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S. HRG. 109–552

NOMINATIONS OF: RONALD A. ROSENFELD,

EMIL HENRY, AND PATRICK M. O’BRIEN

HEARINGS

BEFORE THE

COMMITTEE ON

BANKING, HOUSING, AND URBAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

NOMINATIONS OF:

RONALD A. ROSENFELD, OF OKLAHOMA, TO BE A DIRECTOR OF THE FEDERAL

HOUSING FINANCE BOARD

EMIL HENRY, OF NEW YORK, TO BE ASSISTANT SECRETARY FOR FINANCIAL

INSTITUTIONS, U.S. DEPARTMENT OF THE TREASURY

PATRICK M. O’BRIEN, OF UTAH, TO BE ASSISTANT SECRETARY FOR TERRORIST

FINANCING, U.S. DEPARTMENT OF THE TREASURY

MARCH 1 AND SEPTEMBER 20, 2005

Printed for the use of the Committee on Banking, Housing, and Urban Affairs

(

Available at: http://www.access.gpo.gov/congress/senate/senate05sh.html

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

RICHARD C. SHELBY, Alabama, Chairman

ROBERT F. BENNETT, Utah

WAYNE ALLARD, Colorado

MICHAEL B. ENZI, Wyoming

CHUCK HAGEL, Nebraska

RICK SANTORUM, Pennsylvania

JIM BUNNING, Kentucky

MIKE CRAPO, Idaho

JOHN E. SUNUNU, New Hampshire

ELIZABETH DOLE, North Carolina

MEL MARTINEZ, Florida

PAUL S. SARBANES, Maryland

CHRISTOPHER J. DODD, Connecticut

TIM JOHNSON, South Dakota

JACK REED, Rhode Island

CHARLES E. SCHUMER, New York

EVAN BAYH, Indiana

THOMAS R. CARPER, Delaware

DEBBIE STABENOW, Michigan

ROBERT MENENDEZ, New Jersey

KATHLEEN L. CASEY, Staff Director and Counsel

STEVEN B. HARRIS, Democratic Staff Director and Chief Counsel

MARK A. CALABRIA, Senior Professional Staff Member

JENNIFER FOGEL-BUBLICK, Democratic Counsel

JONATHAN MILLER, Democratic Professional Staff

JOSEPH R. KOLINSKI, Chief Clerk and Computer Systems Administrator

GEORGE E. WHITTLE, Editor

(II)

CONTENTS

TUESDAY, MARCH 1, 2005

Page

Opening statement of Chairman Shelby ................................................................ 1

Opening statements, comments, or prepared statements of:

Senator Sarbanes .............................................................................................. 2

Senator Martinez .............................................................................................. 3

Senator Allard ................................................................................................... 10

Prepared statement ................................................................................... 13

WITNESS

Frank Keating, former Governor, State of Oklahoma .......................................... 4

NOMINEE

Ronald A. Rosenfeld, to be a Member of the Federal Housing Finance Board .. 4

Biographical sketch of nominee ....................................................................... 14

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Letter to Senator Paul S. Sarbanes from Al Mansell, President, National

Association of REALTORS® dated Febrary 28, 2005 ........................................ 23

TUESDAY, SEPTEMBER 20, 2005

Opening statement of Chairman Shelby ................................................................ 25

Opening statement of Senator Sarbanes ............................................................... 36

WITNESSES

Orrin G. Hatch, a U.S. Senator from the State of Utah ....................................... 26

Sue W. Kelly, a U.S. Representative in Congress from the State of New

York ....................................................................................................................... 27

NOMINEES

Emil Henry, of New York, to be Assistant Secretary for Financial Institutions,

U.S. Department of the Treasury ....................................................................... 28

Biographical sketch of nominee ....................................................................... 43

Patrick M. O’brien, of Utah, to be Assistant Secretary for Terrorist Financing,

U.S. Department of the Treasury ....................................................................... 30

Biographical sketch of nominee ....................................................................... 51

(III)

(1)

NOMINATION OF RONALD A. ROSENFELD

OF OKLAHOMA, TO BE DIRECTOR OF

THE FEDERAL HOUSING FINANCE BOARD

TUESDAY, MARCH 1, 2005

U.S. SENATE,

COMMITTEE ON BANKING, HOUSING AND URBAN AFFAIRS,

Washington, DC.

The Committee met at 2:13 p.m., in room SD–538, Dirksen Senate Office Building, Senator Richard C. Shelby (Chairman of the

Committee) presiding.

OPENING STATEMENT OF CHAIRMAN RICHARD C. SHELBY

Chairman SHELBY. The hearing will come to order.

Sorry I am late. We had a conference, Mr. Rosenfeld, Governor

Keating, and some days, you cannot get out of it.

This afternoon, the Committee meets to consider the nomination

of Mr. Ronald A. Rosenfeld to be a Member of the Board of the Federal Housing Finance Board. I appreciate Mr. Rosenfeld’s willingness to appear before the Committee today.

Mr. Rosenfeld, as you all know, received a recess appointment to

the Finance Board and was designated Chairman by the President.

Given the importance of this position, I think we all understood the

Administration’s need to move quickly on this nomination.

The Federal Housing Finance Board oversees the Federal Home

Loan Bank System. The 12 member Banks of the Federal Home

Loan Bank System constitute an important source of liquidity for

our Nation’s financial institutions, helping to indirectly finance

mortgages, small business and agricultural loans across the country. As vital as these institutions are to the financial health of our

Nation, I believe that it is as vital that these institutions have effective regulatory oversight.

Improving the regulatory oversight of the Federal Home Loan

Bank System has been an important component of this Committee’s efforts to strengthen the regulation of the Nation’s housing

Government Sponsored Enterprises, GSE’s. It is the Committee’s

intention to bring Mr. Rosenfeld back before the Committee as we

consider legislative proposals, Mr. Rosenfeld, to improve the regulation of the housing GSE’s. We talked about this in my office. The

Committee’s intention at that time is to examine the overall condition of the Federal Home Loan Bank System, among other things.

Mr. Rosenfeld, you bring a long career of both public and private

experience to the Federal Housing Finance Board. Most recently,

you served as President of Ginnie Mae, the Government National

2

Mortgage Association. Your previous Federal service includes serving as Deputy Assistant Secretary for Corporate Finance at the Department of the Treasury.

You have also had several positions at the Department of Housing and Urban Development, including General Deputy Assistant

Secretary for Housing, Acting Deputy Assistant Secretary for

Multi-Family Housing and Deputy Assistant Secretary for SingleFamily Housing. Clearly, you bring a great deal of expertise regarding housing and mortgage finance policy to the Finance Board.

Your knowledge of housing and mortgage finance does not solely

come from the public sector but also from your long-term involvement in the development of both single-family and multi-family

homes in this country.

I would also note Mr. Rosenfeld’s service in State government.

He held the office of Secretary of Commerce in the State of Oklahoma. Mr. Rosenfeld is a graduate of the Wharton School at the

University of Pennsylvania and the Harvard Law School.

Upon his designation as Chairman, you succeed Ms. Alicia

Castaneda. I want to thank her and acknowledge her service

chairing the Finance Board. I am also happy to hear that she will

remain on the Board.

I want to thank you, Mr. Rosenfeld for appearing before the

Committee today, and after hearing from Senator Sarbanes, I

would want to administer the oath to you.

Senator Sarbanes.

STATEMENT OF SENATOR PAUL S. SARBANES

Senator SARBANES. Thank you very much, Mr. Chairman. Unfortunately, I am going to have to depart because of a conflict in

schedule, but I did want to be here to join with you, Mr. Chairman,

in welcoming Ronald Rosenfeld before the Committee. As the

Chairman said, he is being nominated to serve on the Federal

Housing Finance Board and has been designated by the President

to be its Chairman. Mr. Rosenfeld brings with him a great deal of

relevant experience.

He has spent much of his career on housing and real estate sector and a number of Government positions. In the Administration

of the first President Bush, Mr. Rosenfeld was the Deputy Assistant Secretary for Single-Family Housing and the Deputy Federal

Housing Commissioner HUD and was the Deputy Assistant Secretary for Corporate Finance at the Treasury Department. Most recently, he served as President of Ginnie Mae.

The President of the Federal Housing Finance Board, which is

the regulator of the Federal Home Loan Bank System, has a very

important and challenging responsibility. The System is experiencing rapid growth. The System’s assets now total almost $900

billion, compared with $350 billion in 1997, just 8 years ago. In addition, the Federal Home Loan Banks are one of the world’s largest

issuers of debt. At the end of June 2004, the System had $816 billion in debt outstanding, an increase of more than $100 billion from

a year earlier. There are now two Federal Home Loan Banks, the

Chicago and Seattle Banks, that are operating under supervisory

agreements, so there are obviously some real challenges with respect to the Federal Home Loan Bank System, and I am hopeful

3

that Mr. Rosenfeld’s extensive knowledge of the mortgage markets

will serve the country well in his responsibilities at the Finance

Board.

Thank you, Mr. Chairman.

Chairman SHELBY. Senator Martinez.

STATEMENT OF SENATOR MEL MARTINEZ

Senator MARTINEZ. Mr. Chairman, good afternoon. It is a real

honor for me to participate in this hearing. Mr. Rosenfeld, I had

the great honor and privilege to have him work while I was at the

Department of Urban Development as the President of Ginnie Mae,

and I hold him in high regard, and it is really a pleasure to welcome him to the Committee, Mr. Rosenfeld, and to also speak on

his confirmation.

I believe one of the most important attributes of the Chairman

of the Federal Housing Finance Board is that the person have an

intimate knowledge of the housing market. He must also understand the speed at which it changes and can effectively oversee

both the safety and the soundness of the mission compliance of the

entities that it regulates.

I believe that Mr. Rosenfeld is extremely qualified to succeed in

this position. Under his leadership at Ginnie Mae, he developed

new programs and implemented several significant changes that

improved industry process. His accomplishments include passage of

the Soldiers and Sailors Civil Relief Act, which required all mortgage lenders to limit the interest rates on mortgage debt to 6 percent for military personnel called to active duty. He launched a

campaign that saves the industry $27 million annually by streamlining documentation requirements, and internal procedures, and

under his leadership, Ginnie Mae began securitizing loans guaranteed by the Veterans Administration and the Federal Housing Administration.

The Federal Home Loan Bank System plays a critical role in our

Nation’s housing market. By working with the 8,000 member financial institutions across the country, the Federal Home Loan Banks

ensure that the liquidity needed for residential mortgage lending is

available and affordable. The Federal Home Loan Banks, however,

have also grown substantially in size over the last decade. The 12

banks together form a $900 billion system, and legislative changes

implemented during the Gramm-Leach-Bliley opened up membership in the Federal Home Loan Banks, changed the capital structure to a risk-based model and also made significant changes to the

banks’ collateral structure to ease the flow of liquidity to our communities.

I have known you, sir, and I respect you greatly for your work,

and I look forward to working with you and with this Committee

after your confirmation so that we can move forward also on legislation to strengthen the regulatory oversight of the housing Government Sponsored Enterprises. So thank you very much for your

willingness to continue serving, Mr. Rosenfeld.

Chairman SHELBY. Governor Keating, welcome to the Committee. I assume you are here to say a few words about someone

you know real well, so you proceed as you wish.

4

STATEMENT OF FRANK KEATING

FORMER GOVERNOR, STATE OF OKLAHOMA

Governor Keating. Mr. Chairman and Senator Martinez, thank

you very much for giving me this opportunity to participate in the

presentation of Ronnie Rosenfeld to the Committee. This is Mr.

Rosenfeld’s second Senate confirmation. You have noted, Mr.

Chairman, that he was confirmed earlier as President of the Government National Mortgage Association. I have known Ronnie

Rosenfeld since the late 1980’s. We served together at HUD. As you

noted, he was a Deputy Assistant Secretary of HUD as well as a

Deputy Assistant Secretary of the Department of the Treasury.

He also came to Oklahoma during my first term and served as

Secretary of Commerce with enormous skill, integrity, and ingenuity. I know Congressman Tom Cole would join me, who is here

today, in encouraging the Committee to act favorably on the

Rosenfeld nomination.

I want to note, Mr. Chairman, if I may, that Mr. Rosenfeld and

I have traveled the world on economic development missions. I

have known him intimately. He is one of those unique persons—

I think Senator Martinez knows this—who has been extraordinarily successful in business, but he also loves his country dearly

and deeply and wants to give back as much as he can. And to serve

the Government, to serve the Administration, and to serve the public as he is is a great calling, and in my judgment, he will serve

with absolute integrity, with energy, with ingenuity, with enterprise, and bring great credit to the office to which he is seeking

confirmation, to his family and friends, and to the U.S. Senate,

which hopefully will confirm him.

I cannot think of any more wonderful human being than Ronnie

Rosenfeld to be considered for this position, and I am very grateful

to the President for nominating him and, of course, to this Committee for considering him, and I will now turn it over to him for

a few remarks, but I will sit back where I belong, and I thank you

so much, Mr. Chairman.

Chairman SHELBY. Thank you, Governor Keating.

Mr. Rosenfeld, will you stand and raise your right hand and be

sworn?

[Witness sworn.]

Chairman SHELBY. You can be seated. Do you want to introduce

any members of the family? You can do that for the record.

STATEMENT OF RONALD A. ROSENFELD

TO BE DIRECTOR OF

THE FEDERAL HOUSING FINANCE BOARD

Mr. ROSENFELD. Let me please begin by introducing members of

my family. The number one person in my life is my wife, Patty,

right here.

[Laughter.]

Chairman SHELBY. Very good.

Mr. ROSENFELD. Seated next to her is my son, David. David is

one of our six children. The other five are scattered throughout the

world along with eight grandchildren.

Chairman SHELBY. Wonderful.

5

Mr. ROSENFELD. And I would like to introduce some very dear

friends and colleagues who serve in public service. We also have a

number of wonderful friends here who are not in public service. Let

me confine my introductions to public servants: Stillman Knight,

the Deputy Assistant Secretary for Multi-Family Housing at HUD,

Congressman Tom Cole from the Fourth District of Oklahoma, and

I have some colleagues from Ginnie Mae, my former home for the

past 3 and a half years, Mike Franz and Cheryl Owens, and our

Counsel, John Kennedy.

Chairman SHELBY. You have them all here.

[Laughter.]

Mr. ROSENFELD. I want you to know that in Ginnie Mae, you do

have a wonderful, first-class organization, and I am really very

proud to have been associated with them.

Chairman SHELBY. You proceed as you wish. Your written testimony will be made a part of the record.

Mr. ROSENFELD. Thank you, sir.

Chairman SHELBY. We want to confirm you as soon as we can.

Mr. ROSENFELD. Okay.

[Laughter.]

Chairman SHELBY. A lot of nominees would like to hear that

from our Committee.

Mr. ROSENFELD. Mr. Chairman, Senator Martinez, I want to express my appreciation for the opportunity to appear before you

today and to extend my deepest gratitude to President George W.

Bush for nominating me to be a Director of the Federal Housing

Finance Board. It has been just about 3 and a half years ago that

I appeared before this Committee——

Chairman SHELBY. Bring your mike up closer to you.

Mr. ROSENFELD. It has been just about 3 and a half years ago

that I appeared before this Committee seeking confirmation to be

the President of Ginnie Mae. Let me assure you that I approach

this new honor with equally great enthusiasm and even more relevant experience.

I realize that in citing one’s extensive experience, it carries with

it an acknowledgement of one’s age. Having started in my business

career as a ‘‘borrower’’ by virtue of being a real estate developer,

then moving on to be a ‘‘provider of capital’’ by participating in the

investment banking industry, and then becoming a ‘‘source of credit

enhancement’’ while serving HUD as Deputy FHA Commissioner

and most recently as President of Ginnie Mae, and now, if I am

confirmed, becoming a ‘‘regulator’’ as a Director of the Federal

Housing Finance Board, it is not unreasonable that this journey

has taken 40 years.

Chairman SHELBY. As Chairman of the Board. Go ahead.

Mr. ROSENFELD. While bringing experience to the Board is valuable, it should not be one’s sole contribution. Bringing a sense of

balance is equally important. We want the 12 Federal Home Loan

Banks to do business, but that goal needs to be tempered by operating in a safe and sound manner, while ensuring that the Banks

carry out their housing finance mission. We want the Banks to

take advantage of their GSE status, but we do not want them to

abuse it. We want the Banks to enjoy the fruits of their cooperative

structure, but we also want them to treat each other fairly. While

6

these statements are generalities, they also are the principles that

will guide us.

We, in the United States, are the envy of the world when it

comes to a housing finance system, and the Federal Home Loan

Banks have been an integral part of that success. Acknowledging

the wisdom of Congress in creating the FHA in 1934, our success

in enhancing homeownership opportunities arises from the evolving

structure of organizations that comprise the housing finance system. Having been created in 1932, the Federal Home Loan Banks

must continue their evolution in response to the circumstances that

now exist. Meeting today’s desire for home mortgage credit and

community development needs merits our best effort.

The Federal Home Loan Bank System has proven to be a vital

source of support for community-based financial institutions by facilitating their access to credit. It is my belief that the viability of

local communities and the efforts of small business people constitute two of the major pillars of our society. Without community

financial institutions, this would not be the case.

My belief is based upon two important events in my own life.

Starting out in business as an undercapitalized home builder, I

needed a lender that would consider ‘‘character’’ when making a

loan since I did not have much other collateral to offer. My early

lenders were all community-based institutions. The other experience was gained while being Secretary of Commerce of Oklahoma.

The wonderful people of small town and rural America need community financial institutions, period. It is absolutely necessary that

the viability of the Federal Home Loan Bank System be sustained.

If I am confirmed, I pledge to President Bush and to Members

of this Committee that I will do my very best to ensure that the

Federal Home Loan Bank System will be managed in a prudent

manner, recognizing its purpose in the current environment in

which it operates.

Thank you.

Chairman SHELBY. Thank you, Mr. Rosenfeld.

I have a number of questions. I will try to move them on. The

future of the Federal Home Loan Bank System, we talk about that

a lot, and as you well know, we are considering legislation dealing

with GSE’s, including Fannie Mae, Freddie Mac, and the Federal

Home Loan Bank System, and we are planning to ask you to come

back up to help us learn more about the challenge that we are facing, and you have indicated you would do that.

The Federal Home Loan Bank System has undergone a tremendous amount of change since its birth in 1933. You of all people

know that. With the decline of the thrift industry, membership in

the System was expanded beyond the savings and loans. With this

expansion of membership has come an expansion of responsibilities

and also challenges. What do you see as the future direction of the

System?

Safety and soundness has to be number one.

Mr. ROSENFELD. I think the system will continue to perform an

enormously significant function in providing liquidity for housing

needs and community needs in our financial institutions, particularly the smaller financial institutions. I think that the providing

of capital needs, as you indicated, in a safe and sound manner, I

7

think there are a number of activities in which the Federal Home

Loan Banks have been involved which merit a review and certainly

a constant awareness of how they are progressing, and we have to

keep in mind that this growth must always be tempered with it

being consistent with our mission and executed, as you point out

again, in a safe and sound fashion.

I have no concern about the need for the System nor the fact that

it will exist, but as a regulator, one is always concerned about how

it is done and that it be done properly.

Chairman SHELBY. Serving on the Finance Board, I believe, is

your first experience as a regulator.

Mr. ROSENFELD. Yes, it is.

Chairman SHELBY. Often in the past, the Finance Board has

played the role of a cheerleader, in a sense, for the System as well

as a regulator. Could you distinguish for the record here, for the

Committee hearing record, what in your mind separates the responsibilities of a regulator like the Finance Board from an organization like Ginnie Mae.

Mr. ROSENFELD. In the case of Ginnie Mae, as in the case of any

business, and Ginnie Mae is a business.

Chairman SHELBY. Sure.

Mr. ROSENFELD. It is a well-run business, and it makes a substantial amount of money every year. And it would like to do more

business, and it would like to make more money. I am very familiar with what it is to run a profit-making business. It is an entirely

different world from being a regulator. The objectives, are, quite

frankly, quite different. The purpose is quite different.

Chairman SHELBY. And should be quite different.

Mr. ROSENFELD. They should be quite different, and I think that

a regulator has a lot of responsibilities.

By all means, they should be supportive, but they should not be

a cheerleader. And if I may use the term, as a regulator, I will tend

to be, if I am confirmed, a strict constructionist in sticking close to

the book as opposed to being an advocate of unsound growth.

Chairman SHELBY. There has been some concern about the concentration of advances within the Federal Home Loan Bank System. Something like 2 percent of members account for over 40 percent of all advances. Could such a high concentration of advance

usage present any safety and soundness concerns for the System?

Mr. ROSENFELD. I really do not believe that they present safety

and soundness issues. I think—you are raising, a very significant

point here, and that is that if you look at—in terms of dollar advances, there is an enormous concentration of dollar loans to big

banks. On the other hand, if you look at concentration in the sense

of the number of banks with which we deal, as we sit here, we deal

with about 5,000 banks who currently, as we speak, are doing business with one of a number of Federal Home Loan Banks.

So we do have a concentration of dollars but not necessarily a

concentration of business relationships. The reason I am not concerned about the safety and soundness in the sense of those advances is the advance business is fundamentally a very secure

business. You are advancing funds against appropriate security.

The purpose that those institutions serve in terms of providing liquidity to home finance is consistent with our mission. So that, in

8

and of itself, does not present a safety and soundness issue, as far

as I am concerned.

Chairman SHELBY. Does it present anything dealing with corporate governance of the individual Federal Home Loan Banks?

Mr. ROSENFELD. Yes, it does, given the nature of the governance

structure of the boards, and from time to time, these larger banks

may have some disproportionate either bargaining power or governance power that is something one has to be very cognizant of.

Chairman SHELBY. Senator Martinez. I want to call him the Secretary, but we will stop that.

Mr. ROSENFELD. I might.

Senator MARTINEZ. I am just getting used to not being called Secretary. Anyway, thank you, Mr. Chairman.

Mr. Rosenfeld, shortly after your nomination to the Federal

Housing Finance Board, there was an announcement by you of new

appointments or rather not making new appointments but simply

reappointing or extending those directors whose terms would expire in the year 2004 for 6 months, and then, shortly after that,

it was rescinded. Would you care to explain to the Committee the

circumstances surrounding that?

Mr. ROSENFELD. Yes, Senator. I could respond to a friend by saying it was my way of getting away from obscurity but——

[Laughter.]

—there is really more to it than that.

When I got to my position as an appointee under the recess process program, it became very apparent that the appointment of public interest directors or outside directors, is another way to put it,

the process was not working in the context of what the banks had

become. The banks had become much larger, as was noted earlier,

and certainly, they had become much more sophisticated.

And the process of appointments of outside directors and public

interest directors historically had been really more in the nature of

an honorarium type thing or a reward for some particular relationship or service. That simply was not a prudent basis of providing

governance for these institutions. When I got there, I was informed

that approximately 30 outside directors terms were expiring on December 31. And we felt that it was not prudent, given lack of an

appropriate process to merely reappoint them or somebody else in

their place with whom we had not had the opportunity of really

venting their qualifications.

So based upon the opinion of my deputy counsel and the head

of our Office of Supervision, we made a determination that we

would have the retiring directors hold over for a period not to exceed 6 months, the theory being that it would give us the opportunity to perhaps work out a more appropriate process and yet not

lose the benefit of the experience and talent that was currently sitting in these seats. Particularly, there were, I believe, 9 of the 30

expiring terms were either chairmen or vice-chairmen of their respective bank boards.

Having made that determination, I believe it was December 30

that we then sent out a notice to the banks indicating that these

bank directors whose terms were expiring could be held over for a

period not to exceed 6 months. Thereafter, I received a call from

White House Counsel asking me if I would have any objection to

9

forwarding a copy of what we had done to the Justice Department,

which my answer, of course, was I would be happy to do it, and

we did.

And sometime thereafter, the Justice Department notified White

House Counsel that we did not have the authority to create holdover positions. We were so advised that that was the situation. At

that point, the board agreed with me that we needed to rescind

that order, and we did rescind it.

We are now in the process of attempting to develop an appropriate process for public interest or outside directors. While we are

not waiting until legislation occurs, because it may not occur, I

would make note to you, Senator, that in the legislation, as we

have seen it, it suggests that the appointment process not be done

by the regulator but by the banks and that the salary caps on the

directors be removed. Those are very significant improvements in

the structure if they were to occur.

Senator MARTINEZ. Mr. Rosenfeld, one further question in the remaining moments I have. The Federal Housing Finance Board normally has the authority to preapprove new products and programs

that the Banks wish to engage in also but also designates a trial

period to make sure that those programs will be successful before

full implementation. So prior to it undertaking a program, they

seek your approval, and then, there is even a trial period before it

can be fully implemented.

And I wanted to find out from you how long it takes for this process, if you know, and additionally, whether or not, in any sense,

has there been any feedback that this process stifles innovation or

in any way diminishes the Banks’ ability to compete in the marketplace.

Mr. ROSENFELD. Senator, I do not know how long it takes. That

issue has not come before me at this point. But I think I can respond to your question in that I think it is very important that a

regulator, including the Federal Housing Finance Board, have the

ability to approve new business activities on the part of the 12

Banks.

It is important for a variety of reasons; number one, I think it

is important that the new activity be consistent with our basic

business mission; number two, it is something that can be operated

and governed in a safe and sound way; and number three, it does

not expose us to excessive risk. Does it slow down progress or the

ability of an institution to make money? Probably, it does, but I

think that is a worthwhile cautionary analysis that is well-taken,

because at the end of the day, as I think we all realize, we are

dealing in a large sense of the word with our money. It is not their

money; it is our money, and our money, I think, merits a kind of

scrutiny and review that we would all like to see our money have

when people are thinking about doing something with it.

So, I do think a regulator needs that approval.

Senator MARTINEZ. Thank you, Mr. Chairman.

Chairman SHELBY. Senator Allard.

STATEMENT OF SENATOR WAYNE ALLARD

Senator ALLARD. Mr. Chairman, thank you. I do have some comments I would like to put in the record.

10

Chairman SHELBY. Without objection, it will be made part of the

record.

Senator ALLARD. So, Mr. Rosenfeld, generally, I think you are

good nominee, and that is basically what I have said in the comments I have just submitted in the record. I think you have a proven record, and I think you will do a good job at the Federal Housing Finance Board.

My question is one of concern on the secondary mortgage markets. You have had some experience there. And I have always felt

that we needed to have more competition in that area. Even from

an economic development point of view in the State, I do not like

to see you put all the eggs in one basket, or even in business, I do

not think it is a good idea to put all your eggs in one basket.

In effect, that seems to be what is happening now, where we are

putting maybe too many eggs in just a few basket, as far as the

secondary markets are concerned. As you know, I have introduced

proposals such as the Ginnie Mae Choice legislation to promote

greater competition. As we are considering reform of the GSE’s,

many Members are considering various proposals to promote competition.

I want to hear your general views about competition. Do you

think it benefits consumers, and would you comment on how you

think competition might help us in the secondary market, if at all?

Mr. ROSENFELD. Senator, first of all, let me thank you for your

kind words, but as a general matter, I believe that competition is

good. I think in the vast majority, not necessarily all, but the vast

majority of cases, competition has benefitted the consumer.

I think when you are dealing with GSE’s, you are dealing with

a very special creation of the Congress, and I think that that creation must be looked at in the context of what Congress wants the

system to be like. This is not a question of a retailer being added

to a market that may have been a quasimonopoly. This is a different structure. And I think specifically what we are talking about

here is in the secondary mortgage market, you have Fannie Mae,

Freddie Mac, and Ginnie Mae, and in the conventional market, you

have Fannie Mae and Freddie Mac.

I think, quite frankly, that whether that field should be broadened with another participant doing roughly the same thing is really a matter for the Congress. I have enormous respect for what

Congress has created, and to materially change the relationship

that creates the secondary mortgage market, I think should go

back to the architect of the original project, which is the Congress.

Senator ALLARD. You know, there is an implied guarantee there,

because they have just gotten so big and so important that they fall

into the issue of too big to fail. I think many of us worry about future obligations out here. I am not saying that we are anywhere

near a crisis or anything with these organizations; in fact, I think

they have done a lot to make sure that we have adequate housing

in this country. We have to recognize the role that they have

played in making sure that we have enough housing. We are at

historic homeownership rates right now.

But I guess I would like to have some assurance that you would

be willing to work with us, lend some suggestions, maybe some

criticism as we work on some of these proposals.

11

Mr. ROSENFELD. Not only, Senator, would I be willing to work

with you, but I would also enjoy working with you. One of the great

privileges of having the opportunity that I will have if I am confirmed is to do exactly that, so I would look forward to it.

Senator ALLARD. Now, let me get down to the Federal Home

Loan Bank’s Affordable Housing Program. It has been, I think, an

important source of affordable housing and ownership in this country. I would like to have your assessment of the program, whether

you believe it is working well or not. Do you believe there are any

areas of the program which we could improve? And I think the second part of that question is the most important. I would really like

to get your honest assessment about it and if there are any areas

that you think could improve. I would also like to know if there is

improvement that is needed, whether there is something we can do

in this Committee that would help that happen.

Mr. ROSENFELD. I think that as a general proposition, what you

refer to is our Affordable Housing Program, which for the benefit

of those, perhaps in the audience, who do not know what that is,

10 percent of the profits of the Federal Home Loan Bank System

go to affordable housing in the form of grants, low interest rate

loans, or some subsidy.

It is my understanding, and again, I have only been there a relatively short time, is that this program has really been enormously

successful. We had the privilege of meeting with some community

groups not too long ago, and by and large, their feeling was almost

unanimous that these programs have worked quite well. I think

one of the benefits of our program and our structure is the fact that

we deal in dollars. We make dollars, and we spend dollars as opposed to making dollars and trying to meet some mission goal,

which is a little tougher to do. And I think our program is relatively clean and crisp.

Senator ALLARD. From a safety and soundness standpoint, you

are comfortable with it, then.

Mr. ROSENFELD. Oh yes.

Senator ALLARD. Is that what you are saying by clean and crisp?

Mr. ROSENFELD. Well, we have a clean, competitive program—

Senator ALLARD. I see.

Mr. ROSENFELD. —of people who want the benefits of these funds

that will be given out. They are dealt with in a businesslike way.

Their proposals are well-screened, well-thought-out and so on. So

it is well-executed. And, quite frankly, of the various issues that

have come under some degree of criticism since I have been at the

Federal Housing Finance Board, the Affordable Housing Program

has not. It is almost universally well-regarded.

However, in answer to the second part of your question, yes, I

think it can be improved. I can tell you we are bringing some people on board, and we are looking very carefully at exactly the appropriateness of where some of these dollars are going, how much

leverage we are getting out of them. We are finding that in some

of the Banks, they have come up with criteria that may be inconsistent with other programs. One of my friends, Gabe Mehreteab,

from the NHP Foundation pointed out to us the other day that

there are some serious inconsistencies between the programs of

various banks and HUD programs, so we are looking at that thing.

12

The other area that I think merits some attention: As you know,

bank charters have tended to move around in the last number of

years, and the AHP contributions normally go where the charter is

as opposed to where the bank may do its business. And there is

some potential there for some improvement in terms of how the

benefits of the program, perhaps can be more equitably assigned.

Senator ALLARD. Thank you. Since I brought up the safety and

soundness, you are comfortable with safety and soundness provisions that we have in that program right now?

Mr. ROSENFELD. You mean in the AHP?

Senator ALLARD. Yes.

Mr. ROSENFELD. Yes, I am generally comfortable with that.

Senator ALLARD. Generally with the Federal Home Loan Banks,

you are okay?

Mr. ROSENFELD. Senator, as a regulator, I suspect I will never

be comfortable, but I will sleep tonight.

[Laughter.]

Senator ALLARD. Thank you for being willing to serve. I appreciate it, and thank you, Mr. Chairman.

Chairman SHELBY. Mr. Rosenfeld, I have another question for

you and maybe a couple for the record.

Mr. ROSENFELD. Sure.

Chairman SHELBY. But I will not hold up your confirmation.

Perhaps the largest financial risk that I see facing all the housing GSE’s is the interest rate risk. It is always there. In the recent

past, the Federal Home Loan Banks began purchasing mortgages

from their members. This has increased their risk profile. The

management of interest rate risk has presented several Federal

Home Loan Banks with accounting and financing difficulties, as

you are very aware.

Are you satisfied at this point, or maybe you have not been there

long enough, with the risk management techniques of the Federal

Housing Finance Board, of the members, and are you going to be

getting into the details of all of this as a regulator?

Mr. ROSENFELD. Senator Shelby, let me assure you we will be

very active in getting into these programs. I concur with your opinion that the major risk in the Federal Home Loan Bank System is

interest rate risk in these mortgage programs, and they are a matter of concern to us as they should be, but I assure you that we

will be very vigilant in really getting into them and making sure

that they do not create a risk beyond what may be appropriate.

Chairman SHELBY. And we look forward to having you come up

at a properly called hearing as we formulate the GSE legislation,

because your input, I think, would be welcome.

Mr. ROSENFELD. Thank you.

Chairman SHELBY. Thank you for your appearance today. We

will expedite your nomination as soon as we can.

The hearing is adjourned.

[Whereupon, at 2:52 p.m., the hearing was adjourned.]

[Prepared statement, biographical sketch of nominee, and additional material supplied for record follow:]

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PREPARED STATEMENT OF SENATOR WAYNE ALLARD

I would like to thank Chairman Shelby for convening today’s hearing. I appreciate

that, as always, he remains dedicated to moving nominees forward promptly.

I am pleased to welcome Ronald Rosenfeld back to the Banking Committee. Mr.

Rosenfeld has spent the last 3 years as the President of Ginnie Mae, where he has

performed admirably. As Chairman of the Housing Subcommittee, I have had many

opportunities to hear about the good work he has done in that capacity. He has an

extensive background in housing and finance, and it is to our benefit that he has

agreed to continue his service to America as Director of the Federal Housing Finance Board.

Mr. Rosenfeld, you will be taking on a significant challenge at the Federal Housing Finance Board. The last decade has been a time of tremendous change at the

Federal Home Loan Banks: The changes enacted in Gramm-Leach-Bliley, industry

consolidation, and now regulatory reform have shifted the challenges before the Finance Board.

In light of these changes, though, I want to mention one consistent theme: Safety

and soundness. No matter what particular issue the Board or any subsequent regulatory entity may consider, it must be done through the lens of safety and soundness.

The Federal Home Loan Banks are an important source of liquidity for many financial institutions, particularly small, independent, community banks, such as

those in Colorado. To neglect or ignore safety and soundness at the Federal Home

Loan Banks could be detrimental to a number of entities.

America is fortunate to have a record high homeownership rate. I look forward

to working with you to find ways that the Federal Home Loan Banks can continue

to help create new homeowner families in a safe, sound manner.

Again, welcome, and I look forward to your testimony.

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(25)

NOMINATION OF:

EMIL HENRY, OF NEW YORK,

TO BE ASSISTANT SECRETARY,

FINANCIAL INSTITUTIONS AND

PATRICK O’BRIEN, OF UTAH,

TO BE ASSISTANT SECRETARY,

TERRORIST FINANCING

U.S. DEPARTMENT OF THE TREASURY

TUESDAY, SEPTEMBER 20, 2005

U.S. SENATE,

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS,

Washington, DC.

The Committee met at 10:06 a.m., in room SD–538, Dirksen Senate Office Building, Senator Richard C. Shelby (Chairman of the

Committee) presiding.

OPENING STATEMENT OF CHAIRMAN RICHARD C. SHELBY

Chairman SHELBY. The hearing will come to order. This morning,

we will consider nominees for two very important positions at the

Department of the Treasury: Mr. Patrick O’Brien for the position

of Assistant Secretary of the Treasury for Terrorist Financing and

Mr. Emil Henry, Jr., for the position of Assistant Secretary of the

Treasury for Financial Institutions.

Mr. O’Brien, you have been nominated by the President to be Assistant Secretary for Terrorist Financing at an absolutely critical

period. As the events of September 11 recede from immediate memory, your job will be to help provide the leadership and clear guidance necessary to maintain and continue the efforts to ensure that

this Nation’s financial system will not be exploited by those who

would do us harm.

It will largely be your responsibility to bring Treasury’s vast but

not limitless resources to bear on the tasks involved in finding, following, fracturing, and sometimes freezing the money supply lines

used to support terror. Your considerable experience at the Department of Justice should serve you well in meeting the challenges

that are before you.

Mr. Henry, the Assistant Secretary for Financial Institutions,

your position, must also handle very significant issues. Our financial markets are the envy of the world. They are also highly complex and dynamic. The regulation and oversight of the markets

must ensure fairness, transparency, and certainty while at the

26

same time remaining flexible enough to allow for innovation and

growth. This involves establishing a balance where both safe and

sound operations and profitability are possible. Achieving and

maintaining this balance is not easy. It requires considerable

thought and constant attention.

Mr. Henry, as someone who has spent the better part of 20 years

in the private sector, I am sure you recognize the importance of

this balance and it would be my hope that through your tenure in

public service, you would remain constantly mindful of it.

I am looking forward to hear from our nominees, but first, we

have some important people here with us, Senator Hatch, my colleague and friend, will introduce, I believe, Mr. Pat O’Brien.

Senator Hatch, do you want to proceed?

STATEMENT OF ORRIN G. HATCH

A U.S. SENATOR FROM THE STATE OF UTAH

Senator HATCH. Thank you, Mr. Chairman. This is a rare privilege to appear before the Banking Committee and especially before

you.

Chairman SHELBY. Thank you.

Senator HATCH. But it is my pleasure this morning to introduce

to you Patrick O’Brien, the President’s nominee to be Assistant

Secretary of the Treasury for Terrorist Financing. I think they

should change that title a little bit, Secretary for Terrorist Financing. That is interesting.

[Laughter.]

I strongly support his nomination and urge you to vote favorably

so that he may be confirmed as quickly as possible.

Pat is here this morning with his parents Jack and Terry and his

lovely family, his wife, Maureen, and their daughters, Molly and

Margaret. Pat is a graduate of the University of Notre Dame and

the University of Minnesota Law School. He has had a variety of

professional experience as a Federal law clerk and in private practice, as an officer in the U.S. Army Reserve and as a prosecutor

and of course has had an experience with us. I first met Pat in

1999, when I invited him to join the staff of the Senate Judiciary

Committee.

During his time with the Committee, he worked on a variety of

important oversight and law enforcement issues. He proved himself

to be smart, intelligent, a capable lawyer, with sound judgment and

an ability to work well with others.

Pat left the Committee in July 2001 to join the Department of

Justice, where he has held a number of significant positions over

the last several years. He was the principal Deputy Assistant Attorney General for Legislative Affairs during the tumultuous times

following September 11, 2001. He later served at the FBI as Counsel to FBI Director Mueller, where he worked on a number of important national security issues, including the initial standup of

the Terrorist Threat and Integration Center and as the primary

contact for the FBI with the September 11 Commission.

In September 2004, Pat returned to Main Justice as Senior

Counsel to the Deputy Attorney General. Since then and to the

present day, Pat has worked daily on counterterrorism issues for

the Justice Department. Among other things, he represents the

27

Justice Department on the Interagency Terrorist Financing Policy

Coordinating Committee, the PCC, chaired by the National Security Council. The PCC is the policy body dedicated to targeting and

disrupting terrorist financing networks and building international

coalitions to cut off financial flows to terrorists.

Now, this background, coupled with his strong character, his integrity and leadership skills make him very well-suited to be successful as the future Assistant Secretary for Terrorist Financing. I

know Pat really well. I was proud to have him work with us. He

did a great job on the Judiciary Committee. You could rely on him.

He is somebody that I have total faith in of his integrity and honesty, and I think we are lucky to have him in this particular position, and I urge the Committee to support his nomination, and I

know, Mr. Chairman, you will do everything you can to see that

he is approved as soon as possible.

Chairman SHELBY. I will. That was a good introduction. Thank

you, Senator Hatch.

Senator HATCH. Thank you so much.

Chairman SHELBY. Congresswoman Kelly, you are here to introduce, I understand, Mr. Henry.

STATEMENT OF SUE W. KELLY

A U.S. REPRESENTATIVE IN CONGRESS

FROM THE STATE OF NEW YORK

Mrs. KELLY. I am.

Thank you, Chairman Shelby. I appreciate your inviting me to

testify on behalf of my good friend, Emil Henry, in his nomination

for Assistant Secretary of the Treasury for Financial Institutions.

I have known Emil for a number of years, and I can testify to his

character, common sense, and commitment to our community.

Emil is a cum laude graduate of Yale University. He received an

MBA from Harvard Business School. He has had a spectacular career in finance, pioneering new developments in the venture capital

and business development areas and is very well respected by his

peers.

As a member of the Small Business and Financial Services Committees in the House, I can honestly say that the ideas pioneered

by Emil Henry have created thousands of jobs in this country. Emil

shares a commitment to eradicating lyme disease in our area,

which is a very large problem. Senator Dodd, who is a Member of

this Committee, knows very well what I am talking about.

Emil has raised a number of funds. He has made the community

aware. He has done a great deal of effort in terms of making our

community and quality of life good. His credentials in terms of financial services are impeccable. His credentials in terms of community service are equally impeccable. Emil is a family man, he has

been devoted to his wife since they first met in their freshman year

in college. I urge this Committee to act swiftly in favor of his confirmation to allow him to begin to put his mind and his character

into a new career of public service for our Nation.

Thank you very much, and I know you will consider him carefully and well. I hope you will consider him very favorably.

Chairman SHELBY. Thank you, Congresswoman.

Mrs. KELLY. Thank you.

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Chairman SHELBY. If Mr. Henry and Mr. O’Brien will stand,

raise your right hands and be sworn.

[Witnesses sworn.]

Chairman SHELBY. Thank you. Your written testimony, both of

you, will be made part of the record in its entirety. Which one of

you wants to go first? Just sum up.

Mr. O’BRIEN. At your pleasure.

Chairman SHELBY. Okay. Mr. Henry, go ahead.

STATEMENT OF EMIL HENRY, OF NEW YORK

ASSISTANT SECRETARY FOR FINANCIAL INSTITUTIONS

U.S. DEPARTMENT OF THE TREASURY

Mr. HENRY. Thank you.

Thank you, Chairman Shelby, Ranking Member Sarbanes, Members of the Committee. Thank you for the opportunity and the

privilege to appear before you today to discuss my nomination to

become the Assistant Secretary of the Treasury for Financial Institutions. And before my formal statement and with your indulgence,

if I could introduce the members of my family that are here today.

Chairman SHELBY. That would be ideal. We would like that, both

of you.

Mr. HENRY. And behind me in the second row, my wife Jody. She

and I graduated from Yale together. She is my best friend, and she

is a full-time mother. And next to her is my father. My father was

the Chairman of the Federal Communications Commission under

Presidents Kennedy and Johnson; and then, my daughter, Madeleine, who is 13; my mother, Sherry Henry. She was a President

Clinton appointee at the SBA running the women’s office and has

long been an advocate for women’s issues; and my daughter

Parker, who is 12. I have another son, who is Parker’s twin brother, and he is pursuing his dream at a tennis academy in Florida

today. He wished he could be here, but he could not.

Chairman SHELBY. Okay.

Mr. HENRY. I would like to begin by expressing my thanks to

President Bush for nominating me for this important position. I am

truly honored to have his confidence and, if confirmed, I will focus

daily upon earning and re-earning the trust he has placed in me.

I would also like to thank Secretary Snow, Under Secretary Randal

Quarles, and the other fine individuals the President has nominated to the Treasury for their support. If confirmed, I look forward to working with them on the many important issues currently

before the Treasury, and many more to come.

My thanks also to my friend and Congresswoman Sue Kelly for

taking the time to come here today, and for her very thoughtful

and kind introduction. Representative Kelly and I share a beautiful

hometown, Katonah, New York. Her constituents, including myself,

hold her in very high esteem for her attention to her district and

for her measured wisdom on the House Financial Services Oversight and Investigation Subcommittee and for her leadership on

terrorist financing issues.

Last, I would like to thank my parents behind me for inspiring

me to enter public service. From the time I could recognize my own

name, I have believed that public service was not only a high calling but also a natural part of one’s productive life.

29

I come before you today in the longstanding tradition of one who

has spent his entire career in the private sector before being called

to service. As my resume shows, I have no formal public service experience. Yet, I do have over 20 years’ experience on Wall Street

and in the financial community, and much of my time has been

spent at a senior level in some of the more sophisticated and complex sectors of the capital markets.

All of the firms I have been associated with have the highest regard of their peers and of the financial community. At First Boston,

my first job after graduating from Yale, I was fortunate to be

picked to work in the Capital Markets Division, which, at the time,

was at the forefront of the advent of early derivatives, such as interest rate swaps, options, and futures. And then, at Morgan Stanley, I was a member of a team charged with building a preeminent

principal investment business, a business involving management

buyouts, equity and debt financings, mergers, and acquisitions and

bank financings. For the past 15 years, I have been at Gleacher

Partners, where I am now Managing Director and also Chairman

of our core investment business and a member of our Investment

Committee. Our businesses invest in a sophisticated array of alternative investments, including private mezzanine debt, private equity, and hedge funds, where our investments are exposed to most

of the products and services offered in today’s capital markets.

I believe my experience has given me a broad and deep understanding of the activities of the financial institutions that participate in today’s increasingly complex and very fast moving capital

markets. As founder and chairman of an investment business, I appreciate the essential importance of safety and soundness in our

markets and institutions. I understand the value of disclosure and

transparency, and I am sensitive to the importance of balancing

the costs and the benefits of regulation.

If confirmed, I believe my role as Assistant Secretary would benefit from my extensive experience and I would hope to complement

the extraordinary reservoir of talent at the Treasury, and, in my

judgment, the most effective organizations are those populated by

individuals whose skills and experience truly do complement each

other.

I would also look forward to working closely with the Members

of this Committee and the House Financial Services Committee on

crucial issues such as GSE reform and terrorism risk insurance. I

will also devote myself to the oversight of the critical infrastructure

of our Nation’s financial institutions. The recent disaster in the

Gulf States highlights the vital need to be prepared for natural or

man-made disasters, and if confirmed, I expect to spend a significant amount of my time focusing on the preparedness of the U.S.

financial system.

Thank you again for the honor and the privilege to appear before

you today, and I would certainly be pleased to answer any questions you may have.

Chairman SHELBY. Mr. O’Brien, do you have some people you

would like to introduce?

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STATEMENT OF PATRICK M. O’BRIEN, OF UTAH,

TO BE ASSISTANT SECRETARY FOR TERRORIST FINANCING

U.S. DEPARTMENT OF THE TREASURY

Mr. O’BRIEN. Yes, I do. Good morning. With your permission, I

would like to introduce, in the second row, first of all, my mother

and father, Jack and Terri O’Brien from Minneapolis, Minnesota;

my wonderful wife, Maureen, and our two daughters, whom you

have probably heard a little bit from already, Molly, who will be

2 in December, and Margaret, who just turned 4 months old. I am

extremely blessed to have such a wonderful family, and I will never

be able to repay them for the love and support they have provided

me, for the example of my parents and for the support of my wife.

No one can undertake a challenge like this without a great support

system, and I certainly have that.

Thank you again for holding this hearing this morning. I know

how busy the Committee is, and I appreciate the opportunity to

meet with you this morning and answer any questions you may

have. I am humbled to sit here before you this morning as the

President’s nominee to be the Assistant Secretary of the Treasury

for Terrorist Financing. I would like to thank the President for

nominating me and for the support of Secretary Snow and Under

Secretary Levey. I also greatly appreciate Senator Hatch for his

support and for his introduction here this morning.

It is a great honor to be asked to serve our country. It is also

a great responsibility and one that I take very seriously. Should

the Senate confirm me, I will give my absolute best to be an effective Assistant Secretary and to help the Treasury Department, our

colleagues across the Government, as well as our international

partners, target and disrupt illicit financial networks, to build effective systems to prevent the abuse of financial institutions, and

to isolate and punish those who threaten our national security.

I will bring to this position a variety of professional experiences

that, I believe, will enable me to be an effective addition to the Department of the Treasury. I am fortunate to be nominated to join

a very strong team. If I am confirmed, I am committed to further

developing and strengthening the Office of Terrorism and Financial

Intelligence or TFI. As the Committee is aware, the concept behind

TFI and one I strongly support is to marshal Treasury’s unique authorities, financial intelligence, analysis, and international relationships to attack the financial underpinnings of national security

threats. If confirmed, I will dedicate myself to developing the

Treasury’s ability to play the strategic role by providing policy development and coordination to support TFI initiatives, and building

partnerships and coalitions to expand the implementation of sound

financial practices and the impact of targeted financial sanctions

internationally.

To develop effective policy requires that we continue to grow our

expertise across industries and financial disciplines, as well as regionally across the world, to expand policies that address the wide

variety of financial means that can be utilized by illicit financial

networks.

Partnerships must be fostered and maintained both domestically

and internationally. I am committed to building the strongest possible cooperating relationships with our colleagues across the U.S.

31

Government. These threats cannot be addressed by one agency

alone. If confirmed, I will build on the strong relationships that

currently exist between Treasury and its partners at Justice, FBI,

State, Defense, DHS, CIA, and the rest of the intelligence community. Our goal must be to think and act as a single government to

achieve a shared set of goals.

It is also essential that we internationalize the impact of sound

financial systems and targeted financial sanctions. This requires

strong bilateral and multilateral relationships. If confirmed, I will

continue Treasury’s efforts in conjunction with the State Department and other Federal agencies, to promote accepted international

standards for sound financial practices and to increase partner capacity and cooperation through organizations like the United Nations, the Financial Action Task Force, FATF, and the Egmont

Group. The activities of illicit financial networks do not stop at our

borders, and thus we must proactively seek to internationalize our

efforts.

Thank you again for holding this hearing, and I would be pleased

to answer any questions you have.

Chairman SHELBY. Thank you, Mr. O’Brien.

I will pose the first question to you just for the record. Under

Secretary Stuart Levey recently said, ‘‘Saudi donors may still be a

significant source of terrorist financing, including for the insurgency in Iraq.’’ There are also credible reports of open fundraising

for the insurgency being conducted in Western Europe. More troubling still are the thoughts of the U.S. CENTCOM General Abizaid,

who has publicly stated that money for the insurgency has likely

come from our very own country.

One, it is no secret that there are weaknesses in the financial defenses of Saudi Arabia. We know that, and you do, too, but what

are the state of those in Europe and more importantly here in the

United States? Two, if this money is making its way from all of

these shores to the inside of Iraq, does it follow that plenty of

money may be reaching other groups in other places as well? And

three, as one of the officials, Mr. O’Brien, in the chain of command,

then, for ensuring oversight of the Nation’s banks for compliance

with the Bank Secrecy Act and USA PATRIOT Act, in your view,

how important are these laws to our overall strategy of combating

money laundering and terror financing?

Mr. O’BRIEN. Thank you for that question, Senator.

I think the Congress gave us some incredible tools when it

passed the USA PATRIOT Act, and I think the expansion of the

Bank Secrecy Act, the new authorities it gave us under Section 311

as well as the information sharing provisions of the USA PATRIOT

Act provide not only Treasury but also the U.S. Government with

very significant tools to fight the threats that you described.

Certainly, I think there is continued vibrance in the utility of the

information that we get under the Bank Secrecy Act. We are continually striving to do better analysis and make better use of that

information. As you mentioned, the threats that exist within the

network of illicit financial networks are international. There are

vulnerabilities in really every country in the world. We see potential financing can really come from anywhere, and the means by

which they can affect this support are vast.

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I think that underscores the need to internationalize our efforts

and make sure that, certainly, the requirements through the

United Nations and others to designate and be able to freeze and

isolate terrorist funds across the world, our partners need to have

the capacity to do that, and I think we have to work very diligently

with our partners in Europe as well in Saudi Arabia, the Gulf

states, and elsewhere to make sure that is a reality.

Chairman SHELBY. I want to go into a different area, Mr. Henry.

This Committee, the Banking Committee, reported out a bill to

reform the regulatory system for the housing-related GSE’s, that is,

Fannie, Freddie, and the Federal Home Loan Banks. One point of

contention in that bill is the new regulator’s ability to review the

GSEs’ asset portfolios. Do you believe such authority for the new

regulator is a critical component for a reform bill? Have you put

any thought in this?

Mr. HENRY. Thank you for that question. First of all, let me say

that I am very much aware of the continuing dialogue and the important continuing dialogue of GSE reform, and I have followed

this very closely from the private sector.

Chairman SHELBY. Are you concerned about the systemic risk

that Alan Greenspan keeps talking about?

Mr. HENRY. I think this is an essential element of reform, and

when I think about the reform bill, I think certainly, the size of the

retained portfolios of Fannie and Freddie are a point of concern

and something for us to focus on and other key elements such as

supporting the resiliency of the housing market and making absolutely sure that good and affordable credit is available to every consumer. I think those are the important elements of reform.

Chairman SHELBY. Given your financial market experience, you

have spent your life here, do you believe that the capital markets

could absorb the flow of mortgage-backed securities should Fannie

and Freddie not be able to hold them in their portfolio other than

what they need to work with, to the extent that they do now?

Mr. HENRY. My instinct is yes, and again, not having studied

this in great depth at the Treasury——

Chairman SHELBY. Sure.

Mr. HENRY. —and I very much look forward to that, but I would

point out that the market for credit is somewhere between $7 trillion and $8 trillion, and the retained portfolios combined of Fannie

and Freddie approximate $1.4 trillion. So my instinct is that there

is plenty of capacity in the private market to absorb those kinds

of credits.

Chairman SHELBY. Mr. Henry, bank capital requirements are

one of the important means used to protect the financial integrity

of the banking sector. Currently, our banking regulators are working toward finalizing a new capital accord for the largest, most sophisticated banks. The Basel II plan, as it is known, will involve

a significant departure from the current capital rules, Basel I that

we are doing.

What role do you see for the Department of the Treasury to see

that the plan is thoroughly vetted and properly implemented? Because it has been more than a subject of debate among our regulators among others.

33

Mr. HENRY. Yes, I have watched from a distance the very important and crucial discussions of Basel II. I think historically, the

Treasury has acted as an interested observer in this process, and

the Treasury should be a very interested observer in this process.

The importance of capital standards cannot be overstated. The

markets, from my position in the private sector, the banks in the

last 10 to 20 years have increased in size and complexity, and so,

I think there is increasing need to stay focused on proper capital

standards in the context of larger and more complex balance

sheets.

Chairman SHELBY. Solvency, in other words.

Mr. HENRY. Yes, solvency. And right back to safety and soundness, which is at the core of the mission of the regulators for these

industries.

So, I will watch this closely, I do promise you that, and I will

watch for unintended consequences, and I will watch to make sure

our banks can remain competitive and that there is proper views

given to all ratios that have historically been discussed in Basel.

I would like to understand how they are going to come out on that,

the leverage ratio, risk-based capital standards, et cetera, but I can

assure you I will be attuned and focused to that.

Chairman SHELBY. You will be deeply involved in it.

Mr. HENRY. Yes, sir.

Chairman SHELBY. I want to turn now to terrorist risk insurance, TRIA.

In the near future, the Committee here will take up legislation

that addresses the Terrorism Risk Insurance Program, which we

call TRIA. I am very concerned that we must strike the right balance between public and private responsibilities as we move forward; that is to say the program, I believe, must address unmet

needs without creating disincentives for the market in areas where

the private sector can play a role.

The Treasury report issued earlier this year, and I understand

you have not been there, has been a guide for our consideration of

this law. What are the elements you believe, if you have looked at

all, should we remain focused on as we continue our work in this

area?

Mr. HENRY. I am glad you asked that, and as I said in my opening statement, I understand that TRIA will be an important part

of my portfolio, and I am ready to go at that. TRIA was a crucial

piece of legislation in the wake of September 11. I come from New

York. We felt that very closely, and at issue there, certainly, was

the economic dislocation and the ability for developers and others

to create financing in the absence of insurance for terrorism risk.

So a crucial piece of legislation. I actually, in preparation for this

hearing, read a summary of the Treasury report. I noted some interesting elements of that report. I noted one, that there has been

increased availability of insurance. I noticed that there has been

increased take-up of insurance. I noticed that there was not a causality, as determined, pointed out in that report by——

Chairman SHELBY. Do you think the market is beginning to respond to a need there?

Mr. HENRY. Yes, and I would say yes, and I would note that responding to a need in the context of increasing deductibles, insurVerDate 11-MAY-2000 09:11 Sep 08, 2006 Jkt 027329 PO 00000 Frm 00037 Fmt 6601 Sfmt 6601 S:\DOCS\27329.TXT BANK1 PsN: BANK1
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ance company deductibles through the period that TRIA has been

in existence, I would also point out that the Treasury report did,

it did raise some uncertainties: How will rating agencies react if

there were no TRIA? I do not know the answer to that but certainly worth understanding, and other uncertainties were raised in

that report. So, I will certainly stay engaged in this discussion, and

I understand it is an important one.

Chairman SHELBY. Thank you.

Mr. O’Brien, I want to get back to you. If confirmed, and you will

be, both of you, I pray you will be soon, when can this Committee

anticipate seeing the final regulation on correspondent banks pursuant to Section 312 of the USA PATRIOT Act? This Committee

was promised this regulation many times in the past only to see

it languish somewhere in the bureaucracy.

This is an important regulation to finalize, because there are a

number of financial institutions that are exempt from coverage at

this time: Casinos, MSB’s, investment, and insurance companies

just to name a few. Have you focused on that? I know you will be

but——

Mr. O’BRIEN. I certainly will be focused on that should I be confirmed, and I understand the Committee’s frustration in that regard. It has certainly been too long for that regulation to come out,

and I will certainly do everything I can to speed that process along.

Chairman SHELBY. Mr. O’Brien, currency transaction reporting,

I know we are dealing in complicated things, but this is your job

and will be your portfolio.

As an official at the Department of Justice and as a former

Counsel to the Director of the FBI, you are familiar with the currency transaction reports and the stories coming from the financial

industry in the press and elsewhere that these filings may be,

‘‘clogging the works.’’ Today, CTR’s are filed at the $10,000 level,

and there are also exemptions pertaining to when they are not

filed.

As legislators up here, Senator Sarbanes and I and our colleagues, we acknowledge that national security is foremost in our

minds when confronting the money laundering and terrorist financing problems of today. But we also try to find workable solutions

when imposing burdens on private enterprise to meet those national security concerns, a balance there.

In light of your experience at Justice, which is vast, do you find

these reports relevant and useful to the investigations of financial

crimes, particularly those pertaining to money laundering and the

financing of terror?

Mr. O’BRIEN. Yes, I do, Senator. And I think there is ample public testimony from the FBI and others that demonstrate the utility

of these reports.

These types of financial reports are also a very important source

of intelligence. Financial intelligence is somewhat unique in that it

is something that can be verified, and I think it is an important

element in our overall analytic picture. I certainly understand the

concerns that can be raised through the banking community about

the burden of regulation.

I think the U.S. Government needs to do a better job of explaining why this is important and how we use these things, because

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I think most financial institutions are good citizens, and I think if

they understand the utility of these things, I think they want to

be cooperative. And certainly, there are mechanisms like the Bank

Secrecy Act Advisory Committee that provide a forum for us to

have these discussions with the community, and I think it is important to always try to strike that right balance.

Chairman SHELBY. Do the current exemptions allow sufficient

latitude on the part of banks and other financial institutions interested in decreasing the number of CTR’s they are otherwise required to file?

Mr. O’BRIEN. In my current position, I have not had extensive

interaction with the private sector community to hear their concerns directly. I think that is something that I would, if confirmed,

want to reach out and hear from them directly and understand

their concerns before I formulate an opinion as to whether the exemptions were appropriate.

Chairman SHELBY. How would you deal with overcompliance?

You know, banks, they are nervous, I would be, for failure to comply, and a lot of them are overcomplying. And it creates a big paper

nightmare sometimes.

Mr. O’BRIEN. Yes, and I understand that there is also a concern

about, you know, potential criminal liability and so forth, and I

know the Treasury Department, in conjunction with the Justice

Department, has kind of worked on that issue, and Under Secretary Levey has had some discussions, and I think we have some

updated guidance for enhanced approvals at the Department of

Justice for such prosecutions that hopefully alleviate some unnecessary concern.

But defensive filing is a significant issue that we will have to

continue to work on.

Chairman SHELBY. When your predecessor was here for his confirmation hearing, he noted that the main concern with CTR filing

was that it became rote to file the CTR, an attitude that has led

to increasing numbers filed. I alluded to that a moment ago, without taking full advantage of the exceptions to the rule.

He emphasized that one of his primary duties, in fact, his number one assignment, was to get the financial industry to understand the existing lawful exceptions to filing CTR’s that now are

not being taken advantage of. Is this mainly a problem of information, of education, or is it the fact they are nervous about maybe

not doing enough? Does more work need to be done in this area?

Mr. O’BRIEN. Certainly, there is a large education component to

it, and I think before changes are made to regulations and so forth,

we should really examine closely whether current exemptions are

sufficient.

Chairman SHELBY. Mr. Henry, I have one last question for you

at the moment. Federal deposit insurance is another measure that

has a proven history for protecting the financial stability of the

banking system, confidence in the banking system. I am currently

working, we are with many of our colleagues here, on legislation

to provide greater flexibility, risk sensitivity, and ensure that all

beneficiaries are required to pay for what they receive. Do you believe this is the appropriate focus to achieve positive reforms? You

know, we are working with the Treasury and the White House.

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Mr. HENRY. I know, and I have followed these discussions, yes,

indeed, and if confirmed, I understand this would be on my plate.

Chairman SHELBY. It would.

Mr. HENRY. I understand the value of——

Chairman SHELBY. You will be coming up here a lot.

Mr. HENRY. I would welcome it.

Chairman SHELBY. Okay.

Mr. HENRY. I understand most certainly the importance of the

safety net provided by the insurance system, and it is vital, and it

has served this country well for a very long time indeed.

There are many elements to reform. I listened closely to your

question, and I think you hit on the key elements of reform, in my

humble opinion. The FDIC is an insurance entity, and to allow the

FDIC to act like an insurance entity, to have flexibility around its

reserves for premiums to reflect the underlying risk of organizations that are paying into the system that organizations pay into

the system perhaps that have not historically; I would like to understand that a little bit better, but most certainly, I think those

are within essential elements of reform here.

Chairman SHELBY. Senator Sarbanes, thank you very much for

your indulgence.

STATEMENT OF SENATOR PAUL S. SARBANES

Senator SARBANES. Surely.

Mr. Chairman, I am not going to be able to stay long, because

I have a conflicting engagement. But first of all, I want to welcome

the two nominees. I want to note that the two assistant

secretaryships that we are considering this morning play a very

important role in ensuring our Nation’s preparedness against acts

of terrorism and even natural disasters as they may affect our financial infrastructure.

In fact, most people know that the Assistant Secretary for Financial Institutions has the responsibility for developing, analyzing,

and coordinating the Department’s policy on legislative and regulatory issues affecting financial institutions. That is quite a wide

jurisdiction, obviously, and is also responsible for policy developments for financial privacy and consumer protection and for the

safety and efficiency of our financial systems and our capital markets.

So it is quite a big charge, but it is not as well-known that the

Assistant Secretary for Financial Institutions also oversees the Office of Critical Infrastructure Protection and Compliance, which coordinates the Treasury Department’s development and implementation of policies regarding the protection of the critical infrastructure of the financial services sector, which is something we obviously in recent times have had to give increasing attention to.

We understand from your predecessor in that office that he spent

about a third of his time working on that dimension of his responsibilities, even though it is not as highly visible a charge. And I

want to ask you about that in a moment.

Of course, the Assistant Secretary for Terrorist Financing is one

of three senior officials in the Treasury’s Office of Terrorism and

Financial Intelligence which is responsible for administering the

Nation’s economic sanctions and anti-money laundering programs.

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Now, the Chairman has had a very keen interest in this as did I

previously, and there have been a series of hearings over the last

4 years in this Committee. I commend those hearings to you if you

have not had a chance to look at them on the importance of financial information in dealing with the threat of terrorism and proliferation of weapons of mass destruction.

The movement through the financial system of the proceeds of

white collar corruption and fraud is an equally serious problem for

the Treasury. The President said last week Katrina exposed serious problems in our response capability at all levels of government.

The focus, of course, is primarily the Department of Homeland Security, obviously. But both of you have important responsibilities

with respect to our response capability in the financial services sector, and of course, if the financial services sector cannot work, it

is very difficult to get the economy to work almost by definition.

So Mr. Chairman, I want to thank you for moving as quickly as

you have on the hearing for these nominees.

Chairman SHELBY. Thank you.

Senator SARBANES. I think it is important that we get those positions filled, and I look forward to working with you to accomplish

that objective.

Chairman SHELBY. Thank you.

Senator SARBANES. Mr. Henry, let me ask you: Do you have any

plans for ensuring there will be no serious problem within our Nation’s critical financial service infrastructure in times of emergency? How large does that challenge loom as you consider the responsibilities of this position?

Mr. HENRY. Thank you for that question, and I think the events

of Hurricane Katrina certainly put a spotlight on the importance

of preparedness across many institutions, including financial institutions.

I have also learned of the importance of the Office of Critical Infrastructure Protection, of the amount of time that if I were fortunate enough to be confirmed that I will be spending upon those

issues. And I will offer the following observations. One is that I will

be completely committed to that. Second, I recognize that in that

office, there are a number of what appear to me at this point to

be very valuable tools and resources to assist the assistant secretary in our preparedness. These run from public sector committees such as the Financial and Banking Infrastructure and Information Committee, which I understand was heavily engaged before

and after Katrina, and this is an important resource for understanding vulnerabilities, understanding risks, and understanding

business continuity plans, disaster recovery, how to approach the

importance of easing, if required, certain regulations in the wake

of a disaster and focusing on such important issues, especially in

Katrina, as understanding when a community may go to a cash

economy and what is important to deliver in circumstances like

that.

So, I understand the resources that are available. I welcome the

challenge, and I recognize its crucial importance in our financial institutions and financial services businesses.

Senator SARBANES. I want to follow-up on the Chairman’s question with respect to Basel II, which you said you had followed closeVerDate 11-MAY-2000 09:11 Sep 08, 2006 Jkt 027329 PO 00000 Frm 00041 Fmt 6601 Sfmt 6601 S:\DOCS\27329.TXT BANK1 PsN: BANK1
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ly, but I think there is a considerable concern in the Congress that

it is moving very much in the direction of lowering capital standards. In fact, there are some studies that indicate that the new

Basel Accords could result in lowering capital by almost 50 percent

for some large banks.

It is not just watching it, but I think there is some concern that

it may be moving in a direction that you will not have as much

capital backup, and therefore, you will have an impact on safety

and soundness. Do you have a view on that particular question?

Mr. HENRY. Most certainly. I, just to restate, the importance of

having accurate, risk-based capital standards are absolutely crucial

to our financial institutions, especially as they increase in complexity and especially as they become counterparties in droves to

such things as derivatives and the like. So having accurate riskbased capital standards are crucial.

I would, certainly to the extent that there were quantitative impact studies that suggested that capital standards would be lowered, that they would be widely dispersed, that our U.S. banks

would be at a disadvantage competing, and I would like to understand as I suggested to Chairman Shelby how the historical leverage ratio, which has served a useful purpose historically, how that

would be factored in.

But most certainly, I would want to understand carefully if these

standards resulted in decreased capital.

Senator SARBANES. There is some concern that a limited number

of banks, primarily the large ones, will participate in this, that it

will create a competitive disadvantage for the next tier of U.S.

banks in their competition with the tier that utilizes the Basel II

Accords. What is your view of that problem?

Mr. HENRY. I certainly believe it is an issue to stay abreast of

and to understand, and I understand that the Treasury in the

whole ongoing discussions around Basel have been a keenly interested observer.

I think as it regards all of our banks, whether they are community banks, local financial institutions, money services businesses,

credit unions serving such a vital purpose at the community level

on up to larger banks, they certainly should have the ability to

compete.

I think that is at the core of our regulatory structure is providing

for safety and soundness but at the same time providing enough

flexibility to compete and innovate and do great things for our consumers. So, I would certainly stay attuned to this if I were confirmed.

Senator SARBANES. The community development financial institutions are under your jurisdiction. They have been quite important in helping to develop economic opportunity in their areas; in

fact, it is estimated that they leverage about $20 in private investment for every dollar of Federal expenditure. And they vehicle been

particularly important in helping to meet the needs of low-income

people.

Regrettably, the Administration did not ask for CDFI fund

money in the budget. The Congress has provided it or appears to

be about to provide it as we move through the appropriations process. It seems pretty clear to me that we need responsible commuVerDate 11-MAY-2000 09:11 Sep 08, 2006 Jkt 027329 PO 00000 Frm 00042 Fmt 6601 Sfmt 6601 S:\DOCS\27329.TXT BANK1 PsN: BANK1
39

nity-based financial service providers in low-income areas. Hurricane Katrina only underscores this need.

Do you have a view on sustaining or even expanding the CDFI

fund as we move ahead?

Mr. HENRY. Thank you for that question. Not being in the Treasury or in our Government while the Strengthening America’s Communities Initiative was formulated and CDFI’s roll in that, this is

difficult for me to discuss the merits of CDFI in isolation.

I think certainly, the goals of Strengthening America’s Communities, streamlining things so there are inefficiencies that are taken

out of the system, these strike me as good things. As an investor,

it is not lost on me the leverage that that particular fund can impart upon a dollar. So, I would say suffice to say for me it is difficult for me to discuss CDFI and the merits of that in isolation

apart from the broader SACI initiatives.

Senator SARBANES. Well, I commend that to you, because it

seems to me there is a clear role that needs to be played, and I

think the experience in the Gulf States only underscores that.

Warren Buffett has warned that derivatives can lead to corporate

meltdown and create a daisy chain risk. What do you think about

that?

Mr. HENRY. There are a number of people and institutions that

are focused on the potential risks and understanding what risks

derivatives might impose upon our system.

Senator SARBANES. Are you one of them?

Mr. HENRY. I am one who would like to understand better the

potential risks of derivatives. Just some quick observations, if I

might: These instruments have grown dramatically into the multitrillions. There are issues in derivatives of how they are traded and

whether or not they are getting held up and clogged up in trading,

which is certainly not healthy. There are issues of the implied leverage that derivatives impose upon the system. One does not necessarily borrow when they are an owner of a derivatives contract,

but they certainly can have a lot of outstanding exposure that is

the equivalent of leverage.

I think it is important that there be disclosure of our financial

institutions of their exposures in this regard. I think in my opening

statement, I said how much I value disclosure. This in particular

is something that warrants some attention, to make sure that

these things are properly disclosed, so investors have all the accurate information possible at their fingertips.

I note that the IMF and the Federal Reserve are looking at this.

I believe that private groups such as the Corrigan Group this past

summer are suggesting measures. So there are a number of intelligent people who believe that this is something to certainly keep

their eyes on. And if I could just say last, I view part of Treasury’s

mission as one that looks holistically at systemic risk and hopefully

would be able to stay ahead of real changes in important aspects

in the financial community, and I would hope to be a part of that

as it regards derivatives that continue to stay abreast of these important changes.

Senator SARBANES. Well, of course, The New York Times has this

major story about Corrigan and his group’s study, and I think it

should be right at the top of your priority list.

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Let me ask you: The Treasury’s Office of Financial Education is

under the jurisdiction of the Assistant Secretary for Financial Institutions, and they are charged with providing assistance to the

President’s Financial Literacy and Education Commission. Secretary Snow is the Chairman of this Commission.

The Commission was tasked with producing a national strategy

to promote basic literacy and education. That strategy was due on

July 29 but has not yet been submitted. I understand there are

some differences amongst Commission members. When do you

think we might get that report and move this strategy forward on

literacy and financial education?

Mr. HENRY. I am aware of this issue. I am aware of the importance within the Office of Financial Institutions. I am aware of

what Title V of the FACT Act mandated. And so, I do not know

specifically when that will happen, although my understanding is

that they are working hard on it, that it will come shortly, and that

they are striving to achieve a consensus.

And it is vital, a national strategy on financial education, and financial education is a crucial component of better informed citizens

ultimately making better decisions and ultimately helping society

in general. So, I am attuned to that, and if confirmed, I will certainly do my best to push that along.

Senator SARBANES. The agencies that make up your Commission,

I understand, have some good proposals, and the Treasury has held

them up, and I think you need to address that situation.

Speaking of not meeting deadlines, Mr. O’Brien, let me ask you

a couple of questions. The USA PATRIOT Act was signed 4 years

ago next month. Section 312, which deals with correspondent accounts, was a major part of Title III of that Act. Treasury was required to issue rules under Section 312. A proposed rule was published in May 2002. Under Secretary Levey in testimony here concurred in the importance of dealing with this issue.

Despite repeated statements to this Committee that Treasury

recognizes the importance of this rule, it has not been finalized.

Here we are just shy of 4 years from passage of the legislation. The

failure is more surprising because the Federal Reserve Board has

issued at least two cease-and-desist orders identifying correspondent banking failures of major international banks, and

Treasury itself, actually, has used its authority to propose barring

correspondent banking in the United States for certain institutions.

Let me ask you: At what point do you think failure to issue these

rules would be regarded as a deliberate disregard of a statutory requirement?

Mr. O’BRIEN. Well, certainly, I think the Treasury Department

appreciates the responsibility it has to issue these regulations.

They are too late. They are overdue. I understand your frustration

about that.

Not being at the Treasury at the moment, I do not know precisely what the holdup has been as far as the issuance of the final

rule. I can tell you that I definitely hear you loud and clear about

the need to get this final regulation out. I think the USA PATRIOT

Act has given us many important tools, and we owe it to the community to get the regulation out.

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Senator SARBANES. Do you think we can count on you to tell your

colleagues at Treasury if you get down there that the Congress is

really quite upset about this, and that they need to hear you loud

and clear as you transmit that message to them?

Mr. O’BRIEN. I will certainly deliver that message.

Senator SARBANES. Let me move on and ask you about terrorist

financing.

The GAO, in a report in November 2003, said, ‘‘According to the

FBI’s Terrorist Financing Operations Section, most if not all terrorist cases involve a financial aspect known as funding nexus,

which is normally considered to be a component to the overall negotiation.’’ Then, the GAO went on to say the FBI does not currently isolate terrorist financing cases from substantive international terrorism cases, and its data analysis programs do not

designate the source of funding for terrorist financing. In other

words, the FBI is focused, as it were, on a broader challenge.

This is part of that, but it gets encompassed within it. It does

not get pinpointed. Does Treasury have a database that isolates

sources of terrorist financing? Do you know?

Mr. O’BRIEN. I do not know about a single database. Obviously,

there is all the reporting that we get, the suspicious activity reporting, the CTR’s, et cetera. I know FinCEN is working very hard on

a new system, BSA Direct, to help provide investigators and other

users of the data much better analytic tools to make use of the

data that we do have.

Senator SARBANES. If we do not have this focus currently in how

we are proceeding, do you think that we need to have such a focus,

to look at terrorist financing as its own phenomenon against which

specific efforts can then be directed?

Mr. O’BRIEN. And I am not familiar with the GAO report that

you mentioned. I do know that the JTTF’s at the FBI each have

a terrorist financing person incorporated into the JTTF. The work

of TFOS, the Terrorist Financing Operations Section, I think does

try to incorporate the financial aspects of terrorist networks or

groups that are being investigated.

I think it is hard to separate sometimes the funding of an operation from the investigation of the operation itself. I think it is important as you suggest to make sure that we have the appropriate

focus, attention, and resources on the financial dimensions of terrorist investigations, but I think there is some benefit to incorporating that into the overall investigation into a terrorist group or

suspect or what have you.

Senator SARBANES. Yes, I do not have any problem with incorporating it into the overall investigation, but I do have a problem

if the specifics of the terrorist financing are not being reported out

to Treasury and if Treasury does not have a database. After all,

you have a lot of the instruments to deal with the terrorist financing problem. I do not know. Is the FBI communicating all of that

terrorist financing information to appropriate elements of the

Treasury Department?

Mr. O’BRIEN. It is my belief that it is. I think IRS and other

agencies are incorporated into the Joint Terrorism Task Forces,

and I might add that I think this is one thing that the TFI structure at Treasury, I think, can really bring to the table here.

42

There is, as you now know, a separate office, the Office of Intelligence, that Assistant Secretary Janice Gardner is leading very capably, and I think that enhanced analytic capability hopefully will

address to some degree the concerns that you raise.

Senator SARBANES. The Chairman and I have had some discussions with Treasury about that very point, and it seems to me you

have a statute, and you have some authorities that could be very

helpful, but we are not sure how fully they are being executed and

implemented, and I hope you would place that at the top of your

priority list, because we think this is one way of getting at the terrorism problem is to dry up its financing, one very important way,

and Treasury has a very big role to play in that regard.

Mr. O’BRIEN. I certainly agree with that.

Senator SARBANES. Thank you, Mr. Chairman.

Chairman SHELBY. Mr. O’Brien, the 2004 intelligence reform bill

required a comprehensive study on the Nation’s efforts to combat

terror financing. That report was due last week. Can we here at

the Committee anticipate seeing this report soon once you get, especially once you get down there and get ensconced where you——

Mr. O’BRIEN. I do not know the precise status of that report, but

I understand its importance and will do my best to get it moving.

Chairman SHELBY. Well, I thank both of you for your appearance

today. You are both eminently qualified, in my judgment, for the

positions the President has nominated you for, and we will try to

move these nominations expeditiously.

Thank you so much. The hearing is adjourned.

[Whereupon, at 11:07 a.m., the hearing was adjourned.]

[Biographical sketches of nominees supplied for the record follow:]

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