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58–484 PDF 2010

S. HRG. 111–616 

SECURING AMERICA’S SAFETY: IMPROVING THE 

EFFECTIVENESS OF ANTITERRORISM TOOLS 

AND INTERAGENCY COMMUNICATION 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JANUARY 20, 2010 

Serial No. J–111–71 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 129 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 170 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

Heyman, David F., Assistant Secretary for Policy, U.S. Department of Homeland Security, Washington, DC ........................................................................... 10 

Kennedy, Patrick F., Under Secretary for Management, U.S. Department 

of State, Washington, DC .................................................................................... 8 

Mueller, Robert S., III, Director, Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC ................................................................ 5 

QUESTIONS AND ANSWERS 

Responses of David F. Heyman to questions submitted by Senators Feingold, 

Grassley, Hatch, Leahy and Specter .................................................................. 49 

Responses of Patrick F. Kennedy to questions submitted by Senators Leahy, 

Feinstein, Feingold, Specter, Sessions, Hatch, Grassley .................................. 72 

Responses of Robert S. Mueller III to questions submitted by Senators Feingold, Feinstein, Hatch, Leahy and Specter ........................................................ 101 

SUBMISSIONS FOR THE RECORD 

Baird, Zoe, and Slade Gorton, Markle Foundation Task Force, National Security in the Information Age, New York, New York, joint statement ............... 120 

Constitution Project, preface only, (additional Material is being retained in 

the Committee files) ............................................................................................. 127 

Flynn, Stephen E., President, Center for National Policy, Washington, DC, 

statement .............................................................................................................. 133 

Heyman, David F., Assistant Secretary for Policy, U.S. Department of Homeland Security, Washington, DC, statement ........................................................ 138 

Hutchinson, Asa, CEO, Hutchinson Group, Undersecretary, Department of 

Homeland Security, Washington, DC, statement .............................................. 152 

Jenkins, Brian Michael, Bruce Butterworth, and Cathal Flynn, statement ...... 157 

Kennedy, Patrick F., Under Secretary for Management, U.S. Department 

of State, Washington, DC, statement ................................................................. 160 

Leiter, Michael, Director, National Counterterrorism Center, Washington, DC, 

statement .............................................................................................................. 173 

Macleod-Ball, Michael W., Acting Director, and Christopher Calabrese, Legislative Counsel, American Civil Liberties Union, Washington, DC, joint 

statement .............................................................................................................. 178 

Martin, Kate, Director, Center for National Security Studies, Washington, 

DC, statement ...................................................................................................... 189 

Mueller, Robert S., III, Director, Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC, statement ............................................. 196 

Schneier, Bruce, Schneier@Schneier.com .............................................................. 208 

Spaulding, Suzanne E., statement ......................................................................... 210 

(1) 

SECURING AMERICA’S SAFETY: IMPROVING 

THE EFFECTIVENESS OF ANTITERRORISM 

TOOLS AND INTERAGENCY COMMUNICATION 

WEDNESDAY, JANUARY 20, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, 

Cardin, Whitehouse, Klobuchar, Kaufman, Franken, Sessions, 

Hatch, Grassley, Kyl, and Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I think before we start on this 

hearing, every one of us has to be moved by what we have seen 

on television or people we have talked with during the past couple 

weeks in Haiti. And if I could, with the indulgence of my colleagues, wearing another hat that I have as Chair of the Appropriations Subcommittee that handles our foreign aid, I have been 

particularly interested in what has been happening. I have had 

talks with people on the ground in Haiti and others who have gone 

down there, and I want to begin by thanking President Obama, 

Secretary of State Hillary Clinton, USAID Administrator Shah, 

General Fraser of the U.S. Southern Command, and all the hardworking people here and on the ground in Haiti for their efforts to 

save lives in the aftermath of this devastating earthquake. 

A number of States—I know California sent search and rescue, 

Virginia did, and others. My own little State of Vermont is sending 

down a medical team today. Recovering from this disaster is a 

daunting challenge for the people of Haiti, but Vermonters and all 

Americans have opened their hearts and are sharing generously. 

We will continue to do so. Any one of us just as human beings have 

to be moved by what we have been seeing down there. 

Now to the subject of this important hearing. A terrorist intent 

on detonating an explosive was able to board a plane with hundreds of passengers headed for Detroit, Michigan, on Christmas 

Day. After Congress passed major legislation in 2004 to implement 

the 9/11 Commission’s recommendations, and after the country invested billions of dollars to upgrade security systems and to reorgaVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
2 

nize our intelligence agencies, the near tragedy on Christmas Day 

compels us to ask what went wrong and what additional reforms 

are needed. 

The administration responded quickly and has already conducted 

a preliminary review. The President has candidly identified problems. He spoke directly to the American people about the incident, 

the threat, and the actions that are necessary to prevent future attempted attacks. They did not offer excuses, but instead they have 

taken responsible action to provide additional security measures. 

I know there will be some hard questions at this hearing. We will 

want to know how and why we failed to successfully detect and 

prevent this attempted attack. How did someone who paid for an 

airline ticket with cash, who boarded without luggage for a winter 

trip to Detroit, and whose father had come to U.S. officials weeks 

before to warn that his son had become radicalized, how was he 

able to board a flight for the United States with a valid visa? Just 

as we now know the horrific, deadly attacks on 9/11 could have 

been prevented, should have been prevented, the recent White 

House review found that the Government ‘‘had sufficient information to have uncovered and potentially disrupted the December 25 

attack.’’ Our intelligence agencies did not adequately integrate and 

analyze information that could have prevented this attempt. The 

President called it a ‘‘systemic failure,’’ and he is right that this is 

unacceptable. Just as we failed on 9/11, we failed here. 

Now, I would hope that all Senators here ask whatever questions 

they feel they should, but I hope we proceed with the shared purpose of making America safer. No one has been angrier or more determined than the President. He did not respond with denial and 

obfuscation, but instead came forward to identify failures and correct them. 

Let this not be a setting where we are looking for partisan advantage. We are all Americans; we are all in this together. Every 

one of us as members and virtually everybody in this room fly 

often. ‘‘Passions and politics’’ should not obscure or distract us. We 

should all do our part. As the President said recently in announcing the immediate actions he had ordered: ‘‘Instead of giving in to 

cynicism and division, let’s move forward with the confidence and 

optimism and unity that define us as a people. For now is not a 

time for partisanship, it’s a time for citizenship—a time to come together and work together with the seriousness of purpose that our 

National security demands.’’ 

I was here after 9/11. I saw Republicans and Democrats come together to work together with the President to find out what went 

wrong and to make sure it did not happen again. That is what we 

need to do today. 

Our witnesses today are public officials. They are not adversaries. They each share with us a common purpose, as the President said, ‘‘to prevail in this fight...to protect our country and pass 

it—safer and stronger—to the next generation.’’ 

In the aftermath of the Christmas Day plot as well as the Fort 

Hood tragedy, it can be tempting to forget that it is always easier 

to connect the dots in hindsight. It was not our intelligence agencies that first raised the alarm about the suspect who tried to blow 

up the Northwest Airlines flight. It was the suspect’s own father, 

3 

a Nigerian, who turned him in. Our response to the incident has 

to be swift but also thoughtful. It may be tempting to take reflexive 

actions, but to do so will only result in the unnecessary denial of 

visas to legitimate travelers and the flooding of our watchlists such 

that they become ineffective tools in identifying those who would 

do us harm. We want to stop real people who may do us harm, not 

8-year-old children. 

A ‘‘one size fits all’’ mentality will only ensure that we will miss 

different threats in the future. We cannot hunker down and hide 

behind walls of fear and mistrust. We should not let our response 

to the incident provide another recruiting tool for terrorists, and we 

have to be smarter than that. 

Finally, this morning, the Inspector General released a report a 

few minutes ago detailing the misuse of so-called exigent letters by 

the FBI to obtain information about U.S. persons. The report describes how the FBI used these exigent letters without proper authorization to collect thousands of phone records, including in instances where no exigent conditions existed. The report also details 

how the FBI then compounded the misconduct by trying to issue 

national security letters after the fact. This was not a matter of 

technical violations. If one of us did something like this, we would 

have to answer to it. This was authorized at high levels within the 

FBI and continued for years. I understand, Director Mueller, that 

the FBI has worked to correct these abuses, but this report is a sobering reminder of the significant abuse of this broad authority. No 

one is above the law—no Senator and no member of the FBI. And 

there has to be accountability for what happened here. 

Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, and I would join with you in your 

comments about the tragedy in Haiti and hope that we in a unified 

effort in Congress can do all possible to assist in that tragedy. 

It was on Christmas Day that America was reminded that the 

war on terror is still being waged and that our enemies will stop 

at nothing in their efforts to destroy our country. But for the bravery of passengers and crew aboard Northwest Flight 253 and a defect in the bomb, close to 300 innocent people could have been murdered. 

Make no mistake, this was another act of terrorism, another act 

of war. And now it appears clear that our intelligence officials had 

gathered enough information to stop Mr. Abdulmutallab from 

boarding the plane. In reality, it was our enemies’ poor bomb-making skills, luck, and the courage of passengers and crew that saved 

that flight. 

The problem arose from a lack of action on available intelligence. 

Was it the result of policies arising from a hesitation to interfere 

in one person’s travel plans? Or, was it a failure to connect the 

dots? Was it an individual failure somewhere, or a systemic failure? Perhaps all. It is clear that 8 years after September 11, 2001, 

there are still holes in our counterterrorism system. Al Qaeda has 

openly declared war on our country. They have attacked us and are 

still attacking us. This administration cannot wish that reality 

4 

away, and I do not think they intend to. The threat cannot be negotiated away. What we must do is acknowledge this reality and 

work to both interrupt the attacks and destroy the organizations 

that are at war with us. It is a different kind of war, but a real 

war nonetheless. 

This hearing can help us get insight into the failures that occurred and what we need to do in the future. But until the administration and Congress fully acknowledges the reality of the enemy, 

I do not think we will be fully effective. The work of the 9/11 Commission unified our Nation behind the idea that preventing acts of 

war by traditional law enforcement techniques would not be effective. They declared we should treat this danger with a new understanding of war. The sad truth is that the administration tends to 

view this conflict wrongly as a law enforcement matter now, retreating from that national decision I thought we reached. Now we 

have a policy that presumes captured terrorists here and abroad 

will receive a trial in our civilian courts, be given Miranda warnings, be given court-appointed attorneys, not be subject to interrogations, and have rights to repeated court appearances and speedy 

trials, regardless of whether they might possess critical information 

concerning further deadly attacks that might be planned. 

This is what civilian trials mean. This is how they are conducted. 

As Attorney General Holder testified, civilian trials are not required in these cases by the law or the Constitution. And I would 

note that in no war, to my knowledge, has any nation has ever allowed the enemy to use their own courts to further the enemy’s efforts to destroy that nation. This is not a case about whether there 

were red flags. The terrorist’s father personally went to the U.S. 

embassy to raise a red flag. The would-be attacker bought his 

plane ticket with cash. He checked no luggage. He reportedly was 

known to have communicated with terrorists in Yemen. According 

to press reports, our intelligence agencies intercepted messages referring to ‘‘the Nigerian,’’ Mr. Abdulmutallab. 

So this case is one where our own intelligence commuity had information. People at risk in the far corners of the globe got valuable information. So we have preliminary information that suggests 

that the authorities were aware of this terrorist and had ample 

cause to stop and question him and deny him the right to board 

that plane. 

We cannot defeat al Qaeda through half steps, Miranda warnings, minimization procedures, and Inspector General reports. This 

is not the time for the Government to erect new barriers between 

the intelligence and law enforcement agencies. We understood that 

was a mistake before. Nor is it time to add more bureaucratic red 

tape, new reporting requirements, or unnecessary safeguards which 

do nothing more than hinder the ability to thwart the next shooting, the next bombing, the next 9/11. 

We should use every lawful power and tool we have to protect 

this Nation. This war was declared by al Qaeda and its terrorist 

allies long before September 11th, before Guantanamo Bay. Guantanamo Bay did not cause these terrorist attacks. This war started 

long before we invaded Afghanistan, before the drone attacks and 

before the fall of Saddam Hussein. This is a war that began to take 

shape in the early 1990s when al Qaeda attacked various U.S. faVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
5 

cilities here and abroad. Unfortunately, it is a war which will continue, I have to say, for some time, for some years. And it is imperative that our intelligence and counterterrorism professionals have 

what they need on the front lines to disrupt the next terror plot 

and thwart the enemy at every turn. 

Rather than putting more bureaucratic hurdles on our intelligence agencies through a weakening of the PATRIOT Act, we 

should be looking to cut the red tape, strengthen their ability to 

stop the next airline bomber promptly before he gets a visa or is 

allowed to board a plane. We need to get this right. I appreciate 

the willingness of all the administrative witnesses to testify. I especially appreciate the presence of Director Mueller, who took a hard 

look 8 years ago at some of the warning signs that were missed before September 11th and address the reforms, good reforms, in the 

FBI. Through his testimony and experience and the testimony of 

Mr. Kennedy and Mr. Heyman, I hope we will be able to come to 

a consensus that we must give our investigators the tools and flexibilities they need to prevent further attacks on our country. 

Thank you, Mr. Chairman, and I am glad we are having the 

hearing. I know the Homeland Security Committee, I think, is also 

having one, and I believe it will help the American people feel that 

we are responding to the concerns that I know they are feeling. 

Chairman LEAHY. Well, thank you, and I think the American 

people also expect us to work together on responding to these 

issues. 

I am going to ask each witness—I know you have long statements. The whole statement will be placed in the record. I am 

going to ask you to limit your time to the time that has been suggested to you because, as you can see, we have a lot of Senators, 

and I want to give every Senator the opportunity to ask the questions they want. 

We will begin with Robert Mueller, the sixth Director of the Federal Bureau of Investigation. Prior to that, he had a long and distinguished record at the Department of Justice, including serving 

as U.S. Attorney for the Northern District of California. Please go 

ahead. 

STATEMENT OF THE HON. ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. MUELLER. Thank you, Mr. Chairman, Senators, Senator Sessions in particular. I am pleased to be here today. And before I 

begin, as did you, Mr. Chairman, I would like to take a moment 

on behalf of the men and women of the FBI to extend our condolences and support to the people of Haiti and to all of those who 

have lost family and friends from the devastating earthquake last 

week. The FBI is providing assistance to the rescue effort, but we 

are also focused on making sure that fundraising efforts are not 

tainted by fraud and that we are doing everything possible to ensure that funds raised for the relief in Haiti are legitimately going 

to support the victims of the earthquake. 

Now, let me turn to the subject of today’s hearing, if I might. As 

recent events have made clear, terrorists remain determined to 

strike the United States. The FBI has transformed itself in recent 

6 

years to meet our responsibilities to deter, detect, and disrupt these 

terrorist threats. We have improved our intelligence capabilities 

and created the administrative and technological structure needed 

to meet our national security mission. We are now a full partner 

in the intelligence community, and we, too, must consistently collect, analyze, and disseminate intelligence to those who need it. As 

has often been said, today we share information by rule and withhold by exception. 

Meeting these threats, however, requires continued vigilance and 

improvements on the FBI’s part and on the part of every member 

of the intelligence community. Let me take a moment to address 

the evolving threats we have seen over the past several years. 

We not only face the traditional threat from al Qaeda but also 

from self-directed groups not part of al Qaeda’s formal structure. 

We face threats from homegrown extremists, those who live in the 

communities they intend to attack, and who are often selfradicalized and self-trained. 

We also face threats from individuals who travel abroad to terrorist training camps in order to commit acts of terrorism overseas 

or to return home to attack America. And these threats continue 

to change and evolve as extremists are now operating in new sanctuaries around the world as al Qaeda and its offshoots are rebuilding in Pakistan, Yemen, and the Horn of Africa. 

While the terrorist threat has not diminished, together with our 

intelligence community partners we have disrupted a number of 

plots over the past year. We have learned a great deal from these 

cases, both about the new emerging threats and how to stop them. 

Let me offer several examples. 

In May, four individuals in New York, some of whom met and 

were radicalized in prison, were arrested for plotting to blow up 

Jewish synagogues and to shoot down military planes. 

In July, a group of heavily armed extremists in North Carolina 

were arrested for making plans to wage jihad overseas after traveling to terrorist training camps. 

In September, on the eve of September 11th, a Colorado resident 

was arrested in New York for planning to set off a bomb after having received detailed bomb-making instructions from Pakistan. 

That same month, two self-radicalized loners—one in Springfield, 

Illinois, and one in Dallas, Texas—were arrested for attempting to 

bomb a Federal courthouse and a downtown office tower in those 

respective cities. 

And weeks later, a Chicago resident was arrested for his role in 

planning a terrorist attack in Denmark and assisting in the deadly 

2008 Mumbai attacks. 

And, of course, the killing of a young Army recruiter in Arkansas 

in May and the tragic shootings at Fort Hood in November are 

stark examples where lone extremists have struck military here at 

home. 

Last year’s cases demonstrate the diversity of new threats we 

face. Some involve self-radicalized terrorists influenced by the 

Internet or their time in prison. Others receive training or guidance from known terrorist organizations abroad either in person or 

over the Internet. And the targets of these attacks range from civilVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
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ians to Government facilities to transportation infrastructure and 

to the military both in the United States and overseas. 

On Christmas Day, the attempted bombing of Northwest Flight 

253 has made it clear that the threat of attack from al Qaeda and 

its affiliates continues to this day, and we can and must do more 

in response to these threats. 

As directed by the President, the FBI has joined with our partners in the intelligence and law enforcement communities to review 

our information-sharing practices and procedures to make sure 

such an event never happens again. 

For the FBI, the President has directed a review of the visa status of suspected terrorists on databases at the Terrorist Screening 

Center and asked for recommendations for improvements to the 

protocols for watchlisting procedures at the TSC. Together with our 

intelligence community and law enforcement partners, we will 

learn from and improve our intelligence systems in response to the 

Christmas Day attack. 

Now, Mr. Chairman, you mentioned the exigent letter issue, and 

let me address that as well. Let me start off by saying that we take 

the issues raised by the Inspector General exceptionally seriously, 

and we have since he first undertook a review a number of years 

ago. At the outset, it is important to understand that the records 

obtained were telephone toll records and not the content of conversations. And, second, exigent letters have not been used since 

2006. 

As I stated in 2007, when the Inspector General first reported on 

the FBI’s use of exigent letters, the FBI had substantial weaknesses, substantial management and performance failures in our 

internal control structure as it applied to obtaining telephone 

records. And since that time we first became aware of this, we have 

reformed our internal controls and developed an automated program that together with changes in policy and training substantially minimizes any errors. 

On this issue, I would like to insert one quote from the report 

that summarizes what we have done since 2006. And the IG states: 

‘‘It is important to recognize that when we uncovered the improper 

exigent letter practices and reported them to the FBI in our first 

NSL report, the FBI terminated those improper practices and 

issued guidance to all FBI personnel about the proper means to request and obtain telephone records under the ECPA.’’ He goes on 

to say that that does not excuse—and I agree with him—does not 

excuse the improper use of exigent letters and the ineffective and 

ill-conceived attempts to cover them with other NSLs. 

Chairman LEAHY. Thank you, and the rest of the statement will 

be placed in the record. We will probably be going back to this 

issue during the hearing. 

[The prepared statement of Mr. Mueller appears as a submission 

for the record.] 

Chairman LEAHY. Our next witness will be Patrick F. Kennedy, 

who is Under Secretary of State for Management, a career minister 

in the Foreign Service. Under Secretary Kennedy oversees the Bureau of Consular Affairs and is the Secretary’s principal adviser on 

management issues. 

Mr. Kennedy, please go ahead, sir. 

8 

STATEMENT OF HON. PATRICK F. KENNEDY, UNDER SECRETARY FOR MANAGEMENT, U.S. DEPARTMENT OF STATE, 

WASHINGTON, DC 

Mr. KENNEDY. Thank you very much. Chairman Leahy, Ranking 

Member Sessions, and distinguished members of the Committee, 

thank you for the opportunity to appear before you today. 

As Secretary Clinton stated following the attempted bombing of 

Flight 253, ‘‘we all are looking hard at what did happen in order 

to improve our procedures to avoid human errors, mistakes, oversights of any kind...and we are going to be working hard with the 

rest of the administration to improve every aspect of our efforts.’’ 

We acknowledge that errors were made and that processes need 

to be improved. Here are the steps we have already taken. 

The Department of State misspelled Umar Farouk 

Abdulmutallab’s name in a Visas Viper report. As a result, we did 

not add the information about his current visa in that report. To 

prevent this, we have instituted new procedures that will ensure 

comprehensive visa information is included in all Visa Viper reporting that will call attention to the visa application and issuance 

material that is already in the databases that we share with our 

national security partners. 

Chairman LEAHY. With the forbearance of my colleagues, why 

can’t you have something—if you go on a Google search or you go 

on a Yahoo search and you type in a name, the computer will automatically ask you, ‘‘Did you mean . . .? ’’ and it will put three or 

four other ways of spelling it. Why wouldn’t that be a relatively 

simple thing to do? 

Mr. KENNEDY. That is correct, Senator. When an applicant appears before us, we already have that software installed on our application screening process. If we put in the name Kennedy and we 

misspell it, it will come back K-E-N-N-E-D-Y, K-E-N-E-D-Y, K-NN-D-Y. We had not loaded that software into the database to check 

on already issued visas because we were looking for a specific 

known commodity. We are in the process of changing that. 

We have also evaluated the procedures and criteria used to revoke visas. The State Department has broad and flexible authority 

to revoke visas, and we regularly use that power. Since 2001, we 

have revoked 51,000 visas for a variety of reasons, including over 

1,700 for suspected links to terrorism. 

In an ongoing effort with our partner agencies, new watchlisting 

information is continually checked against the database of previously issued visas. We can and will revoke visas without prior 

consultation in circumstances where an immediate threat is recognized. We can and do revoke visas at the point of people seeking 

to board an aircraft, preventing their boarding. In coordination 

with the National Targeting Center, we revoke visas under these 

circumstances almost daily. We are standardizing procedures for 

triggering revocations from the field, and we are adding revocation 

recommendations to our Visa Viper report. We have scrubbed our 

databases and reviewed information in coordination with our partner agencies. 

In our data scrub since December 25th, we have reviewed the 

names and all prior Visa Viper submissions. We have re-examined 

information in our Consular Lookout database on individuals with 

9 

potential connections to terrorist activities or support for such activities. In these reviews, we have identified cases for revocation 

and have also confirmed that substantial numbers of these individuals hold no visas and few ever did. And for the few who did, many 

were revoked prior to the current review. 

We recognize the gravity of the threat and are working intensely 

with our colleagues from other agencies to ensure that when the 

U.S. Government obtains information that a person may pose a 

threat to our security, that person does not hold a visa. 

At the same time, expeditious coordination with our national security partners is not to be underestimated. There have been numerous cases where our unilateral and uncoordinated revocation of 

a visa would have disrupted important investigations that were underway by one of our National security partners. They had the individual under investigation, and our revocation action would have 

disclosed the U.S. Government’s interest in that individual and 

ended our colleagues’ ability, such as the FBI, to pursue the case 

quietly and to identify terrorists’ plans and co-conspirators. 

We will continue to closely coordinate our revocation processes 

with our intelligence and law enforcement partners. Information 

sharing and coordinated action are foundations of our border security systems put in place over the past 8 years. 

We believe that U.S. interests in legitimate travel and trade promotion, as the Chairman mentioned, and educational exchange are 

not in opposition to our border security agenda and, in fact, further 

that agenda in the long term. We will continuously make enhancements to the security and integrity of the visa process. As we continue to do this work, we take a comprehensive review. 

The Department has close and productive relationships with our 

interagency partners, and particularly the Department of Homeland Security, which has authority for visa policy. The State Department brings unique assets and capabilities to this partnership. 

Our global presence, international expertise, and highly trained 

personnel bring us singular advantages in supporting the visa function throughout the world. We have developed and implemented an 

extensive screening process requiring personal interviews and supported by a sophisticated global information network. This front 

line of border security has visa offices in virtually every country 

staffed by highly trained, multilingual, culturally aware personnel 

of the State Department. We have embraced a multilayered approach to border security which gives multiple agencies an opportunity to review information and require separate reviews at both 

the visa and admission stages. No visa is issued without being run 

through security checks against our partner databases, and we also 

screen applicants’ fingerprints against U.S. databases as well. We 

take our partners’ consideration into every effort that we make. We 

fully support the visa security program of the Department of 

Homeland Security and work closely with them in a dozen countries. 

This multi-team effort to which each agency brings its particular 

strengths results in a more robust and secure process with safeguards and checks and balances. It is based on broadly shared information and is a solid foundation on which to build our border 

security future. We are past the era of stovepiping data, but there 

10 

is clearly more work to be done. We are doing that work now and 

planning future improvements as we continue our review. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Kennedy appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Secretary Kennedy. 

David Heyman is the Assistant Secretary for Policy at the Department of Homeland Security. He previously served as Director 

of the Homeland Security Program of the Center for Strategic and 

International Studies, also served as a senior adviser to the U.S. 

Secretary of Energy, the White House Office of Science and Technology Policy. 

Secretary Heyman, thank you for being here. Please go ahead, 

sir. 

STATEMENT OF HON. DAVID F. HEYMAN, ASSISTANT SECRETARY FOR POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC 

Mr. HEYMAN. Thank you, Chairman Leahy, Senator Sessions, 

and distinguished members of the Committee. I appreciate the opportunity to testify. 

Let me just start by echoing the sentiments regarding the tragedy in Haiti. This tragedy is of epic proportions, and the men and 

women at the Department of Homeland Security, Coast Guard, 

FEMA, and across the Department are working around the clock 

to support the international effort for the people of Haiti. 

As President Obama has made clear, we are, all of us, determined to find and fix the vulnerabilities in our systems that allowed this attempted attack to occur. Our country’s actions against 

terrorism require a multiagency, multinational effort to include the 

intelligence community, the Defense Department, DHS, the agencies here today, as well as efforts of our international allies. 

Our aviation security relies on partnerships among the U.S. Government, the airline industry, and foreign governments. These 

partnerships must all come together when an individual seeks to 

travel to the United States. To board a plane, there are effectively 

three key requirements: An individual must retain proper documentation to include a passport, visa, or travel authorization, a 

ticket and boarding pass. That individual must pass through checkpoint screening to ensure that he is not concealing a weapon or 

other dangerous material on his person or in his baggage. And, 

third, the individual must be cleared through a pre- flight screening process that seeks to determine if that individual poses a 

threat and, thus, could be denied permission to fly. 

Within that travel process, let me briefly describe the DHS role. 

First, to accomplish pre-flight screening, the Department of 

Homeland Security is one of the principal consumers of the terrorist watchlist, which includes the no-fly list. We check against it 

and use it to keep potential terrorists from boarding flights and to 

identify travelers who should undergo additional screening. 

Second, within the United States, to prevent smuggling of weapons and other dangerous materials on planes, DHS performs the 

physical screening at airport checkpoints and provides further security measures in flight. 

11 

Outside the United States, DHS works with foreign governments 

and airlines to advise them on required security measures for 

flights bound to the U.S. as well as on which passengers may prove 

a threat. TSA does not, however, screen people or baggage at international airports. 

I have submitted a longer written statement describing the various DHS programs that work to keep terrorists from boarding 

planes, but regarding the attempted attack on December 25th, 

Umar Farouk Abdulmutallab should never have been able to board 

a U.S.-bound plane with explosives. The interagency process to fix 

the vulnerabilities highlighted by this attack is well underway. As 

a consumer of the watchlist information, DHS welcomes the opportunity offered by this process to contribute to improving the Federal Government’s ability to connect and assimilate intelligence, 

and we are working with the FBI, ODNI, and NCTC on that. 

We are also focused on improving aviation screening and expanding international partnerships to guard against a similar type of 

attack. I have just personally returned from a 12-day trip of consultations with key partners abroad. 

In terms of the DHS role, though, the bottom line is that 

Abdulmutallab 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 screenings that were performed by foreign authorities at airports in Nigeria and in the Netherlands failed to detect the explosives on his body. 

Immediately after the attack, DHS took a number of immediate 

steps to secure incoming and future flights to include directing 

FAA to alert 128 incoming flights of the situation, increasing security measures at domestic airports, implementing enhanced screening for all our international flights coming to the U.S., and working 

with State and local air carriers to provide appropriate information. 

In the report to the President regarding this attempted attack, 

the Department has outlined five key areas of action that we are 

now addressing. 

First, as the incident underscores, aviation security is increasingly an international responsibility. That is why Secretary Napolitano dispatched Deputy Secretary Lute and myself and other officials to meet our international counterparts on this issue. Today 

Secretary Napolitano is traveling to Spain to meet with her European counterparts for discussions on how to strengthen international aviation security measures. 

Second, DHS has created a partnership with the Department of 

Energy and its National Laboratories to use their scientific expertise to improve screening technology at airports. 

Third, DHS will move forward in deploying enhanced security 

screening technologies like advanced imaging technology and explosive trace detection machines to improve our ability to detect the 

kind of explosives we saw on the 25th. 

Fourth, we will strengthen the capacity of aviation law enforcement, including the Federal Air Marshals Service. 

And, finally, as mentioned earlier, we will work with our interagency partners to re-evaluate and modify the way the terrorist 

12 

watchlist is created, including how names are added to the no-fly 

and selectee list. 

As the President has said, there is, of course, no foolproof solution, but there are many steps we can and are taking today to 

strengthen international aviation security. We face an adaptive adversary as we develop new screening technologies and procedures. 

Our adversaries will also seek new ways to evade them, as shown 

on Christmas Day. We must always be thinking ahead to innovate, 

improve, and adapt to the new emerging security environment, and 

I look forward to your questions to discuss this further. 

Thank you. 

[The prepared statement of Mr. Heyman appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. 

I still remain concerned, and, Secretary Kennedy, the State Department did not realize the suspect in the Christmas Day attempted bombing possessed a visa until after he initiated this action on the flight. The consular officer sent the first notice that was 

given to the National Counterterrorism Center, initially misspelled 

the name, as we have talked about. But within days, an amended 

notice was sent to NCTC with the corrected spelling. Why did the 

consular office not check the visa status of the Nigerian national 

at the time the second notice was sent? 

Mr. KENNEDY. He did not do that, Mr. Chairman, because—— 

Chairman LEAHY. I know he did not do it, but why not? 

Mr. KENNEDY. Because the second message was launched from 

another source. 

Chairman LEAHY. But why wouldn’t—it may have been launched 

from another source, but why wasn’t it checked? 

Mr. KENNEDY. I cannot—because we did not have access at the 

embassy to that other reporting, Mr. Chairman, and we had entered his name in the incorrect spelling into the database that is 

our watchlist database, which was disseminated to all the appropriate agencies. We slipped up. I have no statement other than 

that, sir. 

Chairman LEAHY. Thank you. 

Before I go into the Christmas Day attack, just to go back, Mr. 

Mueller, to some of the things you talked about, the Justice Department Inspector General report on the national security letters, 

the FBI essentially told those companies that got these letters that 

there was an emergency so that the company would give the 

records voluntarily, as we would expect them to do. And the letters 

they were given said a subpoena would follow. Of course, the subpoena did not follow. Often there was no emergency. And this goes 

beyond being a technical violation. These are records of Americans 

being obtained improperly, 2,000 telephone records. 

Has or will any FBI official be sanctioned or punished for these 

violations of the law? 

Mr. MUELLER. Let me start by saying yes. This process started 

back in, I think it was, 2006 and initial reports were issued by the 

Inspector General. As a result of those reports, they were reviewed 

for discipline, and individuals have been disciplined for their participation in these series of issues. In this particular case, the reVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
13 

port will go through our process, and we will look at the conduct 

and assign discipline as warranted. 

Let me also say I share with you the concern that this is information on American citizens that we had without following the appropriate protocols, in some cases where there was not an emergency, and we have put in place a process to go through every one 

of those numbers and determine whether we had a valid legal basis 

to retain that number, and where we did not, it was purged from 

our system. 

Chairman LEAHY. Please let this Committee know what action is 

taken. I would note for the record you nodded yes on that. 

Mr. MUELLER. Yes. 

Chairman LEAHY. Now, what I worry about is the overinclusion 

of names on the no-fly list. You want to have the right names on 

there, but if you put every single possible name, in effect you have 

no names. You have such things as we saw last week in the New 

York Times, an 8-year-old boy who was on this list from the time 

he was an infant. He has been subjected to physical searches and 

patted down so much that the family does not want to fly. As his 

mother said, he may be a terrorist at home, but he is certainly not 

on an airplane. And it would be humorous except for what it causes 

to that family, but also what it says of the whole system when, 

complaint after complaint, the name stays on there. It is the same 

as the late Senator Kennedy, who was stopped numerous times because he was on the list. And even the President of the United 

States, President Bush, called him to apologize. He said it was not 

the President’s fault. He just wanted to know how to get off the 

list, and he still did not get off the list for some time. I think we 

have to be looking first and foremost at our analysis and say what 

puts somebody on there. 

How do we go about, No. 1, making sure we have the right person on there but, second, that we now do not so overinflate the list 

that legitimate travelers, business people, students, just the average American suddenly finds themselves on a list and unable to 

travel? 

Mr. MUELLER. Well, it is, on the one hand, a delicate balance. As 

we have seen in the Christmas Day plot, a name can be misspelled 

by one letter, and you will miss them. 

On the other hand, there are basically two precautions that are 

taken to assure we have the right person. For almost all of these 

lists, particularly the ones where it results in a stopping at an airport or at a no-fly list, it requires not just the name but an identifier, date of birth, something else that identifies it, as opposed to 

just the name. 

Second, the other aspect of it is there is a redress process. If a 

person is no-fly, there is a redress process that DHS maintains so 

that—— 

Chairman LEAHY. Let me interrupt that. A date of birth, this 8- 

year-old first went on there when he was about a year old. Somebody looking at the list would say he is on there, he was born last 

year, and he is now on a terrorist watchlist. I mean, somebody—— 

Mr. MUELLER. I cannot explain what happened with the 8-yearold any more than I could have explained to Senator Kennedy how 

he had gotten stopped. 

14 

Chairman LEAHY. I am sure. But, you know, I told him it was 

because he was Irish and they all know him. But you heard what 

Secretary Kennedy said. You have a list over here and you have 

a list over here. Who determines which agency carries the primary 

responsibility for a lead that touches several agencies? You might 

have input from State, NCTC, DHS, and other agencies? 

Mr. MUELLER. Well, when it comes to international terrorism, 

the contributions, nominations on international terrorism go to the 

National Counterterrorism Center. It can be an international terrorism case developed by the CIA, DIA, NSA, or even ourselves. It 

goes to the National Counterterrorism Center. The National 

Counterterrorism Center makes the determination as to which lists 

the individual will be nominated to, whether it be the no-fly, the 

selectee, or the Terrorist Screening database. 

For domestic terrorists, it is the FBI that makes the recommendation to the Terrorist Screening Center as to who should 

go on that list. It is screened by both. The contributing agency and 

the National Counterterrorism Center screens it. Then the National Counterterrorism Center screens it itself. Then finally the 

Terrorist Screening Center does a follow-up screening to assure 

that there is sufficient identifying data and that the information 

putting the person on that list supports the criterion for being 

placed on that list. 

Chairman LEAHY. I have gone over my time. I obviously have a 

lot more questions, and I do not want to interrupt others. We will 

go through these questions, and you and I may want to spend some 

time later in the week. And I am showing a list of testimony that 

I am going to submit for the record, a long list, and that will be 

submitted for the record. I am showing it to Senator Sessions. 

[The prepared statement appears as a submission for the record.] 

Chairman LEAHY. Senator Sessions, over to you. 

Senator SESSIONS. Thank you. 

Briefly, I guess, Mr. Mueller, I will ask you, the NCTC, the center that maintains the list, do you think we can do better about 

getting people off the list? I heard somebody on a talk show the 

other day who said he was born here, his family is from Lebanon, 

but he keeps getting stopped. 

Mr. MUELLER. Yes, in some sense, yes. If you have got people 

who do not belong on the list, they should be gotten off the list for 

a variety of reasons. It interferes with their right to travel—— 

Senator SESSIONS. And who would be responsible for that? Is 

that the NCTC? 

Mr. MUELLER. NCTC in terms of international terrorism, yes. 

But also DHS in terms of the redress process. When somebody files 

a complaint that they should not be on the list, it is then handled 

principally by DHS. But generally you want to have on those 

lists—as many persons who meet that criterion should be on that 

list because it is protection against terrorist attacks in the United 

States. 

Senator SESSIONS. I could not agree more, and people in this 

world have—a lot of people have the same name, and it is difficult 

to know. And one of the reasons we are here complaining is because somebody did not get on the list. 

15 

But, Mr. Heyman, I think you should look to see how a person 

who can prove that they may have the same name as a dangerous 

person can somehow not be given as much burdens at the airport 

as otherwise would be the case. 

Mr. HEYMAN. Senator, there is a one-stop-shop website that was 

developed for redress purposes, www.dhs.gov/trip, and anyone who 

has concerns that they are inappropriately on a watchlist should go 

there. There is an adjudication process. The Department through 

the interagency process has adjudicated 56,000 people at this point. 

Senator SESSIONS. I don’t think—I just would say I do not think 

we need to have proof beyond a reasonable doubt that a person is 

a terrorist before they go on the list. What is the burden normally 

we would have there? It should not be too high. 

Mr. MUELLER. It is reasonable suspicion that the person is either 

assisting, participating, or supporting terrorists. 

Senator SESSIONS. Are you satisfied that is the sound standard? 

Mr. MUELLER. We are looking at the standards and seeing their 

application across various potential threats. But it has worked well 

in the past, and at this point, without further discussion, I am satisfied with that. I believe it is a low enough standard—— 

Senator SESSIONS. We are not putting them in jail. We are just 

simply confronting them before they get on an airplane. 

Mr. Mueller, after being dispatched by an al Qaeda affiliate in 

Yemen to blow up hundreds of civilians in an airline bombing, 

Umar Abdulmutallab was charged via a criminal complaint within 

24 hours of the landing of Northwest Flight 253. He was reportedly 

given Miranda warnings shortly after being arrested, including 

being advised he had the right to remain silent and he was entitled 

to a lawyer. 

First, who made the decision that Abdulmutallab was going to be 

treated as a criminal rather than an enemy belligerent? 

Mr. MUELLER. Well, let me preface this by saying, as I am sure 

you are aware, this is in litigation, but I think I can talk generally 

about what happened and not interfere with the ongoing litigation. 

Abdulmutallab was arrested on the plane after these incidents. 

There was no prior discussion. He was handed over, I believe, by 

the personnel on the plane to CBP, who originally had custody of 

him. He was taken to a hospital in which the FBI took custody of 

him. And it happened so fast that there was no time really at that 

point where the transfer was made very quickly given the moving 

circumstances to determine whether alternative arrest could or 

should be made. 

Senator SESSIONS. Well, who made the decision that he would be 

treated as if he were a criminal to be tried in civilian courts and 

be provided Miranda warnings? Who? 

Mr. MUELLER. Well, the decision was to arrest him, put him in 

criminal courts. The decision was made by the agents on the 

ground, the ones that took him from the plane and then followed 

up on the arrest—— 

Senator SESSIONS. Well, this is a very big issue. So the decision 

was made by agents on the ground based on some protocol or some 

policy that they understood? 

Mr. MUELLER. Based on an ongoing, very fluid situation in which 

they were trying to gather the facts and determine what culpability 

16 

this individual had. But as important as determining the culpability of this individual is what other threats were out there that 

needed to be addressed. 

Senator SESSIONS. Well, surely you recognize—I know you do— 

that there are great differences between trying a person in military 

commissions. In fact, I was able to work on legislation and get language in that said anyone ‘‘a part of al Qaeda at the time of the 

alleged offense was per se an unprivileged criminal combatant, 

enemy combatants, subject to military commissions and indefinite 

detention’’ as long as we have a conflict with al Qaeda. And so this 

was a big decision. Immediately, I assume, the lawyer advised his 

client not to talk. 

Mr. MUELLER. Well, without getting too much into the details, in 

this particular case the agents interviewed him for a period of time 

for any information relating to ongoing and other threats. 

Senator SESSIONS. Before or after a Miranda warning was—— 

Mr. MUELLER. Before Miranda warnings were given. 

Senator SESSIONS. Well, that is pretty dangerous because anything he said during that time is not admissible in a civilian court, 

is it? 

Mr. MUELLER. That is correct. 

Senator SESSIONS. So if he confessed—— 

Mr. MUELLER. Well, I take that back. I take that back. As I am 

sure you are aware, there is a limited exception for emergency situations in the case called Quarles where—— 

Senator SESSIONS. But with regard to your agents, it seems to 

me you have a policy that these kinds of individuals will be tried 

in civilian courts rather than military commissions. That has ramifications because it is going to reduce, I think you would agree, the 

likelihood of intelligence being gathered. One of the things we 

learned from the 9/11 Commission is that intelligence saves lives, 

and we need to gather intelligence. That is not the motive of the 

criminal justice system generally in America. It is to prosecute 

criminals. So I think this is a serious matter. 

Are you satisfied that you have a clear understanding, a national 

policy about how these people should be treated once they are apprehended? 

Mr. MUELLER. Well, I do believe—— 

Senator SESSIONS. It sounds to me like the guys on the ground 

just made a decision on the fly. 

Mr. MUELLER. There are decisions made whether or not to arrest 

somebody, and our arrest powers are dependent upon—— 

Senator SESSIONS. Arrest powers, that is not a problem. Were 

you contacted about whether or not this individual should be treated as an unlawful enemy combatant—— 

Mr. MUELLER. No. 

Senator SESSIONS.—or a civilian criminal? 

Mr. MUELLER. No. 

Senator SESSIONS. So the decision was made below your level. 

Mr. MUELLER. Well, that does not mean the decision can be 

taken—that does not mean the decision can or should not be taken 

later if one wants to go otherwise. But in this particular case, in 

fast-moving events, decisions were made, appropriately, I believe, 

very appropriately, given the situation—— 

17 

Senator SESSIONS. I do not think you can say it is appropriately. 

We do not know what that individual learned while he was working with al Qaeda, and we may never know because he now has 

got a lawyer that is telling him to be quiet. 

Chairman LEAHY. Senator Sessions, for one thing, let him finish 

answering the question. The fact is, of course, if you are talking 

about him going to a military commission, he would have been 

given a lawyer in a military commission. Military commissions had, 

I think, three convictions. The courts have had hundreds of convictions of terrorists. 

Senator SESSIONS. I do not think they are given lawyers who tell 

them to remain silent initially. If they are going to be tried in a 

trial by a military commission, they are given a lawyer. 

I think this is a matter of serious import. I do not think we have 

clarity of rules, and I believe we have got to get it straight. And 

I believe these people will be better tried in a military commission 

for a lot of reasons, one of which is the gaining of intelligence. 

My time is up, Mr. Chairman. 

Chairman LEAHY. I might say to the distinguished Senator from 

Alabama, he, like I, was a prosecutor. Do you think any prosecutor 

is going to have to worry about what was said by somebody who 

tried to ignite a bomb and was stopped by several eyewitnesses? I 

do not think they are going to have to rely too much on a confession from them. 

Senator SESSIONS. Well, just in response to your question—— 

Chairman LEAHY. Let us be serious for a moment. 

Senator SESSIONS. In response to your question to me, it is not 

just the ability to prosecute this individual, but whether if he were 

properly interrogated over a period of time we may find out that 

there are other cells, other plans, other Abdulmutallabs out there 

boarding planes that are going to blow up American citizens. 

Chairman LEAHY. Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Director Mueller, how many people are on the no-fly list, approximately? Is it being expanded now? What is the—— 

Mr. MUELLER. We are generally hesitant to give the full numbers. I would say several thousand. 

Senator KOHL. And are you anticipating—— 

Mr. MUELLER. Hesitant to give it in open session. That is what 

I am saying. 

Senator KOHL. I understand that. Are you anticipating that list 

is going to be expanded? 

Mr. MUELLER. There are discussions, and there have been some 

expansions, yes. 

Senator KOHL. All right. 

Mr. MUELLER. And, again, that can be part of a briefing as to 

what activities have taken place, particularly since Christmas Day. 

Senator KOHL. All right. Director Mueller, clearly there are 

flights into the United States from hundreds of airports all around 

the world, and these airports are under the direction and supervision of other governments. I assume some of them do a better job, 

some of them do not do as good a job. For example, according to 

what we hear, in Israel they do a terrific job of screening people 

before they board flights. 

18 

What kind of a problem is dealing with other countries to be sure 

that their security measures at their airports originating flights 

into the U.S. are sufficient? 

Mr. MUELLER. I would be happy to try to answer, but I actually 

think my colleague Mr. Heyman from DHS would be more familiar 

with this than I am. 

Senator KOHL. All right. Mr. Heyman, go ahead. 

Mr. HEYMAN. Thank you, Senator. The standards by which international airport security are the ICAO standards, which is the 

international body for developing security regimes for aviation 

across the globe. Countries are required to meet ICAO standards 

for the last point of departure to the United States. TSA does audit 

those countries to ensure security standards are met. But you are 

absolutely right, the ability to meet those standards varies from 

country to country, and I think as we look forward, one of the 

things we are looking at in terms of discussions with our international partners is the ability to help build the capacity around 

the globe for the right level of security. 

Senator KOHL. Well, it seems to me that is a crucial element of 

this whole discussion we are having, how well do they do their jobs 

in other countries and at other airports. I would not be surprised 

that there may be airports around the world that should not be allowed to originate flights into the United States because of their 

lack of proper security implementation. Wouldn’t you imagine that 

might be true? 

Mr. HEYMAN. Well, in order for a carrier to travel from a country 

abroad, from a last point of departure abroad to the United States 

on a direct leg to the United States, they have to meet the ICAO 

standards, and they have to meet TSA audit requirements. And the 

Department audits last points of departure—there are about 245 of 

them—to the United States every year, and if an airport or carrier 

do not meet the standards, they are given an opportunity to address those concerns, or the flights are discontinued. 

Senator KOHL. I have never heard about an airport that has been 

cited and disallowed from originating flights into the United States 

because of lack of proper security observations, and I would suggest 

that there must be some serious issues relating to airports that are 

not doing the proper job of screening prior to originating flights 

into this country. My common sense tells me that that is very possibly true. What do you think? 

Mr. HEYMAN. I can tell you that of the 245 last points of departure to the United States, the TSA has audited them on a regular—does audit them on a regular basis to ensure the safety and 

security of flights emanating from those points of departure. Other 

cities that may be interested in direct flights to the United States 

would have to go through the ICAO standards and the TSA review, 

and if they were not able to meet them, they would not be permitted flights. 

Senator KOHL. I would like to hear a little bit from you all about 

body scanners, their use, their effectiveness, and plans to expand 

them. What are some of the issues that we are dealing with, Director Mueller? 

Mr. MUELLER. That is a little bit out of my bailiwick as well. 

Again, I would defer to DHS. 

19 

Mr. HEYMAN. I would be happy to answer that question, Senator. 

Senator KOHL. Go ahead. 

Mr. HEYMAN. There are a number of different ways in which we 

provide security at checkpoints here in the United States and that 

are considered abroad for screening passengers who may be trying 

to conceal weapons or materials. The standard use of a walkthrough metal detector is what is the predominant security feature 

around the world. In the United States, we have a number of layers of defense, layers of security, to include behavioral observation, 

canines, explosive detection devices as well as other technologies. 

We are in the process of deploying whole-body imaging, enhanced 

image technology. That technology has the advantage of detecting 

non-metallic substances such as powders or liquids, such as what 

was found on Abdulmutallab on Christmas Day. So we are moving 

forward rapidly to deploy additional scanners around the United 

States on that. 

Senator KOHL. I would like to get back to my question about different airports in different countries. What is it about the Israeli 

airport security system that has attracted as much praise as it has 

over the years? 

Mr. HEYMAN. Senator, that is one of the countries I just visited 

and, in fact, did take a tour of their airport, Ben Gurion Airport, 

and had briefings from security officials there. They have addressed their security concerns through a number of layers, including things that we do in the United States, such as behavioral observation, the way that they interview—the interview is critically 

important to passengers—and the number of layers of screening, of 

targeting potential terrorists as well as screening of baggage that 

may be on board. 

They also live in a very different environment, and I would not 

compare their targeting necessarily to the United States. I think 

they have a very different environment that they live in and, thus, 

not necessarily transferable. But their layers of defense is something that we have also adopted in the United States and is what 

a lot of people talk about. 

Senator KOHL. Finally, I would just make the observation again 

that this is a worldwide issue, clearly, and I am troubled by the 

thought that rating security, airport security in different countries, 

if it were done very critically, would probably disclose wide 

variances between the security effectiveness implemented in different countries. And until we do a better job of trying to coordinate as a world the security systems in different countries, we will 

continue to be at great risk. Would you agree with that? 

Mr. HEYMAN. Senator, I do agree. I think one of the key things 

we learned from this is that access to any airport in the world 

gives you access to the entire international system. This individual 

bought a ticket in one country, traveled to a second country, 

transited through a third country to target a fourth country. There 

were somewhere near two dozen individuals, two dozen nationalities represented on that plane. They traveled across a number of 

different countries. This is an international problem, and that is 

why Secretary Napolitano is heading to Europe tonight to meet 

with European counterparts for discussions on enhancing international security. There will be additional—the President has 

20 

tasked the Department to expand international cooperation in this 

realm. 

Senator KOHL. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Grassley. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

I will start with Secretary Kennedy. The State Department has 

indicated that it could not provide this Judiciary Committee with 

a copy of the Christmas Day bomber’s visa application prior to this 

hearing because it was part of ‘‘an interagency DOJ review process.’’ However, the Justice Department indicated to my staff yesterday, just yesterday, that the State Department had not even provided a copy of the application to the Justice Department yet. I do 

not understand why the State Department would tell us that it was 

being reviewed by the Justice Department if the Justice Department says they do not have it. So since I do not want to trust just 

executive branch opinion about what is on this and what process 

it ought to go through, I want to know for myself what information 

did this bomber put on his visa application. Why shouldn’t we conclude that the State Department is simply trying to hide behind 

the Justice Department criminal process in order to avoid or delay 

a full accounting of how this terrorist got into this country on your 

watch? But my big question is, second: When will we get a copy 

of this application? 

Mr. KENNEDY. Senator, we are by no means attempting to hide 

behind this whatsoever. 

Senator GRASSLEY. OK. Well, then, when will I—— 

Mr. KENNEDY. I promise you that I will return to my office and 

I will have our staff contact the Department of Justice immediately, and if it is in, we will proceed from there, sir. We are not 

attempting to hide behind the Department of Justice. We carefully 

coordinate all our activities with the Department of Justice, and we 

will get back to you, sir. 

Senator GRASSLEY. But they have got to have it in order to review it, and you told me it is being reviewed. I do not say you did, 

but the people in the agency said it is being reviewed. 

Mr. KENNEDY. We will check with the Department of Justice this 

afternoon, sir. 

Senator GRASSLEY. I would think the first thing to do would be 

to walk it over there so that they can have it. 

I would like to go on to another issue with the FBI Director. On 

January the 7th, President Obama directed the FBI to ‘‘conduct a 

thorough review of Terrorist Screening database holdings and ascertain current visa status of all known and suspected terrorists, 

beginning with the no-fly list.’’ 

This directive implies that there is a concern that the State Department may have issued visas to individuals who are known or 

suspected terrorists. However, the Christmas Day bomber was not 

labeled a known or suspected terrorist. Instead, he was given a 

lesser classification by the State Department as what they referred 

to as a P3B, meaning he was a possible or probable terrorist. 

Has the FBI reviewed all records in the State Department’s 

CLASS system for individuals designated P3B, meaning possible or 

21 

probable known or suspected terrorist, to determine if any of these 

individuals were issued a visa? 

Mr. MUELLER. My understanding, Senator, is that we have taken 

the no-fly list and assured that the persons there do not have visas. 

We have taken the selectee list and determined that persons there 

do not have access to visas. And then with regard to the much larger Terrorist Screening database, we are going through that and 

making certain—at this time we are going through that database 

and assuring that those persons do not have visas. 

It is from the Terrorist Screening database that the CLASS system is populated with information on particular individuals. So we 

feel that this way we are looking at the databases which are handled by the Terrorist Screening Center, and what we are doing will 

be redundant to what is being done by the State Department as 

well as by the NCTC. 

Mr. KENNEDY. Senator, could I, with your—— 

Senator GRASSLEY. Well, just a minute, and then I will be glad 

to have you do that. Just in case you answered my question, but 

I do not know for sure if you answered it, have you reviewed P3Bs, 

then? And if you have not, do you intend to do so? 

Mr. MUELLER. I am not personally familiar with P3Bs, Senator, 

but I would be happy to—— 

Senator GRASSLEY. Well, they are the possible or probable terrorists. 

Mr. MUELLER. Is that a definition for—I am a little bit lost. Is 

that a definition for populating a particular list? 

Senator GRASSLEY. It is my understanding it is. But now maybe 

I ought to let Secretary Kennedy speak. 

Mr. MUELLER. He may be more versed in that. 

Senator GRASSLEY. Maybe you could have solved this for me, but 

go ahead. 

Mr. KENNEDY. Yes, sir, Senator. Thank you. If I could just give 

1 second of context, every visa applicant who comes into a United 

States embassy and applies for a United States visa, his or her 

name is run against a complete database that includes entries from 

the FBI, entries from Homeland Security, entries from the Terrorist Screening Center, entries from DEA. We take entries in from 

all these agencies daily and load them into our database, and so 

no one who applies for a visa, no one is issued a visa without a 

complete scrub against the full interagency database. And, additionally, they are also scrubbed against the complete DHS and FBI 

fingerprint sets of individuals who are of concern to those agencies. 

So we run this complete screen. Then anytime someone is moved 

up, so to speak, on the screening list from either of our partners 

within the national security community, that information is immediately transferred to us. We then run that new information 

against our list of issued visas to see if those agencies have obtained new information that they had not been made available to 

us earlier, and then we run that. And if someone has moved up on 

that list, we then move to revoke those visas immediately. 

Last, on your question, sir, about the P3B, the P3B is a category, 

when someone comes to our attention, we have concerns about 

them, but it is not conclusive. We then immediately send that information to our partners in the intelligence and law enforcement 

22 

community, but we put this P3B code in so that no State Department officer at that post or anywhere else in the world will issue 

that visa without doing a double-check with our partner agencies. 

After December 25th, we rescrubbed that with our partners in 

the intelligence community and have canceled seven visas. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I 

would like to just make a couple of comments and then some questions. 

I think it has become pretty clear now that the airplane remains 

a major explosive device. I think it is very clear that there are 

going to be more attempts. This attack took place over United 

States soil. I think the handling by the FBI is entirely appropriate. 

And I would like to bring to this Committee’s attention the fact 

that the FBI has done excellent interrogation in the past. A Subcommittee on which Senator Kyl and I have participated has had 

former FBI agents testify going back to the 1993 New York City 

bombings where the interrogation done by the FBI really brought 

about convictions of a number of people, including the blind sheikh, 

people who are serving time in prisons in the United States who 

were part of trials here in the United States. So I believe the handling of Mr. Abdulmutallab is entirely appropriate, and I think people should understand that. 

I am concerned about the no-fly list. I believe the definition of 

who would go on the no-fly list is highly convoluted. It takes a 

Philadelphia lawyer to interpret. And I have been told by Director 

Blair that it is being reassessed and hopefully will be redone. 

PETN is becoming the explosive of choice. I suspect we are going 

to have more attempts using this explosive, and hopefully it will 

not be perfected soon. 

So let us go for a moment to the visas, and, Mr. Kennedy, let me 

ask you: Were you saying in your testimony that there will be an 

automatic revocation of visas for subjects of a Visa Viper cable or 

a Terrorist Identities Datamart Environment, the TIDE, entry? 

The answer is yes or no. 

Mr. KENNEDY. The answer is no for the reasons outlined in my 

testimony, Senator. We receive information that causes us great 

concern as the first line of national security. We send that information to our partners in the FBI, our partners in other law enforcement agencies, and our partners in the intelligence community. We 

have been requested on numerous occasions by those agencies not 

to revoke the visa because there is an active investigation—— 

Senator FEINSTEIN. Well, let me stop you there because I know 

all about that, and I have some questions about that, but that is 

for another Committee, and we will be taking that up on Thursday. 

But those are not many, and I know the number of people on the 

no-fly list. It seems to me that we ought to have a process which 

assured revocation of a visa, and what I have learned is that essentially it is very difficult to revoke a visa. 

Mr. KENNEDY. Senator, it is not very difficult to revoke a visa. 

If the FBI, Homeland Security, any other member of the law enforcement and intelligence community comes to us—and we get inVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
23 

formation from them every day which we run against our records. 

If they come in and say that this individual is a danger to national 

security, we revoke the visa immediately. 

Senator FEINSTEIN. So that is automatic. And where does it have 

to come from, the automatic? 

Mr. KENNEDY. The Terrorist Screening Center at the FBI, the 

NCTC, from the Department of Homeland Security. We receive information from all our partners, and if they provide us with information that says that this individual is a danger to national security, we revoke that visa immediately. 

Senator FEINSTEIN. All right. I am happy to hear that. 

As you know, Mr. Abdulmutallab was issued a multiyear, multiple-visit tourist visa in June of 2008. Do you believe it is in the 

United States’ security interest to issue visas that allow entries 

over several years or more than one visit to the United States? 

Mr. KENNEDY. Senator, because we receive information every day 

from our law enforcement and intelligence community partners, we 

are able to revoke and cancel visas on any given day if new information comes to our attention that says an individual who was not 

a threat when we ran his or her application against our partners’ 

databases. If those circumstances change and we are notified by 

the intelligence community or law enforcement that this individual’s circumstances have changed, we then immediately revoke his 

visa. 

Senator FEINSTEIN. All right. It just seems to me we still have 

a lot of learning to do. This Committee had the consular officers 

before it who gave visas to certain of the 9/11 hijackers, and those 

visas should not have been issued, in my view. And I think we 

have really got to batten down the hatches of who we give visas 

to. And I am about to go into the Visa Waiver Program because, 

in my view, that is the soft underbelly of this country, Mr. 

Heyman. 

Mr. KENNEDY. Senator, if I could add one thing with your permission. 

Senator FEINSTEIN. Sure. Go ahead. 

Mr. KENNEDY. You are entirely correct. Before 2001, we were 

not—we, the State Department, were not receiving sufficient information from our intelligence community and law enforcement colleagues. Since 2001, the number of data elements given to us from 

our partners is up 400 percent. We now have a 27-million-name list 

from the intelligence community, writ large, from the law enforcement community, and from our own sources that every single visa 

applicant’s name is run against that database as well as run 

against fingerprint databases from the FBI and Homeland Security. 

So there has been an absolute change from the point that you 

spoke of in 2001 where we were not getting sufficient information 

in order to have a data set to run against. We now have that. As 

I said, it is up 400 percent since 2001. 

Senator FEINSTEIN. I appreciate that, and I thank you for it. 

Mr. Heyman, as you will probably know, I am not a fan of the 

Visa Waiver Program. We now have 16 million people from 35 different countries who come in without a visa, and we do not know 

if and when they leave. I believe it is the soft underbelly of this 

24 

country. I believe that if Mr. Abdulmutallab, who went to school in 

Great Britain, in the U.K., became a naturalized citizen of the 

U.K., he could have had a visa waiver and come into this country 

without one. And I think that is a real, real problem. 

So let me ask you: What checks do we have that someone who 

is denied a visa but is not put on a terrorist watchlist can come 

into this country at a later date through the Visa Waiver Program? 

Mr. HEYMAN. Well, just to clarify, in the Visa Waiver Program 

you do not need a visa, but there is a travel authorization that is 

required, an advance travel authorization that runs the same 

checks basically that a visa check would do. It is also done—the 

same kind of cursive review of the watchlist and things like that 

to revoke or refuse authorization is done. And I understand your 

concerns about it, but let me just say that the Visa Waiver Program includes a number of additional enhanced opportunities for 

cooperation and information sharing to include reporting of lost 

and stolen passports, standardized passports, sharing of terrorist 

screening information, sharing of criminal data information, and 

recurring auditing or review that we have with these countries to 

evaluate overall security, which we do not have with non-visa waiver countries. 

So there are a number of enhanced security measures that actually supplement security in the VWP programs, and so I am not 

sure I would agree with the characterization, but I understand 

your concerns. 

Senator FEINSTEIN. Yes, and I am not sure I would agree with 

what you said, so perhaps we can debate this or discuss it separately. 

Chairman LEAHY. This debate could go on, and I am sure it will. 

We are going to do—Senator Feingold is going to be next. Then 

Senator Cardin is going to chair the hearing. I have to go on the 

floor on a judicial nomination. 

I have been making notes here. I think all of you are probably 

going to be getting calls from me or my staff in the next few days. 

There are an awful lot of follow-up things. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Thank you all for being here. I join all members of this Committee in my horror at what happened on Christmas Day on the 

Northwest flight from Amsterdam to Detroit. While the attempt did 

not end in the tragedy that it could have, we must understand how 

and why the bomber was able to board that flight and what steps 

we can take to prevent the next such attempt. But we must also 

approach our task calmly and thoughtfully and not treat this as an 

opportunity to score political points. Congress needs to work with 

the executive branch to find the right answer to these questions 

and not just lay blame or take actions that are politically expedient 

but ultimately ineffective. 

By all accounts, the President was right to characterize this as 

a systemic failure, and I agree with him that some very tough 

questions must be asked to repair and improve the counterterrorism systems that are now in place. This is not the time for excuses, nor is it the time for pointing fingers. It is time to fix the 

problem, and that is exactly what will make us safer. 

25 

Mr. Chairman, I would just ask that my full statement be placed 

in the record. 

Senator CARDIN. [Presiding.] Without objection. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Senator FEINGOLD. Thank you, Mr. Chairman. 

First, I am concerned that the policy of enhanced screening for 

all nationals from 14 countries will potentially harm our relations 

with governments and populations that can be allies in defeating 

al Qaeda and its affiliates and may not be an effective use of limited resources. Can any of you tell me whether a formal intelligence analysis has been conducted assessing the value of blanket 

screening of all people who are traveling from or through or are nationals of particular countries, either generally or specifically with 

respect to the recently designated 14 countries? Somebody. 

Mr. HEYMAN. Sure. The designation of the countries was a determination in consultation with the Department of State and the Department of Homeland Security, as well as an assessment of new 

and emerging threat information. Their recommendation includes 

not just the enhanced screening of a number of foreign nationals, 

but, in fact, the majority of any individual traveling to the United 

States, to include U.S. citizens. So it is not, in fact, a blanket 

across specific nations per se, but enhanced screening for all individuals coming to the United States. 

Senator FEINGOLD. Mr. Heyman, my question was whether there 

was a formal intelligence analysis that had been conducted as a 

part of this. 

Mr. HEYMAN. The threat information was included in the analysis for determining the enhanced screening procedures. 

Senator FEINGOLD. I am not certain that is the same. Could you 

provide that analysis to Congress? Formal intelligence analysis 

that led to these determinations. 

Mr. HEYMAN. I will have to get back with you. I was not a party 

of the discussions, but I will be able to follow up with you after. 

Senator FEINGOLD. OK. Secretary Kennedy, what role did the 

State Department play in helping to determine which countries 

should be on the list? And how did the State Department handle 

the responses it received from those countries once they were notified? 

Mr. KENNEDY. Thank you, Senator. The Department of Homeland Security presented the State Department right after the 

events of Christmas Day with a list of countries that they said that 

they believe that these areas needed enhanced screening. We reviewed that list. There were a couple of countries we asked questions about. The list was then approved by the State Department 

because Homeland Security felt on the basis of the information, as 

Mr. Heyman said, was sufficient that as an interim step that needed to be taken immediately in order to safeguard not only American citizens but nationals of other countries boarding those aircraft as well. And so I know from discussions that have taken place 

that the Department of Homeland Security is continuing reviewing 

that list to determine the best way to provide safe and secure aviation movement because of the boarding—let us call it the boarding 

process, if I could, Senator. 

26 

Senator FEINGOLD. How did the State Department handle the response it received from those countries once they were notified that 

they were in this group? 

Mr. KENNEDY. We shared that information with the Department 

of Homeland Security, and we are in discussions with them. Our 

Office of Counterterrorism at the State Department works very, 

very closely with the Department of Homeland Security, as does 

the Aviation Division of our Economic and Business Bureau. Those 

discussions are ongoing, but the primary responsibility, as Mr. 

Heyman said in his earlier testimony, for surveying airports and 

determining whether or not that airport is safe to launch aircraft 

to the United States is the last—— 

Senator FEINGOLD. But what I would like to be able to have access to is the information about what happened when these countries were notified and what their response was. This is very relevant to the value and wisdom of doing this. 

Mr. KENNEDY. Senator, I will—— 

Senator FEINGOLD. So can we get a briefing on it, classified if 

necessary? 

Mr. KENNEDY. Yes, sir. We will be in contact with your staff this 

afternoon to set something up for you. 

Senator FEINGOLD. Thank you. 

Director Mueller, we have heard criticism this morning for the 

decision to try Abdulmutallab in Federal court, and I am, of course, 

a little mystified by this reaction given the similarity of this case 

to the attempt by Richard Reid who was prosecuted in Federal 

court by the prior administration, now serving a life sentence. 

Some have argued the decision has compromised our ability to obtain useful intelligence. But as I understand it, and as Senator 

Feinstein touched on, there are quite a few examples of people who 

have been charged with terrorism-related crimes in Federal court 

and who have cooperated with the U.S. Government. 

Do you see any reason to treat this case differently from the 

Richard Reid case? And has it been your experience that alleged 

terrorists charged with crimes in Federal court often cooperate 

with the Government and provide useful intelligence? 

Mr. MUELLER. Well, in a direct answer to the question, we have 

had a number of cases in which, through the process, the criminal 

justice process of the United States, individuals have decided to cooperate and provided tremendous intelligence. That is not to say 

that there may not be other ways of obtaining that intelligence, 

but, yes, in answer to your question, the criminal justice system 

has been a fount of intelligence in the years since September 11th. 

Senator FEINGOLD. Thank you for that answer. Director, I cannot 

finish without telling you how concerned I am, as I am sure you 

know, about the new Inspector General report that came out this 

morning, which you talked about, detailing rampant illegality at 

the FBI with regard to obtaining phone records. I know you have 

taken a number of steps previously to address those issues, but the 

IG recommends much more, and DOJ and the FBI need to provide 

Congress today with the new OLC opinion that states what legal 

authorities the FBI has to obtain phone records. Will you make 

sure that that happens? 

Mr. MUELLER. I am trying to understand exactly what you want. 

27 

Senator FEINGOLD. The new OLC opinion that states what legal 

authorities the FBI has to obtain phone records. 

Mr. MUELLER. If it ia an OLC opinion, it really is in the hands 

of the Department of Justice. It is up to the Attorney General. But 

I see no reason why you should not have it, but it is not my decision to make. 

Senator FEINGOLD. OK. I thank all of you. 

Thank you, Mr. Chairman. 

Senator CARDIN. Well, first let me thank all of our witnesses for 

the work that you do for our National security. 

In my role as Chairman of the Subcommittee on Terrorism and 

Homeland Security, we held a hearing last year in which we went 

over whether we are sharing information among the U.S. intelligence agencies as effectively as we need to in order to protect 

homeland security. At that hearing, Ms. Baird and former Senator 

Gorton testified, and they have submitted testimony for the record 

in regards to this hearing in regard to the concerns they have 

about the culture of sharing information within our Federal agencies. Without objection, I am going to ask that their testimony be 

made part of this record. 

[The information appears as a submission for the record.] 

Senator CARDIN. I guess my first question is: There has been concern as to the operational roles and responsibilities in regard to 

making the decisions concerning who is to be stopped at our airports, how we share the appropriate information, and the President 

has asked for a review. Is there currently in the works any recommendations for change as to the sharing of information and the 

respective roles of the different agencies in making these decisions? 

Mr. MUELLER. Why don’t I try to address that? The President 

has directed us to look at the criteria that are utilized to put persons in various levels of the terrorist watchlist. That is one aspect 

of it. 

The President has also asked us to look and Admiral Blair is 

looking at other mechanisms utilizing information technology 

which will enhance our ability to better connect pieces of information from various databases. That has been an ongoing process 

since September 11th, and it is an ongoing process as new technology becomes available and we have new data sets. 

But I would say just as a comment that the sharing is—it is a 

new world since September 11th in terms of our desire to share 

with every other agency. Not a one of us, sitting at this table or 

otherwise, does not understand that we have an obligation to share 

that information to prevent the next terrorist attack. So the motivation is there. The will is there. A lot has been done. There is still 

work to be done, particularly when it comes to utilizing information 

technology to make our jobs easier. 

Senator CARDIN. And also how we connect the dots. Let me get 

to Mr. Abdulmutallab for one moment. Information became available last year to the State Department from his father, and as I 

understand, that information was reviewed as to whether there 

was a visa outstanding in regard to that individual, and because 

of the misspelling of the name, it did not pop up on your data 

search. Is that correct? 

28 

Mr. KENNEDY. That is correct, Senator. As I said earlier, we 

made—if I could add two points quickly. We did, though, put the 

name correctly into our lookout system, and the lookout system 

went to all the agencies in Washington, and a longer classified 

message describing more in-depth conversations with his father 

went in with the correct spelling, and the two were married up in 

a single file in Washington. And so the misspelling, our error, was 

obviated by the second message that paired up with it, sir. 

Senator CARDIN. But it never gave you the information at the 

time that a visa was outstanding. If it did, if it would have shown 

that he had been issued a visa in 2008, was there sufficient information available for you to take action in regard to that visa? 

Mr. KENNEDY. No, sir. There was not sufficient information from 

his father, nor do we take preemptive action because, as I mentioned earlier, we always consult with our law enforcement and intelligence community partners before we revoke a visa to make 

sure the individual is not a subject of investigation and we would 

compromise their investigation. 

Senator CARDIN. So let me make sure. Are you saying that even 

if it would have popped up that he had a visa outstanding, you 

would have not taken any action to revoke that visa? 

Mr. KENNEDY. There was insufficient information to immediately 

revoke the visa, and also following the protocols that have been in 

place since 2001, we check with our partners in the intelligence 

and law enforcement communities to make sure that our revoking 

that visa does not tip him off that he is under surveillance by one 

of our partners in the national security community, and, thus, our 

action would have compromised their ability, let me hypothetically 

state, to roll up a larger terrorism ring. 

Senator CARDIN. So in this particular case, we do not know what 

would have happened if you made that inquiry. 

Mr. KENNEDY. We did notify—we did put his name, correctly 

spelled, into our database that was available to law enforcement 

and the intelligence community personnel. 

Senator CARDIN. And no dots were connected from that, that we 

are aware of prior to Christmas Day. 

Mr. KENNEDY. Sir, that is something that is outside—— 

Senator CARDIN. He did not go on any watchlist, did he? 

Mr. KENNEDY. No, sir. If the intelligence or law enforcement 

communities had come back to the State Department and said, ‘‘We 

have other information on this individual in addition to the information you, the State Department, has provided us; we are putting 

him on one of the lists,’’ we would have potentially—we would have 

revoked that visa in coordination with law enforcement and intelligence. 

Senator CARDIN. So DHS had the information prior to Christmas 

Day, but did not have any reliable information to act. Is that where 

we are? 

Mr. HEYMAN. He was neither on the watchlist nor a no-fly list 

nor a selectee list, and so there was—no check against those lists 

would have come up with anything. 

Senator CARDIN. But whose responsibility was it to look into that 

information and determine as to whether he was actively involved 

in al Qaeda in Yemen? There is information that he was there. It 

29 

seems to me that there was significant information linking him to 

potential terrorist activities that was put into our data bank. 

Whose responsibility was it to follow up to see whether action 

should be taken to at least alert agencies of a risk factor, but also 

to investigate whether there is further reason to suspect that an 

act of terrorism might be taking place? No one seems to want to 

answer that. 

Mr. KENNEDY. Senator, that is a subject outside the jurisdiction 

of at least the State Department. I can describe our process. Any 

information that comes to the attention of the State Department 

that says there is a potential terrorist, we send it in to the national—— 

Senator CARDIN. You send it in. You type it in. It is sent in. You 

did not think he had a visa outstanding. If he had one, you would 

not have acted without further information from other agencies. 

And this point, I guess, Director Mueller, I was referring to originally as to responsibility. Whose responsibility was it to take that 

information and try to connect the dots? 

Mr. MUELLER. I think the President’s—the report identified by 

the President would say that the information goes into the National Counterterrorism Center where the lists are maintained 

from which you then put the person on no-fly or the—— 

Senator CARDIN. Someone has to develop the—— 

Mr. MUELLER. And so the information is developed. It is developed by NSA. It is developed by CIA, developed by the State Department, goes into the NCTC, the National Counterterrorism Center for determination as to whether that person should be on which 

watchlist. And to the extent that there is follow-up, it is done generally there when it comes to international terrorism. 

Senator CARDIN. I would just make the observation there was information that was put into the data bank, and it appears like before Christmas Day no one acted on that. 

Mr. MUELLER. Well, there is some information that did get to 

NCTC. There is other information that did not get to NCTC before 

then. And so it was a question of—I think it is fair to say some 

person should have passed information into NCTC that did not end 

up there, and the database, the ultimate database where you have 

the information that leads to putting a person on either the selectee or the no-fly list for international terrorism generally goes 

through that process. 

Senator CARDIN. I guess my concern is that it is not clear as to 

whose responsibility it was to take that information and to develop 

it, whether it is a serious enough link not only to protect America 

against that individual but to use that information to try to determine whether there is active terrorist plots against America. And 

I hope that is being corrected because there was information there 

that was just sitting there, and obviously it could have been a very 

serious situation against this country. 

Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. Let me thank all 

the witnesses for being here. 

My first question is for Mr. Kennedy from the State Department. 

It is about multiple-entry visas. One of the main criticisms that has 

been leveled in this matter was that Abdulmutallab’s multipleVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
30 

entry visitor visa issued to him by our embassy in London in June 

2008 was not revoked once his father warned our Nigerian embassy about his extremist activity. This criticism is valid but does 

not take into account the complex process the State Department 

must typically follow in order to revoke a visa. You know that. 

So instead of focusing solely on visa revocation, which is more 

complex than people realize, I think we should look at the fact that 

Abdulmutallab and seven of the 9/11 hijackers came to America on 

unlimited multiple-entry visas that gave them a revolving door to 

come and go to America as they please. In other words, the multiple-entry visa, once you get it, you can go back and forth without 

anybody checking on you as many times as you want. And the new 

information that came in from al Qaeda in Yemen as well as from 

Mr. Abdulmutallab’s father came in after he was issued that multiple-entry visa. That is the problem. 

So I propose that the citizens of the 14 countries identified as potential security threats by the Obama administration should be required to apply for permission each time they visit the United 

States rather than enter at will by virtue of the so-called revolvingdoor visas that stay valid for years at a time. This way we can 

have a calm re-examination of all the facts that we know about an 

individual each time they enter. So when new information comes 

in, that will be part of the file, and the burden of proof will be on 

the entrant rather than on the State Department to revoke. 

Had this policy been in place before the Abdulmutallab incident, 

he would have been denied a visa because his name was entered 

in the TIDE database, and the entry stated he would be presumed 

ineligible if he had applied for a new visa. 

So my question to you, Mr. Kennedy, is this: Do you agree that 

Abdulmutallab would have been unable to enter the United States 

had he been required to obtain a new visa prior to his flight to Detroit? Do you agree? 

Mr. KENNEDY. Possibly, Senator, for this reason: I fully agree 

that we have to examine all issues, and that is part of the ongoing 

process we are engaged in. Two points, if I might, Senator. 

Senator SCHUMER. Well, let me ask my second question. I 

thought you were just going to say yes. Will you work with me to 

implement the suggestion that either administratively or through 

legislation that we implement this plan? So those are the two questions. Go right ahead. 

Mr. KENNEDY. Yes, sir. We are examining all our processes now. 

As you rightly suggest, this calls for a full and complete review. 

Senator SCHUMER. Well, what do you think of this idea? 

Mr. KENNEDY. The one point that I—if I could, with one preliminary statement. Once an individual receives a visa, it is not that 

that is continually reviewed. It is continually reviewed. If the National Counterterrorism Center or any of our other partners in the 

law enforcement or intelligence community say that they have new 

information on an individual, they pass that information to us on 

a daily basis. We run all that information against the list—— 

Senator SCHUMER. I understand that. That is not what I—— 

Mr. KENNEDY.—and then we revoke the visa. 

Senator SCHUMER. I am not asking that, sir. If the information 

is missed, which it was here, if the burden of proof were on the enVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
31 

trant who had to get a new visa, it is much more likely that it 

would be caught than if you had to go revoke the visa, because you 

would have no way of revoking it because that new information 

was missed. 

Mr. KENNEDY. Senator, I agree we have to look at this very 

strongly, and I totally agree with you. The point, I think, that are 

just our difference is that we do every day review every issued visa 

to see that new information has come in to us or not. And so we 

do continual reviews, and if we discover that the Terrorist Screening Center at the FBI or Homeland Security has elevated this person, we then revoke that visa immediately. 

Senator SCHUMER. So, again, I just want to get—why wouldn’t it 

be better to do it the way I am suggesting? 

Mr. KENNEDY. Because, Senator, if the information is not—if the 

dots are not connected, then the individual is going to get the visa 

because there is no—then when they applied for the new visa and 

we ran it against the database, if the dots are not connected and 

an individual has not been put on the list by one of the intelligence 

or law enforcement communities—— 

Senator SCHUMER. But he was on the list. 

Mr. KENNEDY. He was on a—no, sir. He was not on no- fly; he 

was not on—he was not on the no-issuance list. 

Senator SCHUMER. Right, but he was on the larger list. 

Mr. KENNEDY. Right. 

Senator SCHUMER. And what I am saying is if the visa had to 

be applied for and you are from one of these 14 countries, then he 

wouldn’t have gotten—if they would have seen him on this list, the 

bigger list, the 500,000 list—— 

Mr. KENNEDY. Yes, sir. 

Senator SCHUMER. And they would have reviewed it more carefully. 

Mr. KENNEDY. They reviewed—yes—— 

Senator SCHUMER. If they wouldn’t, then something is profoundly 

wrong. 

Mr. KENNEDY. You are—Senator, you are very correct that this 

all lies in connecting the dots. 

Senator SCHUMER. And you do not have access to the TIDE database, right? 

Mr. KENNEDY. Yes, sir, we have access to the TIDE data—we are 

the people who caused his name to be put into the TIDE database 

when we filed the Visa Viper report. We caused his name—— 

Senator SCHUMER. OK. As I understand it, you have access to 

what you put into the TIDE database but not to the whole TIDE 

database. Correct? 

Mr. KENNEDY. That is—we have—— 

Senator SCHUMER. Is that correct? Yes or no. 

Mr. KENNEDY. Yes. 

Senator SCHUMER. OK. That is my point, isn’t it? 

Mr. KENNEDY. But if someone is in the TIDE database, Senator, 

and that comes up on the TIDE database, we then send a message 

to the intelligence and law enforcement communities and say, 

‘‘Should we issue this visa or not?’’ 

Senator SCHUMER. OK. I am—I was told that the State Department was seriously interested in making this change instead of 

32 

saying, well, we are going to study it, which means nothing. Are 

you or aren’t you? 

Mr. KENNEDY. We are seriously interested in finding any means 

to improve national security. 

Senator SCHUMER. Are you seriously interested in this proposal 

and look at it carefully? 

Mr. KENNEDY. Absolutely, Senator. 

Senator SCHUMER. And do you think it is a good idea off the top 

of your head? 

Mr. KENNEDY. I think it is a good idea to figure out—— 

Senator SCHUMER. Do you think it would be tighter than the 

present process? 

Mr. KENNEDY. That is what we are trying to figure out, Senator. 

Senator SCHUMER. What do you think? 

Mr. KENNEDY. It has its pluses and its minuses, and that is why, 

because it is a serious proposal, we are very seriously reviewing it. 

Senator SCHUMER. All right. My second question—well, I do not 

have much time left, so I will submit it in writing. 

Mr. KENNEDY. Senator, I would be glad to come up and visit with 

you, if you would like. 

Senator SCHUMER. Thank you. 

Senator WHITEHOUSE. [Presiding.] I will be chairing for the remainder of the proceeding, and with some allowance for working 

around a potential vote that may go off, my intention would be to 

follow through until all the questions are answered without interruption. We may have to do a little bit of a fire drill on seats in 

order to accomplish that. But since I intend to stay until the end, 

I would now yield to Senator Klobuchar for her questions. 

Senator KLOBUCHAR. Thank you, Mr. Chairman. I think that 

Senator Franken was here before me for the deadline, so he would 

go first and then me. 

Senator FRANKEN. Well, I would like to thank Senator Klobuchar 

and the Chair. 

Here is a question that has been on my mind, and I would like 

to direct this to the Director. And I think I know some of the answers to this, but this Abdulmutallab was on the bigger list, the 

550,000 list. And he was not on the no-fly list, but he was on this 

list. He gets to the airport. It is easy to access—it is just as easy 

to access a list of 550,000 as it is to access a list of 18,000. Nobody 

at a counter goes through 18,000 names. It is done through a computer. So a name kicks up just as fast if it is on a 550,000-person 

list as it does if it is on an 18,000-person list. 

Why don’t we have access—why don’t the people who book these 

people in have access to that list and simply say, OK, that means 

you are going to get another patdown, or that means you are going 

to go through the full-body scanner? And I just came through 

Dubai, and you go through security once, and then at the gate you 

go through security again. But at the gate you could simply—so as 

not to slow down everybody at the first security, at the gate if you 

come up, you could pat somebody down, you could give them extra 

attention or take them over to the one body scanner that might be 

at the Minneapolis-St. Paul airport where we do not have one now, 

but if we did have one, you could take them over there. 

33 

Mr. MUELLER. Let me start, and then, if I can, pass it to my 

friend from DHS in terms of the screening procedures and what is 

accessed at the borders, whether it be at the airport or otherwise. 

The way the system is set up, there is a very large Terrorist 

Screening database which is populated by various agencies’ information, and from that there is a selectee list where the person— 

there is a showing that has to be made with regard to the person’s 

association with terrorism in order to get on that list. 

Senator FRANKEN. I understand. 

Mr. MUELLER. Then there is the no-fly. 

Senator FRANKEN. But this guy was on the bigger list. 

Mr. MUELLER. He was on a much bigger list called the TIDE list, 

and I did not know myself—— 

Senator FRANKEN. And he came on board to bomb a plane. 

Mr. MUELLER. I do not know myself how that particular list is 

treated as somebody comes through the airport, which is why—— 

Senator FRANKEN. It is evidently not treated. Is that right, Mr. 

Heyman? 

Mr. HEYMAN. The creation of the consolidated watchlist, the 

TSDB, was intended specifically so that agencies did not go out and 

create their own determination of who is a terrorist, who is a 

known or suspected terrorist. The list that you are referring to— 

it is called TIDES—is the larger list that contributes to the terrorist watchlist. Somebody has to be nominated from that list, and 

it has to be determined by the NCTC process to make the cut, as 

it were, for somebody to be a known or suspected terrorist. 

There is another review that goes in to determine if someone is 

on a selectee or a no-fly. None of those determinations were made, 

and consequently, when the passenger comes to board, he is allowed to board because there is no list that he is on. 

Senator FRANKEN. No. He is on a list. He is on the TIDE list. 

Mr. HEYMAN. He has not made it to the known or suspected terrorist——— 

Senator FRANKEN. I know that. That is not what I am asking. 

I am asking why the guy on the TIDE list cannot come up, which 

he was on, and why that would not merit an extra look. 

Mr. HEYMAN. Well, it merits an extra look today. I think originally when it was created it was because not everybody on the 

TIDE list merited becoming a known or suspected terrorist. 

Senator FRANKEN. But what is the harm? 

Mr. HEYMAN. Today I believe that people agree that there is a 

need to include the P3Bs from the State Department, these national security concerns, in the look before people board aircrafts, 

and we are doing that. 

Senator FRANKEN. So now, as of December 26th, people on the 

TIDE list are going to have a second look? 

Mr. HEYMAN. No, the—— 

Senator FRANKEN. No. Why don’t I understand then? 

Mr. HEYMAN. Sir, there is a number of different—and this is 

not—the TIDE list is maintained by the NCTC, so I am a little out 

of my lane here. But the—— 

Senator FRANKEN. Well, that might be part of the problem. If you 

are out of that lane, and they are out of your lane, shouldn’t you 

all be in the same lane? 

34 

Mr. HEYMAN. We are a consumer of that database to determine 

whether somebody is a board or no-board. We—— 

Senator FRANKEN. I am not saying it is a board or a no-board. 

I am saying—it is not a board or no-board. It is take another look. 

It is a patdown. It is a scan. That is all I am saying. I am saying 

that this guy’s name was in a database of 550,000 people. That 

name, given today’s technology, can come up in an instant, and 

then all it needed to do was warrant either a patdown or a body 

scan, and he would have been discovered. And I think you just 

agreed about a minute ago that that seems logical and that is what 

everyone agrees on, I think is what you said. And then you said 

you do not know because you are not in the right lane to know 

whether that is the practice now. So that is what I am trying to 

figure out. 

Mr. HEYMAN. Sure. Let me just clarify it. The State Department 

record, which is classified as a P3B for national security concerns, 

is a sub-element of this TIDE list. There are a number of other elements in that TIDE list that have to do with identifications of individuals, information of people who may or may not be—who may 

have immigration issues that may have nothing to do with necessarily the security of civil aviation per se. And that is why there 

is a process to nominate somebody to become on the terrorist 

watchlist and subsequently to become a no-fly or a selectee, which 

would then get the secondary look. The subset of information, the 

P3Bs, is now being considered because of the national security consideration. 

Senator FRANKEN. So the P3B is a sub-list, a subset of the TIDE. 

Mr. HEYMAN. Correct. 

Senator FRANKEN. And that is now accumulated as a—that is its 

own separate list, and does that come up at airports now? 

Mr. HEYMAN. Now CBP uses that for determining whether somebody should get a second look, correct. 

Senator FRANKEN. OK. So that is the answer to my question. 

Thank you. 

Mr. HEYMAN. You are welcome. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Can I confirm before Senator Klobuchar 

begins whether the vote has begun or not? Do we know that? 

Senator KLOBUCHAR. I think it has, Mr. Chairman. 

Senator WHITEHOUSE. All right. In that case, I will go and vote 

and then return during Senator Klobuchar’s questioning. 

Senator Klobuchar. 

Senator KLOBUCHAR. Very good. Thank you. 

Thank you very much to all of you. I was listening to all the 

questions today, and I think anyone that looks at these facts they 

think about this person getting on this plane, 300 people, with explosives attached. You think about the misspelled name, the oneway ticket, no baggage, the father coming in to express some very 

serious concerns, and it just leads you to think how could this happen. 

But I will say as a former prosecutor—and I know Director 

Mueller knows what I am talking about—when you look back at 

any crime or any problem, you always are haunted by what could 

have been and what could have been changed, whether it is the poVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
35 

lice not following up on the lead or it is a prosecutor who made a 

deal 10 years ago or it is a judge that made a decision that led to 

someone being out. And so the key for me is not as much this 

blame game, because I truly believe you are all devoted to fixing 

this, but how we do fix this going forward. 

The first thing that is appealing to me when I look at this is 

some of these scanners and technological fixes, because the easiest 

thing to think about is if the right scanner was there—and correct 

me if I am wrong. Maybe it is you, Mr. Heyman, but this could 

have been caught because if one of those full-body scanners, whether it was the—what are they? The backscatter or the milliliter 

wave, millimeter wave, if they were deployed, then this would not 

have happened. Is that correct? 

Mr. HEYMAN. Senator, I would not want to speculate on that. I 

think that we have to be careful not to say that there was a silver 

bullet to detect anything, no single technology or—— 

Senator KLOBUCHAR. But if it was attached to his leg, would it 

have been found with one of those things? We are having a Commerce hearing this afternoon, and I am going to ask Secretary 

Napolitano about this as well. But don’t you think that would have 

been discovered, chances are? 

Mr. HEYMAN. I am happy to discuss that in a closed session in 

terms of the capabilities of the technology and how it was used and 

deployed, but I would not want to do that in this session. But it 

is important to note that technology is part of the solution, it is not 

the only solution, and that this technology—— 

Senator KLOBUCHAR. I am not saying it is. I am just trying to— 

I mean, the President has clearly sent a clear message to send— 

what?—450 more of these scanners out. I was doing the math. We 

have 2,100 lanes at the airports, and now there are—I do not 

know—just dozens of them out there right now. So the plan would 

be to triage these and put them at certain locations? 

Mr. HEYMAN. That is correct. The technology has the advantage 

of being able to detect non-metallic substances such as liquids or 

powders, much like was used on the 25th and, as such, provides 

an enhanced capability above the standard walk-through metal detectors. 

Senator KLOBUCHAR. All right. And so do you know what the 

timetable is for this? 

Mr. HEYMAN. For deploying the—I can get back to you. In the 

beginning of this year, we are already in the process of looking at 

that deployment. 

Senator KLOBUCHAR. And I can ask Secretary Napolitano about 

this, but as she goes to Europe tonight, I figure—what?—there are 

2,500 international flights coming in a day, that some of the discussion will be about this technology as well? 

Mr. HEYMAN. Absolutely, yes. 

Senator KLOBUCHAR. OK. Director Mueller, thank you for your 

good work on this as well as the work you have been doing in Minnesota that you and I have discussed regarding terrorism, and I 

was thinking, as Senator Franken was saying, that we have the 

names, it could pop up with modern-day technology. But I think 

you and I talked about this before, and it is the computer systems 

that do not always work the way they should, that cannot search 

36 

automatically and repeatedly for possible links. Even simple keyword searches, as was reported in the New York Times on January 

18th, are a challenge, according to a 2008 report by investigators 

for the House Committee on Science and Technology. 

Is this a fair assessment? Do there need to be some computer 

changes? 

Mr. MUELLER. There always has to be some computer changes as 

a result of a number of factors. The growth of technology, the 

growth of different databases, actually when Congress passes a 

statute that allows us to gather information and then disseminate 

the information, often in the dissemination it is limited in some 

way, and so particular databases are developed to address a particular problem with all the statutory guidelines within that database, which makes it that much more difficult to make it available 

to others within the same agency, much less others throughout the 

Government. And what you find is, as technology grows, however, 

it is much easier for persons to do an all-source search given the 

new technology. But often it is by fits and starts, and the Federal 

procurement schedule, in order to get this done, keeps us a step behind where we want to be. But I think in the wake of what happened on Christmas Day, we are all looking at particular fixes, 

short-term and long-term fixes, individually within our agencies 

but also across the community. It is not as if we have not been 

doing it since September 11th. We certainly have. But this may 

give us additional momentum to find some of the later fixes and 

then have them funded so that we can get them into place as soon 

as we possibly can. 

Senator KLOBUCHAR. Thank you. 

There have been a lot of discussions with my colleagues about 

the watchlist. I actually have been concerned about this for a 

while. We had a little kid going to Disneyland who got stopped, 

could not go on the trip, and so, you know, this issue where you 

have people on it that should not be on it and people that are not 

on it, obviously, that should, I may explore that at the end if I have 

time. But there is a piece of this that I want to talk about that no 

one has raised. 

Northwest Airlines’ flight, now owned by Delta, but Northwest 

Airlines, based in Minnesota—and I have had long talks with Richard Anderson, the head of Delta, about this whole thing. It was his 

employees in addition to that brave passenger that really stopped 

this from happening. They were on the front line. They did the 

right thing. They were really the last resort here for the system 

failures. And some of the concerns that really have not been talked 

about here is just the relation. 

As you know, with Secure Flight being implemented, the airlines 

are supposed to be pulling back more from being the one that is 

watching for this, but yet in the rest of the world, they do not have 

the equivalent of the Transportation Security Administration, and 

many airline carriers here and abroad remain the primary security 

pre-screeners in foreign airports. 

So my question, whoever wants to take them, is: What steps 

were taken immediately following the December 25th event to inform the carriers and others within the commercial aviation industry of the breach of security? And as you look at this coordination 

37 

going forward, have there been efforts to include the aviation industry? Because, remember, abroad they are the ones that are 

going to be on the front line many times making these calls. 

Mr. HEYMAN. I can answer that question for you, Senator. This 

is obviously very important. The carriers are very much on the 

front lines and have a central role to play as partners in the security of the aviation system. Immediately following the incident, the 

Transportation Security Administration notified about 128 inbound 

flights of the issue, provided them with as much detail as they 

could so that they could take appropriate measures in their path 

on the way back into the United States. 

Since the incident, we have had numerous conversations with 

CEOs of carriers. The Secretary will be meeting with the head of 

IATA in Geneva on this trip that she is going on today after the 

hearing with you and will be having discussion with airline carriers as to how we can all work together to improve the security 

of the system. 

Senator KLOBUCHAR. Carriers have indicated that information 

regarding passengers’ visa status is not available in real time when 

a passenger checks in at the airport. Will actions be taken to address this and other similar information problems? 

Mr. HEYMAN. The visa revocations and visa refusals or denials 

are checked prior to boarding an individual or printing a boarding 

pass. They are checked as part of the pre-flight screening process 

that is ongoing and has been ongoing for some time. 

Senator KLOBUCHAR. OK. Do you think there is an issue with 

them not having this visa information in real time? 

Mr. KENNEDY. The State Department uploads all the visa 

issuances that it makes to databases that we share with the law 

enforcement and intelligence community, and my understanding is 

that when the airline files its manifest passenger list for this plane, 

there is a process called APIS, Automated Passenger Information 

System, that then checks all of that material by TSA and then 

gives a go/no-go to the carrier on that. So though the airline may 

not know that you have a B1 visa or a J visa or any of the various 

types, they know when they get the report back from TSA that 

they are good to go with that individual because he or she has a 

visa—or is an American citizen and obviously does not need it. But 

that information that we make available to DHS is then checked 

and then fed back to the carrier, Senator. 

Senator KLOBUCHAR. OK. And just could I suggest as we go forward—and I understand the priority put on coordination between 

government agencies, but I think coordinating with some of the airlines would also be a good idea just from what I am hearing, especially given that they were on the front line here. 

Back to the security, the watchlist and things like that, Director 

Mueller, if you could just talk about generally—I know people have 

gotten, understandably, in the weeds about these lists. But do you 

think adding more people to this watchlist would be a smart idea? 

And how do you think we could focus on improving criteria so we 

do not have the kid going to Disneyland on the list? 

Mr. MUELLER. I do think there are standards that we ought to 

look at in terms of developing or improving the criteria. For inVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
38 

stance, the selectee list requires generally that the person be part 

of a terrorist organization and associated with terrorist activity. 

Senator KLOBUCHAR. And that is the one that there are about 

14,000 people on. Is that right? 

Mr. MUELLER. Generally, yes. And the issue there is what is the 

nexus to terrorism, and you have a number of lone wolves out 

there, lone actors now, and so proving that somebody is a member 

can be an inhibitor to putting the person on the list. So there are 

certain areas that we are looking at which would change the criteria. That probably would expand the number of persons, and appropriately so, who are on the particular list. 

Senator KLOBUCHAR. And this means they would be subject to 

extra screening or screening at the airport. 

Mr. MUELLER. Yes, yes. Appropriately so, in my mind. On the 

other hand, we have always put a tremendous emphasis on having 

other identifiers. You have any number of names, iterations of 

names, and often it is very difficult on a name itself to identify a 

particular person. And so at the same time we are changing the 

criteria to add persons who we are concerned about. At the same 

time we have to continue to develop identifiers, whether it be fingerprints or—— 

Senator KLOBUCHAR. Right, and that is what—I was going to actually ask you about that as we look at the misspelling that took 

place. And, again, sometimes people have different names, anyway, 

so just this whole biometrics. We have been talking about this for 

years on flights and how you get on, just what is the status of that, 

because to me that would help immensely in this. 

Mr. MUELLER. Well, to the extent that we can go to an era of biometrics, not just a date of birth but biometrics, we will be much 

better able to identify the particular person who is carrying that 

name and trying to get on an airline. And there is a substantial 

interagency effort underway to expand our biometrics, whether it 

be use of fingerprints, retina scans, and the like. And my hope is 

that in the future we have better ability to identify persons and, 

to an appropriate extent, expansion of the criteria so that we get 

the troublesome persons on the list that it will be more effective. 

Senator KLOBUCHAR. OK. 

Mr. KENNEDY. Senator, if I might add for one brief moment. 

Senator KLOBUCHAR. Secretary? 

Mr. KENNEDY. The State Department, when it receives a visa application, already uses biometrics. We take the fingerprints of every 

visa applicant and transmit them to Homeland Security and the 

FBI, and if that applicant does not clear that database, no visa is 

issued. 

We also have probably the finest facial recognition capacity so 

that if somebody comes in and applies as Jane Doe in one place 

and then tries to apply as Sara Smith in another, those applicants 

are—— 

Senator KLOBUCHAR. So it is trying to take that information and 

put it on the front line at the airports. 

Mr. KENNEDY. We share our material with our colleagues, and so 

we are doing that as part of the application process, and then we 

share the information. 

39 

Senator KLOBUCHAR. OK. I am going to have to go back and vote 

now, but one thing I want to just put in your mind and we can talk 

about it later, Mr. Heyman, but it is just this idea if we could actually potentially save some resources in the long term with these 

scanners. I am someone that gets stopped every time because of my 

hip replacement, and me and a number of 80-year-olds are standing there getting our knees and hips checked, and it is really timeconsuming. Is there an argument that you could go faster through 

this process if you used the full-body scanner? 

Mr. HEYMAN. Each technology is different, and the goal is to try 

to get as fast as possible—— 

Senator KLOBUCHAR. OK. I am not going to get you to comment 

on the details. It is just a thought, because it takes a long time. 

But my constituents love watching it happen, so, you know, we will 

miss that. Thank you. 

Mr. HEYMAN. Thank you for your questions. 

Senator WHITEHOUSE. I understand that Senator Sessions will be 

returning and will have, I think, another very brief round. But before he gets here, I wanted to ask a number of questions myself. 

I will say one thing—actually, I will wait until he gets here so that 

he has a chance to respond. 

Director Mueller, in your testimony you described the sipping 

from the fire hose phenomenon of trying to pick data out of the 

enormous stream of data that our intelligence and law enforcement 

services have available to them. In his testimony, Michael Leiter 

described the difficulty of having pieces of information rise above 

the background noise and sort out how all that is happening. 

I just want to summarize what appear to be the major pieces of 

derogatory information about Mr. Abdulmutallab. One is that his 

father had come in and warned of his radicalization. Second is an 

obvious one: He was boarding a flight for the United States. That 

puts him into a higher risk profile than if he is just off someplace. 

Three, he exhibited troubling, anomalous passenger characteristics, 

it appears from public reports: cash ticket, no luggage, no coat for 

landing in the winter in Detroit. Fourth, there was some general 

threat information out of that part of the world about al Qaeda in 

the Arabian Peninsula, AQAP. And then there was a reference to 

a Nigerian in the traffic somewhere, and he was indeed a Nigerian 

and boarded his initial flight in Lagos. 

It strikes me that the general threat information is not particularly helpful in identifying Abdulmutallab. The Nigerian cue applies to every Nigerian. The fact that he was boarding a flight for 

the U.S. applies to every passenger boarding a flight for the U.S. 

I do not know how significant a single piece of data—the father 

having warned of radicalization—is, and those passenger characteristics would not really have turned up until check-in. And I do not 

know that our NCTC system is designed to play in that quick a 

timeline or even to search for passenger characteristics that would 

seem to be inconsistent with the nature of the flight. 

So when I look at the whole array, if I knew all of those things, 

I would be very anxious about having this individual sitting next 

to me on a plane, but I do not see any single one that sets up a 

very bright flare of concern. It strikes me that it is the assembly 

of them that is the key, and it strikes me that the assembly of 

40 

them is to a large degree a computer search, data analysis, algorithmic-type problem because I doubt we have the staffing to take 

any one of these pieces of information and do a human search of 

that if we had to do one for every single piece of derogatory information of that level of risk. 

I would like first to hear from each of you, if I could, briefly, in 

what way you would ascribe the order of magnitude of information 

that we are sifting through every day out of which these elements 

would have to be plucked. We will start with that. What is the 

order of magnitude? People have said thousands. You have described the fire hose. How else would you describe it in terms of 

the—— 

Mr. MUELLER. Well, certainly for the FBI, both here and overseas, thousands upon thousands of these pieces of information come 

in daily in any number of ways—through intercepts, through 

sources, through pieces of information provided by us to the intelligence community. 

Senator WHITEHOUSE. Tens of thousands? Hundreds of thousands? 

Mr. MUELLER. It would be hard to—certainly tens of thousands. 

Senator WHITEHOUSE. Certainly tens. 

Mr. MUELLER. And I will tell you, the way we try to address this 

is no counterterrorism leads goes unaddressed. We have had discussions in the past as to whether or not we need to maintain the 

personnel on our Joint Terrorism Task Forces to address the 

threat, to which my answer is yes, because it is tracking down each 

lead to its end that enables us to discover other leads that may elevate the concern to the point where an Abdulmutallab is put on the 

no-fly list. And, consequently, you have to sort, you have to 

prioritize the leads, but the fact of the matter is in order to prevent 

terrorist attacks in the United States, we have to track every lead. 

And that takes the personnel on the Joint Terrorism Task Forces; 

it takes new and innovative ways to utilize technology. But you are 

drinking through a fire hose, and that does not mean that we cannot do a better job of sorting out the streams that are coming from 

that fire hose, prioritizing and making certain we follow up. 

Senator WHITEHOUSE. Mr. Kennedy. Ambassador Kennedy. 

Mr. KENNEDY. Thank you, sir. Almost 8 million individuals apply 

for visas every year at American embassies and consulates, and 

how we try to deal with that is we first have a personal interview 

of the individual by a trained consular officer who knows the language, should that be required; who knows the culture or the country; who knows interviewing techniques; who knows the economic 

situation of the country, which might be a motivating factor. And 

then we take that information and put that in one side of the consular officer’s brain, and then we send the data checks out to our 

colleagues in the intelligence and law enforcement community. We 

send the fingerprints out. We run the individual’s facial characteristics against our biometrics. And then we put all those pieces together, and we say yes or on. And that is a labor-intensive situation requiring trained professionals, but we do it because we are 

the first lines of national defense, and that is our task. But it is 

a daunting one. 

41 

Senator WHITEHOUSE. And, Mr. Heyman, from DHS’ point of 

view, what is the volume of the fire hose? What is the order of 

magnitude of the information you have to sift through? 

Mr. HEYMAN. The Department screens approximately 1.8 million 

individuals entering the United States per day. 

Senator WHITEHOUSE. Per day. 

Mr. HEYMAN. Per day. Hundreds of thousands of those are flying 

in by air. Those individuals were all screened for admissibility into 

the United States and for concern about possible known or suspected terrorists. 

Senator WHITEHOUSE. Given that scale of effort that each of you 

have described, how significant is the role of computer search capability in gnawing through that vast amount of data and collecting 

or connecting the dots? 

Mr. HEYMAN. Each of those passengers are screened one at a 

time. It is not all done at once. So if a flight comes in, you are 

screening them 300 passengers at a time. That is often done in an 

automated fashion. There are automatic targeting systems that run 

through to see if there is a match on the no-fly list, et cetera. 

Let me just make—— 

Senator WHITEHOUSE. Does the question of cash payment, no 

luggage, and no coat ever get caught—first of all, is that accurate? 

Mr. HEYMAN. I am glad you asked. I was just going—— 

Senator WHITEHOUSE. How does that trigger? 

Mr. HEYMAN [continuing]. To address that. There is something 

called the passenger name record which is transmitted from travel 

agencies or carriers to the Department to get advance notice of who 

might be on a play coming to the United States. 

The information that is collected that is transmitted is usually 

the name, gender, and flight path, so you would have, whether it 

is one-way or two-ways or something to that effect. But the other 

information that you mentioned, whether it is a cash transaction, 

the type of transaction, luggage, those kinds of things, not necessarily included in the passenger name record, was not included 

for this individual, and—— 

Senator WHITEHOUSE. Are the airlines under any obligation or do 

they feel any interest in looking at that not as representative of the 

Government, just as carriers who are potentially putting fellow 

passengers at risk? Is there a mechanism by which private carriers—or non-private carriers, State carriers—do this and then report to you? Or is it—— 

Mr. HEYMAN. There is a formal requirement that carriers transmit passenger name records up to 72 hours prior to a flight departing for the United States. 

Senator WHITEHOUSE. But somebody who is a senior gate attendant, they have seen a lot of folks, somebody comes to the flight to 

check in, they are headed for Detroit, it is the middle of winter, 

they have got no coat, they are checking no luggage, the ticket has 

been paid in cash, is there any program—what if you were suspicious and you were that gate attendant, what would you know to 

do at that point? 

Mr. HEYMAN. There is a difference between the information that 

is transmitted by the carriers for assessment, for determining 

whether someone is on the no-fly list. What you are describing is 

42 

something we refer to as behavioral detection observations or 

anomalies that a gate individual might determine in the United 

States. We have BDOs in airports throughout the United States, 

not necessarily the case abroad. 

Senator WHITEHOUSE. Would it be useful to develop this in a 

more robust way with the major airlines that fly in and out so that 

this can begin to be evaluated? As far as I can tell, from what you 

are saying, the question of the cash purchase, no luggage, and no 

coat never entered anybody’s calculation ever until somebody 

looked back. 

Mr. HEYMAN. That data was not available. 

Senator WHITEHOUSE. That data was not available. 

Mr. HEYMAN. And I would say that a cash purchase from Nigeria 

is not unusual. But—— 

Senator WHITEHOUSE. No, none of these elements—particularly 

being Nigerian is not unusual. But when you pack them all together and you have the al Qaeda intercept mentioning a Nigerian, 

and you have this person boarding there, and you have the cash 

purchase, and you have the no luggage, and you have the boarding 

of a flight for the U.S., and you have the father’s warning, it is the 

failure to assemble the data that is more significant than overlooking some bright red flag, it seems to me, and that is my question because that could be an important tipping piece of data, and 

if we are not even in a position to collect it, that appears to me 

as something that perhaps could be improved. 

Mr. HEYMAN. I think you are absolutely right. I think the discussions that we are now having with our international partners, governance, as well as air carriers—— 

Senator WHITEHOUSE. As well as carriers. 

Mr. HEYMAN. As well as carriers. We need to look at questions 

of is there additional information we should include in the passenger name record, is there any additional information we should 

share, or standards, and this is the kind of thing that would be addressed through the ICAO process, which is the international body 

for standards of aviation travel. 

Senator WHITEHOUSE. OK. Let me yield to the Ranking Member 

for a second round of questions, but now that he is back, I wanted 

to make the point that I was going to make earlier. 

I agree with Senator Sessions about the importance of there 

being a rigorous and formal method for making the determination 

as to whether a case should proceed in civilian courts or in military 

tribunals. And I share his concern if there is not a process by 

which that decision gets made at a fairly rigorous and early time 

when whatever advantages of either forum are still available. And 

I am concerned if there is kind of an ad hoc or on-the-fly decision 

that is being made as to which direction we intend to proceed. 

Where I differ from him is that I am not confident that the military tribunal is, by definition, the better way to go. I am keenly 

aware of the history of the success of criminal trials in terror matters and the repeated failures in the military tribunal context. I believe that it is incorrect to suggest that FBI interrogation is sort 

of a second best, but if we could get them over to those military 

tribunal tracks, then we would have a really good interrogation. 

The hearings that I have done on this subject have shown that the 

43 

FBI-led interrogation has actually been better than other, what I 

would consider to be less professional, and which are certainly 

more aggressive methods. 

It strikes me that the agents who arrested Mr. Abdulmutallab 

probably, pursuant to FBI protocols, treated that case a little bit 

differently from a national security and interrogation point of view 

than they would have had he been a bank robber or somebody who 

had been pursued in a long fraud investigation and this was the 

day when the agents were going to go out and put the cuffs on him. 

Do you not react differently to cases that have a national security and terrorism overtone than to your regular book of criminal 

business in terms of making early decisions as to what type of interrogation is appropriate? 

Mr. MUELLER. Certainly we do, and that is what the agents did 

in this particular case. There were no Miranda warnings given. 

They immediately went in when they had the opportunity to interview him to determine whether—to gain intelligence, intelligence 

about whether there was another bomb, whether there were other 

co-conspirators, where did he get the bomb. All of that information 

without the benefit of—or without the Miranda warnings. 

It had to be done very quickly because of the fact that he had 

been injured, was in a hospital, and the window of opportunity to 

do this had to be undertaken very quickly. But the fact remains as 

well later that evening he was Mirandized, and he went into the 

judicial system. 

I am not going to opine one way or the other because I do not 

think it is my role to necessarily adopt the policy as to where the 

person goes. It is other persons at the Department of Justice and 

elsewhere. But—— 

Senator WHITEHOUSE. True, but as the lead implementer of that 

policy with respect to your organization, I think it is important to 

all of us to get a sense of at what stage that policy—to what stage 

that policy has been developed and at what stage in the arrest proceedings it first gets engaged, because if you are way down the 

road one way before the policy has a chance to kick in, and as a 

result you lose opportunities one way or the other, that is a problem, I think, that merits a solution. 

Mr. MUELLER. I think everyone wants an opportunity to weigh 

in on those decisions earlier rather than later. Yes, I think—and 

to the extent that decisions are made elsewhere, I implement them. 

I will tell you that intelligence is absolutely essential to preventing terrorist attacks, and to the extent that we can obtain the 

intelligence to prevent terrorist attacks, we will prevent terrorist 

attacks. But by the same token, I would also say that you cannot 

forget the end game. You cannot completely forget the end game 

as you search for intelligence. And you—— 

Senator WHITEHOUSE. Either in the military tribunal context or 

in a criminal court. Both have very similar—— 

Mr. MUELLER. Right here, principally the FBI is operating in the 

United States, and generally it is United States citizens, although 

in this case it was not. But I can tell you I share many of your concerns, but you should be assured that since September 11th our interest is principally to gain intelligence to prevent terrorist attacks, 

44 

and to assure we do that so that there is a back-up plan to the extent that we can. 

Senator WHITEHOUSE. And one final point on Miranda. My review of this suggests to me that very successful investigations have 

been conducted, very successful interrogations have been conducted, and very significant intelligence information has been obtained from suspects who have been Mirandized, and that in some 

cases Mirandizing a subject is actually a part of an interrogation 

plan for that particular subject. And for that reason, I am not convinced of the assertion, unless you correct me now, that by its very 

nature Mirandizing somebody is a sort of per se inhibition on our 

ability to collect intelligence from that individual. In fact, I can 

think of specific cases in which Mirandizing somebody was a specific part of the interrogation plan and strategy for that individual. 

Mr. MUELLER. I would agree with that, having seen it happen 

many times. On the other hand, there are other occasions where 

the person was talking and Mirandizing them turns off the spigot. 

And so I think you can argue it both ways. 

Senator WHITEHOUSE. My point is for it to be case by case and 

for there to be executive judgment and discretion deployed seems 

to be the best of both all-or-nothing alternatives. 

Senator Sessions. 

Senator SESSIONS. Well, the FBI agents are some of the best 

agents in the world. There is just no doubt about it. And they operate under the constraints and rules that they have been trained to 

operate under, one of which is when the defendant is in custody 

and he is going to be tried in a civilian trial, he is given Miranda 

before he is asked questions, unless there may be some immediate 

danger like whether the defendent has a bomb or a gun. But that 

is the fundamental way law enforcement is done. And I think it 

would be indisputable that you get less information if you give a 

Miranda warning than if you do not. 

Now, with regard to this specific incident, I have just been made 

aware that the Director of National Intelligence, Mr. Blair, says 

that he was not made aware that this high-value target had been 

Mirandized and somebody had made a decision about how they are 

going to be handled and he was going to be given a lawyer. He did 

not know about that. Is there such a thing as a High-Value Detainee Interrogation Group, Mr. Mueller? 

Mr. MUELLER. Yes. 

Senator SESSIONS. Well, was that group utilized in this case? 

Mr. MUELLER. No, it was not. 

Senator SESSIONS. Well, who made the decision not to do that? 

And who made the decision that Miranda and the right to have an 

attorney and the right not to speak and all would be given to this 

unlawful combatant? 

Mr. MUELLER. Well, first, with regard to the High-Value Interrogation Group, that is an entity that is in its formation stages which 

brings together expertise from the FBI but also from other agencies—in other words, expertise in terms of the particular terrorist 

to be interrogated, expertise with regard to the country from 

whence the person comes, language and the like, as well as expertise in interrogations. And we have utilized that, as the adminisVerDate Nov 24 2008 12:43 Oct 12, 2010 Jkt 058484 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\58484.TXT SJUD1 PsN: CMORC
45 

trative architecture is being built, as an opportunity to bring together those components for interrogations. 

In this particular case, it happened very quickly. There was no 

time to get a follow-up group in there. If one had had the opportunity over a period of time, we may well have had a specialized 

group do the interrogation. 

As to the second question, as to determinations that was done, 

my understanding is determinations were done in consultation 

with the Department of Justice and others in the administration 

prior to the agents going back in later that evening to interview 

them. 

Senator SESSIONS. Well, is this an Assistant United States Attorney in Detroit or is it some—— 

Mr. MUELLER. No. It is above that. Above that. I hate to get into 

that because I am not fully familiar with all who talked to whom 

on the afternoon, but I do know it was not made necessarily at the 

local level. 

Senator SESSIONS. But you were not informed and asked this 

question. 

Mr. MUELLER. I may have been. I just cannot recall. 

Senator SESSIONS. Well, you earlier said you did not know when 

I asked you about it. You did not know who did or—— 

Mr. MUELLER. I thought you asked whether I had been informed 

of the decision, and I cannot recall whether I had been informed 

of the decision. 

Senator SESSIONS. Were you asked to give your opinion on the 

matter? 

Mr. MUELLER. No. 

Senator SESSIONS. Well, apparently neither was Mr. Blair or Secretary Gates. This is, I think, a matter of national security since 

Abdulmutallab is associated with al Qaeda with whom we are at 

war. Was he asked his opinion about how the interrogation should 

be conducted? 

Mr. MUELLER. I do not know, but I can tell you very senior people in the FBI had input on the decision. 

Senator SESSIONS. And is there some protocol that—well, what is 

this High-Value Detainee Interrogation Group? Shouldn’t they 

have been activated as part of this? And in the future, shouldn’t 

they be activated immediately upon such an event as this? 

Mr. MUELLER. Yes, but quite often one of the reasons that we are 

putting it together is to identify potential persons that may come 

into our custody. In this particular case, you would have to put the 

group together with some expertise in Nigeria and some expertise 

in this particular area of the world, which as it relates—after we 

learned, after we did the initial interrogation, that it was Yemen. 

And so you have to put together the expertise to do the thorough 

interrogation to support—— 

Senator SESSIONS. Well, I would agree with that, but that was 

not done. Somebody made a decision that this case would be tried 

in civilian court, that they would be given Miranda. And isn’t it a 

fact that after the Miranda was given, they were told they had a 

right to a lawyer and did not have to make a statement, they 

stopped talking, the individual stopped talking? 

Mr. MUELLER. He did. 

46 

Senator SESSIONS. That is not unusual. That is the normal case 

of things. So this was a bad mistake, in my view. Who in the Department of Justice that you know of was at least involved in this 

discussion? Now, I know you do not want to talk about that, but 

I think I have a right to ask. I am asking you what knowledge you 

have about anybody in the operational lines of the Department of 

Justice who had input into this decision, not the details but—— 

Mr. MUELLER. I would be happy to discuss that with you, but I 

do believe I have to go through the Department of Justice to get 

approval to do that. 

Senator SESSIONS. Well, Mr. Attorney General Holder, has already made clear his presumption that these cases would be tried 

in civilian court, which I think was a big error. It baffles me, and 

I am concerned about it. Sooner or later we are going to need to 

know how this happened, because one of the things that we do in 

oversight is to find out what happens in the real world. I mean, 

you have these lists and this list, and why didn’t it quite come together? Well, one of the things that we have is a High-Value Detainee Interrogation Group who had expertise in language and culture and al Qaeda, and apparently we had—whatever FBI agent 

we were lucky enough to get responding to this emergency and a 

decision was made without this expertise being called upon. 

Mr. MUELLER. We actually had very qualified members of the 

Joint Terrorism Task Force who were called upon to do it and some 

of our best agents. 

Senator SESSIONS. You are not saying that those agents made 

the decision. You are saying the decision was made in United 

States Attorney’s Office or the U.S. Department of Justice, Attorney General Holder’s unit, somewhere in that chain of command— 

which is not improper. I mean, normally a prosecutor makes a decision on a lot of these issues if they have the opportunity to be engaged on it. But it seems to go against the idea of gaining intelligence. 

Mr. MUELLER. In this particular case, the consultation could not 

occur as fast as the decision needed to be made as to whether or 

not you take the opportunity to interview him for intelligence purposes. The individual was at the hospital about to undergo treatment, and there was a limited window of opportunity to obtain the 

intelligence that the agents felt they needed to obtain to determine 

more aspects of what had happened and spent some time with him. 

And, consequently, on this particular occasion—and I am using this 

particular occasion—there was not the opportunity to do the type 

of consultation that you suggest and recommend. 

Senator SESSIONS. Well, I do not agree that the hospital has anything to do with it. He was in our custody. He was not in a lifeand-death situation. I believe those agents talked to somebody. I 

want to know who they talked to and who said we are going to give 

Miranda, go ahead and give it. I do not believe—if they were initially doing a discussion without it, I do not think they would have 

changed—— 

Mr. MUELLER. Sir, he was not given Miranda at the outset. They 

had an intelligence interview—— 

Senator SESSIONS. Your agents did not do so. They saw it—which 

is contrary to the normal policy. When he is in custody, he should 

47 

be given Miranda. I see a lady shaking her head behind you. When 

you bring somebody into custody and you ask them a question, you 

have to give me Miranda except under extraordinary circumstances. So they did not do it then. 

Mr. MUELLER. They did not Mirandize him, no. 

Senator SESSIONS. At some point somebody said now is the time 

to do it. You cannot give us any more information than you have 

given about who said so? 

Mr. MUELLER. It has to come through the Department of Justice. 

As you are well aware, this is going to be the subject of a suppression hearing down the road, and, again, I do believe information on 

what decisions were made when should more appropriately come 

from the Department of Justice. 

Senator SESSIONS. Well, before I leave, I will be more generous. 

The questions that you have been given by the IG report on the 

exigent letters, isn’t it true that when the Inspector General’s preliminary report came out on the exigent letter issue—it was released back in March of 2007—you addressed the press openly; you 

answered questions, you came before the Congress and answered 

questions. You accepted responsibility and you announced a number of reforms, one of which was you stopped using exigent letters 

altogether. Is that right? 

Mr. MUELLER. That is accurate, sir. 

Senator SESSIONS. And is there anything really new in this final 

report over what was brought up before? 

Mr. MUELLER. There is more detail that had not been provided 

in earlier reports in terms of the actions that were taken or not 

taken. So there was some new, but I will tell you that we have 

tried to keep Congress abreast with periodic briefings on the findings as we know them from the IG and have addressed the issues 

that are raised by the IG in this latest report. 

Senator SESSIONS. I have an impression—but you correct me if 

I am wrong—that when the PATRIOT Act—this is all part of the 

PATRIOT Act legislation, exigent letters. 

Mr. MUELLER. In some part. 

Senator SESSIONS. Or some of the post-9/11 legislation. There 

was a failure in Washington to immediately through regulations, 

training—it is kind of hard to stop everything you are doing and 

train everybody immediately when something happens, and it was 

not a deliberate attempt to subvert the law or a deliberate attempt 

to deny people rights. It was a lack of maybe discipline and education as part of your agents, and that when this was brought to 

your attention, you put an end to it and have handled it in a correct way ever since. 

Mr. MUELLER. I believe that is accurate, sir. Certainly nobody intended to subvert the law. We, I, did not put into place the requisite machinery to assure that we dotted the i’s and we crossed 

the t’s and assured that we handled appropriately the issuance of 

national security letters during that period of time. And as you indicate, the last exigent letter was issued in 2006. And as I quoted 

from the IG report, I believe the IG believes that we have correctly 

addressed the problem and did so some time ago. 

Senator SESSIONS. Well, it was an error that should not have occurred, but if anybody has run a big organization, they know how 

48 

hard it is sometimes to get information down to the lowest levels. 

But I think the FBI, one of its strengths is that it is pretty good 

at that kind of thing, although this time you messed up. 

Thank you. 

Senator WHITEHOUSE. I thank the distinguished Ranking Member. 

The record of this hearing will remain open for a week, and I 

would hope and urge that the witnesses who have promised to provide various materials during the course of this hearing would 

make it available during the period that the record of the hearing 

is actually open. So if you could do that, I would appreciate it. 

I would close by echoing Senator Sessions’ concern that we be 

clearer on the protocol and the deployment of the protocol for how 

and when the decision gets made between a military tribunal and 

a criminal court. I come at it from a different perspective in the 

sense that I disagree with him that the military tribunal is the 

right answer in every case; I disagree with him that Mirandizing 

people is the wrong answer in every case, and have further concerns about, frankly, legislators making that decision rather than 

the executive branch of Government. But however that plays out, 

it should play out in a way that, from a protocol point of view, 

makes those decisions at the right time by the right people with 

the right information and in a time to gather the right intelligence. 

So I thank the Ranking Member for coming back to explore that 

further, and the hearing is concluded. 

[Whereupon, at 12:53 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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