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S. HRG. 109–311

ABLE DANGER AND INTELLIGENCE INFORMATION

SHARING

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 21, 2005

Serial No. J–109–39

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware ............. 3

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 15

prepared statement .......................................................................................... 63

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 4

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

statement .............................................................................................................. 66

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Bald, Gary M., Executive Assistant Director, National Security Branch, Federal Bureau of Investigation, Department of Justice, Washington, D.C. ........ 35

Dugan, William, Acting Assistant to the Secretary of Defense for Intelligence 

Oversight, Department of Defense, Washington, D.C. ...................................... 37

Kleinsmith, Erik, former Army Major and Chief of Intelligence, Land Information Welfare Analysis Activity, and Project Manager for Intelligence 

Analytical Training, Lockheed Martin, Newington, Virginia ........................... 25

Weldon, Hon. Curt, a Representative in Congress from the State of Pennsylvania ...................................................................................................................... 5

Zaid, Mark S., Partner, Krieger & Zaid, PLCC, Washington, D.C. ..................... 21

SUBMISSIONS FOR THE RECORD 

Bald, Gary M., Executive Assistant Director, National Security Branch, Federal Bureau of Investigation, Department of Justice, Washington, D.C., 

prepared statement .............................................................................................. 45

Dugan, William, Acting Assistant to the Secretary of Defense for Intelligence 

Oversight, Department of Defense, Washington, D.C., prepared statement .. 53

Gorton, Slade, former U.S. Senator and Member, Public Discourse Project, 

9/11 Commission, Washington, D.C., letter ....................................................... 57

Kleinsmith, Erik, former Army Major and Chief of Intelligence, Land Information Welfare Analysis Activity, and Project Manager for Intelligence 

Analytical Training, Lockheed Martin, Newington, Virginia, prepared statement ...................................................................................................................... 65

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, letter ...... 68

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania and 

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

letter and attachment .......................................................................................... 71

Weldon, Hon. Curt, a Representative in Congress from the State of Pennsylvania, prepared statement .................................................................................. 73

Zaid, Mark S., Partner, Krieger & Zaid, PlCC, Washington, D.C., prepared 

statement .............................................................................................................. 78

(1)

ABLE DANGER AND INTELLIGENCE 

INFORMATION SHARING 

WEDNESDAY, SEPTEMBER 21, 2005 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:31 a.m., in Room 

226, Dirksen Senate Office Building, Hon. Arlen Specter (chairman 

of the committee) presiding. 

Present: Senators Specter, Grassley, Kyl, Sessions, and Biden. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. The Judiciary Committee will now proceed 

to a hearing on a project known as Able Danger. 

There has been extensive publicity in the media about this program known as Able Danger, with representations made that the 

Department of Defense had information about an Al Qaeda cell, including the identification of Mohammed Atta, substantially prior to 

9/11, and that arrangements which had been made preliminarily to 

turn over the information to the FBI were not carried out because 

of concern by the Department of Defense that there might be a violation of the Posse Comitatus Act. That is a statute which was enacted shortly after the Civil War which prevents the United States 

military from being engaged in law enforcement activities. 

If the Posse Comitatus Act precluded this information from being 

turned over by the Department of Defense to the FBI, then that is 

a matter which may require amendments to the Act, and that is 

a matter for the Judiciary Committee. It is squarely within our jurisdiction. The oversight of the FBI also is a matter squarely within the jurisdiction of the Judiciary Committee, so that the Committee is concerned about what happened here. 

There have been some allegations of destruction of records. There 

has been a question raised as to whether the name Mohammed 

Atta is the Mohammed Atta, some saying that it is a common 

name. The circumstances relating to the identification of the Al 

Qaeda cell, if, in fact, that happened, and alleged charts with the 

name of Mohammed Atta and a picture, all are questions to be resolved. 

For the record, I will now introduce, without objection, a letter 

which I wrote to Secretary of Defense Rumsfeld dated September 

8, 2005. There have been extensive discussions between my staff 

and staff from the Department of Defense. I was surprised to find 

that the Department of Defense has ordered five key witnesses not 

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to testify, some of them military, some civilian, all working for the 

Department of Defense. That looks to me as if it may be obstruction of the Committee’s activities, which is something we will have 

to determine. 

There have been repeated requests for documents. They were delivered, I am advised, last night at five o’clock. They were in a secure room, Senate-407, some 500 pages, so there has not been any 

opportunity to review those documents for whatever light they may 

bear upon this hearing. 

There has been a contention raised by the Department of Defense that the Department is concerned about classified information. This Committee is zealous in its protection of classified information, something that I have had personally extensive experience 

with in my capacity as Chairman of the Senate Intelligence Committee in the 104th Congress. I conferred with Senator Pat Roberts, Chairman of the Intelligence Committee, and our staffs have 

coordinated so that we will be advised of whatever the Senate Intelligence Committee knows so that we have the benefit of the 

work of both staffs. 

As a precautionary matter, the Committee has conferred with the 

Office of Legal Counsel on the issue of classified information and 

I would, without objection, put into the record the advice from the 

Office of Legal Counsel, which takes the form of a memorandum 

from my General Counsel, Carolyn Short, to me, specifying the advice which she had received orally from the Office of Legal Counsel. 

It was put in writing under their procedure on a request by Senator Leahy and myself in writing. I will put in a copy of the letter 

from Senator Leahy and me to the Office of Legal Counsel and put 

into the record this memorandum from the Office of Legal Counsel. 

The essence of the situation on classified information is that the 

Office of Legal Counsel advised that I should state, and I do, at the 

opening of this hearing that we are not seeking the disclosure of 

classified information and that I am instructing the witnesses not 

to disclose any classified information. The Legal Counsel further 

advised that I should instruct the witnesses that if there is classified information that they wish to present to the Committee, if they 

so inform the Committee, at the conclusion of the public hearing 

the Committee can make the decision about whether to go into 

closed session. 

We have a representative from the Department of Defense here 

today, Mr. William Dugan, who is Acting Assistant to the Secretary 

of Defense for Intelligence Oversight, Department of Defense. Legal 

Counsel has made the suggestion that the DOD representative in 

the audience at the hearing should feel free to raise objections to 

staff, when appropriate. Well, I would go beyond that and say that 

if someone from the Department of Defense who is here has an objection, they can state it publicly prior to the time any risk arises 

of the disclosure of classified information and the Committee will 

take into account what is raised, make a determination, and we 

will err on the side of caution to be sure that there is no classified 

information. 

Our lead witness is Congressman Curt Weldon, who has key positions on the House of Representatives Armed Services Committee 

and on Subcommittees dealing with intelligence. Congressman 

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Weldon has made a very expansive study of this matter. I have 

known him personally for 25 years or more, since the days when 

he was mayor of Marcus Hook and in the House of Representatives, having been elected there in 1986. My knowledge of Congressman Weldon give me the utmost confidence in his thoroughness and his integrity and his objectivity. 

On the issue of the classified information, in discussing this matter with Congressman Weldon, he assured me and the Committee 

that classified information was not involved here. May the record 

show he is nodding. In a few minutes, he will be testifying about 

his knowledge of Able Danger and the reasons why he said, as reported to me in our discussions in advance of this hearing, that if 

it had been classified, there would have had to have been a formal 

order of destruction. Again, let the record show he is nodding, but 

he will testify. 

That is a very, very brief statement of overview. Terrorism remains the No. 1 problem in the United States today. Notwithstanding all the other problems we have, it is the No. 1 problem. 

This country is still recoiling from the events of 9/11/2001, more 

than 4 years ago. This country will be recoiling from those events 

for a very, very long time, indefinitely and perhaps permanently. 

If there is some change legislatively which needs to be undertaken in the Posse Comitatus Act, it is the duty of this Committee 

to move ahead and to find out what went wrong here, if something 

did, in fact, go wrong. And it is my hope that we will have cooperation yet from the Department of Defense on these important matters. It is not a matter of attaching blame, it is a matter of correcting any errors so that we don’t have a repetition of 9/11. And 

if there is intelligence information available, it ought to be shared 

and made known to the authorities who can act on it, like the FBI 

and the CIA and the other intelligence agencies. 

This is practically a Delaware Valley affair at this moment. We 

have been joined by Senator Biden, whom I yield to now for any 

opening statement he may care to make. 

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator BIDEN. Thank you, Mr. Chairman. I apologize for being 

a few minutes late. I am here for two reasons. One, my high regard 

for the Congressman. He has, over the years and the last 9 months, 

shared information with me. Some of it seemed prescient and it 

turns out that a number of the things he said have been—I was 

unaware of, have turned out to be the case. 

I thought this morning we were going to be able to get to the bottom of some of this. I know, as you know better than I do, that the 

Congressman is a loyal American first, but a very staunch Republican and has no political agenda here other than trying to figure 

out what we knew and didn’t know and why we didn’t know it. 

My staff indicates to me that representatives from the Department of Defense have confirmed that an internal investigation 

identified five Able Danger team members who claim they had either seen a picture of Atta or had seen his name in a chart prepared in 1999 by the Able Danger team, and the Defense investigation found these sources to be credible but didn’t uncover the chart 

4

itself. Defense officials have said that documents associated with 

the project have been destroyed in accordance with regulations regarding collection, dissemination, and destruction procedures for 

intelligence gathering on people inside the United States. 

So I thought we were going to get a chance to clear some of that 

up this morning. For the life of me, I don’t understand why—as I 

understand it, I stand corrected if I am wrong, but I understand 

the witnesses we assumed we were going to get to hear from the 

Defense Department have been pulled. They may be or may not be 

in the room, but have been instructed that they cannot testify. I 

think that is a big mistake and I am sorry that is the case, but 

I know the Chairman over these many years we have been friends 

and worked together seldom takes no for an answer when we have 

a right to hear some things, and so I hope we will pursue that. 

But in the meantime, I am anxious to hear—to be very blunt 

about it, I have heard, I have had the opportunity to travel with 

the Congressman. He and I went to Iraq Memorial Day with a 

number of his bipartisan group he led in the House. We had a 

chance to talk about a lot of this. 

So I am going to stop—I have a few minutes left, but stop now 

because I am supposed to co-host the King of Jordan with my colleague, Senator Lugar and the Foreign Relations Committee, and 

he is going to be talking to us about Iraq and a few other things. 

I am going to stay as long as I can, but hope we can get to the 

bottom of this and hope we can prevail upon the Defense Department to change its mind. I have heard no good reason for the 

change. 

I thank you and I welcome the Congressman. 

Chairman SPECTER. Thank you very much, Senator Biden. 

Senator Leahy, the Ranking Member, is scheduled to speak 

shortly on the floor on the nomination of Judge Roberts for Chief 

Justice or he would be here, as he attends very faithfully. 

We have been joined by Senator Kyl, who chairs the Subcommittee on Terrorism. Senator Kyl, would you care to make any 

opening remarks? 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Mr. Chairman, first of all, welcome to my colleague, 

Curt Weldon. We came into the House of Representatives together, 

oh, a few years ago. I have appreciated the effort that he has put 

into trying to get to the bottom of this matter and the fact that he 

has had a lot to do with bringing it to our attention. 

I commend you for the effort here to also get to the bottom of 

it and hold these hearings. I know that we are going to have a lot 

of work to do in the future to bring all of the folks here, and in 

the meantime, subscribe to your notion that we need to do a little 

bit more work on the whole issue of Posse Comitatus so that we 

can address that, as well. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

For the record, as to Congressman Weldon’s background and 

work in this matter, it ought to be noted that he is Vice Chairman 

of the House Armed Services Committee and chairs the Tactical 

5

Air and Land Forces Subcommittee. He served for 6 years as 

Chairman of the Military Research and Development Subcommittee and he is also Vice Chairman of the Homeland Security 

Committee. So he has been very deeply involved in these issues. 

Our practice, Congressman Weldon, is to set the time at 5 minutes, even for members of the House or for Senators, but knowing 

what you have to say, we are going to set the clock at 15 minutes. 

To the extent you can testify about this very complex situation 

within that time would be fine, and if it takes a little longer, we 

want you to have an opportunity to develop the factual issues as 

fully as you can. 

Thank you for coming, and we look forward to your testimony. 

STATEMENT OF HON. CURT WELDON, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF PENNSYLVANIA 

Representative WELDON. Thank you, Mr. Chairman, and let me 

thank my friends, Joe Biden and Jon Kyl, for also showing up for 

this hearing. I want to thank you for your willingness to listen to 

the facts of this story and attempt to get to the bottom of it. I will 

be brief. I wrote my statement down, which I don’t usually do, to 

stay in compliance with your time limitation, Mr. Chairman. 

I have a number of documents that I will make available to the 

Committee and will enter into the record. If the Chairman would 

like, I have a full written statement and a time line, but I have 

some prepared comments I would like to make today. 

I would like to thank you and Ranking Member Leahy and the 

other members for scheduling this hearing today. Mr. Chairman, I 

am dismayed and frustrated, however, with the response of our 

government to information about the program Able Danger. 

The Defense Department has acknowledged that a program, Able 

Danger, existed and operated during the 1999–2000 time period, 

authorized by the Chairman of the Joint Chiefs of Staff and carried 

out by SOCOM with the help of the Army. DOD has stated publicly 

that five individuals, including an Army lieutenant colonel, recipient of the Bronze Star, who is in the room today, and a Navy Annapolis graduate, ship commander, have emphatically claimed that 

they worked on or ran Able Danger and identified Mohammed Atta 

and three other 9/11 terrorists over 1 year prior to the Trade Center attack. These five individuals have told me, your staff, and others that Able Danger amassed significant amounts of data, primarily from open sources, about Al Qaeda operations worldwide 

and that this data continued to be used through 2001 in briefings 

prepared for the Chairman of the Joint Chiefs of Staff and others. 

These two brave military officers have risked their careers to 

come forward to simply tell the truth and to help America fully understand all that happened prior to 9/11 that had or might have 

had an impact on the most significant attack ever against our 

country and our citizens. These individuals have openly expressed 

their willingness to testify here today without subpoenas, but have 

been silenced by the Pentagon. They have been prevented from testifying, according to the Pentagon, due to concerns regarding classified information, in spite, Mr. Chairman, of the Pentagon’s claims 

to members of the House Armed Services Committee 2 weeks ago 

that the bulk of the data used by Able Danger was open source, 

6

which was why DOD lawyers claim that no certificates were needed to certify the destruction of massive amounts of data that had 

been collected. 

Mr. Chairman, you can’t have it both ways. It is either classified 

or it is not. But what the Pentagon has done in the last 2 weeks 

is they have contradicted themselves. 

Another former DOD official told me and your staff and was prepared to testify today—and he is in the room—that he worked on 

the data collection and analysis used to support Able Danger. He 

was prepared to state, as he told us, that he had an Able Danger 

chart with Mohammed Atta identified on his office wall at Andrews 

Air Force Base until DOD Investigative Services removed it. At 

risk to his current employment, he has told us and was prepared 

to testify under oath in direct rebuttal to the claims of the 9/11 

Commissioners that he was aware of the purchase of Mohammed 

Atta’s photograph from a California contractor, not from U.S. legal 

identity documents. He was prepared to discuss the extensive 

amount of data collected and analyzed about Al Qaeda— 

Chairman SPECTER. Whom are you referring to now, Congressman Weldon? 

Representative WELDON. I am talking about J.D., right here, J.D. 

Smith, in the room. He was prepared to discuss the extensive 

amount of data collected and analyzed about Al Qaeda, underscoring the fact that Able Danger was never about one chart or one 

photograph, but rather was and is about massive data collected 

and assembled against what Madeleine Albright declared to be in 

1999 an international terrorist organization. He, too, has been silenced. 

Another former DOD official will testify today that he was ordered to destroy up to 2.5 terabytes of data. Now, I don’t know 

what a terabyte of data is, so we contacted the Library of Congress. 

It is equal to one-fourth of all the entire written collection that the 

Library of Congress maintains. This information was amassed 

through Able Danger that could still be useful today. He will name 

the individual who ordered him to destroy that data and will state 

for the record that the customer for that data, General Lambert of 

SOCOM, was never consulted about that destruction and expressed 

his outrage upon learning that the destruction had taken place. 

An FBI employee that I identified and has met with your Committee staff and was prepared to testify today that she arranged 

three meetings with the FBI Washington Field Office in September 

of 2000 for the specific purpose of transferring Al Qaeda Brooklyn 

cell Able Danger information to the FBI for their use. In each instance, she has stated that meetings were canceled at the last 

minute by DOD officials. She has not been allowed to testify publicly today. 

The 9/11 Commission was created by Congress with my full support. I have publicly championed many of their recommendations. 

On four separate occasions, I attempted to brief the Commission on 

specifics related to intelligence problems, lack of intelligence collaboration, the NOAH concept, the National Operations Analysis 

Hub that I had pursued in 1999 and 2000, and the work of the 

LIWA and Able Danger. Except for one 5-minute telephone call 

with Tom Kean, I was unable to meet with 9/11 Commissioners 

7

and/or staff. In fact, I had my Chief of Staff hand-deliver questions 

to be asked of George Tenet and others to the Commission on 

March 24 of 2004, which I will enter into the record. They were 

never used and the questions were never asked. 

It was, in fact, a member of the 9/11 Commission who encouraged me to pursue the Able Danger story after I briefed him on 

June 29 of 2005. He informed me that the 9/11 Commission staff 

had never briefed Commission members on Able Danger. He said 

that the facts had to be brought out. 

When the 9/11 Commission first responded to questions about 

Able Danger, they changed their story and spin three times in 3 

days. This is not what Congress intended. All the people involved 

with Able Danger should have been interviewed by the 9/11 Commission. 

Because Able Danger ceased to formally exist before the administration came into office, I understand why there might have been 

a lack of knowledge about the program and its operations. In fact, 

when I first met with Steve Cambone, and I am the one that introduced him to Tony Shaffer, who is here today, he told me that he 

was at a significant disadvantage, that I knew more about Able 

Danger than he did, but that is not an excuse to not pursue the 

complete story of Able Danger. 

In fact, Mr. Chairman, DOD never conducted an actual investigation, and this came up in our Armed Services meeting 2 weeks ago. 

No oaths were given. No subpoenas were issued. Rather, an informal inquiry was initiated. A thorough review of Able Danger, its 

operations, and data collected and analyzed, and recommendations 

for data transfer to other agencies could have and should have 

been completed by more than one Member of Congress using one 

staffer. 

Instead, over the past 3 months, I have witnessed denial, deception, threats to DOD employees, character assassination, and now 

silence. This is not what our constituents want. It is unacceptable 

to the families and friends of the victims of 9/11 and flies in the 

face of every ideal upon which this country was founded. 

Over the past 6 weeks, some have used the Able Danger story 

to make unfair public allegations, to question the intentions or 

character of 9/11 Commissioners, or to advance conspiracy theories. 

I have done none of this. When I learned details of Able Danger 

in June, I talked to 9/11 Commissioners personally and staff. I delivered a comprehensive floor speech on June 27 of 2005 and methodically briefed the House Chairs of Armed Services, Intelligence, 

Homeland Security, and Justice Appropriations. 

This story only became public, even though significant portions 

were first reported in a Heritage Foundation speech that I gave, 

still available online, on May 23, 2002, and a Computer World 

magazine story that ran on January 28, 2003, when Security News 

ran a story on August 1 of 2005, followed by a front-page story in 

the New York Times on August 2 of 2005. 

My goal now, Mr. Chairman, is the same as it was then, the full 

and complete truth for the American people about the run-up to 9/

11. Many Americans lost family and friends on 9/11. Michael 

Horacks was a neighbor of mine in Pennsylvania, a former Navy 

pilot, graduate of Westchester, like myself. He was at the controls 

8

of one of the planes on 9/11. He left behind a wife and two kids. 

We built a playground in his honor at his kids’ school. 

Ray Downey was a personal friend. As a New York Deputy Fire 

Officer, he took me through the garage of the Trade Center Towers 

in 1993, the first time Bin Laden hit us. We worked together. In 

fact, he gave me the idea for the creation of the Gilmore Commission, which I authored and added to the Defense authorization bill 

in 1997. On September 11, 2001, he was the New York City Fire 

Department Chief of All Rescue. The 343 fire fighters, including 

Ray, who were all killed were under Ray’s command as he led the 

largest and most successful rescue effort in the history of mankind. 

I promised Michael’s wife and kids and Ray’s wife and kids and 

grandkids that we would not stop until the day that we learned all 

the facts about 9/11. Unfortunately, Mr. Chairman, that day has 

not yet arrived. We must do better. 

Chairman SPECTER. Thank you very much. 

Representative WELDON. Mr. Chairman, I have significant material that I would put into the record, the data that I provided to 

the 9/11 Commission, the questions I gave them. I have packets 

that I gave them. I have material on the NOAH process. I can 

enter it all into the record at your—it is basically your call. 

Chairman SPECTER. Without objection, all of those documents 

will be made a part of the record. 

[The prepared statement of Representative Weldon appears as a 

submission for the record.] 

Chairman SPECTER. Senator Biden, you said you have other commitments. Can you wait for 5 minutes for the first round, or I 

would be glad to yield to you if— 

Senator BIDEN. Would you mind, Mr. Chairman? 

Chairman SPECTER. No, I would be glad to. 

Senator BIDEN. What I would like to suggest, with the Chairman’s permission, is since the questions I had prepared, my staff 

and I had prepared, quite frankly, weren’t directed to Congressman 

Weldon but to others who we thought were going to be testifying, 

I would like to submit for the record, just so it is in the record, 

what I want to know from these other witnesses, if that is— 

Chairman SPECTER. Without objection, you may do so. 

Senator BIDEN. There are a number of theories that are bouncing 

around, Curt, about why would—first of all, time line here. Able 

Danger was established in September 1999, correct? 

Representative WELDON. It was the 1998–99 time frame, but officially 1999. 

Senator BIDEN. When did it go out of business? 

Representative WELDON. As best we can tell, it ended in 2000, 

yet there was a briefing given to the Chairman of the Joint Chiefs 

of Staff, a 3-hour briefing, in January of 2001 using material. Now 

even though they have claimed they destroyed all the material, 

there obviously had to be material for the Chairman of the Joint 

Chiefs to be briefed, and I just learned that Steve Cambone also 

was involved in a briefing with the head of the DIA in March of 

2001. I was not aware of that information until last week. One of 

your witnesses would have explained that here today. 

Senator BIDEN. Well, that is what I was hoping we would be able 

to establish, is that Lieutenant Colonel Shaffer, who I understand 

9

is in the audience today, who is under Rumsfeld’s gag order, attempted to give this information, as well, to the FBI in 2001? 

Representative WELDON. Two-thousand— 

Senator BIDEN. Two-thousand. 

Representative WELDON. September of 2000, he arranged three 

meetings, and the FBI person who was going to testify but was silenced was going to state that she knew the purpose of the meetings. 

Senator BIDEN. And was anyone prepared to testify to the fact 

that there was a 3-hour briefing for General Shelton? 

Representative WELDON. Yes. Tony Shaffer would have done 

that. 

Senator BIDEN. And for the record, obviously, he was the Chairman of the Joint Chiefs at the time, right? 

Representative WELDON. Yes. 

Senator BIDEN. And then the March 2001 meeting, that briefing 

for Under Secretary of Defense for Intelligence Steve Cambone, 

there was someone prepared to confirm that today, as well? 

Representative WELDON. My understanding is Mr. Cambone was 

not in his current position at that time. He was a Special Assistant 

to Secretary Rumsfeld. And the purpose of the brief, my understanding, it was not specifically for Able Danger. It was a briefing 

on another classified program, but Able Danger came up, it was 

discussed, and it was discussed by a lawyer who you had wanted 

to testify named Richard Schiefren by the head of Naval Intelligence, Admiral Wilson, and I believe there was a third person in 

the room—just the two, Admiral Wilson, Richard Schiefren, Steve 

Cambone, and Able Danger was discussed in March of 2001 at that 

meeting. 

Senator BIDEN. My next question, why was Able Danger shut 

down? 

Representative WELDON. There were a combination of reasons. 

They had done a profile of Chinese proliferation in 1999 that John 

Hamre had asked for. I was aware of that presentation, and because it was massive data mined that had not yet been vetted, a 

couple of very sensitive names surfaced because they had been affiliated with Stanford University, where many of the students that 

were doing this very, very specific research, very sensitive to our 

country’s security, were located, and I think partly because of that, 

there was a wave of controversy. 

In fact, in the House, the son of Congressman Sam Johnson was 

working for the Raytheon Corporation. He went to his father and 

said, ‘‘Dad, they are destroying data.’’ Sam went to Dan Burton, 

who was Chairman of the Government Operations Committee, and 

Dan Burton subpoenaed documents that had been used in compiling the Chinese proliferation information. As a result of that, 

tremendous pressure was placed on the Army, because this was a 

prototype operation, and they shut down the Able Danger operation. 

General Schoomaker was so enamored with this capability that 

he stood up a separate operation in Garland, Texas, at a Raytheon 

facility, to try to duplicate what had been done in the Army, and 

that lasted for about a year, maybe slightly longer than a year. 

10

So the Special Forces Command understood the significance of 

this data, and as a result of the Chinese proliferation situation, I 

am convinced Able Danger was shut down. 

Senator BIDEN. Is there anything to the sort of, when you get 

into this, the sort of buzz that it was shut down because Able Danger exceeded its authority and was dealing with targeting Americans that the Defense Department and others were concerned 

would cause a real brouhaha? There were even some press accounts that the now-Secretary of State came up on a list as being 

a suspect somehow, or something ridiculous. What part did that 

play in it? 

Representative WELDON. It was a significant part. In fact— 

Chairman SPECTER. Senator Biden, if you need a little more 

time, take it. He won’t be here for a second round, so if you need 

a little more time, proceed. 

Representative WELDON. In fact, that was a significant part. The 

Secretary of State’s name did come up, along with a former Secretary of Defense because they were both affiliated with Stanford 

where this research work was being done by Chinese students that 

were here basically acquiring technology that was very sensitive to 

our security. 

But for them to say that somehow this information should have 

all been destroyed, to me is unacceptable because the military itself 

has said it was open source information. It is the same information 

the Republican and Democrat Party used to target voters. It is 

massive data you can buy in open sources. It is information you 

can get. It is magazine subscriptions that you order. It is everything that is available in the public domain. Now if there, in fact, 

is some classified information blended in with that, then that needs 

to be dealt with and there are processes to do that. 

The Able Danger folks knew that there was the possibility of information coming out about American nationals and they knew 

how to deal with it. I don’t understand for the life of me how that 

would justify destroying 2.5 terabytes of data, and especially not in 

telling the customer before you are going to do that, ‘‘I am going 

to destroy all your data,’’ if Madeleine Albright has declared Al 

Qaeda the top international terrorist organization in the world, 

which she did, and furthermore, for them to brief General Sheldon 

in January of 2001 meant they didn’t destroy all the information. 

So who decided to keep information and what led to the fact that 

some of that information was kept for later briefings? So I don’t accept the position, and furthermore, what I would say is let them 

come and explain that publicly. I am not making any accusations. 

Senator BIDEN. Well, that is the only point I am trying to get at 

here. This is a bit—your assertions are not confusing. I am inclined 

to accept what the witnesses would have said based upon staff and 

based upon assertions that have been made by you. You wouldn’t 

be saying this with them sitting behind you if these guys weren’t 

ready to say what you said they were going to say. One of them 

would, at this point, gagged or not, would say, ‘‘Hey, I wasn’t going 

to say that.’’ So it is pretty compelling. 

The part that, quite frankly, confuses the devil out of me as I try 

to figure this out, Mr. Chairman, this started in the Clinton administration and it morphed into or it leached into the beginning of the 

11

Bush administration. It is not like there is an attempt to nail politically anybody here. I don’t understand why—it is not self-evident to me why the Defense Department would be so focused on 

this not coming forward. I don’t understand, quite frankly, why the 

Commission and Slade Gorton, if he was—if, in fact, folks were 

briefed, why they would say, ‘‘No, it is absolutely’’—I forget, but he 

has a very, very strong statement saying— 

Representative WELDON. They were never briefed. 

Senator BIDEN. [continuing]. That they were never briefed and 

no one knew anything about this. 

And I don’t get why the coverup. I mean, I don’t get the purpose 

of the coverup. Is it to protect the Clinton administration? The 

Bush administration? Is it to protect something that was going on 

that was illegal under the law? I mean, I don’t get it. I don’t understand why people aren’t just coming forward and saying, ‘‘Here is 

the deal. This is what happened.’’ 

I hope we can get to the bottom of this, Mr. Chairman. I would 

like to be able to submit some questions in writing. When I say 

submit the questions, I was going to ask the witnesses so they are 

on the record as to where I am confused and what I want spoken 

to, anyway. 

I thank you, Mr. Chairman, for your courtesy in allowing me, A, 

to go first and to go over by almost 4 minutes the time allotted, 

and I thank the Chairman of the House for being here. 

Representative WELDON. Thank you. 

Chairman SPECTER. Senator Biden, your questions will be made 

a part of the record and directed to the witnesses to give you responses. 

Congressman Weldon, you commented about threats and character assassination. What did you mean as to the threats? 

Representative WELDON. Well, Mr. Chairman, at least two of the 

five people that were going to appear today were threatened with 

removal of their security clearances if they continue to talk about 

this. This is— 

Chairman SPECTER. Are you at liberty to identify who those people are? 

Representative WELDON. I will to you. I would rather do it privately, since the Defense Department has chosen not to allow anyone to testify, but I will provide that information to the Committee, 

at least on two of them. 

And one of them, and I will state this publicly because it happened just on the eve of this hearing, Lieutenant Colonel Tony 

Shaffer had his security clearance officially removed the day before 

this hearing was scheduled to be held, not yesterday, but actually 

it would have been Monday night. He was notified. His lawyer will 

come next and will tell you that his security clearance was officially 

removed. There is no doubt in my mind that that was caused by 

his cooperation in— 

Chairman SPECTER. How about the character assassination? 

Representative WELDON. Oh, there has been character assassination left and right. We had Larry DeRita, the spokesman for the 

Pentagon, question the memories of these military people when 

they came out, and I called Larry DeRita on the phone. I said, how 

can you question an Annapolis graduate who was the commander 

12

of one of our Naval destroyers who risked his entire career after 

23 years— 

Chairman SPECTER. You are talking about Captain Philpott? 

Representative WELDON. I am talking about Captain Philpott—

to tell this story because the 9/11 Commission characterized his 

work as historically insignificant. How can you challenge his memory? Why don’t you challenge the memories of the other people who 

said this didn’t occur? I mean, that, to me, was outrageous. 

There are a number of other examples. I can provide a whole list 

of those, a litany of those character assassinations and attempts to 

intimidate for the Committee. 

Chairman SPECTER. Would you specify again why you concluded 

that the information was not classified, based upon what DOD told 

you? 

Representative WELDON. At a private briefing that we had for 

members of the Armed Services Committee 2 weeks ago, there 

were probably six members in the room, three Republican, three 

Democrats, and all of our staff, the Legal Counsel for the Pentagon, 

when asked, what about the certification for the destruction of this 

data— 

Chairman SPECTER. Mr. Haynes? 

Representative WELDON. I don’t know the name. I will get it for 

you. I don’t recall the name right now, but he was Legal Counsel. 

He said, ‘‘Well, there is no certificate needed if the information is 

not classified or not used in compartmentalized work.’’ Well, you 

can’t claim that the information is not classified on one hand and 

then come in today when all they are going to talk about is open 

source information— 

Chairman SPECTER. The representation was made to you that 

this did not involved classified information? 

Representative WELDON. Yes. It was made to the Armed Services 

Committee members. 

Chairman SPECTER. And is there a transcript of that record? 

Representative WELDON. No, there is not. It was an informal 

briefing. Most of what the Pentagon did was informal. There were 

no minutes kept. There were no witnesses put under oath. There 

were no subpoenas issued. It was not an investigation, and that 

point was raised by members of the Armed Services Committee. It 

was not an investigation. 

Chairman SPECTER. Since Captain Philpott has been precluded 

from testifying—ordered not to testify. I would have prefered to 

hear him, but in his absence, did you discuss this matter with 

him— 

Representative WELDON. Yes. 

Chairman SPECTER. [continuing]. Or question him in detail? 

Representative WELDON. I questioned Captain Philpott. He was 

the one who felt—was so incensed about what happened that he 

risked his entire Naval career and came out with a New York 

Times interview that I arranged and he said to the reporter with 

me there listening and witnessing that he would risk his entire career and life on the fact that in January and February of 2000, he 

identified absolutely Mohammed Atta as a part of the Brooklyn 

cell. 

13

Chairman SPECTER. And with respect to Dr. Eileen Preisser, she, 

too, has been ordered not to testify. Have you discussed this matter 

in detail with her? 

Representative WELDON. I have discussed it with all the individuals. She, too, said there were materials that were produced that 

identified Mohammed Atta by name and with a facial recognition 

that the 9/11 Commission said couldn’t have happened because 

there were no government I.D. documents, but as you will hear—

or you won’t hear, because J.D. won’t be allowed to testify—but 

what he would have said is they purchased the photograph of Mohammed Atta from a contractor in California. Now, we came very 

close to identifying that contractor and we are still working on it. 

We know people who knew the woman— 

Chairman SPECTER. And who said that? 

Representative WELDON. One of the 9/11 Commissioners, I think 

it was Tim Roemer, said publicly that there is no way they could 

have had a photograph of Mohammed Atta because there were no 

government records at the time that the Able Danger reported, but 

they didn’t get it from government records. They got the photograph of Mohammed Atta by purchasing it from a source in California, and the witness that was not allowed to testify today who 

is sitting behind me would have stated that he was aware of that 

effort and how they got that photograph. 

Chairman SPECTER. What information do you have as to the allegation on the destruction of records? 

Representative WELDON. You are going to hear testimony today 

from another former Federal employee who again is risking his career. He is a private contractor today. But he was ordered to destroy— 

Chairman SPECTER. And his name is? 

Representative WELDON. His name is Kleinsmith, Erik 

Kleinsmith. He is on your witness list. And he will testify that he 

was ordered to destroy all Able Danger material, 2.5 terabytes, and 

he will name the person who ordered him to destroy that data. And 

he was further told that if he didn’t do it, he would lose his job and 

quite possibly might go to jail. 

He will also testify, and you can ask him this question, but it is 

my understanding he will testify that when he met with General 

Lambert, who was the SOCOM official who was the customer for 

this data, he had never been consulted prior to the destruction of 

this data and when he found out, he was livid. For the life of me, 

I don’t understand how someone extraneous from that chain of 

command could order destruction of data and not even inform the 

customer of that data, the general at SOCOM, General Lambert. 

Chairman SPECTER. Thank you, Congressman Weldon. My red 

light went on during the middle of your last answer, so I will desist 

now and turn to Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. I think that most of the 

questions I have are actually for the lawyers who are going to testify, but I am not sure what they can testify to, so let me ask you 

a couple of questions. 

Representative WELDON. I don’t think Mark Zaid will be limited, 

Jon. 

Senator KYL. OK, great. 

14

Representative WELDON. I think you can do whatever you want. 

Senator KYL. I am trying to now, having served on the Intelligence Committee for 8 years, I can understand why there might 

be some nervousness about this, so I am going to try to put on a 

hat and be the most restrictive devil’s advocate here and try to figure out why they might want to restrict this information. 

For example, data mining is known to be a method for intelligence collection and it is just now beginning to be something that 

is utilized, and this was one of the first significant uses of it, as 

I understand it. That is a method of intelligence gathering. What 

do you know about the point that perhaps one of the reasons why 

they don’t want a lot of public testimony about this is that it might 

reveal capabilities, methodology that might be relevant to, A, future intelligence gathering, and B, might conceivably tip somebody 

off that they may or may not have been a part of an investigation 

related to data mining? From all of your discussions of this, could 

that be part of the reason? And if it is, why would that necessarily 

limit most of the things that you have talked about here? 

Representative WELDON. Well, it wouldn’t. It has been a reason 

given, and I share the gentleman’s concern for security. We served 

together on the Armed Services Committee for a number of years, 

and as the Vice Chairman of the Armed Services Committee, I 

would never do anything to reveal classified data. So that would 

never be an intent of mine. 

This information was largely open source. From 1999, I started 

pursuing the prototype that the Army had developed at our legal 

facility at Fort Belvoir. I was the oversight Chairman of the Committee that funded it. I was enamored with their capability and I 

saw tremendous potential. In fact, I had experience in 1999 that 

I will go into, but it would take some time, if you want as to how 

I saw the CIA and the FBI did not have the capability. 

I took a delegation of ten members to Vienna to meet with five 

Russians to find a common foundation in the Kosovo War. Before 

I left, the Russians told me they were bringing a Serb. I called 

George Tenet at the CIA and said, can you run me a profile of this 

Serb. He gave me two sentences. I called the Army’s Information 

Dominance Center, which I had a good relationship with. I said to 

the folks down there, Dr. Heath and Dr. Preisser, can you run me 

a profile? They unofficially gave me, like, eight or ten pages of information. 

When I came back from that trip, I got a call from the FBI and 

the CIA to debrief them on what I knew about the Serb, and the 

CIA said, Congressman, when I said, why is this so urgent, they 

said, ‘‘We have been tasked by the State Department to brief our 

Ambassador negotiating the end of the war and you met with this 

person, so we want you to debrief our people.’’ So I had four agents 

in my office for 2 hours and I gave them all that I knew, and when 

I ended, I said, now, do you know where I got my data from? They 

said, ‘‘Well, you got it from the Russians.’’ I said, no. ‘‘Well, you got 

it from the Serb.’’ I said, no. I said, before I left America, I called 

the Army’s Information Dominance Center. They ran me a profile 

and gave me eight to ten pages of open source information. The 

FBI and the CIA said, ‘‘What is the Army’s Information Dominance 

Center?’’ 

15

It was then that I developed a nine-page briefing called the 

NOAH, a National Operations and Analysis Hub. John Hamre 

agreed with my assessment that this was critically important, and 

it was developed by intelligence people, not by me. On November 

4 of 1999, 2 years before 9/11, I had the CIA, the FBI, and DOD 

in my office at John Hamre’s suggestion to brief them on creating 

what today exists, the TTIC and now the NCTC. And the CIA at 

the end of the briefing said, ‘‘We don’t need that. It is not necessary.’’ 

And so as a result, before 9/11, I felt I did not push hard enough 

against the system to put into place a mechanism that today is in 

place that might have helped us understand what was about to 

happen. 

Senator KYL. But there is nothing from your knowledge here that 

would prevent testimony in general about what was done here? 

Representative WELDON. No. We would never get into specifics. 

Senator KYL. Sure. 

Representative WELDON. Nothing in general. 

Senator KYL. And then, just a second, a little bit of time. The 

matter of Posse Comitatus, is it your belief that it was a significant 

factor in the decision both to destroy the information and not to 

provide testimony here that there might have been—that there was 

a concern that perhaps they had gone too far in gathering information about people who were legally in the United States and that 

they might not have been authorized to do that and that might be 

one of the reasons for the reluctance to testify, as well as the destruction of the— 

Representative WELDON. That might be a reason, but to me, that 

is absolutely unacceptable. I mean, these are terrorists. If they are 

terrorists in the United States and we were monitoring them or 

had information from open sources, then I think our law enforcement community had a right to know that. We are not—I mean, 

our Republican and Democrat Parties transfer this information to 

ID voters. It is called Vote Smart. I mean, we can use it for voter 

ID, but we can’t use it to identify people in this country that are 

involved in terrorism? I mean, cut me a break. 

There is something wrong with this system, and at a minimum, 

we should have been able to discuss that. That is what we are all 

about as policy makers. But to clamp down on this and to do it 

with such venom, to me, it is mysterious. I don’t understand it. 

Senator KYL. We will get more into that with the next panel. 

Thank you very much, Representative Weldon. 

Representative WELDON. Thank you. 

Chairman SPECTER. Thank you, Senator Kyl. 

Senator Grassley? 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Mr. Chairman, because of my work with 

Katrina, I am not going to be able to stay here, so I have got a 

statement I want to put in the record— 

Chairman SPECTER. Without objection, so ordered. 

Senator GRASSLEY. [continuing]. And I have got questions in 

writing for two witnesses, and I do have something that I want to 

16

say at this point beyond that statement and that is to compliment 

the Congressman for your work. 

It is just so reminiscent of everything I have run into, not just 

with the Defense Department, but bureaucracy generally and 

maybe the Defense Department to some extent, just a little bit 

worse than others. But what you say you don’t understand is an 

institutional disease that we have that if the information that you 

want out got out, people would have egg on their face. They are 

just going to try to wait you out. 

I hope that, Senator Specter, you won’t let that happen. Whatever it takes to get this information out needs to be gotten out, not 

just to back up Congressman Weldon’s work, but more importantly, 

just the fact that Congress has to fulfill its constitutional responsibility of oversight. We all want to brag about the legislating we are 

doing, but quite frankly, in this day and age, I think we do a more 

responsible job for our constituents, what we do through Congressional oversight to make sure that these laws are faithfully executed and that money spent according to Congressional intent, and 

in particular now when we are in this war on terrorism, we have 

got to get all the information out we can. 

You can’t have somebody hiding information from Congress 

under the ridiculous idea that we might be compromising national 

security when you and I can buy that very same information. And 

more importantly, what can be done in a closed session of the Congress if it can’t be done in open session. 

Really, what is at stake here is not, again, Congressman Weldon. 

What is at stake here is whether or not Congress is going to fulfill 

its constitutional responsibility and whether or not we are going to 

let people that come up here with a lot of ribbons and a lot of stars 

on their shoulders or political appointees of the same Department 

just embarrass us and get away with it. 

I know that you are not a Senator that is going to be embarrassed, and whatever I can do to help you, count on me helping 

you, because we must get to the bottom of this. 

Thank you for being a great American. 

Representative WELDON. Thank you, Senator. 

Chairman SPECTER. Thank you, Senator Grassley. 

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

Chairman SPECTER. I don’t often do this, but I associate myself 

with your remarks. 

[Laughter.] 

Chairman SPECTER. It is not that I don’t often associate myself 

with your remarks; it is that I don’t often associate myself with any 

remarks. 

[Laughter.] 

Chairman SPECTER. You and I came here in the same time, in 

the 1980 election, and you have been fierce in oversight and whistleblowers and determination and I have joined you all the way. 

You expressed it very well. I don’t have to repeat it. Thank you. 

And the questions that you have propounded for other witnesses 

will be made a part of the record and they will be submitted to witnesses and we will get answers for you. 

17

Congressman Weldon, you had testified that at one juncture, 

there was an effort made to turn over this information to the FBI. 

Could you amplify that, please? 

Representative WELDON. Yes. Lieutenant Colonel Shaffer was 

prepared to testify—his lawyer will testify today—that he on three 

occasions set up meetings with the FBI Washington Field Office. 

The woman who set those meetings up is prepared to testify. Your 

staff has met with her and they have interviewed with her and she 

also was prohibited from testifying. But she knew the purpose of 

the meetings. The meetings were designed to allow the Special 

Forces Unit of Able Danger to transfer relevant information that 

they thought important to the FBI about the Brooklyn cell, which 

included Mohammed Atta and three of the terrorists. This information was largely gathered from open sources. On three separate occasions in September of 2000, at the last minute, lawyers, I assume 

from within DOD, and we still haven’t determined who made the 

ultimate decision, but lawyers determined that those meetings 

could not take place and they were shut down. 

Chairman SPECTER. Congressman Weldon, had this information 

been called to the attention of the National Security Advisor? 

Representative WELDON. Mr. Chairman, 2 weeks after 9/11, some 

of the folks at the Army’s LIWA and involved in Able Danger came 

into my office and brought me a chart, a chart that had Al Qaeda 

linkages and pan-Islamic terrorist threats, I think was the way the 

chart was categorized. I took that chart immediately down to the 

White House and provided it to Steven Hadley and I took with me 

Dan Burton, Chairman of the Government Operations Oversight 

Committee. 

Chairman SPECTER. And when was that? 

Representative WELDON. That was 2 weeks after 9/11, so it 

would have been September 25. And I took it down immediately. 

As soon as I got it, I said, I have got to get this down to the White 

House. Steven Hadley’s response to me was, ‘‘Where did you get 

this from, Congressman?’’ I said, I got it from the Army’s Information Dominance Center. I said, this is the process that has been 

used, and I have been trying to convince the government for 3 

years to put into place that the CIA has refused to accept, because 

up until the establishment of the TTIC, the Terrorism Threat Integration Center, the CIA was not using open source information, 

which to me was a disaster in itself for our National intelligence 

estimates. 

And so I said to Mr. Hadley, I said, this is a process they use 

to obtain this information, and he said to me, and I remember this 

quote sticks out in my head, and I gave a speech at the Heritage 

Foundation a year later which is still online, you can get a copy 

of it and listen to my speech as it was given then, that—he said, 

‘‘I have got to show this to the man.’’ And I said, the man? He said, 

‘‘Yes, the President of the United States.’’ So I gave him the chart. 

Now, some say, why didn’t you keep a copy of the chart? Well, 

my goal there wasn’t to keep a copy of a chart involving something 

that just happened to destroy the lives of 3,000 people. I gave it 

to our Deputy National Security Advisor. That information was information gleaned from the work of Able Danger and the work 

being done by the team that wanted to testify today. 

18

Chairman SPECTER. The FBI agent you referred to a few moments ago was Xanthie Mangum? 

Representative WELDON. Yes. 

Chairman SPECTER. Would you care to testify about those large 

charts you have up here? 

Representative WELDON. Sure, if I could have my staff line them 

up on the side. The first chart is actually a reproduced version of 

what was provided to Steven Hadley. I wanted to reproduce this 

and asked if it could be reproduced, and this is what bothers me 

about the military saying the data was destroyed and why I suggested that perhaps the hard drives and the servers from the companies who did this work should be subpoenaed and brought in. 

This is actually a chart of Al Qaeda and the various cells around 

the world. Much of this data—most of it was obtained prior to 9/

11 by the work of Able Danger. This was the kind of work they did. 

The link analysis they did on this chart, as you see, there is actual 

photograph of Mohammed Atta— 

Chairman SPECTER. What does that depict generally? 

Representative WELDON. It depicts the organizational and activity associations of Al Qaeda operatives that were involved in 9/11 

and related events. Much of this data was obtained before 9/11 

from information that was gathered from the 1993 attack, the individuals involved in that attack, the attack on the U.S.S. Cole, the 

attack at the African embassies, and what they did, they identified 

five key cells of Al Qaeda worldwide, one of which was the Brooklyn cell, and so they were gathering this information and basically 

assembling it in the data mining process in 1999 and 2000. When 

I went to Hadley, the chart that I gave him was an assemblage of 

that information that they had, which was massive and which you 

will hear in a moment as equal to one-fourth of all the printed material in the Library of Congress. 

Chairman SPECTER. And who prepared the chart? 

Representative WELDON. The chart was prepared by a corporation, Orion Corporation, and my understanding from your staff is 

that they were not totally forthcoming to you. They told your staff 

initially they only produced two charts. When I pulled out 12 

charts, because I have 12 charts that I kept on my own, your staff 

went back to the lawyer for Orion, which is now owned by another 

security firm. My understanding, and you can check with your 

staff, is that they have been delivered something like 20 charts. 

But the initial response of Orion was they only produced two 

charts and they only produced charts on white backgrounds. Well, 

I have charts in my possession that they produced with their name 

on them, their insignia, their logo, that are in black, that are in 

green, that are in all kinds of colors. They were charts that dealt 

with Chinese proliferation, corruption in Russia, corruption in Serbia, charts that dealt with drug cartels and drug cells. All of this 

work was done by Orion. So Orion was the corporation. 

And, in fact, one of the witnesses was an executive, I believe the 

Vice President of Orion, is that correct? He was the Vice President 

of Orion. He was a senior officer at Orion Corporation, and he was 

one of the people scheduled to appear before you today. 

The second chart, Mr. Chairman, is for me the most important. 

This is what we have to have. This is Al Qaeda today. Now, I have 

19

been told by the military liaisons of the NCTC that our NCTC cannot do this kind of massive data analysis and link chart analysis 

that has been done by our Information Dominance Centers, so 

what I have been working with is the Army and the Navy in generating a next-generation capability called Able Providence. In fact, 

the Navy has even supplied us the budget numbers and the line 

where they would want the money submitted so that we could create this kind of additional capability. This gives you a massive effort worldwide of what Al Qaeda is doing. 

Mr. Chairman, to win the war on terrorism, it is not about classified information, and when I try to convey to the CIA against a 

road block of their mindset, which Senator Grassley referred to, 

they just didn’t want to hear it. They didn’t want to use open 

sources of information. And the bulk of the good information about 

terrorists, in fact, comes from open source information. 

I will be glad to provide charts for the Committee so you have 

permanent records of each. 

Chairman SPECTER. Thank you. My red light went on during 

your answer. 

Senator Kyl? Senator Kyl raises a good point. Who prepared the 

charts? I would ask you that. 

Senator KYL. Mr. Chairman, I think there might have been a 

miscommunication. When you asked about the chart, I immediately 

sensed a disconnect here. I believe that Representative Weldon was 

talking about who prepared the charts that were allegedly destroyed or may, in fact, have been destroyed that he took to Mr. 

Hadley. You may have been referring to this chart here, and perhaps that should be cleared up. 

Chairman SPECTER. Thank you for the suggestion, Senator Kyl. 

Congressman Weldon, who prepared those charts and when? 

Representative WELDON. All the charts that I had that were 

given to me during the process that was being done by the LIWA, 

including the Able Danger charts, were prepared by the Orion Corporation and they had their insignia on the bottom. Now, there 

may have been other charts that were not prepared by Orion that 

I am not prepared to talk about. 

Chairman SPECTER. Did Orion prepare the charts you have just 

referred to? 

Representative WELDON. The charts that I have here were prepared by one of the Information Dominance Centers, which continues to operate today. I will have to give you the exact name of 

the producer of these charts. And these were made back in June 

of this year. 

Chairman SPECTER. Senator Kyl? 

Senator KYL. Might I just ask one more question? You remember 

the chart that you gave to Mr. Hadley and the first chart that you 

showed us there, you have just testified to. What degree of similarity or overlap—can you make a comparison of those two charts 

for us, just so we will have an idea of what Mr. Hadley saw? 

Representative WELDON. It is hard to recollect, and I can tell you 

this. I talked to Mr. Hadley 3 months ago when I briefed him on 

another issue and I said, remember that chart that I gave you, and 

he said, ‘‘Yes, I remember it.’’ Now, I don’t know whether the White 

House still has it. They probably don’t. It has been 4 years. 

20

I can tell you my recollection of that chart is it was very similar 

to this, but not as comprehensive. This chart includes post-9/11 

data, so obviously the chart that I gave them did not have post9/11 data, but it was significant. It identified the cells, the five key 

cells they were working on, and to the best of my recollection, identified Mohammed Atta on the chart. 

Chairman SPECTER. Thank you very much, Senator Kyl, and 

thank you, Congressman Weldon. I think you performed a real 

public service with what you have done here and what your analysis has been. 

Representative WELDON. Thank you. 

Chairman SPECTER. Perhaps when the Department of Defense 

knows the extent of your testimony and the questions raised, they 

will be responsive. 

One final question. Do you think there is any need to modify the 

Posse Comitatus legislation? 

Representative WELDON. You know, I will leave that up to you, 

Mr. Chairman. I am not an attorney. I respect your judgment. I 

certainly respect Jon Kyl’s judgment as a former colleague of mine. 

I am still developing my own feelings, but as an attorney, I would 

respect your insights into that. From a policy standpoint, I have 

thoughts, but I would rather not convey them yet until I know the 

full parameters of what really happened here. 

And I want to thank you, because I realize that putting this 

hearing on was not something—and there were people that were 

criticizing your intentions or perhaps my intentions. I have no intentions, Mr. Chairman, here, except to have the truth be known. 

I have made no public allegations against any person. I have not 

questioned the character or integrity of any Commissioner. I would 

never do that. In fact, I talked to two Commissioners. I was the one 

that brought the Defense Department in, Mr. Chairman, to give 

them a chance to get the information I had. 

All I asked them was to protect the military personnel that were 

cooperating, and Jon, you went through this during the 1990s, 

where we saw whistleblower after whistleblower have their careers 

ruined, and now, unfortunately, it is happening in this administration. Tony Shaffer’s career has been ruined, and to me, that is outrageous. It is unacceptable. That was my main concern. 

Now, Mr. Chairman, if I might add one additional point, I did all 

this work, and I am not boasting because it was just something I 

had to do for 6 weeks, but I couldn’t have done it without one person. I only had one staffer work it. My Chief of Staff, Russ Caso, 

who is in the room, a former Navy liaison for the U.S. Navy, did 

yeoman’s work in tracking down all of these meetings and contacts, 

and I brought in, again as a volunteer, Jim Woolsey. Jim Woolsey 

is a close friend of mine. Jim Woolsey sat in on a number of meetings with these people early on to make sure that I wasn’t going 

off the deep end and to counsel me to make sure that I wasn’t 

jumping to conclusions, and so I would like to thank both Russ 

Caso and Jim Woolsey publicly for their outstanding cooperation in 

assisting in this effort. 

This is not about embarrassing anybody. It is about answering 

the questions of what happened before 9/11. Thank you. 

21

Chairman SPECTER. Congressman Weldon, do you think that 

DOD acted in this matter, if the allegations are true as to destruction of documents, because of their concern about violating Posse 

Comitatus? 

Representative WELDON. No, I don’t believe that is the reason 

right now that they did that. 

Chairman SPECTER. OK. Thank you very much. Thank you very 

much. 

Without objection, we will admit to the record the statement of 

Senator Leahy, who, as I announced earlier, was scheduled this 

morning to speak on the nomination of Judge Roberts for Chief 

Justice, and also without objection, the letter from former Senator 

Slade Gorton to Senator Leahy and myself dated September 20. 

Chairman SPECTER. We now call the second panel. Mark Zaid, 

Esquire, and Mr. Erik Kleinsmith. 

Mr. Mark Zaid is the managing partner of the Washington law 

firm Krieger and Zaid, specializing in litigation, also the Executive 

Director of the James Madison Project, a nonprofit organization 

which educates the public on issues relating to intelligence, and a 

former board member of the Public Law Policy Group of the International Law Students Association. He is a graduate of Albany 

Law School, where he was Associate Editor of the Law Review, and 

a cum laude graduate of the University of Rochester. 

Thank you for joining us, Mr. Zaid, and we look forward to your 

testimony. 

STATEMENT OF MARK S. ZAID, PARTNER, KRIEGER & ZAID, 

PLCC, WASHINGTON, D.C. 

Mr. ZAID. Thank you, Senator. Mr. Chairman, distinguished 

members of the Committee, thank you for this opportunity. I have 

my law partner, Roy Krieger, next to me. I would respectfully ask 

for my full written statement to be placed into the record. 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Mr. ZAID. I would like to first compliment Congressman Weldon. 

Were it not for his tenacious efforts, we would not be here today, 

and this is a very important day. Unfortunately, I am here as a 

surrogate speaker for several of the witnesses that were scheduled 

to appear and I put this testimony together hastily in a matter of 

a few hours yesterday. 

As you said, I am a partner in the law firm of Krieger and Zaid. 

We primarily handle national security cases. Most of our clients 

are within the covert community and the military and the intelligence world. In particular, we represent Lieutenant Colonel Anthony Shaffer, a civilian employee of the Defense Intelligence Agency and a reserve officer in the Army, and Mr. James Smith, a defense contractor formerly with the company of Orion Scientific Systems. Both men, as was heard, are sitting behind me and were prepared to testify today and both worked for or with what is now 

known as Able Danger. 

I am here to impart at least some degree of knowledge of certain 

aspects of Able Danger, what it accomplished, what it identified, 

and some crucial questions surrounding it. I have not had access 

to classified information on this. I haven’t even had access to the 

22

full scope of unclassified information, so my testimony is not intended to provide a complete picture. I guarantee you I am only 

providing a couple of facets of a multi-facet diamond, and to be 

sure, most of my testimony is either hearsay, since I am basing it 

on what I have been told by individuals associated with Able Danger or through the government, except to the extent that I participated in specific events. 

My value, though, of the testimony doesn’t come from the truth 

of the statements but from the ability to use this as a steppingstone to go forward. 

This is not a partisan issue. There is enough blame to go around, 

and I am confident once the whole story of Able Danger comes out, 

you are going to see that much of the coverup that we are now seeing occur, particularly from the Department of Defense, is probably 

more typical Washington, D.C., you know, what we call CYA, than 

anything associated with the substantive work of Able Danger. 

I want to make it clear I am not waiving attorney-client privilege. I am basing my statements on statements my clients have 

made publicly with third parties or from other sources. Nothing, as 

you said, is classified. I should say I have been involved with the 

Defense Department and DIA for weeks of this case. Not once has 

any official in the Department told me that they were concerned 

that my clients were saying anything classified. 

Let me tell you a little bit about Able Danger, and I will try not 

to repeat anything that Congressman Weldon said. Formed in 

1999, primarily working through SOCOM and LIWA, as you heard, 

which supports INSCOM. In the initial days, most of what they 

were doing was unclassified, and that is what I am going to focus 

on. There were two phases, a first phase that went from 1999 to 

mid-2000, and then mid-2000 into a little bit of 2001. That first 

phase was primarily unclassified, particularly with respect to 

Orion, and the second phase had much more to do with classified 

information, which we are not going to discuss today. 

In the simplest and most understandable terms, the aspects of 

Able Danger that led to the infamous chart and charts to be created dealt with the searching and compiling of open sources of publicly available information regarding specific Al Qaeda targets or 

tasks that were connected through associational links—no classified information, no government data bases. The search and compilation efforts were primarily handled by the defense contractors, 

such as Mr. Smith, who didn’t even know they were working with 

Able Danger at the time. That information was then given to Able 

Danger and they were to use it for whatever planning purposes 

they perceived. 

The starting points, as was said, 1993 World Trade Center attack, 1998 bombings, the New York City plots, Sheik Omar AbdelRahman, known as the Blind Sheik. They took those names, they 

plugged them into the systems, and they created associational links 

like you see on the charts. By that, I mean they looked for who was 

the Sheik associated with? Person A. Who was Person A associated 

with? Person B, and so on and so on. Think of ‘‘Six Degrees of 

Kevin Bacon.’’ This was the ‘‘Six Degrees of Sheik Rahman,’’ essentially. Those links could have been nefarious. They could have been 

innocuous. 

23

Every link on those charts had a drill-down capability. Those are 

from actual computer programs. So if you clicked on a name, there 

would be supporting data underneath, and what they would do is 

they would print out each of those charts and every bit of underlying data and hand those over to the Able Danger team members 

for them to use as necessary. 

We heard about the attempts to go to the FBI and the preclusion 

of that. If a wall existed, whether due to Posse Comitatus or some 

other regulations, that is a wall that this Committee needs to explore fully within its jurisdiction, of course. 

By the end of 2000, for a number of reasons, documents were all 

destroyed, not only by LIWA and those involved with Able Danger, 

which we will hear a little bit more, but also with the Defense Intelligence Agency. 

I want to clear up two misconceptions that have been perpetrated within the press to some extent. At no time did Able Danger identify Mohammed Atta as being physically present in the 

United States, and no information at the time that they obtained 

would have led anyone to believe that criminal activity had taken 

place or that any specific terrorist activities were being planned. 

All they developed were associational links. It was impossible to 

tell, particularly using the unclassified work that was being used 

at the time, that those associations went anywhere further than 

that. 

Let me just go through a couple of points as the time would end, 

Mr. Chairman. 

Chairman SPECTER. Mr. Zaid, would you please summarize your 

testimony at this point. 

Mr. ZAID. For one, as you heard, Lieutenant Colonel Shaffer did 

meet with the staff of the Commission in Afghanistan in 2003, provided over information. They took that quite seriously. They tasked 

DOD to provide them information. Whatever DOD provided them, 

and that is a question for DOD, whatever was in there didn’t indicate or support what Lieutenant Colonel Shaffer had told them. 

The issue that we have fought with the Commission, though, is 

if they had only gone back to Lieutenant Colonel Shaffer and asked 

him, how else could you support your information— 

Chairman SPECTER. Are you talking about the 9/11 Commission? 

Mr. ZAID. Correct, sir. He could have identified for them the additional members of the team or those who were working with 

them—Captain Philpott, Mr. Smith. And at the time, if the Commission had looked into this in early 2004, the charts that had Mohammed Atta on it still existed. There was a chart in Mr. Smith’s 

office. There was the chart that still should have been in the Defense Intelligence Agency because it wasn’t destroyed within Lieutenant Colonel Shaffer’s flies until the spring of 2004, the same 

with the chart that Mr. Smith had, which was about the same size. 

You heard Congressman Weldon mention that Lieutenant Colonel Shaffer’s clearance was revoked. It was suspended shortly after 

it was made known that he had testified or provided information 

to the 9/11 Commission. It was revoked just 2 days ago. I have 

been authorized, and I am happy to go through any details with 

respect to the security clearance revocation, what the allegations 

were, and what our responses were. 

24

What I would like to submit in closing, the primary concern we 

should focus on as far as not who to blame for the obvious disconnect that occurred with respect to sharing information—we 

know that problem existed, it still does. Instead, the focus should 

be on identifying the current location of the other several dozen 

possible terrorists that were on that Mohammed Atta chart as to 

whether or not they are planning to commit terrorist acts against 

the United States today, as well as to reconstitute the successful 

work initially started by Able Danger. 

I applaud the Committee’s tenacity in pursuing this topic— 

Chairman SPECTER. Mr. Zaid, are you just about finished? 

Mr. ZAID. I have got two sentences more, sir. 

I truly hope you will help educate the country to the truth and 

ensure that the images of those associated with Able Danger are 

not tarnished by governmental spin when they should instead be 

rewarded with the accolades they deserve for their patriotism. 

Thank you for this opportunity. I will try my best to answer 

questions. 

Chairman SPECTER. Thank you, Mr. Zaid. 

[The prepared statement of Mr. Zaid appears as a submission for 

the record.] 

Chairman SPECTER. Senator Kyl has other commitments and I 

yield to him at this time. 

Senator KYL. Thank you very much. At 10:45, I am supposed to 

be someplace else. I will just ask you one or two quick questions. 

Obviously, it would be better if we had the best evidence, the 

people who were directly involved that could give us the first, or 

their direct knowledge of the facts. As a lawyer, other than the 

matters relating to the revocation of the security clearance with 

which you have been involved, do you have the firsthand knowledge of any of these facts, the things that you have stated here, or 

are they representations of what has been told to you by others? 

Mr. ZAID. Unfortunately, Senator, they are representations of 

what I have been told by others—several of the team members, 

those associated, those on the Hill who have done investigations. 

Senator KYL. So the best evidence of that obviously comes from 

them— 

Mr. ZAID. Absolutely. 

Senator KYL. And we would need to hear from them. 

Mr. ZAID. And all of them, as I understand, were willing to testify today. 

Senator KYL. I appreciate that very much and I regret that I 

have to go right now, but I will perhaps submit some questions to 

you for the record. 

Mr. ZAID. I would be happy to address them. 

Senator KYL. Thank you all for being here. 

Mr. ZAID. Thank you very much, Senator Kyl. 

Chairman SPECTER. Our next witness is Mr. Erik Kleinsmith, 

Project Manager for Intelligence Analytical Training with the Lockheed Martin Company. He has a very extensive resume in intelligence activity, a number of commendations, including a Meritorious Service Medal, Army Commendation Medal, Armed Forces 

Expeditionary Medal, and the National Defense Service Medal. He 

25

had been a member of the United States Army from 1988 to 2001 

with the rank of Major. 

Thank you very much for joining us, Mr. Kleinsmith. I appreciate 

your coming forward under difficult circumstances. The floor is 

yours. 

STATEMENT OF ERIK KLEINSMITH, FORMER ARMY MAJOR 

AND CHIEF OF INTELLIGENCE, LAND INFORMATION WARFARE ANALYSIS ACTIVITY, AND PROJECT MANAGER FOR INTELLIGENCE ANALYTICAL TRAINING, LOCKHEED MARTIN, 

NEWINGTON, VIRGINIA 

Mr. KLEINSMITH. Thank you, Mr. Chairman. As you said before, 

currently, I am an employee of Lockheed Martin Information and 

Technology, although my employment with Lockheed Martin has 

nothing to do with my involvement in Able Danger beyond my passion to continue to do this work as a private citizen. 

I do have an intelligence analysis training team of about 20 instructors. Five of them are on the ground in Iraq today training intelligence analysis with data mining technology. My primary customer is the U.S. Army Intelligence and Security Command, to include the Information Dominance Center and the Information Operations Center and its extensions. I also teach a counterterrorism 

analysis course for INSCOM. 

From March 1999 until February of 2001, I was an active duty 

Army Major and the Chief of Intelligence of the Land Information 

Warfare Activity. My branch provided as a typical mission analytical support to Army information operations, but because of the 

data mining capabilities that we possessed in the Information 

Dominance Center, we routinely provided direct analytical support 

to several combatant commands, as well as other customers. 

And as Congressman Weldon alluded to earlier, one of our most 

prominent operations was in support of a data mining proof of concept demonstration for, from our level, the Assistant Secretary of 

Defense for Command, Control, Communications, and Intelligence, 

or ASDCIII. That was called the JCAG project. It demonstrated 

how data mining and intelligence analysis could be conducted in a 

counterintelligence and technology protection capacity. 

That project ran through the latter half of 1999 and our results 

were ultimately subpoenaed by Congressman Dan Burton’s office 

through the House Reform Committee on November 16 of 1999. 

In December 1999, we were approached by U.S. Special Operations Command to support Able Danger. I assigned the same core 

team of analysts that worked the JCAG project, along with Dr. Eileen Preisser as the analytical lead. Four of us conducted data mining analysis on the Al Qaeda terrorist network, coordinating with 

SOCOM and other organizations throughout that time. In the 

months that followed, we were able to collect an immense amount 

of data for analysis that allowed us to map Al Qaeda as a worldwide threat with a surprisingly significant presence within the 

United States. 

In approximately April of 2000, from my recollections, our support to Able Danger became severely restricted and ultimately shut 

down due to intelligence oversight concerns. I was supported vigorously by both the LIWA and the INSCOM chain of commands and 

26

we actively worked to overcome this shutdown for the next several 

months. In the midst of this shutdown, I, along with one of my analysts, Chief Warrant Officer 3 Terri Stephens, were forced to destroy all data, charts, and other analytical products that we had 

not already passed on to SOCOM-related Able Danger. This destruction was dictated by and conducted in accordance with the intelligence oversight procedures that we lived by. 

Ultimately, we were able to restart our support to SOCOM at the 

end of September of 2000. Additionally, the bombing of the U.S.S. 

Cole on October 12 brought U.S. CENTCOM to the IDC and who 

became our primary customer until my departure from active duty 

on April 1, 2001. 

I thank you for the opportunity to appear, sir, and understand 

that I can only talk in an unclassified nature in terms of the operations and administrative coordination that was conducted, not the 

actual analytical results or anything that would jeopardize classifications. 

Chairman SPECTER. Thank you very much, Mr. Kleinsmith. 

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

Chairman SPECTER. Mr. Kleinsmith, what knowledge, if any, do 

you have about the allegation of a destruction of documents? 

Mr. KLEINSMITH. The allegation of destruction of documents is 

correct. I am the one who deleted all the documentation that we 

had gathered at the IDC. 

Chairman SPECTER. And you deleted the data? 

Mr. KLEINSMITH. Yes, sir. 

Chairman SPECTER. Precisely what do you mean by that? 

Mr. KLEINSMITH. We had collected data from all of our different 

harvests and we had two different sets, so we had an unclassified 

or Internet polls that we had done. We also had what we termed 

as all-source, and this is data that was combined together from 

both classified and unclassified sources. We also had printouts or 

charts that we had produced, as well as some—I take that back—

charts that we had produced as well as one chart or two that Orion 

Scientific had provided to us. But we had already gone beyond 

their analysis. So all, both soft copy and hard copy, was deleted or 

destroyed. 

Chairman SPECTER. What kind of information was deleted? 

Mr. KLEINSMITH. Everything, everything that we had— 

Chairman SPECTER. What was the essential substance of it? 

Mr. KLEINSMITH. We had done Internet polls related to a preliminary analysis of Able Danger, and what I mean by that is we were 

trying to get a worldwide perspective of exactly where this organization functioned and operated, just as a start, and that was in 

terms of Al Qaeda. 

Chairman SPECTER. And did part of that involve operations within the United States? 

Mr. KLEINSMITH. No specific operation in the United States, only 

a presence that was known, and we were unable to get to the details for specific persons or information in the United States before 

we were shut down. 

Chairman SPECTER. And when was that information deleted? 

27

Mr. KLEINSMITH. I deleted that information roughly May-June 

timeframe of 19—I am sorry, 2000. 

Chairman SPECTER. May-June of 2000? 

Mr. KLEINSMITH. Yes, sir. 

Chairman SPECTER. Did somebody instruct you to delete the information? 

Mr. KLEINSMITH. We were visited by our—the INSCOM’s General Counsel, and the man was named Tony Gentry. But he was 

only there 10 days prior to remind me of the intelligence regulations that we were operating under. With that, the intelligence 

oversight regulation we referred to was Army Regulation 381–10, 

and in that—I brought a copy with me—we are allowed to—under 

Procedure 3, allows us to temporarily retain information about 

United States persons, may be retained temporarily for a period 

not to exceed 90 days solely for the purpose of determining whether 

that information may be permanently retained under the other procedures. 

So while we were shut down, we were unable to do any further 

analysis, vetting of data, or investigation into the data that we had 

pulled. Because of that, the 90-day mark had hit and he came back 

down to remind me again, and it was more of a friendly visit, not 

an adversarial visit, and that was actually when he told me jokingly to remember, just delete this data or you guys will go to jail. 

Ha, ha, very funny, understanding completely we abide by the regulation, so we deleted the data and destroyed the charts that we 

had also created. 

Chairman SPECTER. When you say, abide by regulations, what do 

you mean by that? 

Mr. KLEINSMITH. We had to abide specifically by the Army intelligence oversight regulations that said we could only retain this information for 90 days. 

Chairman SPECTER. Is there some relationship between those 

regulations and the Posse Comitatus Act? 

Mr. KLEINSMITH. The Army regulation was in direct correlation 

with DOD Regulation 5140-point-R, which follows Executive Order 

12333. 

Chairman SPECTER. You are giving me a lot of— 

Mr. KLEINSMITH. Yes, and I apologize— 

Chairman SPECTER [continuing].—documents. That is OK— 

Mr. KLEINSMITH. It is more of a— 

Chairman SPECTER. Excuse me. Does any of it trace back to the 

Posse Comitatus Act? 

Mr. KLEINSMITH. Only from an intelligence analysis perspective, 

not from an operational or mission perspective. 

Chairman SPECTER. Well, what do you mean by that, intelligence 

but not operational? 

Mr. KLEINSMITH. It allowed us to— 

Chairman SPECTER. I was only a first lieutenant, so you are 

going to have to explain it to me. 

[Laughter.] 

Mr. KLEINSMITH. Yes, sir. It allowed us to conduct intelligence 

analysis and to incidentally collect information on U.S. persons. We 

didn’t consider, or Posse Comitatus was never brought up at our 

level that we had worked at. We stayed strictly with AR 381–10— 

28

Chairman SPECTER. Was there any reason for you to conclude 

that the deletion order for these documents went up the chain of 

command to officials relying on the regulations and Posse Comitatus? 

Mr. KLEINSMITH. Not from my perspective or from my level, and 

I can’t answer that fully, sir. 

Chairman SPECTER. Are you in a position to evaluate the credibility of Captain Philpott, Colonel Shaffer, Mr. Westphal, Ms. 

Preisser, or Mr. J.D. Smith, as to their credibility when they say 

they saw Mohammed Atta on the chart? 

Mr. KLEINSMITH. Yes, sir. I believe them implicitly from the time 

that I had worked with all of them, and everyone you had mentioned was part and I had contact with during this time. I cannot— 

Chairman SPECTER. You had contact with all of them? 

Mr. KLEINSMITH. Yes, sir. I cannot corroborate them completely 

and say that, yes, they saw it, because I myself do not remember 

seeing either a picture or his name on any charts, but I believe 

them implicitly. When they say they do, I believe them. 

Chairman SPECTER. My red light just went on, but I am going 

to take the liberty of asking one more question, notwithstanding 

my insistence on adherence to the red light by everybody. 

Senator SESSIONS. Go ahead, Mr. Chairman. You have unanimous support from the Committee. 

[Laughter.] 

Chairman SPECTER. That is extensive license, more than I really 

have as Chairman. 

I have a report that you feel very strongly about this matter, so 

strongly that you were quoted as saying—and I want to know if 

this is an accurate quote—that every night when you go to bed, you 

believe that if the program had not shut down the U.S. intelligence 

on these subjects, that 9/11 could have been prevented. 

Mr. KLEINSMITH. That is not completely accurate. What I had 

said is, yes, I do go to bed every night, and other members of our 

team do, as well, that if we had not been shut down, we would 

have been able to at least present something or assist the United 

States in some way. Could we have prevented 9/11? I don’t think—

I can never speculate to that extent we could have done that. 

Chairman SPECTER. But you think you might have been able to 

glean some intelligence that could have been helpful along that 

line? 

Mr. KLEINSMITH. Yes, sir. 

Chairman SPECTER. Senator Sessions? 

Senator SESSIONS. Thank you. Major Kleinsmith, you are not a 

lawyer and have not studied the origins of all these regulations, is 

that what I hear you saying? 

Mr. KLEINSMITH. Yes, sir. 

Senator SESSIONS. You simply, as an officer, were bound by AR 

381–10, as you understood it? 

Mr. KLEINSMITH. Yes, sir. 

Senator SESSIONS. And do I understand you to say that AR 381–

10, for whatever good reason somebody may have had for passing 

it, was the culprit that got you into this or required these deletions, 

or do you think that the deletions could have been—were not necessary even under the Army regulation? 

29

Mr. KLEINSMITH. Sir, I am actually the one who made the decision to delete the documents, and so if it came to the point where, 

was I ordered, I was ordered by whoever wrote the regulation, and 

I understood that the regulation was written before the Internet, 

before data mining, and so it was a natural result. Yes, I could 

have conveniently forgot to delete the data and we could have kept 

it, but I would have been in violation and I knowingly would have 

been in violation of the regulation. 

Senator SESSIONS. I would just like to first say that one moment, 

we are giving the military a hard time because they don’t follow 

the regulations, and the next minute, we give you a hard time for 

following the regulations. Is it your understanding from the Legal 

Counsel that—you discussed this with Legal Counsel at some point 

before you deleted the information? 

Mr. KLEINSMITH. Yes, sir. 

Senator SESSIONS. And they can confirm that, in their view, that 

it was your obligation to delete this, to comply with it— 

Mr. KLEINSMITH. Yes, sir. 

Senator SESSIONS. And at this time, who was Secretary of Defense? 

Mr. KLEINSMITH. I am sorry, I think it was William Cohen at the 

time. 

Senator SESSIONS. It wasn’t Mr. Rumsfeld during any of this. 

And do you think, or just from your perspective, having been there 

and worked on this, do you feel like that the regulation and the 

policies behind it should be modified to allow this kind of activity 

and that it would not adversely impact our traditional view that 

the military should not be involved in domestic law enforcement? 

Mr. KLEINSMITH. Sir, again—yes, you are correct, I am not a lawyer. I would only, if I had one recommendation to make, is that a 

review would be conducted that involved data mining and the technology and the capability, but I could not give you an answer on 

how it should be changed specifically. 

Senator SESSIONS. Mr. Zaid, would you want to comment on that 

point, on what the policy ought to be and— 

Mr. ZAID. Sure, Senator. One of the questions— 

Senator SESSIONS. And you represent— 

Mr. ZAID. I represent Lieutenant Colonel Shaffer and Mr. Smith. 

Senator SESSIONS. And these were the individuals involved in 

this data mining that had apparently come up with Mr. Atta’s 

name— 

Mr. ZAID. Correct. 

Senator SESSIONS. and information about that. As a lawyer, have 

you, recognizing our concern about—and I take this very seriously, 

the Posse Comitatus Act. I don’t think we would blithely change 

that Act. But as to this data mining and the kinds of things that 

they did, do you think we ought to change that policy? 

Mr. ZAID. Let me say, first, understand that much of the data 

mining, and there are differences as to the technical definitions as 

to what exactly was happening with respect to that, were done by 

the contractors, the defense contractors. The rules are somewhat 

different for them. They have no restrictions as far as what data 

they are maintaining. 

30

The other aspect is that we are not entirely sure what specific 

legal interpretations were being applied in this case other than obviously with respect to the destruction on the Army side. I would 

encourage the Committee, if they haven’t already, to try and obtain 

the undoubted legal memoranda that exists within the Department 

of Defense. This wasn’t the first time, obviously, the issue came up. 

Plus, from my somewhat understanding of Posse Comitatus—I 

represent military officers all the time but I have never been a 

military lawyer—Posse Comitatus, of course, pertains to law enforcement activities of the military. In the aftermath of Waco, the 

Army took a PR hit because it had apparently helped support or 

provide activities, more than they were supposed to, with respect 

to the FBI raid on the Waco compound. 

Senator SESSIONS. Well, let us talk about that. So the Army provided information that assisted ATF and FBI in the Waco activity, 

is that correct? 

Mr. ZAID. And I don’t remember the specifics— 

Senator SESSIONS. But they were criticized for not staying within 

their role. 

Mr. ZAID. Absolutely. 

Senator SESSIONS. So it is a matter you took seriously—the military, Major Kleinsmith, I mean, the military takes the rules they 

are given seriously. 

Mr. KLEINSMITH. Yes, sir. This is a requirement to be trained on 

intelligence oversight every year for every intelligence soldier and 

it is tracked. 

Mr. ZAID. But there is case law and there are DOD regulations 

that pertain to the sharing of information compiled by the military 

with law enforcement. What my understanding of Able Danger’s 

activities, it does not appear as if it would have crossed over that 

line. Now, whether there is an inconsistency between this Army 

regulation and other DOD regulations and the case law is something this Committee could obviously look at within its jurisdiction. 

It doesn’t appear that there would have—there should have been 

any conflict. So it is not— 

Senator SESSIONS. So to sum up—my time is expiring—to sum 

up, you would say that— 

Chairman SPECTER. You can take some more time, Senator. 

Senator SESSIONS [continuing]. It may have been in violation of 

AR 381–10, but not necessarily in violation of the case law or the 

Posse Comitatus theories that we have tried to operate under? 

Mr. ZAID. There is absolutely evidence of that, plus there is a 

concern that this was too zealously applied. Those within Able 

Danger were confident they actually weren’t compiling information 

on U.S. persons. They were potentially people connected to U.S. 

persons. Again, I said they never identified Mohammed Atta in the 

United States. Apparently, the problem that came up was on the 

chart where his image was, he was listed under Brooklyn, New 

York, or something to that effect. It had Brooklyn, and those within 

the Army, either in the legal level or some of the policy levels, were 

apparently showing apprehension and concern that somehow that 

was then linking to data compilation of U.S. persons, whether that 

is U.S. citizens or individuals, foreigners here legally. 

31

Now, the other thing I should add as far as the destruction, Lieutenant Colonel Shaffer was the liaison between the DIA, Defense 

Intelligence Agency, and Able Danger. Because he was located here 

in Washington/Arlington, he maintained an extensive amount of 

files that pertained to the work that Able Danger was compiling in 

Orion Scientific. That data was not destroyed by Major Kleinsmith. 

That data, which may very well have included this Mohammed 

Atta chart, sat in his office at the Defense Intelligence Agency until 

some time in the spring of 2004, when DIA destroyed it. We have 

no idea why. 

By that time, Lieutenant Colonel Shaffer had been suspended 

and put on administrative leave because his clearance had been 

suspended. DIA apparently claims that they sent him an e-mail 

asking, well, what do you want us to do with all these boxes of documents? He never—I don’t know if they did send it. I can tell you 

he never received the e-mail. I don’t understand why they would 

have destroyed any documents, particularly if they were classified, 

and there was classified information within these boxes, why would 

they destroy any documents presuming he would get a fair shake 

at challenging his clearance suspension and ultimately come back 

to work within the DIA and hopefully use the documents again. So 

those documents were not necessarily subject to AR 381–10 and the 

DIA should be required to explain who destroyed the documents 

and why they destroyed them. 

Senator SESSIONS. Good point. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

Mr. Zaid, you are representing Lieutenant Colonel Shaffer and 

Mr. J.D. Smith? 

Mr. ZAID. Correct. 

Chairman SPECTER. And they are present in the hearing room 

this morning? 

Mr. ZAID. They are, sir. Lieutenant Colonel Shaffer is in uniform 

and Mr. Smith is right next to him. 

Chairman SPECTER. Would you gentlemen mind standing, 

please? OK. Would you, for the record, identify Lieutenant Colonel 

Shaffer? 

Mr. ZAID. Sure. Lieutenant Colonel Shaffer is to the left in the 

uniform, of course, and Mr. J.D. Smith is here in his business attire. 

Chairman SPECTER. You may be seated, gentlemen. 

You speak as their counsel? 

Mr. ZAID. Yes, sir. 

Chairman SPECTER. And they have consented to your testimony? 

Mr. ZAID. Yes, sir. 

Chairman SPECTER. Why are they not permitted to speak for 

themselves? 

Mr. ZAID. Because the Defense Department has prohibited. I received both phone calls and a letter from the Defense Intelligence 

Agency, as well as the Department of Defense General Counsel’s office, specifically prohibiting Lieutenant Colonel Shaffer from testifying. Mr. Smith admittedly has not been explicitly prohibited, but 

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32

vised him it would be preferable not to testify until the classification issue with the Department is taken care of. 

Chairman SPECTER. And was any effort made to have you not 

testify? 

Mr. ZAID. I am not aware of any, no indication from the Department of Defense or DIA that I not testify. And as I said earlier, 

I never have been told, and I work with these attorneys over in the 

agencies all the time, never have I been told that there was any 

concern that Lieutenant Colonel Shaffer specifically had been saying anything classified within his public comments, and I have routinely been told by agencies of the Federal Government, particularly when we represent intelligence officers, when one of them has 

potentially crossed the line and we have been told to reel them 

back. 

Chairman SPECTER. But you are saying that there has never 

been any suggestion, either as to Lieutenant Colonel Shaffer or Mr. 

Smith, that the DOD was concerned about the disclosure of classified information? 

Mr. ZAID. At least with respect to what they have publicly stated 

to the press, to the Committees, et cetera. Without a doubt—well, 

I should say two things. J.D. Smith’s contract with Orion through 

whichever part of the Defense Department engaged him was completely unclassified, no questions about that. Lieutenant Colonel 

Shaffer and Able Danger, of course, did have access to classified information, but the work that prepared or led to the creation of the 

Mohammed Atta chart was unclassified. 

Chairman SPECTER. And the information which has been in the 

public domain, which is what this Committee was looking for, was 

not classified? 

Mr. ZAID. It is all of our indications that nothing was classified. 

It could certainly have been spoken to today and then elaborated 

on in executive session. 

Chairman SPECTER. Obviously, it would be preferable, as Senator 

Kyl pointed out, to have the witnesses testify firsthand, but in the 

absence of that, we can hear hearsay. What would Lieutenant Colonel Shaffer have testified to had he been permitted to do so? 

Mr. ZAID. Predominately, he would have testified to the fact of 

the work that Able Danger had been doing, both in the certainly 

unclassified environment, that they had created numerous charts 

that had dealt with Al Qaeda, one of which had identified Mohammed Atta, had a photograph of him. That photograph was not the 

same photograph that we have all seen in the news, not a photograph released by a U.S. Government agency or the 9/11 Commission. It was a very grainy photograph. He remembers it specifically 

because of the essentially evil death look in Mohammed Atta’s eyes 

and his narrow, drawn face. Of course, the name itself didn’t necessarily mean anything to them until after 9/11. He conversed with 

other members of his team, found that they had gone to meet with 

Mr. Hadley and turn over the chart, thought, well, my job is taken 

care of. The information has been passed. 

He would have talked about the capabilities that LIWA and the 

contractors were undertaking and the successful enterprises they 

were doing that was revelation and novel within the intelligence 

and military community. 

33

He also would have indicated that, finally, he came and he met 

with members of the 9/11 staff, to include its Executive Director, 

while he was on active duty risking his life in Afghanistan, that he 

had told them that his team had identified two of the successful 

cells of 9/11, to include Atta. That statement, of course, is in dispute by the 9/11 staff that were present. There were also DOD staff 

that were present there, who have not come forward and have not 

been questioned so far as we know. 

He also would have indicated that after that, he met Mr. Zelikoff, 

gave him his business card, and said, ‘‘I want you to call us when 

you get back to the United States so we can follow this up.’’ He did 

so in January of 2004. He called the Commission and said, ‘‘Mr. 

Zelikoff told me to call. I would like to come in and give more information.’’ They never called him back. A week later, he called again 

and was told, ‘‘That is OK, we don’t need to talk to you.’’ 

Chairman SPECTER. My red light went on during your answer. 

Senator Sessions? 

Senator SESSIONS. I just briefly, Mr. Chairman, would followup 

with Mr. Kleinsmith. We found in the PATRIOT Act work that we 

did that there were clear prohibitions, unbelievable prohibitions, on 

the sharing of information such as an FBI investigation involving 

a grand jury could not share with a CIA matters and vice-versa. 

The CIA felt they couldn’t share information in certain ways. I 

guess I want to ask again, did you think, when this lawyer talked 

to you about your requirement to destroy this information, that—

I believe you said you felt that was—that the advice was existing 

with the existing Army regulations, did you not? 

Mr. KLEINSMITH. Yes, sir. 

Senator SESSIONS. Mr. Zaid, were you saying that you felt your 

clients did not feel that the existing regulations required the deletion of that information, or at least some of it? 

Mr. ZAID. From my discussions with those involved with Able 

Danger, they were well aware of this concern and they felt they 

had put into place numerous safeguards that would ensure that 

that concern would not rise to a significant level of necessitating 

the destruction. They were all ensure—they said they were taking, 

in fact, numerous steps beyond what they felt were even necessary 

to allay any concerns by the attorneys. But obviously, as you heard, 

at the end of the day, I guess the attorneys won out. 

Senator SESSIONS. I think it is important for us to review these 

matters. The first thing I would like to say, and I think it is very 

important for the American people to understand, somehow, there 

is a belief in this country that we give regulations and directives 

to the military and that they think we don’t comply with them, 

that the military does not comply with them. I used to have to 

teach in the Army Reserve and certify every year or every other 

year that I taught the Geneva Conventions to Army Reserve privates in a transportation unit. 

The military does what we tell them to do, and when we have 

these kind of crazy rules that do this, I think it is us in the Congress that really deserve the criticism here, first. And second, if a 

lawyer was too aggressive in requiring the deletion of things that 

they shouldn’t, I think we need to look into that. 

Mr. Chairman, I will yield back my time to you. 

34

Chairman SPECTER. Thank you. Thank you very much, Senator 

Sessions. 

Mr. Zaid, just one final question. Again, we would like to hear 

from Mr. Smith, but we are precluded. If he were to testify, what 

would he say? 

Mr. ZAID. Mr. Smith would have indicated that he was tasked by 

individuals associated with Able Danger, again, not knowing it was 

Able Danger, to compile unclassified information that they then 

can put into charts like Congressman Weldon had brought today, 

looked somewhat similar—some were that size, some were smaller—containing massive amounts of data, that these were 

associational links, that at least one chart in particular which he, 

in fact, kept on his office wall until the summer of 2004, when it 

had been destroyed after he tried to move it for an office move and 

then junked it, had Mohammed Atta and potentially, according to 

other team members—he doesn’t recall this—three others of the 20 

hijackers of 9/11, in fact, as well. 

He would have made one mention that at some point in time—

he was not there at this time—that government—Federal agents, 

armed Federal agents came to Orion in around March or April of 

2000 and confiscated many or much of the data that Orion had 

compiled with respect to this contract. They never obtained his 

data or his charts because given that it was unclassified, they actually were in the trunk of his car, and so that is why he was able 

to maintain these charts. 

After the summer of 2000 or even the spring of 2000, that contract ceased to exist, so he no longer participated in any of the efforts. 

Chairman SPECTER. When you say Mohammed Atta, is it the Mohammed Atta who turned out to be the hijacker? 

Mr. ZAID. Yes. Without a doubt, his recollection is that, again, by 

the photograph—and he obtained the photograph through a subcontractor that Congressman Weldon mentioned, bought through, 

and he understood it to be a foreign source, and it was the look of 

this photograph—it wasn’t the same photograph that we have all 

seen, and he, post-9/11, when he had this chart on his wall in his 

office, would bring in anybody who would come by and say, ‘‘Look 

what we had. Look what we had compiled.’’ They would be shown, 

here was the photograph of Mohammed Atta, and he would just 

shake his head, what if, what if, what if. 

Chairman SPECTER. Do you know where the chart is now? 

Mr. ZAID. The chart, unfortunately, was destroyed. I am not sure 

what the paper is of those, but many of the charts were on a type 

of paper almost like tissue paper to some extent, from what I understand, and he had it taped to the wall, and when he tried to 

take it down, it had become so torn and tattered after, at that time, 

3 years that he threw it out. 

Chairman SPECTER. Anything further, Senator Sessions? 

Senator SESSIONS. No, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Mr. Kleinsmith. 

Thank you very much, Mr. Zaid. And in absentia, though present, 

thank you very much, Colonel Shaffer and Mr. Smith. It is pretty 

hard to be in absentia and present at the same time, but you are. 

[Laughter.] 

35

Chairman SPECTER. We now call our third panel, Mr. Gary Bald 

and Mr. William Dugan. Mr. Gary Bald is Executive Assistant Director of the FBI for the National Security Branch, appointed on 

August 12 of this year, a branch created at the recommendation of 

the Commission on Intelligence Capabilities of the WMD Commission, responsible for integrating the FBI’s national security mission 

with the Director of National Intelligence. He has been in the FBI 

since 1977 and has a very extensive, laudatory record there. He 

has a Bachelor of Science from the University of South Carolina 

and a Master’s in forensic science from George Washington University. 

Thank you for joining us, Mr. Bald, and we look forward to your 

testimony. 

STATEMENT OF GARY M. BALD, EXECUTIVE ASSISTANT DIRECTOR, NATIONAL SECURITY BRANCH, FEDERAL BUREAU OF 

INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, 

D.C. 

Mr. BALD. Thank you, Senator. Thank you, Chairman. I have 

submitted a written statement, if I could ask that it be made a part 

of the record, and I will briefly— 

Chairman SPECTER. Without objection, it will be made a part of 

the record. 

Mr. BALD. Thank you, sir. Good morning, Mr. Chairman, Senator 

Leahy, and members of the Committee. Thank you for this opportunity to update you on the progress the FBI has made since 9/11 

in sharing information with our partners in law enforcement and 

the intelligence community. As you requested, I will focus my remarks on collaboration with the Department of Defense. 

I am testifying today in my new capacity as Executive Assistant 

Director of the National Security Branch of the FBI, which was established on September 12, pending final administration approval. 

Created in response to the President’s directive to implement the 

recommendations of the Weapons of Mass Destruction Commission, 

the National Security Branch combines the resources, missions, 

and capabilities of the counterterrorism, counterintelligence, and 

intelligence elements of the FBI and in doing so will help us build 

on the tremendous strides that we have already made since 9/11 

in strengthening our intelligence and information sharing capabilities and coordinating with other intelligence agencies. 

Before 9/11, our ability to share information was hampered by 

legal and procedural restrictions, often referred to as the wall that 

separated intelligence and criminal investigations within the FBI. 

Those restrictions contributed to a situation in which our relationships with other intelligence agencies on counterterrorism investigations were driven by case-specific needs. 

Since 9/11, the passage of the PATRIOT Act, and other major 

legal developments eliminated the wall between criminal and intelligence investigations within the FBI and these actions removed 

real and perceived barriers to coordination among the FBI and 

other intelligence agencies and changed the way the FBI conducts 

international terrorism investigations. 

In addition, the FBI now places great emphasis on producing intelligence reports and disseminating them through our partners in 

36

the intelligence and law enforcement communities. Our policy is to 

share by rule and withhold by exception. To ensure that this policy 

is implemented, we have created a senior-level Information Policy 

Sharing Group to provide guidance within the FBI for internal and 

external information sharing initiatives. 

The FBI has also developed a National Information Sharing 

Strategy as part of the Department of Justice’s Law Enforcement 

Information Sharing Program, which aims to ensure that those 

charged with protecting the public have the information that they 

need to take action. 

There are three components of this strategy, the National Data 

Exchange, or what we refer to as N–DEx, which will provide a nationwide capability to exchange data from incident and event reports with other agencies; the Regional Data Exchange, or as we 

refer to it as R–DEx, which will enable the FBI to join participating Federal, State, tribal, and local law enforcement agencies in 

regional, full-text information sharing systems; and our Law Enforcement Online, which provides a Web-based platform for the law 

enforcement community to exchange information. 

The FBI also participates in a variety of interagency centers, 

working groups, and committees that were established to improve 

information sharing. In each of the FBI’s 56 field offices and in 

most major United States cities, we now have a Joint Terrorism 

Task Force, which combines the resources of the FBI, other Federal 

agencies, with the expertise of the State and local law enforcement 

agencies in those areas to prevent acts of terrorism and investigate 

the activities of terrorists in the United States. 

To support the Joint Terrorism Task Forces throughout the country and to provide a point of fusion for terrorism intelligence, we 

also created the National Joint Terrorism Task Force. The Department of Defense is strongly represented in the Joint Terrorism 

Task Forces and on the National Joint Terrorism Task Force. 

The FBI also has a significant complement of personnel working 

at the interagency National Counterterrorism Center, which integrates the Federal Government’s intelligence and analysis and presents a comprehensive view of the terrorist threat for the President 

and other senior policy makers. 

The FBI is proud of its efforts in partnership with the Department of Defense. We are working together on numerous fronts to 

share information to support the global war on terrorism, and as 

an example of our joint activities, the FBI’s Criminal Justice Information Services Division has been working with the Department of 

Defense’s Biometric Fusion Center to store and disseminate data 

collected by military troops deployed overseas. The data consists of 

fingerprints, photographs, and biographical data of enemy prisoners of war or individuals of interest as national security threats. 

The FBI currently has special agents assigned as liaison officers to 

several Department of Defense combatant commands and additional FBI personnel are embedded with the Department of Defense in military operations in Iraq, Afghanistan, and Guantanamo 

Bay. 

The Department of Defense and FBI are also collaborating on the 

Foreign Terrorist Tracking Task Force, which uses analytic techniques and technologies to enable terrorist identification and trackVerDate 0ct 09 2002 14:50 Mar 14, 2006 Jkt 025409 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\25409.TXT SJUD4 PsN: CMORC
37

ing. In addition, the two agencies share information as participants 

in the Terrorist Explosive Device analytic Center, which coordinates and manages a unified national effort to gather and technically and forensically exploit terrorists who improvise explosive 

devices worldwide. 

With the intelligence gathered throughout these and other partnerships as well as her own investigations, the FBI produces intelligence products that we disseminate to the intelligence and law 

enforcement communities, primarily through six information sharing networks: The FBI Intranet, INTELINK top secret, INTELINK 

secret, Law Enforcement Online, the Homeland Security Information Network, and a secure automated message network. 

Over the past several years, the FBI has significantly increased 

the number of intelligence products disseminated via these networks. A primary route for the Department of Defense components 

to receive FBI intelligence products is through the Defense Intelligence Agency— 

Chairman SPECTER. Mr. Bald, could you summarize your testimony at this point, please? 

Mr. BALD. I will, sir. Thank you. Through the Defense Intelligence Agency, which is the primary distribution list for FBI intelligence products. 

In conclusion, Mr. Chairman and members of this Committee, 

the FBI has made significant progress in our efforts to share information with our partners in the intelligence and law enforcement 

communities. We have established policies and developed tools that 

make it easier for us to disseminate intelligence and provide access 

to those who need it, and we are working collaboratively on many 

fronts with the Department of Defense and other agencies to develop the capabilities we need to succeed against the threats of the 

future. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Mr. Bald. 

[The prepared statement of Mr. Bald appears as a submission for 

the record.] 

Chairman SPECTER. We turn now to Mr. William Dugan, Acting 

Assistant Secretary of Defense for Intelligence Oversight. Mr. 

Dugan is a retired Air Force Colonel and has served as a Minuteman missile combat crew commander. He has a Bachelor of Arts 

degree from the University of Florida, a law degree from the University of Kansas, and is also a graduate of the Army War College. 

The floor is yours, Mr. Dugan. 

STATEMENT OF WILLIAM DUGAN, ACTING ASSISTANT TO THE 

SECRETARY OF DEFENSE FOR INTELLIGENCE OVERSIGHT, 

DEPARTMENT OF DEFENSE, WASHINGTON, D.C. 

Mr. DUGAN. Thank you, Mr. Chairman. Good morning. Senator 

Sessions, members of the Committee, it is my privilege to appear 

before you today. I am Bill Dugan. I am the Acting Assistant to the 

Secretary of Defense for Intelligence Oversight and I am here to 

discuss the intelligence oversight program in the Department of 

Defense and also to talk about information sharing. 

I am responsible to the Secretary and the Deputy Secretary for 

the DOD’s Intelligence Oversight Program, and the purpose of the 

38

Intelligence Oversight Program is to enable DOD intelligence components to carry out their authorized functions while at the same 

time ensuring that their activities that affect U.S. persons, United 

States persons, are carried out in a manner that protects their constitutional rights and privacy. 

Now, I have used the term ‘‘United States persons,’’ and I would 

like to define it because it is an important term. It is a broad term. 

It refers to more than just United States citizens. The term also 

includes permanent resident aliens, corporations incorporated in 

the United States unless directed or controlled by foreign governments, and associations composed of permanent resident aliens and 

United States citizens. So you can see it is broader than just U.S. 

citizens. 

We operate under Executive Order 12333, entitled United States 

Intelligence Activities, which was issued by President Reagan in 

December 1981. The DOD implementing regulation is DOD 

5240.1–R, entitled Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons. This 

DOD regulation was approved by the Attorney General and was 

issued in December 1982. So these are the Attorney General-approved guidelines for the DOD intelligence community regarding 

activities that affect United States persons and they have been in 

place for more than 20 years. 

The Office of the Assistant to the Secretary of Defense was established in 1976 to implement the original Executive Order, which 

was one issued by President Ford, and that was in response to the 

investigations, including those done by this Committee, that revealed the misuse of intelligence assets, both DOD and non-DOD, 

to collect information on civil rights protestors, anti-Vietnam War 

demonstrators, community and religious leaders, et cetera. The 

lack of clear rules, mission creep, and the lack of meaningful oversight caused an abuse of the constitutional rights of United States 

persons by Defense intelligence and counterintelligence personnel. 

The result, President Ford’s first Executive Order and the one we 

operate under currently by President Reagan in 1981. 

I would like to describe how the process works regarding the collection of United States person information by DOD intelligence 

components. First, no one in DOD intelligence has a mission to collect information on United States persons. What we have are missions such as foreign intelligence, counterintelligence, 

counterterrorism, signals intelligence, and the like. In the course of 

performing our mission, we run across or find information that 

identifies United States persons. That is when the rules in the 

DOD regulation that I mentioned, 5240.1–R, kick in, the Attorney 

General-approved guidelines. 

If the information is necessary to the conduct of the mission, as 

I just described, for example, counterterrorism, and if it falls within 

one of the 13 categories prescribed by the Executive Order and the 

DOD regulation, then the intelligence component can collect it. The 

13 categories, I won’t list them all. They are in my prepared remarks. But the ones most likely to be used in the war on terrorism 

are information obtained with consent, publicly available information, foreign intelligence, counterintelligence, and threats to safety 

from international terrorist organizations. 

39

If the intelligence component is unsure if the information they 

have obtained is proper for them to keep regarding U.S. persons, 

the intelligence oversight rules allow them to temporarily retain 

the information for up to 90 days solely to determine whether it 

may be permanently retained, and thus, we have intelligence components who have properly collected U.S. person information in 

their holdings. 

Finally, if an intelligence component is in receipt of information 

that pertains to the function of other DOD components or agencies 

outside DOD, such as the FBI, the intelligence component can 

transmit or deliver the information to them for their independent 

determination whether it can be collected, retained, or disseminated in accordance with their governing policy. 

Thank you. 

Chairman SPECTER. Thank you, Mr. Dugan. 

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

for the record.] 

Chairman SPECTER. Mr. Dugan, you were present during the entire hearing today? 

Mr. DUGAN. Yes, I was. 

Chairman SPECTER. I didn’t hear you object to any classified information being presented. 

Mr. DUGAN. Sir, I listened to your reading of the statement from 

your legal counsel regarding my responsibility to object if there was 

classified information revealed. My knowledge of Able Danger is 

very limited. The information that I heard discussed by the previous two panels, based on my limited knowledge of Able Danger, 

did not cause me to rise and say that I thought classified information was being revealed. Had I— 

Chairman SPECTER. So you didn’t— 

Mr. DUGAN. Had I believed so, I would have done so. 

Chairman SPECTER. OK. So you didn’t hear any classified information? 

Mr. DUGAN. No, I didn’t hear what I believe to be classified information. 

Chairman SPECTER. Well, we are not looking for anybody else’s 

belief. Is there anybody else present from the Department of Defense here today? 

Mr. DUGAN. I have some folks from the OSD Legislative Affairs, 

but I don’t believe they are in a position— 

Chairman SPECTER. But it was your job to object if you heard 

something you thought was classified? 

Mr. DUGAN. Yes, sir, that is correct. 

Chairman SPECTER. Is there anything in Posse Comitatus which 

would have prevented the Department of Defense from telling the 

FBI about an Al Qaeda cell and Mohammed Atta? 

Mr. DUGAN. No, sir, I don’t think so. I don’t think this is a Posse 

Comitatus issue. I think this is an intelligence oversight, Executive 

Order 12333 compliance issue. The Army regulation that previous 

speaker referred to, Army Regulation 381–10, is an implementation 

of the DOD regulation, which is an implementation of the Executive Order, and that is what they followed. Posse Comitatus, I don’t 

think bears on this. 

40

Chairman SPECTER. Well, is there any basis under Posse Comitatus for the deletion of materials as testified by Mr. Kleinsmith 

or the destruction of other records relating to Mohammed Atta and 

the charts? 

Mr. DUGAN. I don’t think so, under Posse Comitatus. 

Chairman SPECTER. Any basis for the destruction of those 

records or deletion on any ground? 

Mr. DUGAN. Well, perhaps under the intelligence oversight rules 

and the 90-day retention determination period that I spoke of. That 

is, under the DOD guidance, the Attorney General-approved guidelines, if information identifies a U.S. person, the intelligence component concern has 90 days to determine if they have a reasonable 

belief that it can be related to one of the 13 categories in Procedure 

2 of the DOD directive. The Army directive is the same. 

Chairman SPECTER. In the rather extensive record for this Committee today, albeit by hearsay, to some substantial extent, Congressman Weldon’s testimony and the other testimony has established the existence of intelligence information in the hands of the 

Department of Defense, including the identity of Mohammed Atta. 

That evidence having been presented and factually ascertainable, 

did the Department of Defense make a mistake in not telling the 

FBI about that prior to 9/11? 

Mr. DUGAN. Not having reviewed the evidence that— 

Chairman SPECTER. Well, you were here today and you heard all 

the testimony. 

Mr. DUGAN. Yes, sir, I was. 

Chairman SPECTER. You heard a lot of testimony that there was 

a cell uncovered on Al Qaeda and that Mohammed Atta was identified—the same Mohammed Atta who later turned out to be a ringleader. Now, I don’t know whether it is true or not because we 

haven’t had the firsthand testimony, but we have to accept what 

we can get. That is for a first hearing. We may have some more 

hearings. 

Mr. DUGAN. Certainly. 

Chairman SPECTER. The Secretary of Defense is coming in to 

brief the Senate this afternoon at four o’clock. He may have some 

extra time. He may be able to lend some substance to what we 

have heard here today. But all we can do is accept the testimony 

we have heard. Now, accepting that testimony, if the Department 

of Defense knew about an Al Qaeda cell and about Mohammed 

Atta, the ringleader, wasn’t it a mistake not to turn that over to 

the FBI? 

Mr. DUGAN. If the INSCOM folks, following the regulation and 

their intelligence oversight rules, found that the information was 

properly collected and collectable, then it is, under the Attorney 

General-approved guidelines, they can retain it and disseminate it, 

and it the dissemination under Procedure 4 of the regulation would 

be lawful to the FBI. 

Chairman SPECTER. Should it have been disclosed? That is my 

question. Your last answer was circuitous and not to the point. 

Should it have been disclosed if it might have prevented 9/11? 

Mr. DUGAN. If it was properly collected, yes. 

Chairman SPECTER. Well, it wasn’t properly collected? 

Mr. DUGAN. I don’t know, sir. 

41

Chairman SPECTER. Well, you say there is nothing that you 

heard about which puts it at variance with the Posse Comitatus 

Act. 

Mr. DUGAN. Correct, but I haven’t heard testimony whether, and 

from the Army, and I understand they are not here and the reasons for that, but as to what they collected, how they collected it, 

and why they determined it was not properly collectable, and when 

it then could not be retained and then disseminated. 

Chairman SPECTER. Do you know why the decision was made not 

to retain it? 

Mr. DUGAN. I assume, based on the previous testimony of the 

previous panel, and from what he said was that the 90-day period 

had run, and since the 90-day period had run, they had not made 

a collectability determination that it fit into one of the 13 categories, that it was excluded. 

Chairman SPECTER. Since you are the only representative from 

the Department of Defense here, we can only ask you to respond 

to the Committee and to make a determination as to whether, No. 

1, the Department of Defense had information about an Al Qaeda 

cell and Mohammed Atta, the ringleader. That is question No. 1. 

Did they have that information? If so, was there any reason under 

Posse Comitatus why they could not disclose it to the FBI or other 

intelligence agencies? And question No. 3, was it a mistake not to 

make that information available to prevent 9/11 or perhaps contribute to the prevention of 9/11? 

Mr. DUGAN. Mr. Chairman, with respect to your first question, 

did we have information that identified Mohammed Atta, I have 

heard the testimony here, but I don’t know. 

Chairman SPECTER. The question was, since you are the only 

representative of DOD here, the Committee would like you to find 

out the answers to those questions. 

Mr. DUGAN. Very good. May I take— 

Chairman SPECTER. If we had the Secretary here, we would ask 

him. If we had somebody with knowledge of Able Danger, like General Schoomaker, who was very intimately involved in it—he is not 

too far away, he is the Chief of Staff. He was confirmed by the Senate the last time he was up. If we had somebody who knew more 

about the matter, we would ask him. I understand that you were 

sent over in a very limited capacity with perhaps a calculation that 

you didn’t have this information. But those are the questions which 

the Committee would like to have answered— 

Mr. DUGAN. Yes, sir. 

Chairman SPECTER. And if you would undertake the task of finding out the answers or having your superiors find out the answers, 

the Committee would appreciate it. 

Mr. DUGAN. Yes, sir. Thank you. 

Chairman SPECTER. Senator Sessions? 

Senator SESSIONS. Mr. Dugan, to get this ancestry of how we get 

into these walls that make life in government more difficult, there 

were Church hearings and other abuse hearings that resulted in 

President Reagan—President Ford and then President Reagan 

issuing directives to constrain the activities of the Department of 

Defense in things that could be considered domestic investigations 

or domestic law enforcement, is that correct? 

42

Mr. DUGAN. Yes, sir, that is correct. There was also an intervening order from—Executive Order from President Carter. 

Senator SESSIONS. And as a result of that, DOD Regulation 

12333 was issued? 

Mr. DUGAN. I believe you are referring to Executive Order 12333. 

Senator SESSIONS. All right. 

Mr. DUGAN. That was issued by President Reagan. 

Senator SESSIONS. And you referred in your remarks here to a 

DOD regulation that governed the issue, and is that the regulation 

from which Major Kleinsmith referred when he talked about AR 

381–10? 

Mr. DUGAN. Yes, sir, I believe it is. 

Senator SESSIONS. So the Army implemented that DOD regulation and that became, for the officers and men and women in the 

Army, their binding authority? 

Mr. DUGAN. Yes, sir, that is correct. All the other services have 

a similar regulation, as well as the Defense Intelligence Agencies. 

Senator SESSIONS. And is your understanding that that regulation really was not founded on the Posse Comitatus Act, but some 

other principle or concern to the executive and legislative branches 

that led to that? 

Mr. DUGAN. Yes, sir, that is correct. 

Senator SESSIONS. Are there any statutory provisions that underlay this Executive Order and the AR 381–10? 

Mr. DUGAN. The provisions in President Reagan’s Executive 

Order grow out of the abuses committed by DOD and non-DOD intelligence organizations during the 1960s and 1970s, as I explained, and investigated by Senator Ervin, Senator Church, the 

Church Committee, Representative Pike, as well as the Rockefeller 

Commissioner. So it is a fear that you have the military collecting 

intelligence on, let me use the term U.S. citizens, but U.S. persons 

within this country. 

Senator SESSIONS. I think that is a big issue. I think it is an important issue. I don’t dispute that, and I am not for eroding that 

principle in any significant way. But the Chairman is, I guess—I 

think we need to ascertain whether or not there was any statutory 

requirement that resulted in 381–10 that impacted this particular 

matter, or was that the results purely of an Executive Order which 

could be changed by the chief executive. 

Mr. DUGAN. I believe it is the result of the Executive Order. I do 

not believe it is a Posse Comitatus statute issue that— 

Senator SESSIONS. And you are not aware of any statutory requirement that requires this? 

Mr. DUGAN. No. 

Senator SESSIONS. Now, with regard to—let me see if I can followup on the Chairman’s question about sharing this information. 

There was this 90-day rule that the Major and others, I guess, felt 

they were confronted with. Do you have an explanation of why they 

couldn’t just call Mr. Bald at the FBI and say, we can’t hold these 

documents anymore. We turn them over to you. What would be the 

difficulty in doing that? 

Mr. DUGAN. We are a lot smarter now than we were in 1999 and 

2000 and we think we could do that, give them—provide that information to the FBI and say, you need to review this with your auVerDate 0ct 09 2002 14:50 Mar 14, 2006 Jkt 025409 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\25409.TXT SJUD4 PsN: CMORC
43

thorities in mind to determine whether it is lawful for you to keep. 

Now, we are faced with that same situation when law enforcement 

information is given to us for us to look at, and we look at that 

information in the light of the Executive Order and the DOD directive and say, is it proper for us to keep this information? Is this 

of intelligence value to us, and we make our decision and determination in accordance with the DOD directive or the Army regulation. 

Senator SESSIONS. Well, so those decisions were made, and I 

guess we will follow up, and the Chairman has asked, what about 

this ultimate destruction of the documents? Was that called for 

under the regulations or was that necessary? 

Mr. DUGAN. The 90-day rule is what is referred to as a collectability determination. I have this information. I don’t know if I 

have a reasonable belief relating to U.S. person information, relating to U.S. persons, and they have this 90-day period within which 

to make a determination. If the determination after day ten is this 

does not relate to one of the 13 categories that I have just described, then the 90-day clock stops, but they have a full 90 days 

to make that determination. Once that 90-day period goes by and 

they have not made the information, then it is not properly collected. 

Senator SESSIONS. Is it deemed not to be properly collected, and 

under criminal law, when the police officer improperly collects 

something, he does not have to destroy the evidence, but he can’t 

utilize it— 

Mr. DUGAN. We destroy it. 

Senator SESSIONS. So you destroy. So if you delay and haven’t 

made your determination in 90 days, it is to be destroyed? Could 

it not be shared? It can’t be shared? What if it is improperly gathered, so it can’t be maintained? Can it then be shared? 

Mr. DUGAN. We think the information can be shared, for instance, with the FBI, as I indicated earlier, for them to review it 

with their authorities and to make a similar decision or determination of whether, for their agency, they can. Now, why wasn’t it 

done in this case? I can’t tell you. Information sharing obviously 

has increased in significance and importance since the 2001 attacks. We are doing a better job of sharing information, both from 

law enforcement to intelligence and intelligence to law enforcement. I am sure there are plenty of areas necessary and open for 

improvement, but in 1999–2000, I guess I wish to convey to the 

Committee that U.S. person information is something that we are 

skittish about in the Defense Department. We follow the rules 

strictly on it and we want to do the right thing and follow the Attorney General guidelines. 

Senator SESSIONS. Thank you. Mr. Chairman, I had the honor to 

serve with Congressman Weldon on the Armed Services Committee, he in the House and I in the Senate, and there is no stronger proponent of America’s defense, no stronger supporter of the 

United States Army and the Defense Department and a healthy, 

strong America. Congressman, thank you for your leadership and 

for you information you have provided us. 

Chairman SPECTER. Thank you, Senator Sessions. 

Mr. Dugan, Mohammed Atta was not a U.S. person, was he? 

44

Mr. DUGAN. Based on what I have read in the press since September 11, 2001, I don’t believe he was. He wasn’t a permanent 

resident alien. He wasn’t a U.S. citizen. He wasn’t in any of the 

other categories. He wasn’t in the country lawfully. For instance, 

a student visa or a tourist visa, that is not the same thing as a 

permanent resident alien. So— 

Chairman SPECTER. Mr. Dugan, you are the Acting Assistant 

Secretary of Defense for Intelligence Oversight. Can’t you give us 

a more definitive answer to a very direct and fundamental and 

simple question like, was Mohammed Atta a U.S. person? 

Mr. DUGAN. No, he was not. 

Chairman SPECTER. Well, maybe we ought to continue, since we 

got a direct answer. Mr. Dugan, I know you were sent here by your 

superiors to do the best you could. I think the Department of Defense owes the American people an explanation as to what went on 

here. There are very credible questions which have been raised, 

and these credible questions have been raised by Congressman 

Weldon, whose reputation is impeccable as to credibility and thoroughness, and these questions have also been raised by five witnesses, all of whom have been prohibited from testifying. 

We are not dealing here with a matter of minor consequence. We 

are dealing with the intelligence gathering data of the Department 

of Defense and prima facie reasons to believe that there was credible evidence as to Mohammed Atta, the Mohammed Atta, the ringleader, and an Al Qaeda cell. Had that information been shared—

and the FBI was trying to get it—9/11 might have been prevented. 

The other Senators have expressed the same point of view. Senator Biden finds it inexplicable, can’t figure out why the Department of Defense is stonewalling this, and I can’t, either. 

I hope you will go back and talk to the Secretary and tell him 

that the American people and this Committee are entitled to some 

answers, because if there is a problem with Posse Comitatus, it is 

our duty to try to correct it. 

I want to thank the staff especially for pursuing this investigation and this hearing. This hearing preparation was one of the 

most difficult that I have seen, and I am in my 25th year and no 

stranger to investigations. I spent a lot of time investigating the 

Mafia, organized crime, and racketeers of all sorts and never faced 

a more fundamental question than fighting terrorism, which is the 

No. 1 problem we have here today. We need answers. 

I want to thank Ivy Johnson, Adam Turner, Adam Caudle, John 

Noor, Kathy Michalko, and Josh Latourette, and especially Carolyn 

Short, General Counsel, and Evan Kelly for the work they have 

done here. 

We are going to suspend the hearing on this subject at this point 

in the hopes that we will get some better answers. 

[Whereupon, at 11:50 a.m., the Committee was adjourned.] 

[Submissions for the record follow.]

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