marshals. We have also put in place hardened
cockpit doors and other measures. Finally, it includes passport
control and customs and immigration inspection upon arrival--or
in some locations, prior to departure. Every step along this
pathway presents a vulnerability to would-be attackers who must
come out of the shadows and interact with security personnel at
ports of entry and abroad.
In terms of visas and visa security, foreign travelers to
the United States come to the attention of U.S. officials
either by applying for a visa at a U.S. embassy or consulate or
by traveling to the United States under a visa-free program,
one of which, the Visa Waiver Program, requires advance
authorization, as the Senator has noted.
The Department of State is responsible for the day-to-day
operations of visa issuance. DHS' role in visa policy and
guidance is outlined in Section 428 of the Homeland Security
Act, which gives the Secretary the authority to issue
regulations with respect to the granting of or refusing visas.
As demonstrated by the attempted attack by Umar Farouk
Abdulmutallab on December 25, 2009, visa policy and proactive
visa screening procedures must be addressed in a
counterterrorism context. To that end, they must include
functionally related measures such as document verification and
enhanced international information sharing. Taken as a whole,
these procedures help to ensure not only the integrity of our
borders and our immigration system, but also the security of
the traveling public and the global aviation system as well.
The first part of travel security is the authorization
step, which is the focus of this hearing. My colleague, John
Morton, from Immigration and Customs Enforcement, will testify
on DHS' Visa Security Program. Ambassador Janice Jacobs,
Assistant Secretary for Consular Affairs, will discuss the visa
issuance process. For my part, I will limit my testimony to the
Visa Waiver Program (VWP), which was first authorized by
Congress as a pilot in 1986. The purpose was to facilitate low-
risk travel to the United States and boost international trade,
cultural links, and promote more efficient use of consular
resources. It has evolved into an important tool for increasing
security standards, advancing information sharing,
strengthening international partnerships, and promoting
legitimate trade and travel to the United States.
Since the program's inception, Congress and the Executive
Branch have worked together to implement a number of security
enhancements, including, immediately after September 11, 2001,
new requirements to tighten security of passport standards and
increase the frequency in which visa waiver countries are
formally reviewed for their designation status.
Today VWP allows citizens from 36 countries to travel to
the United States without a visa and, if admitted, to remain in
the United States for a period of a maximum of 90 days for
tourist or business purposes.
There are a number of security benefits that the Visa
Waiver Program produces. They are, in fact, mutually
reinforcing. VWP requires bilateral information-sharing
arrangements regarding known or suspected terrorists, possible
perpetrators, and other serious crimes, as well as multi-
lateral sharing of lost and stolen passport information.
Moreover, there are higher standards for transportation
security, aviation security, and border security as well as
document integrity than for countries that do not participate
in the program. DHS, with the support of the Departments of
State, Justice, and the intelligence community, audits these
standards and capabilities on a regular basis as a condition
for continuing designation in the program. No other mechanism
provides DHS with the opportunity to regularly conduct as broad
and consequential inspections of foreign security standards as
the VWP.
We are also strengthening that program currently by
entering into agreements to share information that the Chairman
mentioned. This is particular important in the context of the
failed terrorist attempt to bring down Northwest Flight 253. We
must absolutely bolster the tools we have to screen passengers
prior to departure and exchanging information regarding
potential threats known to our partner countries but perhaps
not to us as a vital element of that.
We have three key mechanisms that support this effort:
First, a bilateral arrangement to exchange information on known
and suspected terrorists; second, a bilateral agreement to
exchange information of possible perpetrators of serious
crimes; and, third, an exchange of diplomatic notes
memorializing the commitment to report lost and stolen
passports according to Interpol standards.
As Senator Lieberman mentioned, our current priority and
primary focus of DHS, as it relates to Visa Waiver, is bringing
the 27 pre-2008 VWP countries into compliance with the 9/11
Commission Act information-sharing requirements by 2012. To
date, the Department, in cooperation with its partner agencies,
has made substantial progress in this endeavor, the details of
which are included in my full testimony.
Let me conclude by looking into the future. Given the
security benefits of the VWP to the United States and to the
program's important role in strengthening international
partnerships and to travel security standards, the Department
would support a carefully managed expansion of the VWP to
select countries willing and able to enter into a close
security relationship with the U.S. Government, particularly
DHS.
At present, most of the countries that have expressed an
interest in VWP designation have visa refusal rates higher than
3 percent or they have other concerns that would have to be
mitigated prior to designation. DHS and the Department of State
continue to consult with trusted international partners to
determine whether VWP designation is possible in the future. We
are also pursuing, as resources allow, VWP-style information-
sharing agreements with countries that are currently ineligible
for the VWP but have reasonable expectations of qualifying for
the program within the next 5 years or so.
We must also be able to review and account for overstays.
Because DHS has not yet notified Congress that a biometric air
exit system to help in this is in place, any significant
expansion of the VWP is unlikely at the present.
So, in summary, we know that no single entity and no single
solution on its own will completely address the challenge of
preventing those with bad intentions from traveling to the
United States. Travel security systems of mutually reinforcing
layers--involving such features as rigorous visa issuance
standards, the use of visa security units, the screening of
passengers through automated targeting systems, and forward-
deployed border and immigration security officers--all of these
are critical in our efforts to thwart the travel of terrorists
and other dangerous people. The VWP is, of course, a vital part
of a robust travel security system for many reasons: The ESTA
requirement, as Senator Collins mentions; the mandatory
bilateral information-sharing arrangements regarding potential
terrorists and criminals; sharing of data for lost and stolen
passports; inspections; security standards; and the monitoring
of ongoing conditions in countries. It is one of a number of
tools and layers we deploy to protect the United States at
home, in the air, and abroad.
Chairman Lieberman, Senator Collins, and other
distinguished Members, thank you for the opportunity to appear
before you today. I look forward to your questions.
Chairman Lieberman. Thank you, Mr. Heyman, for your
statement. We will go next to Hon. Janice Jacobs, Assistant
Secretary of State for Consular Affairs. Welcome back.
TESTIMONY OF HON. JANICE L. JACOBS,\1\ ASSISTANT SECRETARY,
BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE
Ms. Jacobs. Thank you. Chairman Lieberman, Ranking Member
Collins, Senator Voinovich, and distinguished Members of the
Committee, it is an honor to appear before you again and to
explain the Bureau of Consular Affairs' efforts to strengthen
the security of U.S. borders through the vigilant adjudication
of visas.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Jacobs appears in the Appendix on
page 465.
---------------------------------------------------------------------------
I want to assure you that the five pillars of visa
security--technological advances, biometric innovations,
personal interviews, data sharing, and training--about which I
testified previously--are still very relevant today. And each
pillar to an appropriate extent informs every action we have
taken following the attempted terrorist attack of Christmas Day
2009.
Over the past 4 months, we have strengthened our Visas
Viper reporting requirements, as well as visa issuance and
revocation criteria, and introduced technological and
procedural enhancements to facilitate and strengthen visa-
related business processes. Our internal and interagency
reviews are ongoing. Here are the steps that we have taken
already.
The Department of State misspelled Umar Farouk
Abdulmutallab's name in a database search for existing visas
and in the text of a Visas Viper report. As a result, we did
not add the information about his current U.S. visa in that
report.
To prevent this from occurring again, we promulgated new
Visas Viper procedures to ensure that in preparing a Visas
Viper report we ascertain whether a subject has a visa and
include comprehensive visa information in all Visas Viper
reporting. I can confirm that these new procedures have been
followed in all Visas Viper cables since December.
We also are re-evaluating the procedures and criteria used
in the field to refuse and revoke visas, and we are issuing new
instructions to our officers. Revocation recommendations will
be added as an element of reporting through the Visas Viper
channel. In a recent cable to the field, we reiterated our
guidance on use of the broad discretionary authority visa
officers have to deny visas under Section 214(b) of the
Immigration and Nationality Act with specific reference to
cases that raise security or other concerns. Instruction in
appropriate use of this authority has been a fundamental part
of officer training for several years.
The State Department has broad and flexible authority to
revoke visas. 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 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.
At the same time, the benefit of 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. We will continue to closely
coordinate visa revocation processes while also constantly
making enhancements to the security and integrity of the visa
process. Information sharing and coordination action are
foundations of the border security systems put in place since
September 11, 2001, and they remain sound principles.
Had our post-December 25 Visas Viper and revocation
procedures been in place in Abuja, Nigeria, in November 2009,
the consular officer would have used our robust search engine
to uncover Abdulmutallab's visa record and include that name in
the Visas Viper cable. The consular officer would have entered
a P3B--a possible terrorist--entry into the Consular Lookout
and Support System (CLASS), our automated repository of
watchlist information--as was done in the actual case.
The Department would have reviewed the Visas Viper cable
upon receipt and, following expedited consultation with our
interagency partners, revoked Mr. Abdulmutallab's visa,
consistent with our post-December 25 policy that no one with a
P3B entry can hold a valid visa. This revocation would have
occurred on the day the Visas Viper cable was transmitted.
The Department has close and productive relationships with
our interagency partners, especially with the Department of
Homeland Security. We are working closely with Immigration and
Customs Enforcement visa security units (VSUs). VSUs currently
operate at 14 visa-adjudicating posts in 12 countries. Since
January of this year, we have received requests to open four
additional VSUs and to augment staff at two existing VSUs. The
chiefs of mission at those respective posts approved the four
new VSUs and one request for expansion, with one request for
expansion still pending. Later this year, a team representing
both departments will visit several posts under consideration
for additional VSUs.
The State Department brings our own unique assets and
capabilities to this partnership. Our global presence,
international expertise, and highly trained personnel provide
us singular advantages 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
of the world, and they are staffed by highly trained, multi-
lingual, culturally aware personnel of the Department of State.
We support them with the latest technology and access to
advanced screening tools and information systems. We are
pioneers in the use of biometrics and a leader in the use of
facial recognition as well as modern rapid fingerprint scanning
technology.
Our online visa applications, introduced in 2009 and on
track for worldwide deployment before the end of this fiscal
year, expand our data collection capacity tenfold and provide
new information readily available for analysis by the State
Department and other agencies.
We remain fully committed to correcting mistakes and any
deficiencies that inhibit the full and timely sharing of
information. We fully recognize that we were not perfect in our
reporting in connection with this case. 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.
We believe that a layered approach to border security
screening in which each agency applies its particular strengths
and expertise best serves our border security agenda while
furthering traditional U.S. interests in legitimate travel,
trade promotion, and exchange of ideas. In fact, the United
States must strive to meet both goals to guarantee our long-
term security.
Thank you, and I am ready to answer your questions.
Chairman Lieberman. Thanks, Secretary Jacobs. I think
Senator Collins and I would like to break the normal and just
ask you a few questions to make sure that we have clear the
changes that the Department has made.
First, just set out kind of what we used to call a plain-
language definition of what Visas Viper cable is.
Ms. Jacobs. A Visas Viper cable is a reporting telegram
that comes in from our posts overseas, reporting on names of
known or suspected terrorists. The process behind it includes a
Visas Viper group, interagency group, at an embassy or
consulate overseas that sits down at least once a month to go
through to see whether each of the agencies involved might have
names that need to be submitted to Washington. These names will
result in the creation of a TIDE file by NCTC.
So it really is, if you will, an interagency data-sharing
program at the post level where they are bringing names back to
Washington.
Chairman Lieberman. OK, good. That is helpful.
Now, in Abdulmutallab's case, as we know, when the State
Department personnel in Nigeria put his name into the database,
it did not show he had a visa because his name was misspelled.
Correct?
Ms. Jacobs. That is correct.
Chairman Lieberman. And so what I think we are both
interested in is--it is our understanding that there is a
software program that can correct for those misspellings. Do I
understand that has now been put into place in the State
Department?
Ms. Jacobs. Yes, sir. We actually had a search tool that
uses what we call ``fuzzy logic'' that will catch misspelled
names. It was not available to all of our consular officers in
the field. The change that we have made now is that we are
requiring all officers, whenever they are drafting a Visas
Viper telegram, to use that search tool in order to look in the
database of issued visas to make sure that a misspelled name
will not make a difference.
Senator Collins. Just to clarify the Chairman's question,
that technology was already in place, but it was not
automatically used?
Ms. Jacobs. It was not used for searches in the
Consolidated Consuler Database (CCD) where we store all of the
information about visas. We have very sophisticated search
capabilities in our Lookout System, but that same tool was not
used on a routine basis in our CCD. So it was there. It was
used primarily by our fraud prevention officers, but now we
have made it a requirement that everyone use that tool.
Senator Collins. It seems to me you would want to just
build it into the system so that it is not a choice. It is the
way, when we go online with Google and if you misspell
something, it says, ``Did you mean X?'' and will give you the
proper spelling of it. Should that be automatically built in?
Ms. Jacobs. Absolutely, and we are working on that systems
change to make that automatic within the CCD.
Senator Collins. And when do you anticipate that will be an
automatic feature of the search?
Ms. Jacobs. I will get back to you with an exact date. I am
hoping that will happen within the next few months. But in the
meantime, all officers have been instructed to use this tool
whenever they are preparing Visas Viper cable.
Senator Collins. I understand that, but I guess what I am
troubled by is it is still discretionary in a way. Even though
they have been instructed, it is not built into the system, and
it seems as if it would be very easy from a technological
standpoint to build it into the system. So rather than chancing
that some consular officer who is overwhelmed with work might
forget to use it or might fail to use it, why not build it into
the system?
Ms. Jacobs. We will do that, and I will get back to you
with a date certain when we will have that completed.
Senator Collins. Thank you for letting us clarify that.
INFORMATION SUBMITTED FOR THE RECORD
When visa applications are entered into consular databases,
names are automatically run through ``fuzzy logic'' algorithms
that check against the Consolidated Consular Database (CCD) and
the Consular Lookout and Support System (CLASS). When names are
added to the CLASS database independent of visa applications,
officers are instructed to check the name against the CCD for
possible matches with visa records using the ``Person-Finder''
tool, which uses the same ``fuzzy logic.'' This is currently a
manual process, but we will have the automation in place by
July 31, 2010.
Chairman Lieberman. Thanks. Let me go the next step. Let us
assume now that we have the system and it checks for the
spelling, and a Visas Viper cable is sent back on an individual
with the suggestion or evidence that he or she may be
associated with terrorism. And the next step, as you described
it in your testimony, I was concerned you had some conditional
words. Will that automatically lead at least to the suspension
of the visa, if not the revocation, but at least to the
suspension? In other words, it does not require any more than
that Visas Viper cable that person now does not have an
effective visa anymore?
Ms. Jacobs. Right. In this particular case, the new search
tool would have caught the misspelled name. In addition,
officers are required now to put the fact that a person has a
visa right in the Visas Viper cable, so that information would
be there. And then the fact that the officer put an entry, a
``presumed ineligible for terrorist-related reasons'' entry,
into our Lookout database, that information would have been in
the Visas Viper cable as well.
Our new policy is anyone who goes in as a P3B who has a
visa, the visa will be revoked. We do that still in
consultation with our other agency partners to make sure that
there is no operational interest in the individual. That
happens very quickly now----
Chairman Lieberman. An ``operational interest'' in the
sense that we actually may want the person to have the visa
because we are following him or her.
Ms. Jacobs. Exactly right.
Chairman Lieberman. OK. Understood.
Ms. Jacobs. And, anyways, that would happen very quickly.
We have expedited the whole revocation process while we still
have the system where names go into NCTC and are reviewed and
then certain names are exported over to the Terrorist Screening
Center. In addition to that, we have a new expedited procedure
in place whereby consular officers can make a recommendation
about a revocation, or if they put someone in as a P3B, we will
revoke after consultation.
Chairman Lieberman. OK. Am I right that also is a change
since Christmas Day?
Ms. Jacobs. Yes, sir.
Chairman Lieberman. That it was not automatic that the visa
be revoked?
Ms. Jacobs. Right. No, before Christmas Day it was not.
Chairman Lieberman. OK. Those are two big steps forward,
and I appreciate them.
Let me just poke a little more into the operations. I was
troubled--and maybe you did not intend this literally--when you
said that the Visas Viper group at the embassies only meet
about once a month. I presume that if, somebody walks into an
embassy and has significant information about an individual, a
concern of being a terrorist, that the consular officer will
not wait for the next monthly meeting. Right?
Ms. Jacobs. That is exactly right. Officers will send in
individual cables if something comes to their attention before
the monthly meeting.
Chairman Lieberman. Thank you. That is very encouraging. I
appreciate it.
The last witness on this panel is Secretary Morton, who is,
as we well know, head of Immigration and Customs Enforcement
(ICE). Let me just tell you before you begin, Secretary Morton,
that yesterday we had a hearing here on the violence in Mexican
and cross-border violence and its impact on our homeland
security. And I want to thank you and congratulate you for the
indictments that were issued, I guess last week, through the
work of your people in ICE and the U.S. Attorney in Arizona and
the work of, I gather, law enforcement around the country to
bring to justice dozens of people involved in smuggling of
people from Mexico into the United States. So I appreciate that
work. Thank you.
TESTIMONY OF HON. JOHN T. MORTON,\1\ ASSISTANT SECRETARY, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF
HOMELAND SECURITY
Mr. Morton. Well, thank you, Mr. Chairman and Senator
Collins. That was an extraordinary case. It was in the making
for well over a year. On the day of the arrests, we had over
800 Federal, State, and local law enforcement officers engaged
in the searches and the arrests, and I am quite happy to say
that we had the full and coordinated cooperation of the Federal
police in Mexico, the Secretariat of Public Safety, which was
extraordinary. They actually arrested one of our three main
smuggling targets, so it was a good day for law enforcement.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Morton appears in the Appendix on
page 475.
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Chairman Lieberman. Good work. Thank you.
Mr. Morton. Thank you very much for inviting me to address
ICE's role in securing the visa process. Let me start by noting
that good visa security is a multi-agency process that begins
obviously before issuance and continues all the way through
compliance by the visa holder with the terms of admission.
Done properly visa security facilitates lawful trade and
travel--which I completely agree is a privilege, not a right--
and while prohibiting the travel and entry of terrorists and
others who would do harm to our Nation.
ICE plays many important roles in promoting the integrity
of the visa process both before and after issuance. For
example, we investigate and prosecute a wide range of visa
fraud, and we use our administrative powers to remove visa
overstays. I would like to obviously focus my remarks here
today on our efforts to promote the security of the visa
issuance process itself.
In that context, as the Committee well knows, our primary
role is to run the Visa Security Program at U.S. embassies and
consulates overseas. As you may know, we are the second largest
criminal investigative agency in the Federal Government, and we
have a very significant international presence overseas because
so much of our mission is focused on investigating
transnational crime--crimes such as money laundering,
counterfeiting, and piracy of U.S. goods, international child
exploitation, and the smuggling of drugs, arms, and people.
Under the Visa Security Program, ICE agents posted overseas
add a very important layer to the integrity of the existing
visa issuance process. In particular, experienced--and I place
an emphasis on that--ICE investigators provide expert advice
and training to consular staff. We review and scrutinize
individual visa applications, and we conduct in-depth
investigations when warranted.
An important point to keep in mind is that the VSP is not
just a screening program; rather, it is an additional review
process that complements the consular adjudication conducted by
the Department of State and permits in-depth, on-site analysis
and investigation of individual visa applications. This is not
something that can be done remotely. To conduct a thorough
investigation of a suspect application, an ICE agent needs to
be able to interview the visa applicant in person, locate and
research local records, and coordinate with foreign officials.
In short, hard analysis and investigation require an on-site
presence.
Indeed, depending on the concerns behind a given visa
application, an ICE agent's investigation might prove quite
complex and take literally a matter of months. Given our focus
on national security, we do not send new recruits to VSUs. On
the contrary, we assign experienced agents who have spent years
developing interview, interrogation, and other skills while
investigating crimes in the United States and overseas.
To date, the Visa Security Program has worked very well in
the 14 posts where it has been implemented. Indeed, in our
experience the consular staff at VSU posts have rapidly
recognized the value of having ICE agents assist them and have
not viewed the program as wasteful or distracting. This past
fiscal year, our VSP units, working with our consular
colleagues, screened over 900,000 applications and determined
that 300,000 needed further review. Following investigation,
and, again, in close consultation with the Department of State,
we ultimately recommended to consular officials to refuse over
1,000 of these applications. I am happy to report that in every
single instance the Department of State followed our
recommendation.
It is important to note that we do not view ourselves as
overlords or competitors to consular officials. Our mission is
to work with the consular team to identify questionable
applications and to augment the State Department's ability to
investigate and resolve issues of concern. ICE and the
Department of State have jointly identified, as the Chairman
has noted, 57 diplomatic and consular posts that warrant a Visa
Security Unit. We are presently in 14 of these posts, and I
anticipate expanding to four more in the remainder of this
fiscal year and one in early 2011.
I am also working with Assistant Secretary Jacobs to
address some of the implementation challenges both Departments
face with regard to VSU so that we can improve the expansion
process. And I want to just make a personal note here to say
that I have found Assistant Secretary Jacobs to be quite
willing to work with us and quite professional in her dealings,
and I am confident that some of the implementation challenges
that we may talk about here in a bit can be and will be
resolved in a way that is good for both Departments and the
country.
Please know that I am a strong supporter of the Visa
Security Program and ICE's international investigative efforts
generally. I am committed to ensuring that the program works
well, as intended by Congress, as part of the Department of
Homeland Security's broader security efforts, and to work with
the State Department to expand the program in a thoughtful,
efficient way.
Again, I thank you for the opportunity to appear before you
once again, and, of course, I am happy to answer any questions
the Committee may have, Senator Voinovich as well.
Chairman Lieberman. Secretary Morton, thank you. We will do
7-minute rounds of questions.
Let me begin with the Visa Security Program. At an earlier
hearing I raised the question about whether the entire Visa
Issuance Program should go over to the Department of Homeland
Security. That is probably not feasible or a good idea in the
end, but I think the Visa Security Program creates a
partnership here where the kind of concerns we have about the
security implications of visa issuance and, frankly, the
heightened security implications of visa issuance since
September 11, 2001, can be taken care of. But, obviously, the
program has not been sufficiently implemented, and that is what
concerns us on the Committee.
Secretary Jacobs, I take it--well, let me ask you: What
value does the State Department believe the Visa Security
Program has?
Ms. Jacobs. Thank you, Senator. I think that at the posts
where we have Visa Security Units, there has been a very good
partnership between the consular officers doing visas and the
visa security officers. They are able to look at applications.
They have access to law enforcement sensitive information that
sometimes it takes us a little bit longer to access. They bring
a special expertise to the process where maybe answers do not
make sense or certain things about the application raise
questions. And so the consular officers have learned to work
very closely with the visa security officers, to listen to
them. They know that they bring this expertise to the table,
and I think it has been a very good relationship.
There have been cases the VSU officers have identified. You
heard that there have been recommendations to refuse visas that
have been followed.
Chairman Lieberman. Every one.
Ms. Jacobs. So I think it is a very good partnership.
Chairman Lieberman. So let me ask if my staff and I are
right in citing at least seven cases where the chiefs of
mission have objected to having people in the Visa Security
Program in the consular office. Is that correct?
Ms. Jacobs. I am not sure of the exact number, but I do
know that, yes, there have been instances where a chief of
mission has denied a National Security Decision Directive 30
request.
Chairman Lieberman. Why? What are the reasons why they
would do that?
Ms. Jacobs. Well, actually, it is not really specific to
the VSUs. Chiefs of mission have to look at a variety of issues
for any agency, including the State Department, when we want to
add new people to a mission. They have to look at the mission,
why they are there. They have to look at the security situation
in a given country. Is this a place where we are trying to keep
the U.S. presence at a minimum? They actually have to think
about things such as actual space limitations. Many of the VSUs
are co-located in our consular sections, which in many
countries are very tight right now. And so they have to look at
all of these things.
They also look at the other agencies at post, and they look
at what the VSU's goals and objectives are, and they make a
determination about whether they think they already have that
kind of expertise at the mission.
So there is any number of considerations given to these
requests, and I must say that the initial answer sometimes is
no, even for the State Department when we are trying to add
consular officers to an embassy. But that is not the final
answer. There is negotiation that normally takes place.
Sometimes it is just a matter of clarifying exactly what it is
that the new people will do at the embassy.
So it is a process that is worked through, but, again, it
is not any chief of mission sort of singling out a Visa
Security Unit to say, ``I do not want you here.'' It is all of
those things that are taken into consideration.
Chairman Lieberman. Yes. Well, let me say that since, as I
understand it, both the Department of State and the Department
of Homeland Security through ICE have jointly agreed on the 57
posts where there should be a Visa Security Program, I really
want to urge you to not find any excuse acceptable by the
chiefs of mission for not having a Visa Security Program
because this is so central to our homeland security. Will you
take that back? I mean, there is certainly nothing in the law
as we created it that gave the Ambassadors veto over location
of a Visa Security Program that the two Departments have
determined is in our national security interest.
Ms. Jacobs. Yes, sir. I am happy to take that back. Please
know, though, that I am fully committed to try to make this
program work. I think from a very early stage the Bureau of
Consular Affairs has supported the Visa Security Program. We
had a senior officer at the Ambassador level who used to travel
with the teams as they went abroad to try to make their case.
It is something that, we encourage chiefs of mission to
approve. There will always be, I think, at certain posts
reasons that they cannot say yes, and sometimes it really is
simply that they just do not have room. But you can count on
Consular Affairs to really be supportive in this effort, and
also as Assistant Secretary Morton said, the two of us are
working together very closely to figure out ways to make this
happen.
Chairman Lieberman. Yes. Look, I accept your good will here
and intentions. I am saying please take back both to the
Department and then to any individual case where a chief of
mission says, ``No, I do not want the Visa Security Program,''
even for a reason that is not, personal but just ``I do not
have room,'' that they have to find room. This is that
important.
Secretary Morton, my time is running out, but do you want
to get into this generally from the DHS point of view?
Mr. Morton. Yes. The challenges that we face in
implementation are pretty much as Assistant Secretary Jacobs
outlined them. Obviously, we have had some difficulties, and
they have largely centered around concerns or objections from
the Ambassador. Space and the overall size of the embassy is a
common theme. There have been at times concerns that the Visa
Security Unit is either not necessary or might duplicate
something that the Ambassador feels his own staff or her staff
could do.
What we have been able to do, however, is to go back--and
obviously my view is quite similar to yours--and explain this
is a statutory obligation, this is a statutory program, and we
do have a joint list where both Departments have identified
there are 57 posts that we need.
Chairman Lieberman. Right.
Mr. Morton. And things are much better. Assistant Secretary
Jacobs has truly been working quite hard, and a lot of it is
just an education process. But I think both Departments
recognize we need to move with a little more dispatch on the
implementation, and from the two of us you have that
commitment. I personally went to London myself to make sure
that the approval would be given to us by the embassy, and
fortunately, the embassy did give it to me when I went myself.
Chairman Lieberman. Good for you. I appreciate it. Look,
what I am saying is--and I know Senator Collins shares this
view--we are prepared to be the bad cops here. This is really
important, and we are counting on you to make sure it happens.
Senator Collins, I have to go to the anteroom to take a
call. I am going to leave you with power of the gavel with full
confidence while I am gone.
Senator Collins. Thank you. You know I love that.
Chairman Lieberman. Yes. [Laughter.]
Senator Collins [presiding]. Thank you, Mr. Chairman.
Let me follow up on the point that the Chairman just made.
First, let me associate myself with his concerns about the
resistance that you sometimes meet in trying to establish these
security units. I know London has been a particular problem. I
salute you for solving that one. But the idea that there is
resistance on this is really troubling to me.
There is another issue, however, and that is, the
President's budget request for the Visa Security Program for
fiscal year 2011 is the same as for this year. It is flat. So
how can the Department intend to expand to more overseas
consular posts with a flat budget?
Mr. Morton. Well, let me start by saying that, as you know,
at the time of the formulation of the 2011 budget, I was not
the Assistant Secretary because I was preparing for the
confirmation hearings before you and Senator Lieberman at that
exact time.
What I can say is this: We are going to expand to the four.
We are going to expand to at least one more in 2011. You can
rest assured that there is not going to be a penny appropriated
to us for visa security that will not be spent, and my foot is
in the path. I will expand the program, working with Ms.
Jacobs, as much as I can within the resources that I have, both
specifically appropriated for Visa Security Units and our
general international affairs budget. I do not want there to be
any doubt about whether I support the program as enacted by
Congress and the appropriations that we have been given. They
are in many instances, fortunately, og us being given 2-year
money, so I have some flexibility both this year and next, and
I am going to spend every penny of it.
Senator Collins. I think it is important to note that Yemen
is one of the countries where we do not now have a unit.
Clearly, there needs to be one in Yemen. I know that is on your
list for expansion. I would also note that Nigeria is another
that is on the list and where we do not have a VSU.
It seems to me you need to be better resourced in order to
establish these units, that it is not just a matter of the
resistance that you inexplicably encounter at times from the
Ambassador. There is a resource problem, and I know the
Chairman and I will work with you to try to solve that problem.
Secretary Jacobs, I want to go back to you and ask you a
series of questions to make sure that I understand what the
Administration's policies are on revoking the visas of
individuals who are on the various terrorist watchlists. And
let us start with the TIDE list, which is the broadest, biggest
terrorist database. Is there now an ongoing policy whereby the
government continually checks the names that are on the TIDE
list to see if they hold visas?
Ms. Jacobs. In the aftermath of the attempted bombing on
Christmas Day, there was a complete scrub of TIDE files to see
if any individuals in that database held visas. As a result of
that, yes, we did discover people who had visas----
Senator Collins. Excuse me for interrupting, but my
question is different. I acknowledged in my opening statement
that scrub was done after the Christmas Day bomber. Is there
now an ongoing check of those names? Because new names are
going on that list every single day, literally hundreds. So is
there an ongoing check?
Ms. Jacobs. There is an ongoing check of the TIDE files.
There is still a review underway, if you will, of what exact
procedures are going to be standard procedures will be for
those constant reviews of the TIDE files.
I can tell you for the small percentage of TIDE files that
come from Visas Viper information or cables, the procedure I
explained to you earlier where we will be looking at those and
revoking visas of people who have visas. But the TIDE files are
very extensive, if you will, with regard to the type of
information on any given individual. It can range from
sometimes a poison pen letter to something that is very
serious. And so when we send names in to NCTC to create a TIDE
file for the part that we play a role in, we certainly have new
procedures in place. For the more extensive files, I know that
they are looking at the standards for watchlisting people, so
all of those files would be looked at to see if names should be
promoted over to the Terrorist Screening Center. But, again, it
is such a variety of information, it is hard to say that,
everyone in TIDE should automatically have the visa revoked.
Senator Collins. Well, it seems to me that everybody in
TIDE ought to be identified and then brought in for an
interview and a determination made. But let me switch to the
terrorist watchlist. I know with the TIDE list there may be
unverified information; there may be derogatory information
that is not true. But the terrorist watchlist is a subset of
the TIDE list where there has been some additional verification
done. So it is a smaller, more reliable, if you will, list.
I was shocked to learn from the GAO that 1,150 people on
the terrorist watchlist as of Christmas Day had valid U.S.
visas. Of these individuals, how many have had their visas
revoked?
Ms. Jacobs. These are the people on the terrorist
watchlist?
Senator Collins. Correct.
Ms. Jacobs. I believe that all of the visas have been
revoked except in cases where it was determined that it was
somehow in the U.S. national interest to have someone keep a
visa--in other words, someone who would have a waiver. That
would sometimes be a head of State, oftentimes diplomats.
Sometimes there are people who had been invited by a U.S.
Government entity to come to the United States. And in those
instances, we have waivers, and it is well documented and known
why the person is allowed to come. But in other cases, the
visas have been revoked.
Senator Collins. So absent those extraordinary
circumstances, you are assuring our Committee that those 1,150
people have had their visas revoked?
Ms. Jacobs. Yes, ma'am.
Senator Collins. Thank you. Senator Voinovich.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you. I want to hit the Christmas
Day situation real quickly. One, it has to do with having the
right people with the right knowledge and skills at the right
place at the right time. Two, it was a communications screw-
up--we have had two hearings on this. Three, someone has said
that they did not have enough information to stop the
individual from coming into the country.
What I would like to know is: What information did they
have? Who made the decision? And in this whole process was
anyone fired, suspended, or reprimanded? You do not have to
answer that today, but I would like the answer to those
questions I just asked.
But the main thing I want to concentrate on is this: In
2007, this Committee enacted legislation that improved the
security of the Visa Waiver Program and allowed new countries
to join the program. We improved the program security by
requiring participating countries to maintain a low visa
refusal rate, issue secure electronic passports, report all
lost and stolen passports to the United States, submit to
periodic security reviews by the United States, accept
repatriation of nationals, and share information on travelers
who may pose a terrorist or criminal threat to the United
States. All 36 of these countries are issuing machine-readable
biometric passports today, and we are getting lost and stolen
passport data from all the countries.
I do not believe that we would have had what we are getting
today without this visa waiver legislation that enhanced what
was being required from some of the countries. As a matter of
fact, many of the countries that are in the program today have
not complied yet with some of the new requirements that we have
required in this legislation.
It is interesting to note that the last country that went
in is Greece. I thought Greece would be one of the first
countries to go in. In fact, they were qualified but for the
fact that they refused to sign and ratify required information-
sharing agreements. Finally they did it, and they were just
recently admitted.
But one of the things that this Committee ought to know is
that Greece was holding up a Mutual Legal Assistance Treaty, a
critical law enforcement tool for the United States, between
the United States and the European Union because they were
holding out. And I honestly believe that had it not been for
this Visa Waiver Program, that agreement would not be signed
today.
In terms of public diplomacy, Ms. Jacobs, when I was in
Latvia, President Zatlers told me that when it was announced
that the Visa Waiver Program was coming to Latvia--Admiral
Mullen was in town--it said it blew Mullen off the front page
and it was just the Visa Waiver Program that was talked about.
From a public diplomacy point of view, this has been a big hit.
I met recently with ambassadors from the Western Balkans.
All of them are really interested in this program. But the
problem is the program has come to a screeching halt, period,
end of it. We go back to the 3-percent requirement. And the
reason for it, Madam Ranking Member, is the fact that there was
a provision put in the law that said that we had to come up
with a biometric air exit system. The fact of the matter is
that the Department of Homeland Security--and I am on the
Appropriations Committee--has not requested any more money for
this program. The little money they have, they have not spent.
I met with the person that was heading up Customs and Border
Protection. He said the program is not needed.
What I am trying to do is to find out from you: Is the air
exit system fundamental to making this program the program we
want it to be? Or, in the alternative, is there something else
there that is getting the job done? And I am not getting an
answer from you on it, because if you come out and tell us it
is not needed and you do not want to spend, I think it is,
millions and millions on putting this air exit program in
place, then it is not necessary, and we ought to know that. And
if we do know it, I would ask Madam Ranking Member and others
to maybe look at this and amend the statute so we can go back
to what we had before and we can keep moving with this program
that I think is enhancing the security of the United States of
America and also something that is extremely important to this
country's public diplomacy relationships with many countries
who are our friends, who have people in Afghanistan and are
helping us all over the world.
Mr. Heyman. Senator Voinovich, I would like to first agree
with you. I thank you for your leadership on the Visa Waiver
Program. In my full statement, we acknowledge the exceptional
work that Congress has done to put in the provisions that you
mentioned, to improve security, to enhance our information
sharing, and to provide a basis by which not only do we benefit
from enhanced immigration and customs security, aviation
security, but also public diplomacy, as you mentioned.
In terms of the challenges we face, we are pursuing
aggressively concluding the information-sharing agreements that
Congress has requested. Those agreements are important,
particularly in light of December 25, where those who may be
unknown to us, may be known to our partners, and the
information that they have may benefit our ability to do
security here and in the aviation system.
As it pertains to a biometric exit, you are correct. The
requirement for--the ability for the Secretary to waive the
requirement of a 3-percent minimum for visa refusal for
countries that are interested in the Visa Waiver Program was
not met in June of this past year, and, therefore, we are
unable to allow those who have over 3 percent designated into
the program.
Senator Voinovich. The law provided--it was up to 10
percent.
Mr. Heyman. I believe that the 3-percent minimum up to 10
percent was the waiver ability unless we put in place a
biometric air exit. Because we have not put in place biometric
air exit, it is now back to the 3 percent.
That being said, we have now done a number of pilots to
look at air exit, and we are looking at right now, as you said,
the substantial costs that it would require to put this in
place, the law enforcement interests that we have, particularly
for those who we may capture leaving the country who are
perpetrators of serious crimes, and the implications to
questions of overstays.
I am pleased to tell you today that until recently we have
had a very difficult time looking at the visa overstay data. We
have just implemented a manual process that has allowed us to
get greater fidelity into the overstay records, and I can
confidently say that all of the countries that we have reviewed
so far are far under the 2-percent overstay that we have looked
at. We are going to complete that, but I think looking at the
overstay data in a much more comprehensive way will provide us
additional means for looking at Visa Waiver Program----
Senator Voinovich. Well, the main thing is this--I am
leaving at the end of this year. If it is needed, let us
appropriate the money for it. I put $50 million in the Homeland
Security appropriations bill last year. You did not even ask
for it this year, so somebody over there must think it is not
needed. If it is not needed, let us know that it is not needed
and what you have in place that you think takes care of it
without spending this enormous sum of money. And if you do
that, then we can take it into consideration as to whether or
not it is required or not required, and we can move on with it.
Mr. Heyman. Well, Senator, I would be happy to follow up
with you. We are, I think, very close to finding a path
forward, and we will be happy to follow up with you on that.
Senator Voinovich. Thank you.
Chairman Lieberman [presiding]. Thank you, Senator
Voinovich. Senator McCain, good morning.
OPENING STATEMENT OF SENATOR MCCAIN
Senator McCain. Thank you, Mr. Chairman, and I thank the
witnesses for being here.
Mr. Morton, I would like to talk immigration with you and
the role that ICE has in this effort. I am sure you are aware
that 45 percent of all apprehensions of illegal immigrants in
this country occur in Arizona.
Mr. Morton. I am indeed.
Senator McCain. Sheriff Dever, who was here yesterday, said
that law enforcement estimates that they catch about one out of
every three to five illegal border crossers. Is that in keeping
with your assumptions?
Mr. Morton. Not those exact figures, but there is no
question that, we estimate that roughly one out of every two
people that comes to the United States unlawfully comes through
Arizona. That is the single busiest corridor in terms of
illegal immigration.
Senator McCain. So lets say that this low estimate is right
and one out of every three are apprehended, that would give you
somewhere around 700,000, 800,000 people coming across our
border illegally every year. Is that pretty much in keeping
with the information that you have?
Mr. Morton. I hesitate only because obviously the Border
Patrol and not ICE is responsible for the apprehensions along
the border, so I just do not want to steer you wrong on
statistics. I deal with it more from the macro level. We have
an estimate of anywhere between 10.8 and 12 million or more
people who are here unlawfully, and that Arizona is obviously
one of the major corridors for that.
The number does fluctuate. Obviously one of the questions
is how much of that is due to enforcement and how much of that
is due to economic difficulties. But there is no question that
Arizona is a very busy corridor of illegal immigration.
Senator McCain. Well, the President's budget requests $53
million less than 2010 for the identification and removal of
criminal aliens. Can you explain the Administration's reasoning
for this decrease?
Mr. Morton. I am not aware of that reduction. I can only
speak to that in terms of ICE's budget. Our budget, we have a
very modest increase, and the areas of increase are largely for
our Border Enforcement Security Teams--we hope to add three--
and some additional resources for our detention system. It is
largely keeping the present enforcement operation we have in
place fully funded.
I will say, Senator McCain, again, from ICE's perspective,
a quarter of all of our agents and officers are along the
Southwest Border. There has never been a time in our history
when there were more ICE agents or officers, and the same is
true for the Border Patrol along the four States.
Senator McCain. Well, I think you just made a case for an
increase in Arizona and across the Southwest Border, because if
half the illegal immigrants are coming across in Arizona and
only one-fourth of your agents are deployed there, it would
argue for an increase in agents.
Mr. Morton. The one-fourth figure is for all four Southwest
Border States, and for Immigration and Customs Enforcement, it
is particularly striking in that we have pronounced
responsibilities both at the border and in the interior of the
United States and in 44 countries overseas.
But let me assure you, there is no question that we are
focused on this issue. We are, as we speak, the primary Federal
agency assisting Cochise County with the murder of Mr. Krentz,
the rancher. I came back from Arizona on Thursday where we
announced the single largest alien-smuggling operation we have
ever conducted in our agency's history, arresting roughly 50
defendants for organized alien smuggling on a grand scale
through Arizona.
Senator McCain. I am aware of that, and I wanted to
congratulate you, and not only ICE but also the coordination
between all levels of law enforcement in that operation. And I
want to thank you for your leadership.
Can we talk about Operation Streamline for a minute with
you? The law enforcement people tell me down on the border that
the incarceration of 15 days, 30 days, 60 days, whatever it is,
has had a significant effect on reducing the, I guess, maybe
recidivism or the re-apprehension of individuals crossing the
border. Has that been your experience?
Mr. Morton. Yes, but let me caveat that Operation
Streamline is a Border Patrol and U.S. Attorney operation. ICE
is not directly involved in Streamline. I do understand from
the Department of Justice and the Border Patrol that the rates
of apprehension in those districts where Streamline is carried
out are----
Senator McCain. You do the detention, right?
Mr. Morton. We do the detention, and we do all the criminal
investigation. So the Border Patrol is the inspection and
interdiction function; we are the Department's criminal
investigators, and we carry out the detention function.
Senator McCain. And do you think it has been an effective
program from your observations?
Mr. Morton. Again, it is an observation from afar, but I
understand that the Border Patrol and the U.S. Attorney view it
as having been effective in those areas where it is carried out
and that the rates of apprehension are reduced in those
particular districts.
Senator McCain. Tell me a little bit about the operation
that was just conducted in a very effective fashion. Does that
also alert you to the fact that this human trafficking is
really well organized. We used to kind of have the vision of a
citizen of a country south of our border, usually Mexico,
wanting to go to the United States and work and make their way
across the border. Yet it seems to me that this is one of the
changes, along with the dramatic increase in violence--which, I
would be very interested in hearing your thoughts on. The L.A.
Times reported that 22,000 Mexican citizens have been killed
during President Calderon's presidency in the last 3 years. I
believe that is what they quote. But, also, maybe you could
comment on how well organized and how coordinated the drug
cartels and the human traffickers are and the sophistication of
their operations. I would be very interested in hearing about
your view on that.
Mr. Morton. You are absolutely correct, Senator. There is a
vision of alien smuggling either as a Mom-and-Pop effort or as
just somebody deciding I am going to make my way to the United
States and I am going to walk, and I might get some guidance
along the way, but it is going to be an individual effort.
Those images do not match up with today's human smugglers, and
that is what our operation in Arizona was all about.
This is extremely sophisticated. There are loose
confederations of alien smugglers. It is not just a question of
organized criminals working in Mexico and the United States.
Some of these chains stretch all the way to China, and in this
particular case, we apprehended a number of Chinese who had
come through a many-month journey, going through various drop
houses and all sorts of different countries, making their way
ultimately up to Mexico and through.
What we see is that obviously many of the cartels control
the routes of passage across the border, and alien smugglers
will have to coordinate with them for rights of passage. It is
organized crime in very simple terms. That is how we approach
it at ICE. Human trafficking is very serious, and we approach
it as organized crime, and we are going to investigate it and
try to root it out wherever we can.
Senator McCain. I know that my time has expired, but could
I just ask again, how closely intertwined and coordinated are
the drug cartels and the human smuggling people? It seems to me
that if they are using the same routes, if they are using the
same techniques, they are intertwined and not really separate
challenges in a way.
Mr. Morton. Well, good border enforcement requires
aggressive investigation of the smuggling of people, money,
arms, and drugs. And all of those things are quite related;
particularly the arms, money, and drugs piece really go hand in
hand.
The alien-smuggling chains in our experience are distinct,
but because they are using many of the same routes and methods,
and because the drug cartels often control many of the
corridors, there is a relationship. We often will see movements
of aliens being sacrificed for purposes of, avoiding Border
Patrol enforcement for a larger aim of the drug traffickers
getting drugs across the border. So there is a relationship. I
do not want to say that they are the same organizations, but
there is a correlation, and that is very much the way we treat
this. This is fighting organized crime along the border,
whether it is in the form of alien smuggling, drug trafficking,
arms, or money.
Senator McCain. I thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator McCain. Senator
Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thank you. Welcome, one and all. It is nice
to see you. Thanks for joining us today, and thanks for your
presence and responses to our questions.
The bombing that was attempted on last Christmas Day, was
another wake-up call for our law enforcement officials. For our
intelligence agencies, it also served as a reminder that we
still have gaps in the aviation security apparatus and that the
enemy around the world continues at its efforts to attack us
from a lot of different directions.
Without question, we have come a long way since securing
our homeland since September 11, 2001, but I think we all know
we have to continue to remain vigilant and to work together at
all levels of government.
I have two questions to ask of you today. The first of
those questions revolves around the Visa Waiver Program, which
we have discussed at some length here this morning. This
program has been expanded over the last 5 years, I believe, to
include nine additional countries, and that means I think
people in as many as 35 or 36 countries can now travel to the
United States without a visa. I think they can stay here for up
to, I am told, as many as 90 days for business or for tourism.
I believe this program has provided a great benefit to our
country and to those who visit our country.
Having said that, we all know that it could also pose a
security threat by the second and third generation nationals
who have been radicalized in too many instances and may end up
wanting to do harm to this country and the people who live
here.
How real is this threat? If it is real, what steps have
been taken within the program that we are discussing here today
to prevent the threat from being realized?
Mr. Heyman. Well, thank you, Senator. I believe that first
we have 36 countries now, and we are very much appreciative of
the congressional support to this program.
The security benefits that accrue as a result of some of
the changes that we have put in place over the last several
years, and particularly in light of December 25, are ones that
I think will allow us in the long term to address the kinds of
threats that you have discussed.
What we saw on December 25, was an individual who was in
some sense not known to us, though should have been known to
us, who traveled through the aviation system and had used
effective concealment to deliver his device over Detroit. And
the programs that we now have put in place since December 25--
beyond the Visa Waiver Program to include the Visa Security
Programs, the Visas Viper recurrent vetting, the watchlisting
reviews, and within the Department of Homeland Security--the
checks that we do against watchlists and other databases prior
to departure have in a real sense improved the security that we
have for the traveling public in aviation security.
Beyond that, we are also working internationally with our
partners. The Secretary has traveled to four regional
conferences to encourage and work with our international
partners to improve the standards across the globe in terms of
screening, in terms of information sharing, in terms of
capacity building. And we are continuing to work that
international effort.
But in the Visa Waiver Program, the information-sharing
arrangements that we are now negotiating with our partners in
the long term will help us to build the kind of understanding
that we have prior to departure to assess, as we do right now
with watchlists and other databases, the security risks of
individuals traveling to this country.
Senator Carper. Thank you. Anyone else want to add a
comment on that?
[No response.]
One other question, if I could. I am a firm believer--I
suspect that you are, too--in using a layered approach of
people and technologies to protect our homeland from our
enemies. I believe that relying too closely or too narrowly on
just one layer over another has the potential for opening the
doors to future intelligence failures. We are actually seeing
some of that already.
One of the areas that I believe we could do a lot better is
with respect to training of our screening and consular
workforces. I am referring to the screeners at our airports and
the Foreign Service officers who issue American visas at our
embassies and consulates abroad.
While investing in high-tech scanning equipment is
important, these devices have a shelf life, as you know, and
will eventually become obsolete. Investing in people to detect
fraudulent immigrant documents or spotting suspicious
passengers is vital to safeguarding our country.
Could each of you take just a moment to address those
concerns and, if possible, to offer up to our Committee some
steps that your agency is taking to improve screening
processes? Ms. Jacobs, would you like to go first?
Ms. Jacobs. Yes, sir. Thank you for that question. I think
you are absolutely right that proper training is crucial. In
Consular Affairs, consular officers out doing visas really are
the first line of defense in protecting our borders, and it is
very important for those officers to be properly trained.
We put all of our new officers through a basic consular
training program that includes 80 hours of security-related
training, fraud detection, interviewing techniques, ability to
look at documents to recognize things that sort of jump out as
problems. We even train officers in how to detect deception,
reading facial expressions.
We also have other agencies that come over to our Foreign
Service Institute to talk to people. Our national security
partner agencies' representatives come over to talk about
threats, things to look at, red flags.
So it is there. It has been a very important part of our
training always, but certainly after September 11, 2001, we are
always looking for ways to improve that training. When an
officer gets to a post, they undergo further training, and for
the officers who are consular combed, who will stay doing
consular work for most of their careers, there is an ongoing
training program at every stage of their career to reinforce
what we are doing.
In fraud prevention, we have come very far. We are using
new technology. We are using off-the-shelf databases, like
LexisNexis, and other tools to check information. And now that
we are going to an online visa process, we will actually get
all of the data on our applicants in advance of an interview,
and it is going to give us a chance to actually start data
mining, looking at common addresses, common phone numbers,
other things that should raise red flags for us. So that will
also be, I think, another very important tool in our kit for
having officers well trained to recognize fraud and other
security-related issues.
Senator Carper. Thanks very much for that response. Mr.
Heyman.
Mr. Heyman. Thank you, Senator. I could not agree more. It
is a principle of Homeland Security that we have to have
defense in depth, to have layers of defense and not rely on any
single solution to secure whether it is aviation or other
important entities in our homeland.
In terms of aviation security, the layers begin with the
travel document and the standards that are required to ensure
that they are not fraudulently obtained or created. An
individual must obtain that document. Then they may go through
a visa process or an authorization process. There are visa
security agents, as we have testified to today, as well as
Consular Affairs and database checks for that layer.
Once an individual has that permission to travel to the
United States, the next layer is the pre-departure checks that
the Department of Homeland Security can do against passenger
name records up to 72 hours in advance of a departure to see if
there are any matches to the No Fly List, the watchlist, or
other lists.
And then when they come to the airport, we have two
different models. There is the domestic model in the United
States which the Transportation Security Administration (TSA)
of the Department of Homeland Security runs, and then there are
the models abroad where the Department of Homeland Security
does not have a role to play per se; security is managed abroad
by the local entities there. But at home, we have behavioral
detection officers. We have the screening, both advanced
imaging technologies. We have other types of technologies to
look at concealment. And then, finally, in-flight security to
include air marshals, hardened doors, and things of that
nature. All of these layers come together to perform aviation
security.
In terms of training, each of the individuals who are on
the front line there, whether it is a transportation security
officer of TSA, whether it is a Customs and Border Protection
official who is stationed abroad or working here in the United
States, or visa securities officers, as Secretary Morton has
testified, have not only extensive training but extensive in-
field work as part of their training procedures.
One of the things we are looking to do as we look at
improving international aviation security is the international
standards to include training for capacity building, and that
is one of the things we are seeking to work with the
International Civil Aviation Organization (ICAO), through the
United Nations, as we work with our partners abroad to improve
standards around the world.
Senator Carper. Thank you. My time has expired. Mr.
Chairman, could Mr. Morton have just 30 seconds, just briefly
to respond?
Chairman Lieberman. Yes, of course. Go right ahead.
Senator Carper. Very briefly, sir. Thank you.
Mr. Morton. Well, I will beat a dead horse a little bit
more and say that I completely agree with the idea, obviously,
of a layered defense.
Very quickly, training is critical. The Act directly
requires it of ICE in its role through the Visa Security
Program. It is one of the things that I want to work with the
State Department more on, and we are very cognizant of--we do
not send, as I noted in my initial remarks, new recruits
overseas to do this. We recognize that we are the largest
investigator of visa frauds in the country, and so we have a
great deal of experience with, figuring out if somebody is
telling the truth or not to the government. We want to bring
that experience, not just have training for consular officers,
but to share what it is we do every day. And, we are in many
respects the policer of that system, and we have a lot of
expertise and thoughts on it.
Obviously, also in our role of policer of the system, we
deal a lot with visa overstays. We see what kind of
misrepresentations people make, patterns. We do this on a
fairly large and grand scale. And so I am a big believer in not
just having the Visa Security Program there to identify
individual applications, but to help with the training of
consular officers and to view this as a team effort.
Senator Carper. Good. Thank you all very much for those
responses, and thank you, Mr. Chairman, for your generosity.
Chairman Lieberman. Not at all. Thank you, Senator Carper.
It was an important question.
We will do another quick round. I would not call it a
lightning round, but it will be a short round of 5 minutes
each.
Let me come back just to ask a few more questions about the
Visa Security Program. First, what is different about the
review that you do before issuing visas in those 57 high-risk
posts that you have identified as high risk as opposed to the
others? What more do you do?
Ms. Jacobs. Well, where we have VSUs, basically all of the
applicants are initially screened by a consular officer. They
are run through a series of checks to include a check of our
Lookout System. We also check their fingerprints against
Automated Biometric Identification System (IDENT) and
Integrated Automated Fingerprint Identification System (IAFIS).
If there was any kind of Lookout entry that requires what we
call a security advisory opinion, sending the case back, that
will happen. And so all of those sort of initial screenings
take place.
Where we have VSUs, the value-added is that a visa security
officer then looks at the application, and if there is, for
example, a law enforcement entry in the Lookout System, a
National Crime Information Center (NCIC) hit, they can easily
access the information behind that hit. They can also tell
sometimes just by where people are going or just certain
answers to questions because of their experience with what
happens when people actually come to the United States, they
are able to go back to the consular officer and say, ``You
should be asking these additional questions.''
So it is a give-and-take process. It is, if you will,
another layer to the process during the visa stage.
Chairman Lieberman. Mr. Morton, why don't you answer the
question and I guess in a way focus it from your point of view.
What is it that a visa security officer working as part of ICE
brings to that review that the consular officer might not or
does not do?
Mr. Morton. I think in sort of common parlance, ``what do
we get from this,'' we get an ability to kick the tires and in
a profound way, down to a level of an individual application.
And we bring to bear an investigator, somebody who has spent
their life--and as I said, we do not send new recruits, we send
experienced people over there, typically from our international
program. Already they have had experience living overseas,
speaking the foreign language. And you get somebody whose job
it is to uncover fraud and misrepresentation, who brings a gut
sense as an investigator when something is not right, has much
quicker access to the databases and to classified information,
knows what to do when, there is a little smoke here or
something does not add up, well, what do you do? Well, you are
an investigator. That is what you are trained to do. And you
know, we are going to go down to the courthouse and see whether
or not you are really married to this person or that person or
whether you got divorced. We are going to call our colleague in
New York and say, ``Does it seem odd to you that we would have
50 visas with the same address on this block being used?''
It is that kind of in-depth analysis and investigation that
can be brought to bear with people who know what they are doing
in that area, and it is in no way to suggest that consular
officers are not quite competent with what they do. It is just
recognizing that the adjudication process is different than the
investigative process. And when you can mirror those powers, a
lot of the screening can be done by the consular officers, but
often it is their first or second tour, so they are relativley
new in the scale of their work, and we are bringing some
seasoned hands to, again, help kick the tires.
Chairman Lieberman. Yes, well, that is a very good answer,
what I thought was the case. The State Department personnel are
Foreign Service officers, usually junior, very able, as I have
met them, but not specifically trained--although they are
carrying out some of these responsibilities in investigation
with a focus in this case on counterterrorism and homeland
security.
When we remember, in response to the Christmas Day bombing,
one of the first things to be done was the subjecting of extra
measures to those 14 countries. And now that is altered in a
much more direct and intelligence-driven way. But I am in some
sense both interested and encouraged that the list of countries
which these two Departments, have designated as higher risk is
way beyond 14. It is 57. I am encouraged by that because
obviously we know that the Islamist extremist terrorist
movement is operating, and others who want to threaten our
security, operating globally.
So how did you make the judgment--and just a quick answer--
about where to extend beyond that list of 14, which in a sense
is the obvious first place to look? Secretary Morton.
Mr. Morton. A lot goes into deciding those posts. Some of
it I would prefer to give you a straight briefing on, but not
in a public setting.
Chairman Lieberman. That is fine. Sure.
Mr. Morton. But London is a perfect example. You ordinarily
do not think of the British being at the top of our list for
having to worry about whether they are going to fly planes into
buildings. On the other hand, when you understand the visa-
issuing process and you realize that London is a place where
many people other than British nationals are getting visas.
Then suddenly you realize that it is very important from a
national security perspective and needs to be on the list of
57, which it is. And so it is those kinds of things, looking at
the opportunities for even if the nationals of a given country
have a good record of compliance, is it a vulnerability with
regard to nationals from countries next door? Are there
corruption issues? There is a lot that goes into it, and that
is how we come to 57.
Chairman Lieberman. Good enough. Thank you. Senator
Collins.
Senator Collins. Thank you, Mr. Chairman.
In the aftermath of the Abdulmutallab case, there was some
confusion over which agency considered itself ultimately
responsible for revoking of a visa on terrorism grounds. And I
remember the National Counterterrorism Center Director
testifying before us and expressing his bafflement at some of
the comments that were made by the State Department personnel.
The State Department spokesman, shortly after the Christmas
Day bombing attempt, said the following: ``It would be up to
the National Counterterrorism Center to make the determination
whether to revoke a person's visa or take other action.''
When asked later by a reporter why the State Department did
not revoke Abdulmutallab's visa, the State Department
spokesperson said, ``Because it is not our responsibility.''
Secretary Jacobs, what is your reaction to those comments?
Ms. Jacobs. I believe that the response by the spokesman
was probably a bit of a shortcut, if you will. I think what he
was trying to say is that the way the process worked at that
time prior to Christmas was that names would go into the NCTC,
and if the NCTC felt that the name or the information met the
standards at the time for promoting the name over to the
Terrorist Screening Center watchlist, that needed to happen
before we would have revoked the visa.
I think that is probably what he was trying to say. It did
not come out exactly that way, I realize. The State Department
has the authority and responsibility for revoking visas, and we
take that very seriously, and as I have explained to you, we
have new procedures in place now for more expeditious
revocation after Christmas Day.
Senator Collins. Thank you.
Mr. Heyman, the Department of Homeland Security also has
some authority in this area. Section 428 of the Homeland
Security Act of 2002 provides DHS with broad authority to set
visa policy. Specifically, it vests in the Secretary the
exclusive authority to ``issue regulations with respect to
administer and enforce the provisions of law relating to the
functions of consular officers of the United States in
connection with the granting or refusal of visas.'' It also
says that the Secretary has the authority to refuse visas in
accordance with the law.
Do you think there is confusion over the role of DHS in
this area?
Mr. Heyman. In our partnership with the State Department,
there does not appear to be confusion. As we have testified
today, there are numerous instances, over 1,000 perhaps, where
the Department has made recommendations to refuse or revoke a
visa that have been readily adapted and responded to by the
State Department. Those are recommendations. The Secretary has
the authority to make those determinations on her own, though
has not needed to----
Senator Collins. It has not been exercised.
Mr. Heyman. Not been exercised, and largely there is a good
working relationship with the State Department, and we have not
had a need to do so. And the Abdulmutallab case, had he arrived
in Detroit, it is likely that we would have noted the
derogatory information, gone to secondary, and perhaps made a
recommendation to the State Department to revoke the visa.
Senator Collins. Do you believe that the Department has the
authority to establish a visa policy that would require the
suspension of all visas held by the individuals in the TIDE
database pending further investigation?
Mr. Heyman. The Department has the broad authority to make
policy on visa refusals or revocations. In the particular
example that you give, through an interagency process, the
government has already made a determination that individuals in
TIDE are not eligible for terrorist watchlist and individuals--
and beyond that, they are not on the No Fly and Selectee Lists
since they are not even a resident in the terrorist watchlist.
As such, it would be questionable, I think, as to whether
their visas required revocation. Some reasons that people are
in the TIDE database, as was noted earlier, is because of
poison pen letters or investigations have concluded fragmentary
information, I am just speculating now. I would not necessarily
jump to the conclusion that visas would need to be revoked just
because somebody was there.
Senator Collins. But my question is not the desirability of
the policy. It is trying to establish authority. Do you believe
under current law that the Secretary would have the legal
authority to issue regulations requiring such a policy?
Mr. Heyman. I would have to look at it more carefully. She
has broad authority as stipulated in the Act, and so let me
perhaps do a little bit more thinking on that and get back to
you.
Senator Collins. Thank you. The final comment that I want
to make concerns an issue that was brought up both by Senator
Carper and Senator Voinovich, and that concerns the Visa Waiver
Program. I think that it is unacceptable that fewer than half
of the 36 countries currently participating in the Visa
Security Program are now sharing all the information on
dangerous individuals that is supposedly required to take
advantage of that program. And I really think we are going to
need to take a harder line on this.
It was supposed to be a condition of participation, and if
countries are not willing to share that information with us,
then I do not see how we can allow participation in a program
that might result in one of their citizens coming to our
country without having to get a visa and possibly do us harm.
So my final comment is to urge you to take a far harder
line on the information-sharing agreements, and if countries
are not willing to abide by that and share information with us,
then we should kick them out of the Visa Waiver Program.
Mr. Heyman. Well, thank you, Senator. I share your
interest, and these are important agreements that need to be
concluded. We are, as I had mentioned earlier, focused on
concluding these agreements. It is our top priority in the Visa
Waiver Program right now. We have a number of ongoing
negotiations to move forward as we speak, and we have a path to
conclude all of these no later than 2012.
Some of the challenges we face in these arrangements are
different legal systems, the ratification systems, perhaps the
need for assurances on privacy, and we are working carefully
through that with all of the countries, with, I think, good
effect, and I think we are on a path hopefully, as you said, to
move as fast as we can on this and no later than 2012.
Senator Collins. Thank you. It is still troubling to me
that we are not even halfway there, and so a lot of work
remains to be done. I know it is very difficult, but we are
extending a benefit to the citizens of those countries.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins. Just to say
for the record that I agree with you totally. I know this can
be diplomatically sensitive because we are dealing in many
cases, probably all cases, with countries that are allies and
that are supportive of us in other ways. But, the refusal or
slow walking in sharing information with us is really not
acceptable because of the higher priority that we have to give
to homeland security. So, again, we are happy to be cited as
breathing down your neck next time you----
Mr. Heyman. So cited, sir.
Chairman Lieberman. Thank you for this hearing. I
appreciate very much some of the things that have been done
since December 25. I say, Secretary Jacobs, particularly that
you have this, I call it, software in place to avoid the
problem with the misspelling of the name, and that the judgment
by a consular officer that somebody may be a terrorist
immediately will lead to revocation of a visa unless there is
some other national security reason for not doing that.
I do want to emphasize that we are very concerned about the
slowness and incompleteness of the placement of the visa
security officers in those 57 high-risk posts, and I just want
to urge you to do it, as we talked about before--and, Senator
Collins and I have talked, and we are going to take it on
ourselves to try to convince the Administration. Of course, we
could use your help in that budget office, and our colleagues
who are appropriators to give you the money you need to do
that. That probably has as good a return on investment as a lot
of other things we could do with the money.
But thanks for what you are doing every day. Thanks for
your testimony today. We will keep the record of the hearing
open for 15 days for additional statements or questions.
The hearing is adjourned.
[Whereupon, at 12 Noon, the Committee was adjourned.]
A P P E N D I X
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