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9/11 COMMISSION’S RECOMMENDATIONS:

BALANCING CIVIL LIBERTIES AND SECURITY

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

EMERGING THREATS, AND INTERNATIONAL

RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 6, 2006

Serial No. 109–203

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING THREATS, AND INTERNATIONAL

RELATIONS

CHRISTOPHER SHAYS, Connecticut, Chairman

KENNY MARCHANT, Texas

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

JON C. PORTER, Nevada

CHARLES W. DENT, Pennsylvania

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

BERNARD SANDERS, Vermont

CAROLYN B. MALONEY, New York

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

R. NICHOLAS PALARINO, PH.D., Staff Director and Counsel

ELIZABETH DANIEL, Professional Staff Member

ROBERT A. BRIGGS, Clerk

ANDREW SU, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on June 6, 2006 ................................................................................. 1

Statement of:

Dinkins, Carol E., chairman, Privacy and Civil Liberties Oversight Board,

the White House, accompanied by Alan Charles Raul, vice chairman,

Privacy and Civil Liberties Oversight Board, the White House ............... 59

Fetchet, Mary, New Canaan, CT, mother of Brad, an employee of Keefe,

Bruyette and Woods in Tower 2 of the World Trade Center; Carol

Ashley, Rockville Center, NY, mother of Janice Ashley, an employee

of Fred Alger Management in the World Trade Center; Abraham Scott,

Springfield, VA, husband of Janice Marie Scott, an employee of the

Pentagon; and Don Goodrich, Bennington, VT, father of Peter Goodrich

of Boston, a passenger on United Flight 175 that crashed into the

World Trade Center ...................................................................................... 93

Ashley, Carol ............................................................................................. 111

Fetchet, Mary ............................................................................................ 93

Goodrich, Don ............................................................................................ 136

Scott, Abraham .......................................................................................... 128

Kean, Thomas H., chair, National Commission on Terrorist Attacks Upon

the United States, president, THK Consulting; and Lee H. Hamilton,

vice chair, National Commission on Terrorist Attacks Upon the United

States, president and director, the Woodrow Wilson International Center for Scholars .............................................................................................. 28

Hamilton, Lee H. ....................................................................................... 31

Kean, Thomas H. ....................................................................................... 28

Letters, statements, etc., submitted for the record by:

Ashley, Carol, Rockville Center, NY, mother of Janice Ashley, an employee of Fred Alger Management in the World Trade Center, prepared

statement of ................................................................................................... 114

Dinkins, Carol E., chairman, Privacy and Civil Liberties Oversight Board,

the White House, accompanied by Alan Charles Raul, vice chairman,

Privacy and Civil Liberties Oversight Board, the White House, prepared statement of ........................................................................................ 62

Fetchet, Mary, New Canaan, CT, mother of Brad, an employee of Keefe,

Bruyette and Woods in Tower 2 of the World Trade Center, prepared

statement of ................................................................................................... 97

Goodrich, Don, Bennington, VT, father of Peter Goodrich of Boston, a

passenger on United Flight 175 that crashed into the World Trade

Center, prepared statement of ..................................................................... 139

Kean, Thomas H., Chair, National Commission on Terrorist Attacks Upon

the United States, president, THK Consulting; and Lee H. Hamilton,

vice chair, National Commission on Terrorist Attacks Upon the United

States, president and director, the Woodrow Wilson International Center for Scholars, prepared statement of ...................................................... 35

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 9

Maloney, Hon. Carolyn B., a Representative in Congress from the State

of New York, prepared statement of ........................................................... 18

Ruppersberger, Hon. C.A., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 164

Scott, Abraham, Springfield, VA, husband of Janice Marie Scott, an employee of the Pentagon, prepared statement of .......................................... 132

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut:

Prepared statement of ............................................................................... 3

Page

IV

Letters, statements, etc., submitted for the record by—Continued

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut—Continued

Prepared statement of Carie Lemack ...................................................... 91

Prepared statement of Frank Fetchet ..................................................... 85

(1)

9/11 COMMISSION’S RECOMMENDATIONS:

BALANCING CIVIL LIBERTIES AND SECURITY

TUESDAY, JUNE 6, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING

THREATS, AND INTERNATIONAL RELATIONS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 2:03 p.m., in room

2154, Rayburn House Office Building, Hon. Christopher Shays

(chairman of the subcommittee) presiding.

Present: Representatives Shays, Ros-Lehtinen, Duncan,

Kucinich, Maloney, and Van Hollen.

Staff present: R. Nicholas Palarino, Ph.D., staff director; Robert

A. Briggs, analyst, Elizabeth Daniel, professional staff member;

Robert Kelley, chief counsel; Phil Hamilton, intern; Andrew Su, minority professional staff member; and Jean Gosa, minority assistant clerk.

Mr. SHAYS. A quorum being present, the Subcommittee on National Security, Emerging Threats, and International Relations

hearing entitled, ‘‘9/11 Commission Recommendations: Balancing

Civil Liberties and Security,’’ is called to order.

The Final Report of the National Commission on Terrorist Attacks Upon the United States gave us the first comprehensive and

objective analysis of what went so tragically wrong that day almost

5 years ago. The Commission unanimously called for a reevaluation

of the fundamentals of defending the homeland. The ‘‘9/11 Commission,’’ as it is commonly called, provided the Nation with 41 recommendations addressing issues such as homeland security and

emergency response, intelligence and congressional reform, and foreign policy and nonproliferation.

Seventeen months after their report was issued, Governor Kean

and former Representative Hamilton asked, are we safe? Their answer: We are safer, but we are not safe enough.

Today we are safer for two reasons. We are safer because the

men and women of our Armed Forces and intelligence agencies and

all those who serve in our foreign affairs posts are taking the fight

to the terrorists. We are also safer because Congress has provided

new and stronger authority to the executive branch to protect us

at home. For example, the Director of National Intelligence was

created to coordinate efforts of the Intelligence Community, and

the National Counterterrorism Center was established to integrate

and analyze all intelligence pertaining to terrorism and

counterterrorism.

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However, when the Federal Government takes on a stronger and

more proactive role to protect its citizens, the issue of civil liberties

has the potential to become a casualty. The authors of the 9/11

Commission report foresaw such a possibility, recognized its dangers and sought to guard against it by including civil liberties protections through the establishment of a Civil Liberties Board.

Congress followed the advice of the 9/11 Commission, seeking to

balance the fine line between civil liberties and security. When the

Intelligence Reform and Terrorism Prevention Act of 2004

strengthened the security of our Nation, it also established the

White House Privacy and Civil Liberties Oversight Board. Unfortunately the authority of the Privacy and Civil Liberties Oversight

Board will not be as effective as originally proposed because the

legislation which created the Board does not provide it with subpoena power, and the Board and Board investigations can be, believe it or not, vetoed by the U.S. Attorney General.

The Board needs strong powers to engage in effective oversight.

The power to subpoena records and witnesses from outside the government is as crucial as is its independence.

Last month Congresswoman Carolyn Maloney and I introduced

H.R. 5017, ensuring implementation of the 9/11 Commission Report

Act. The legislation would require executive branch agencies to certify progress made implementing and enacting 9/11 Commission

recommendations. Included in the legislation is language that will

strengthen the White House Privacy and Civil Liberties Oversight

Board, providing it with subpoena power and greater independence.

Issues of the past year have highlighted the value of the 9/11

Commission’s foresight and also the importance of creating strong

legislation that will balance security and civil liberties. We must

protect our civil liberties because if we do not, the terrorists will

clearly have won. At the same time, we must protect our citizens.

We owe nothing less to the victims of September 11th, the families

of the fallen, and the citizens of the United States of America.

The subcommittee members thank all the witnesses for taking

the time to appear before us today, including Governor Kean and

Congressman Hamilton. And we want to especially thank, once

again, the September 11th families who continue and continue and

continue and continue to ask the difficult question, are we safe

enough?

[The prepared statement of Hon. Christopher Shays follows:]

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Mr. SHAYS. At this time I would with great respect recognize Mr.

Kucinich, the ranking member of this subcommittee.

Mr. KUCINICH. I thank the Chair for calling this hearing, and

thank the witnesses for being here and for their service to our

country.

I think it’s important to begin a hearing like this by stating the

obvious. When we make a reference to our troops serving to protect

this country, and we have the 9/11 Commission leaders in front of

us, I think it’s important to state for the record that Iraq had nothing to do with September 11th. That was not necessarily the charge

of the Commission to come to that conclusion. But I think that as

we start to extrapolate on matters of security and matters of civil

liberties, we need to go right back to first things first. Iraq had

nothing to do with September 11th, and our presence in Iraq right

now is, in and of itself, violating international law, and any security problems we have in this country that are tied to Iraq have

to be fought squarely on the backs of the administration.

So I want to thank the chairman for holding this hearing. I can

think of no more important issue than ensuring constitutional

rights and fundamental freedoms of all the citizens of our country.

Mr. Chairman, Congress surely had protection of civil liberties in

mind when it passed the 2004 Intelligence Reform Act, creating the

Privacy and Civil Liberties Board and the position of Civil Liberties

Protection Officer, yet it seems that this administration——

Mr. SHAYS. I would like to point out to the gentleman that the

mic was not on. Could all of you hear the first part of what he

said?

Mr. KUCINICH. No. I’ll repeat it. I would hate for anyone not to

have heard what I said.

Mr. SHAYS. I just want to apologize to him. We have a button

here that was not on. Was it on when I spoke?

Mr. KUCINICH. Was it on when the chairman spoke?

Mr. SHAYS. Anyway——

Mr. KUCINICH. See, Mr. Chairman, coming from Cleveland, when

I was mayor, the council used to shut my mic off, so I just kept

speaking. So I didn’t know the mic wasn’t on, but I would happily

ask the Chair if he wanted me to make some remarks that could

go on the record.

Mr. SHAYS. No. We’re on the record.

Mr. KUCINICH. OK. Once again, Iraq had nothing to do with September 11th. And if we’re going to start talking about security and

then from there talk about the protection of civil liberties in that

context, I think it’s important that we establish a ground of meaning. And since the 9/11 Report focused mostly on the domestic matters, and since we have the two distinguished gentlemen in front

of us, I think it’s important to remember that we’re in Iraq based

on lies. And it’s quite possible that what issues come from that is

going to continue to be a lie. The Bible says, ‘‘this which is crooked

cannot be made straight.’’ We may be in such a condition with respect to Iraq and all the policies that flow from it.

Nevertheless, Mr. Chairman, Congress surely had the protection

of civil liberties in mind when it passed the 2004 Intelligence Reform Act, creating the Privacy and Civil Liberties Board and the

position of Civil Liberties Protection Officer. Yet it seems that this

7

administration doesn’t feel the same way. To the White House, the

civil liberties of Americans just aren’t a very high priority. They’re

viewed as an inconvenience. When the Bush administration increasingly snoops into the lives of Americans, from monitoring library records to eavesdropping on our phone calls to collecting data

on our travel records, with virtual immunity, this administration

shows it pays lip service to the protection of our privacy and civil

liberties. Why else has there been delay after delay in establishing

the Privacy and Civil Liberties Board? Why did they wait more

than 15 months to appoint the five members of the Board? Why

has the Board had to struggle with issues of budget, staff support,

office space?

According to the ACLU, the Board, ‘‘only gives the illusion of

oversight without doing anything real.’’ I believe this administration does not want this Board to succeed, and in dragging its feet,

it tells us that it will only follow the letter of the law, not the spirit.

The Board has no authority to carry out its mission. It is still,

according to the Los Angeles Times, a ‘‘paper tiger.’’ the Board has

no subpoena power, and any requests by the Board for Federal documents can be vetoed by the Attorney General of the United

States. The Board does not have to hold public hearings or issue

any public material aside from the annual report to Congress.

Tellingly, Americans only learned of the Board’s initial meetings

this year through a press release issued after the meetings took

place. Clearly the Board as it currently operates cannot be viewed

as either independent or effective.

Mr. Chairman, I hope this Board can get its act together and fulfill the responsibilities that the 9/11 Commission and Congress envisioned for it. We should not act hypocritically or compromise

when it comes to our Nation’s founding principles. These are the

very freedoms and democratic values we espouse to other democratic nations to embrace, and which allegedly we’re sending our

young men and women in the military all over the world to protect.

Mr. Chairman, I think it would be great if we could work together to send a request to the White House. I would like to see

this subcommittee get all transcripts and meeting notes from the

White House Privacy and Civil Liberties Board and would ask that

we subpoena those if necessary. It’s vital that Congress performs

its oversight duties over such an important body and ensures that

the Board acts in the best interest of every American, not just

those of the White House.

I want to thank Governor Kean, I want to thank Congressman

Hamilton for their leadership during the September 11th investigation process and through their efforts in the 9/11 Discourse Project

to enact reform suggested by the Commission. I want to welcome

the members of the September 11th families who are here today

and applaud their efforts to ensure that civil liberties are protected.

On one final note, when we speak of setting up a civil liberties

board, you would think that ought to be actually the business of

the U.S. Congress, and it should be the business of the courts.

When you come forward and set up a structure after the fact that

somehow’s supposed to monitor to make sure that our constitutional rights are protected, and any administration frustrates the

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actions of that commission, go back and ask the first question: Why

is this administration not taking the Constitution of the United

States into account when it designs security for this country? Why

has it determined that it would throw out the window so many constitutional protections? No board, the purpose of which we’re here

today to talk about, is going to be able to effectively answer that

question.

Mr. SHAYS. Thank the gentleman.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. SHAYS. Mr. Duncan.

Mr. DUNCAN. Well, thank you, Mr. Chairman. Thank you once

again for calling a hearing on a very important topic, as you have

so many times before, and I want to welcome Governor Kean. And

from what I read about him, he did just a great job in a very difficult position of being Governor of the State of New Jersey. And

I want to welcome our friend Lee Hamilton, who was one of our

most respected Members on both sides of the aisle in this body for,

what was it, 36 years?

Mr. HAMILTON. Thirty-four.

Mr. DUNCAN. Thirty-four. I knew it was something like that.

You know we’ve had Secretary Chertoff here as a witness a few

months ago. He said in a speech, people have to realize that we

cannot protect everybody against every possible harm at every possible moment, and that was one of the most sensible things that

has been said in this whole discussion since September 11th.

I remember several months after September 11th when we

passed the farm bill, which had been passed many times before just

being called the farm bill, but that particular year it was called the

Farm Security Act, and the Wall Street Journal had an editorial

and said we should give four times the scrutiny to any bill that had

the word ‘‘security’’ in it because every department and agency was

using the word ‘‘security’’ just to get more funding. And a whole industry has now popped up with hundreds or maybe several thousand lobbyists, a whole industry has popped up called homeland security, with thousands of companies and individuals coming at us

with the latest gizmo or gimmick about security, and everybody in

elected offices is scared not to say that in regard to security that

we must do more, we must do more, we must do more in case

something terrible happens, and some bad event will happen. But

on the other hand, we do need to come to our senses a little bit

and realize that we still are much more likely, hundreds of times

more likely, to be struck by lightning or even more likely to win

a lottery than we are to be killed by a terrorist.

And am I saying we shouldn’t do anything? No. We should do

more, but we also have to have some sort of balance in this whole

equation.

We have expanded the FBI by, I think, about 7,000 employees

since September 11th and nearly doubled its budget. We’ve given

even bigger percentage increases to some of the other Federal law

enforcement agencies. We’ve got every department and agency

doing all these things in regard to security, and in some ways we’re

going a little bit overboard, and we’ve got to be careful that we

don’t create some sort of Federal police state in this process.

We all know Patrick Henry’s famous statement, and so do we

need to do more for security? Yes. But we’ve got many, many other

things that the Federal Government needs to do, needs to spend

money on, and many of these things that we’re discussing now

have a lot more to do with money and funding than they do with

security. And if we just blindly approve anything that has the word

‘‘security’’ attached to it, we’re going to end up wasting a lot of

money. We’re going to end up not making the country really that

much safer.

15

And I say this, and we all sympathize with those who have lost

family members in September 11th, and we’re going to hear from

some of them later on, and certainly we appreciate their feelings,

and that’s why we have them here today. And I’m sorry that previously scheduled appointments are going to force me to come in

and out, but it’s going to be a very difficult job to reach the proper

balance between having as safe and secure a country as we possibly can without going ridiculously overboard and wasting all

kinds of money and creating this Federal police state.

So for those reasons, I think it’s very, very important that you

call this hearing and that we have this discussion. Thank you very

much.

Mr. SHAYS. I thank the gentleman.

Mrs. Maloney.

Mrs. MALONEY. I thank my colleagues and Congressman Shays

for holding this hearing, and I extend a very warm welcome to the

former Chair and Vice Chair of the 9/11 Commission, Kean and

Hamilton, and thank them for their life-long commitment to public

service. And I truly do believe that the 9/11 Commission, its report

and continued followup of which you were part of today is an example of government working at its best, finding out what’s wrong,

coming forward with concrete proposals and working to implement

them.

Your book, I nominated it for a National Book Award. We didn’t

win the award, but this 9/11 Commission report book literally sold

more copies than Harry Potter, and we are still studying it and

still trying to really implement the thoughtful suggestions you put

forward.

On our second panel we have the Privacy and Civil Liberties

Oversight Board, and finally on our third panel we have a group

of individuals who I am truly honored to call my friends. These are

the September 11th family members. They certainly must be commended for turning their tragedy into action and forcing our government to enact reforms that will make our country safer for all

people.

And I wish I could tell them today that their work is done, and

that they do not have to come back to Washington anymore, but

sadly there still is a great deal more that does need to be done, and

we appreciate your being here and your constant attention to these

challenges.

We face a Congress and an administration who simply refuse to

do the tough work necessary to enact and enforce all of the recommendations that came forward from the 9/11 Commission. We

have made a good start with the passage of the intelligence reform

bill. It broke down the old guard and opened up communications

between our various intelligence agencies, and we should really be

proud of the work that we did together in a bipartisan way to enact

that important reform. And I really believe it’s the most important

piece of legislation I have worked on or had the honor of working

on since I’ve been in Congress.

But as the 9/11 Commission reminded us in its final report card

in December, Congress and the administration have a great deal

more work to do. Their report card gave us more Fs than As, and

certainly we are not where we need to be almost 5 years after the

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September 11th attack and 2 years after the Commission released

its report.

One F came in the distribution of homeland security funding.

The Commission stated, and it stated it well, and I’m going to

quote your report, Mr. Chair and Vice Chair, you said, ‘‘homeland

security funds continue to be distributed without regard for risk,

vulnerability or the consequences of an attack, diluting the national security benefits of this important program.’’

And you do not have to look very far beyond last week’s announcement that New York and Washington, DC’s homeland security funding is slashed by the Department of Homeland Security,

and it clearly shows that the administration does not get it. Funding for New York City was slashed by 40 percent.

All intelligence agency directors will tell us that New York and

D.C. remain terrorist targets, No. 1. And all of their intelligence

and all of our briefings, New York and Washington remain terrorist targets, No. 1. So I do not understand how they come out with

a formula that gives $15 per capita to Wyoming and roughly $2

and change to New York City. Believe me, there are more buffalo

in Wyoming than there are infrastructure that needs to be protected, such as the rail and the air and the areas that we need to

protect people.

Furthermore, the radios tragically that did not work on September 11th still do not work. And of particular concern to me and

Congress, and, I believe, the Commission members, is the fact that

enriched uranium is still out there. We have not located it. We

have not bought it up, and we have not established an Office of

Nonproliferation in the Office of the President to track this so that

we can prevent having a nuclear bomb exploding in one of our

highly populated cities.

So I wonder what the report card would be today from the 9/11

Commission. How in the world do you go from a terrible funding

formula that does not take into account the risk to even making

it worse? So your grade would have to be an F, F minus minus,

or even a zero. And how can we have faith in the protection of our

country if you see this type of manipulation of a formula that looks

more like a pork formula than one that is addressing homeland security.

Another issue Congressman Shays and I have been working on,

which is a focus of this hearing, is the Privacy and Civil Liberties

Oversight Board. As it currently exists, it does not have full subpoena power. Members serve at the whim of the President. There

are no assurances of a bipartisan breakdown, and we are not even

required—the members are not even required to have any form of

civil liberties background.

What is worse is that the House leadership has denied an effort

by Mr. Shays and I five times. Five times we have tried to debate

an amendment that would give the Board subpoena power that

would strengthen it and give it greater teeth, and I find that extremely disturbing.

In an effort to reverse this trend and to finally enact all of the

recommendations—there were 41 recommendations we’ve enacted

roughly half of them—Mr. Shays and I have introduced H.R. 5017,

the Ensuring Implementation of the 9/11 Commission Report Act,

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and this legislation tracks the final report’s recommendations and

proposes ways in which to achieve and to implement it, and I hope

that we will be working to enact those proposals.

I just want to mention that the first time Congressman Hamilton

spoke to us about the recommendations, he said the hardest obstacle would be to get Congress to organize itself or reorganize itself

to ensure that we are conducting proper oversight; that we have

standing committees that we have clear lines of authority. And

your suggestion has come true. We have made zero progress in

moving toward an organization that really strengthens Congress’s

oversight in that area.

It is always an honor to hear from the two leaders on this important issue, and we welcome you today. Thank you for the work that

you’ve done and that you continue to do to make America safer.

Thank you.

Mr. SHAYS. I thank the gentlelady.

[The prepared statement of Hon. Carolyn B. Maloney follows:]

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Mr. SHAYS. And, Ms. Ros-Lehtinen, thank you, and you have the

floor.

Ms. ROS-LEHTINEN. Thank you so much. Thank you, Mr. Chairman. And it’s a pleasure to have the Governor back with us again

today and Chairman Hamilton, with whom I had the pleasure of

serving on International Relations while he chaired it in such a

wonderful way. It’s a pleasure to see you again, Lee.

And I want to thank the many family members of the victims of

September 11th who are here with us today, and we thank you,

and we honor your loss each and every day.

As all of us know, the recommendations made by the 9/11 Commission relating to the protection of civil liberties speak to the core

of our rights as Americans, and their full and timely implementation should be of utmost concern to all of us. And these civil liberties-related recommendations serve as a check in the context of

the 9/11 Commission’s broader message, which is to comprehensively strengthen our national security in hopes of preventing future acts of terror in our homeland.

The Civil Liberties Oversight Board is responsible for ensuring

that the privacy and civil liberties of the American people are appropriately considered in the implementation of the 9/11 Commission recommendations. And there has been, as my good friend Mrs.

Maloney has stated, legislation introduced by Chairman Shays and

her seeking to increase the investigative powers of the oversight

board by giving its members subpoena powers. And all of us have

to debate that because, as we know, a careful balance must be

maintained between our national security interests and our constitutionally guaranteed liberties, and as was stated so correctly in

the 9/11 Commission Report, it said, we must find ways of reconciling security with liberty since the success of one helps protect the

other.

The choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success

of a terrorist attack at home. Our history has shown us that insecurity threatens liberty, yet if our liberties are curtailed, we lose

the values that we are struggling to defend.

So we thank all of the Commission members who have done an

extraordinary job making sure that we protect our homeland, but

at the same time strike that delicate balance of protecting our civil

liberties at the same time.

Mr. Chairman, I have another committee hearing at the same

time, so I’ll stay as long as I can, but I thank you for the opportunity to make a statement.

Mr. SHAYS. Thank you. Thank you very much.

And at this time we’ll let you close up, Mr. Van Hollen. Thank

you for being here. And then we’ll get right to our witnesses.

Thank you.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. And let me thank

you and Mr. Kucinich for holding this hearing, and thank you to

our witnesses who are here today.

Governor Kean, Congressman Hamilton, thank you for your service to the State of New Jersey, of course, Governor Kean. And Congressman Hamilton was chairman of the House International Relations Committee and the Intelligence Committee. Thank you for

27

your service to our country. And thank you for the great service

you did to our country as part of the 9/11 Commission in issuing

the report, which I really think helped frame the issues and challenges for our Nation going forward, including the very important

issue we’re talking about today, which is civil liberties.

I also want to thank the September 11th families for making

sure this country continues to focus on the lessons that we have to

learn from September 11th and for the very creation of the 9/11

Commission itself, because in the early stages, we all know not everybody supported the creation, the formation of the 9/11 Commission. So thank you to the families for that.

I think we would all agree that it would be a terrible irony if,

in the effort to protect the freedoms and liberties of the American

citizens, we were to take actions here at home that eroded those

very civil liberties, and that’s what this is all about.

Now, when you issued your most recent report card back in December under the heading of Civil Liberties and Executive Power,

there were three categories. One of the categories was Privacy and

Civil Liberties Oversight Board, the creation of the Board, and you

pointed out that there was little urgency in the creation of the

Board, and gave us all a D, the Federal Government a D, in that

area.

Now, as others have said, there’s been some minimal progress in

establishing the Board, but I must stress minimal progress. There’s

still not, as I understand, much space for people to move into. In

the budget submitted by the administration this year, there was no

specific amount set aside for the purpose of the oversight board.

Other weaknesses have been mentioned, including the fact

there’s no subpoena power, and the fact that the Attorney General

can essentially veto requests for documents. So that was a D then.

I would be interested to hear if it’s gone up at all.

The other category was guidelines for government sharing of personal information. At that time they’d not yet appointed a Civil

Liberties Protection Officer, the DNI had not. That was a D at that

time.

The other category was balance between security and civil liberties. It was a general category, stating a measure of robust and

continuing oversight both within the executive and by the Congress

will be essential, and you were very charitable there; you gave us

all a B in that area.

Now, I would note it was shortly after this report card came out

that the New York Times broke the story about domestic wiretapping, and I would also point out that while there’s been some

oversight on this issue in the Senate, the House has been essentially AWOL when it comes to that issue. I also serve on the Judiciary Committee. We’ve requested many hearings on that very important issue. Not a single hearing in the Judiciary Committee on

that very important question that raises constitutional legal issues,

and the role of this Board in relation to the whole issue, like the

one that was raised by domestic—is an open question. I’m not sure

the administration envisions them having any kind of role in that

particular area.

So I think the questions have only grown since you issued that

report card back in December, and I think the track record of makVerDate 11-MAY-2000 12:09 Jan 26, 2007 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 D:\DOCS\31096.TXT HGOVREF1 PsN: HGOVREF1
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ing sure we protect civil liberties suggests that we have actually

been heading in a downward area, when you look at the broad picture, although there may have been progress, incremental progress,

in certain areas.

So I’m looking forward to your testimony. I want to thank you

both for your continued efforts in this area and for giving of your

time and talents. I also want to thank your terrific staff, and I see

Chris Kojm is here with you, and others, and I want to thank them

for their service to our country. Thank you both.

Mr. SHAYS. Thank the gentlemen very much.

Taking care of business, I ask unanimous consent that all members of the subcommittee be permitted to place an opening statement in the record, and that the record remain open for 3 days for

that purpose. And without objection, so ordered.

I ask further unanimous consent that all witnesses be permitted

to include their written statement in the record, and without objection, so ordered.

We have before us the Honorable Thomas H. Kean, Chair, National Commission on Terrorist Attacks Upon the United States,

and we welcome him. And we have the vice chairman of that same

Commission. I think it’s fair to say both of you functioned as cochair, and you clearly were there at a very important time in this

country’s life, and we’re very grateful to both of you.

As I think you know, this is an investigative committee, the Government Reform Committee. We do swear in all our witnesses. You

would understand that the only one I ever failed to swear in in 10

years was the Senator from West Virginia, but everyone else has

been sworn in. So if you would rise, I will swear you in.

[Witnesses sworn.]

Mr. SHAYS. Thank you very much, gentlemen. We look forward

to hearing from you. There’s no clock timing you. It’s just really important we put on the record whatever needs to be put in. And

you’ve spent the last 40 minutes listening to Members of Congress.

I think we can reciprocate.

So, Governor?

STATEMENTS OF THOMAS H. KEAN, CHAIR, NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED

STATES, PRESIDENT, THK CONSULTING; AND LEE H. HAMILTON, VICE CHAIR, NATIONAL COMMISSION ON TERRORIST

ATTACKS UPON THE UNITED STATES, PRESIDENT AND DIRECTOR, THE WOODROW WILSON INTERNATIONAL CENTER

FOR SCHOLARS

STATEMENT OF THOMAS H. KEAN

Governor KEAN. Chairman Shays, Ranking Member Kucinich,

members of this panel, it’s an honor and a privilege to appear before you today, particularly with the families who never, ever, ever

give up, which is wonderful, to testify about the status of our recommendations of the 9/11 Commission.

It’s almost 2 years since we completed the largest investigation

of the U.S. Government in this country’s long history. A mandate

of the Commission was to investigate and report to the President

and the Congress on its findings, conclusions and recommendations

29

for corrective measures that can be taken to prevent acts of terrorism.

We found in our report that the government failed in its duty to

protect us on September 11th. We found failures on imagination,

policy capabilities and management, and we made 41 recommendations to ensure that we do everything possible to prevent another

attack.

Now, to continue our work after the Commission officially ended,

we formed a nonprofit organization, the 9/11 Public Discourse

Project, for the purpose of public education on behalf of our recommendations.

Now, many of the Commission’s recommendations, including

those to reorganize the Intelligence Community, were taken up by

the Congress and enacted in the Intelligence Reform and Terrorism

Prevention Act of 2004, but we all understood one thing, and that

was changing the law is only the first step in changing public policy. No law is self-executing. Implementation is often the more difficult step.

The Public Discourse Project tracked both legislation and implementation of the Commission’s recommendations, and we issued a

report card in December 2005. That report card contained 1 A, 12

Bs, 10 Cs, 12 Ds, 4 Fs, and 2 incompletes. In other words, we found

a very mixed record, but we’ve continued to track those recommendations since we issued our report card. But I have to say

our perspective now about 6 months later is just about the same.

There is still a great deal we have to do and still haven’t done to

protect the American people.

So what do we need to do? We analyze the 41 recommendations

from another standpoint. Where do we need legislation? And where

do we need to work on implementation? We found that roughly half

the commissions were addressed by legislation, and at the end of

2004 Intelligence Reform and Terrorism Prevention Act, the bigger

problem we found was the challenge of implementation. Even when

the letter of our recommendations written into law, there has been

a lack in implementation. In some cases implementation can be expected to take years. In every case, the Congress needs to provide

robust oversight to ensure that these reforms are carried out.

For this reason we welcome and strongly support the bill H.R.

5017 introduced by Chairman Shays and Representative Maloney.

H.R. 5017, a bill to ensure implementation of the recommendations

to the National Commission on Terrorist Attacks Upon the United

States, changes the law where necessary to carry out the recommendations. But just as importantly, H.R. 5017 shines a bright

light on the question of implementation, and ensuring that the executive branch agencies stay focused in carrying out what the law

that you passed already requires.

We believe our time before you today is best spent focusing on

a few issues where the attention of the Congress is perhaps most

necessary. First, scarce homeland security dollars must be allocated wisely. Right now those funds are spread around more revenue-sharing projects. Pork barrel politics, I know, is a time-honored

approach in Washington, but this pork barrel approach, when we’re

talking about the safety of the American people, just can’t be allowed to prevail.

30

In our report we recommended homeland security funds be allocated on the basis of the greatest risks and the vulnerability of attack. Secretary Chertoff himself has stated many times the position

of the administration in support of funding based on risk and

vulnerabilities, a position we all strongly support. Therefore, we

were surprised and we were disappointed that analysis by the Department of Homeland Security has led to proposed cuts in homeland security funding for New York and for Washington, DC.

The terrorists targeted New York and Washington. So far as we

know, they continue to target those symbols of America’s strength

and America’s power. It defies our understanding of the nature of

the threat to reduce funding designated to protect New York and

to protect Washington. We await further explanation.

Last year the House of Representatives passed a very good bill—

three times you passed it—which would focus scarce resources on

the greatest risks and the greatest vulnerabilities. On two separate

occasions, including most recently the conference committee on renewal of the PATRIOT Act earlier this year, the House provision

on homeland security funding was in conference with the Senate.

In both cases, nothing emerged. Senate conferees rejected the

House position. Now, we gave the Congress an F because of its failure to act in a risk-based and vulnerability-based formula for

homeland security funding, and we actually feel because of that,

that letter grade was deserved. Until and unless the Congress

sends a bill to the President allocating homeland security funding

on the basis of risk, we will continue to squander dollars which are

enormously scarce in this area.

In the area of emergency response, States and localities need to

practice their plans for emergency response. If we hadn’t learned

before, we must have learned from Hurricane Katrina the lesson

that we should have learned on September 11th. Every metropolitan area, every locality needs to have a working response plan that

embraces a unified incident command system. A response plan

needs to be practiced, needs to be exercised regularly. You cannot

wait for a disaster to hit and then suddenly look for a plan. All first

responders need to know from the moment they learn of a disaster

who is in charge and what their individual job is to do.

The Department of Homeland Security requires a unified incident command system to be in place, or States will be unable to

receive homeland security funding after October 1, 2006. And that’s

a good provision as far as it goes. During Katrina, Louisiana and

New Orleans had a paper plan, but it wasn’t executed when it was

most needed. DHS needs to make sure that these plans are living

documents, that first responders practice working together. If you

are a first responder and you are talking to your counterpart for

the first time the day the disaster hits, that emergency response

plan will fail.

In addition, first responders still don’t have the ability to talk to

one another effectively. The Commission recommended the Congress expedite for public safety purposes the allocation of a slice of

the broadcast spectrum ideal for emergency communications. Those

frequencies able to get messages through concrete and steel highrises without difficulty are now held by television broadcasters.

Now, they’d been promised to these brave men and women in the

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public safety area. They’ve been promised for a decade, and now

they’ll finally be turned over to first responders in February 2009.

H.R. 5017 includes the text of the Homeland Emergency Response

Act, the HERO Act, to provide this broadcasting spectrum to first

responders much earlier, by January 1, 2007. This will save lives.

We strongly endorse this earlier date. The reason is simple. Who

can say that we’re going to have no disasters before 2009? No terrorist attacks? Why should public safety have to be put on hold for

the next 3 years in order to accommodate the broadcast industry?

It is scandalous, and we call on the Congress to act.

I’d like to turn over to my friend, colleague and guy I try to emulate from time to time, Lee Hamilton.

STATEMENT OF LEE H. HAMILTON

Mr. HAMILTON. Thank you very much, Chairman Shays and Mr.

Kucinich, Mrs. Maloney, Mr. Van Hollen. Thank you for the opportunity to appear before you today. Governor Kean and I appreciate

very much the most gracious comments you made about the 9/11

Commission and our work.

It’s a great pleasure for me, of course, to appear with Governor

Kean. He is one of the great public servants of my generation and

a remarkable leader. And both the Governor and I thank you very

much, those of you who have cosponsored H.R. 5017, because it incorporates our recommendations.

I suspect the key recommendation of the 9/11 Commission in

many respects was the requirement, we believe, for the government

to share information, and we missed so many opportunities on that

day, and because—with that plot because the government did not

share information.

I think overall the Federal Government is doing a better job of

sharing information today, but it comes very hard. It’s difficult to

do, and I think there is still plenty of room for improvement in the

executive branch with regard to the sharing of information. There

are also very huge gaps in information sharing, and we notice that

particularly with regard to sharing information with State and

local officials and government. The first Presidential-appointed Program Manager for Information Sharing did not receive the support

that he needed to carry out his task. There is now a new program

manager, but a lot of time, very precious time, has been lost.

A very important milestone is coming up in the next few days.

It is the due date of the report due June 14th from the Program

Manager for Information Sharing and the Director of the National

Counterterrorism Center. That report will provide detailed guidance for an information-sharing environment due to be created by

the end of this year. I urge this committee to review that report

very carefully. It will be the blueprint for future information sharing.

Both of us continue to hear about turf fights about who is in

charge of information sharing, particularly with regard to State

and local governments. We continue to hear complaints from State

and local officials about the quality of information that they receive. I suspect you’ve heard those complaints yourself. So I think

the problem of information sharing is very far from being resolved.

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With respect to the FBI, I think reform continues to move in the

right direction, but at least, by our likes, has been far too slow.

These problems have been well documented by the Commission, by

the Department of Justice’s inspector general, and by the very fine

work of the National Academy of Public Administration.

Numerous problems still impede the Bureau: failure to improve

the FBI’s inadequate information technology, an extensive effort is

now being made there; continuing deficiencies in the FBI’s analytical capabilities, also efforts being made there; shortfalls in information sharing; too much turnover in the work force, and particularly in the leadership positions; and insufficient investment in

human capital and training. All of these things are very well

known to the FBI.

We have a lot of respect for the Director, Mr. Mueller. They have

taken some steps forward. Sometimes they’ve gone backward with

regard to the computer systems, for example. So it has a ways to

go, and in many respects it’s still struggling.

Many of you commented in your opening statements on the Privacy and Civil Liberties Oversight Board. It was of interest to me

that in all of the recommendations that we had, there was just

total unanimity and support on this recommendation from the very

first; not a single dissent, at least as I remember, Governor Kean,

and so we recommended it, and the Congress has created it. It’s

the only office within the executive branch to look across the government at actions we are taking to protect ourselves, to ensure

the privacy and civil liberty concerns are appropriately considered.

In conducting the global war on terror, you have a huge expansion of government. That’s already been alluded to by the opening

statements, but not only do you have an expansion in the resources

of government, you have an expansion in the power of government,

the intrusive powers of government in fighting the global war on

terror. In that environment, then, it is our belief that the government needs a very strong order of powers to protect us, but it also

needs to have a very strong voice within the executive branch on

behalf of the individual and on behalf of our civil liberties.

We commend this subcommittee for inviting the Chair and the

Vice Chair of the Board to testify before you. We’ve had an opportunity at least to speak to them very briefly, and we want to do

everything we can to encourage their work. We think their work

is essential, important in the so-called war on terror.

The Board needs to move forward smartly with its important

mission. The stories we read in the newspaper every day point out

the importance of a strong voice, a second opinion, if you would,

within the executive branch before it goes ahead with informationgathering measures.

On the question of airline passenger screening, we still confront

a very frustrating situation. We still, after all these months and

years, do not screen passengers against a comprehensive terrorism

watch list before they get on that airplane. The airlines do the

name checking, and the government wants to protect sensitive information and, therefore, does not share all names on its watch list

with the airlines. So the airlines screen passengers against an incomplete list.

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The solution recommended by the Commission is a straightforward one, the government should do the name checking of all

passengers against its own comprehensive watch list. As we approach now the fifth anniversary, as the chairman referred to, of

September 11th, there seems to be very little prospect that we can

see—at least that we will achieve this solution. We understand

some of the problems that stand in the way: Poor management; we

believe that the Transport Security Administration is one. Attempts to integrate commercial data into the screening process are

another, and they have set off a host of civil liberties and privacy

issues. There are also many questions about the security of the personal data. The proper solution to passenger screening appears at

this point to be delayed indefinitely.

Several of you mentioned congressional reform. Congress needs

powerful intelligence and homeland security oversight committees.

The Congress has provided powerful authorities to the executive

branch in order to protect us against terrorism, and now it needs

to be an effective check and balance on the executive.

Because so much information is classified, Congress is the only

independent oversight on the full breadth of intelligence and homeland security issues before our country. Turf battles have kept the

oversight committees weak. They need stronger powers over the

budget, and they need exclusive jurisdiction.

The Congress cannot play its proper role as a check and balance

on the actions of the executive if the oversight committees are

weak. To protect our freedoms, we need robust oversight.

Finally, preventing terrorists from gaining access to nuclear

weapons must be elevated above all other problems of national security. Nuclear terrorism would have a devastating impact on our

people, on our economy, on our way of life. Almost unimaginable.

The Commission call for a maximum effort against this threat.

We had such a traumatic day on September 11th, but we lost

3,000 people or so. We estimate that if a nuclear weapon explodes

in the heart of New York City, you lose 500,000 people, dead. You

can just hardly imagine what the consequences would be for the

United States. So given the potential for catastrophic destruction,

our current efforts fall short of what we need to do.

We see increased efforts by the administration to improve nuclear detection technology at our ports and borders, and we commend that. Those are good steps, but we cannot be safe if we rely

only on our last line of defense to protect us. We need a stronger

forward-leaning policy, a policy to secure nuclear materials at sites

outside of the United States. If those sites are secure, the terrorists

cannot get nuclear materials. If the terrorists cannot get nuclear

materials, they cannot build nuclear bombs.

The President should request the personnel and the resources

and provide the domestic and international leadership to secure all

weapons-grade nuclear material as soon as possible in the former

Soviet Union and the rest of the world. There simply is no higher

priority on the national agenda, security agenda.

As we review our recommendations, it is clear that so much more

needs to be done and so little time left to do it. We do not believe

that the terrorists will wait. If we can make progress on our recommendations, we will make significant progress in providing for

34

the common defense, the first purpose of government. We believe

that the task before us is urgent. We thank you for your leadership

on this, members of this subcommittee, and we look forward to

your questions.

Mr. SHAYS. Thank you very much, Mr. Hamilton. Thank you

again, Governor Kean.

[The prepared statement of Mr. Kean and Mr. Hamilton follows:]

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37

38

39

40

41

42

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Mr. SHAYS. What we’ll do is we’ll do 10-minute rounds instead

of the 5, and I think I’d like to defer my questions a little later.

So, Mr. Kucinich, we’ll start off with you.

Mr. KUCINICH. Thank you very much, Mr. Chairman.

Mr. Hamilton, given your responsibilities with the 9/11 Commission, as well as your previous role chairing the House Intelligence

Committee in the 1980’s, are you surprised that the administration

never informed the 9/11 Commission or all members of the House

and Senate Intelligence Committee, even in closed session, of the

NSA programs that have been the subject of much debate? And do

you agree that it’s essential that there be both judicial and congressional checks on NSA spying on Americans given the abuses found

by the Church Committee in the 1970’s that led to the creation of

the Select Congressional Intelligence Committee?

Mr. HAMILTON. I have to make clear, Mr. Kucinich, that your

question calls for an answer that goes far beyond the 9/11 Commission, and so I speak personally here and not as a member of the

Commission.

I think the world in which we live, with the enormous data collection capacities that we now have, calls for a new framework in

dealing with this kind of technology, and it certainly needs a new

law. The law that is in existence today I think was passed in 1986.

I think the President was confronted with a very difficult dilemma

as how to adapt these data mining techniques that produce such

massive amounts of data and have become a very important tool

in protecting us against terrorism.

Your question is, should he have consulted the Congress? My

view on that of course is that he should have. We confronted not

this kind of a problem, but similar situations in time past, and I

think the appropriate way to proceed would have been for the

President to call in key congressional leaders to the White House

and to say, look, we’ve got a very tough problem here, we’ve got a

new technology, this technology is terribly important to the national security interests of the United States. The present law is

not a satisfactory law, I need your help in crafting a new law that

takes into account the new technology and, in that process, to devise checks and balances so that at least key Members of Congress

are adequately informed.

I know there are certain negatives to the approach that I’ve suggested, but I think it would have been a better way to proceed, and

I do think it’s necessary for the Congress to be informed on these

matters because accountability and checks and balances is what

the Constitution of the United States is all about.

Mr. KUCINICH. I thank the gentleman.

Governor Kean, you told the New York Times in January that

the 9/11 Commission was never told about the NSA program to

monitor Americans’ telephone conversations without a court order.

The 9/11 Commission, as I understand it, had high level security

clearances, and yet the NSA program to spy on the conversations

of Americans were never disclosed to the Commission.

My question, did you or other members of the Commission discuss with administration officials compliance with the Foreign Intelligence Surveillance Act, as amended by the PATRIOT Act,

which would cover these types of programs? And do you agree that

44

the rule of law requires independent checks and balances, and that

a program to monitor Americans’ private calls without any proof

they are conspiring with al Qaeda risks not only invading the privacy of innocent Americans, but also wastes precious antiterrorism

resources on innocent Americans?

Governor KEAN. Well, I certainly agree with my colleague that

checks and balances are absolutely essential in this area. No one

branch of government should be doing these things without consultation with the other branch. That’s my belief.

We had a very specific mandate from the Congress and from the

President. This was a program that went into effect after the period which we were mandated to look at. In that regard, I think

the only way in which the White House could have talked about

it with us was prospectively, going forward, is this would have been

one of the things that perhaps the Nation should be doing, and

they chose not to do so.

Mr. KUCINICH. Well, here we are discussing civil liberties in this

new era, and we see that the 9/11 Commission wasn’t really informed, we see that the Congress was largely unaware, and we

have a condition here where a board that you recommended establishing really isn’t functioning in any meaningful way. That being

the case, what would you recommend at this point that we do to

protect the civil liberties of the people of the United States?

Governor KEAN. Well, one of the things I think you’re doing with

this hearing, and that is to ensure that the Civil Liberties Board

has the prestige, the power and the attention that it needs in order

to do the job that we envisioned for it in the Commission and that

you envisioned for it when you passed the bill in the U.S. Congress.

Mr. KUCINICH. Does it need subpoena power?

Governor KEAN. Again, I have to talk individually here because

we did not recommend that in our report; but what we did recommend is that the Board must be strong and have strong powers,

and the inference would be that possibly subpoena powers or something is needed in order to make it strong.

Although we seldom used subpoena power in the work in the

Commission, the fact that we had it served as a very, very good

tool in helping the government agencies to expedite our requests.

Mr. KUCINICH. Your report, well, nevertheless isn’t about volume,

it’s also work in progress as you learn more information. At this

point, seeing where this issue of security and civil liberties continues to hang in the balance, would you now be willing to say that

such a board, in order to give it important impact, would merit

subpoena power?

Mr. Hamilton.

Mr. HAMILTON. Mr. Kucinich, I think, first of all, we’re very

pleased that the Congress saw fit to create the Privacy and Civil

Liberties Oversight Board. We’re very pleased that a civil liberties

protection officer has been named in the office, I think, of the Director of National Intelligence. Those are positive steps, we are

pleased with them.

I think we’re very disappointed that it took us so long to get here

where we are, to have a board in operation and to have a civil liberties protection officer named. It took far too long to name the

Board, to find a place to operate, to staff, to fund, but these things

45

are now underway. You’re going to hear more about that in a few

minutes from people who know more about it than I do.

The challenge now is for this board to move forward smartly, aggressively with the important mission. And the challenge of your

committee is to make sure that board has the powers it needs—

perhaps subpoena power—but has the aggressive power to reach

into every branch of government to get the information that it

needs to determine whether the civil liberties and the privacy of

the American people are being violated. If this board does not do

it, it’s not going to be done. And so I think all of us on the Commission—I think I can speak for all the Commission members here—

believe that a robust board is essential.

Mr. KUCINICH. Well, I’m glad to hear you say that, Mr. Hamilton.

And forgive my skepticism that in all of this process after September 11th, the American people are now having to rely more and

more on a board which doesn’t really function yet as opposed to investigative committees of the Congress, House and the Senate, providing effective checks and balances. I mean, we didn’t need—my

view, not speaking for the committee—in my view we didn’t need

this board. We just needed a Congress that was willing to provide

effective checks to the administration’s power. That’s the way the

Constitution was set up, three branches of government. Congress

is a co-equal branch of government, but we don’t need the administration to tell us that we can’t go in and ask the right questions

and demand the right answers. I mean, we have the ability to reign

in the administration’s abuse of power with respect to civil liberties.

You know, when I see that millions of phone calls can be scanned

by this administration, by its orders, when I see the effect of the

PATRIOT Act, I have to ask, with all due respect and gratitude for

the 9/11 Commission, for its recommendation of the Privacy and

Civil Liberties Oversight Board, hey, that’s the job of Congress,

hello.

Thank you.

Mr. SHAYS. I thank the gentleman.

At this time the Chair would recognize Mrs. Maloney.

Mrs. MALONEY. Thank you.

Governor Kean, you mentioned in your testimony today that you

issued a report card on our efforts in December, and we had more

Fs than As, but we got one A in antiterrorism financing, which is

a very difficult area to put some strong controls on, and as a member of the Financial Services Committee, I was part of that effort

and I’m glad to hear that you recognized our work.

But in your opinion, why were we able to get some things right

and yet we did so poorly in other areas?

Governor KEAN. Well, some of these areas are very tough, and

we knew it when we made our recommendation. I mean, we made

a deliberate attempt in the Commission to make recommendations

which we knew—because all of us have been around politics and

government a lot—would be very, very difficult to implement, but

we decided to reach, in a sense, knowing that the implementation

would be difficult.

Now I’m not an expert, as my colleague is, on the Intelligence

Community, but the culture I learned in those agencies, existing

46

for so many years, it seems to be very hard for them to communicate with one another. That whole culture is one of secrecy, and

even communicating with our own intelligence agencies is very,

very difficult. And I think it’s starting to happen, the machinery

that you set up in the bill you passed is starting to happen, but

it’s much too slow for the need.

You know, we talked about if I thought there was one easy recommendation that there would be no problem with is to allocate

funds on the basis of risk. That just seemed to me an easy one.

Who is arguing against that?

Mrs. MALONEY. But I’d like to followup on that. Governor Kean,

you gave us a big resounding F on our high-risk formula, but the

plan that came out last week cut aid to the city of New York and

Washington, DC, the two highest threat areas, by 40 percent. And

the Department of Homeland Security, almost in disbelief on my

part, they’re continuing to defend this formula as risk based. And

would you consider a 40 percent reduction to, by all accounts, by

all intelligence, all 15 different agencies looking at intelligence,

that a 40 percent reduction to New York City and Washington, DC,

is an appropriate risk-based distribution? And what grade would

you give them now? You gave them an F before. Now this formula

is even more outrageous and not based in reality or high risk in

any way. How would you grade them now? And what would you

suggest to those of us in a bipartisan way on this panel who would

like to have a high-risk formula to better defend our country?

Governor KEAN. Well, first of all, I’m a teacher. That’s what I did

before I got into anything else. It’s very hard to give below F, if

I might at this point, but it’s very difficult. Having said that, you

have the bill, you’ve been trying hard in this in the House to get

it adopted into law, that will mandate a formula based on risk. I

mean, now you have—and all I know is what I read in the newspapers—now you have, I gather, a secret group of people, I mean

we’re not allowed to know their names, making some kind of a decision which results in a formula which defies common sense. I

mean, we know bin Laden wants to target New York again, he

wants to target Washington. Those are his two prime targets. He

said it, his followers have said it, it’s logical.

So I just do not understand the present formula or the results

of whatever formula they’re using. And I would suggest that you

redouble your efforts and perhaps convince one or two Senators is

what we need to get a proper bill through that would mandate a

risk-based formula, which I think everybody basically would agree

no matter where you’re from. I’m from New Jersey. We need funding. We’ve got serious problems. We’ve got a nuclear facility. We’ve

got a number of other things. But I’m mad about New York City

not getting what it needs, I’m mad about Washington, because

those are the No. 1 and No. 2 priorities, and we ought to feel that

way nationally no matter where we come from, I think.

Mr. HAMILTON. We give an A to the House. The House has

passed the bill three times, and it’s exactly the legislative language

you need. The problem is coming of course from the conference

committee where the Senate apparently prevailed.

May I just observe on the question of homeland security funding?

It has always seemed to me that the really tough job here is the

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establishment of priorities. You have limited resources, you can’t

protect every piece of critical infrastructure, you can’t defend

against every tactic that the terrorists might employ. And what

that means is that policymakers have to make very, very tough

judgments on what they’re going to protect and what they’re not

going to protect, what kind of things they’re going to protect

against and what kind of things they’re not going to protect

against. And when you make those judgments, you can be wrong

because you’re making judgments on insufficient data. But the fact

that it’s a very tough judgment to make, what do you protect and

what you don’t, is not a reason for not making the judgment.

Now the language, if you look at the rhetoric here, it’s pretty

good. We’re going to protect on the basis of risk and vulnerabilities.

I think Secretary Chertoff has said that any number of times.

That’s good, the problem is doing it. And here we are several years

after this idea of protecting on the basis of risk and vulnerabilities

and we’re still not making—not just the Federal Government, but

State and local officials as well and private sector people are not

making the judgments that have to be made to protect infrastructure and to protect people.

Everybody in their local community knows what targets a terrorist would be after, they know their community, and in very few

communities are adequate steps being taken to protect.

Mrs. MALONEY. On the line of knowing what we need to do and

needing the political will to do it, I remember the first time both

of you addressed the Democratic Caucus, and you spoke really passionately about stopping terrorists from gaining access to nuclear

materials. Everyone talks about it, everyone knows the high threat.

You wrote that possibly 500,000 people could die in New York City,

my home turf, if they had a nuclear bomb, but we’re not moving

forward. We have bills before Congress, we have not allocated the

moneys to go out and buy up the weapons grade nuclear material

as soon as possible. We’re not taking steps in this very dangerous

direction. And it was in your testimony, but I would like both of

you to elaborate further on what steps we can be taking, what we

should be doing, you are both veterans of Congress, of legislation,

of State government, and what can we do to move forward in this

really critical and dangerous area? Five years, and we have not

moved in any meaningful way in this direction for this threat.

Governor KEAN. We’re moving, but very, very slowly. I mean, we

are doing some things, but it’s going to take us 14 or 15 years to

get these sites tapped down. Enriched uranium, there are about

100 sites in the world. If we gave it the necessary priority, I’ve

been told we can do it in about 3 years. But that means

everybody’s got to be talking about it. I mean, the President has

said that it’s the most dangerous threat facing the country, he said

that. All right. Then if it’s the most dangerous threat facing the

country, then you’ve got to talk about it a lot more, you’ve got to

devote more resources do it. It should be on the front pages of the

papers, not the back pages. It should be on the talk shows, it’s

what we should be talking about.

I was delighted, by the way, to get a note just the other day from

Congressman Andrews, my State, who said he and Jim Leach had

just gotten an amendment through to the Energy, Water and DeVerDate 11-MAY-2000 12:09 Jan 26, 2007 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 D:\DOCS\31096.TXT HGOVREF1 PsN: HGOVREF1
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velopment appropriations bill which is going to put some dollars in

this area, adding $27.8 million, he said, to the Global Threat Reduction Initiative. I mean, that’s a help. People I know in the Congress are working on it, but I think we’ve got to redouble our efforts. And we’ve got to let the American people know. If this is the

greatest threat, we’ve got to talk about it, I think, a lot more, because only by talking about it and recognizing it are we going to

deal with it, what this would do to our economy, let alone the number of lives lost.

And I tell you to talk to Senator Sam Nunn and a number of others who are working on this, and the threat is very, very real. And

there is nobody in our government right now who’s going to be able

to ensure us that there is not right now a terrorist who’s working

toward our borders already with those materials in their possession, some the size of a football. It’s not hard to do.

Mrs. MALONEY. Congressman Hamilton.

Mr. HAMILTON. It’s of course a matter, basically, of political will,

and it’s a judgment about priorities, what is most important in

terms of the national security of the United States. The Commission was unanimous on this point, too. You look at all of the national security issues before us—and there are literally hundreds

of them—we said this is at the top of the heap; this is the No. 1

national security issue, bar none, not because it’s the most likely

event but because the consequences of it would be so horrendous.

Governor Kean mentioned a moment ago that we should re-double our efforts. The Commission did not comment on this specifically. My personal opinion is we should triple our efforts. We’ve got

the program in place, you’ve got the Cooperative Threat Reduction

Program in place, it’s a matter of funding it much more generously

than we have. This has been in place for I don’t know how long,

10, 15 years. And it has had some results, but they’re terribly, terribly slow, and so it just has to be accelerated.

I think it’s important to say that a lot of progress has been made

on nuclear detection technology at our ports and borders, a lot of

work is being done here, but it’s our impression that most of that

work is being done here. And the real challenge is to get at the

source, and the source are the nuclear materials abroad. And that

creates a lot of problems in terms of going into other countries and

examining their nuclear program and their nuclear materials, getting their cooperation. The defense establishment of Russia doesn’t

particularly like us hunting around their nuclear program any

more than we like them looking at our nuclear program.

So it’s a tough matter, but I think progress has been made slowly, and it just has to be accelerated. It needs a lot more money and

it needs a lot more people who are willing to go over into Russia—

this is not easy work—and work to secure these materials.

Governor KEAN. But the American people, by the way, don’t understand—I’ve been speaking on this. What they don’t understand

is that once the terrorist gets these materials out of the site that

you can read on the Internet how to put the bomb together, and

then we all know getting it into this country with the current border situation is not that difficult. So you have to contain it at the

site. Once the American people understand that, at least when I’ve

given talks on it, they get very alarmed and they want something

49

done but I don’t think they really understand the threat and how

important it is that we do this program.

Mrs. MALONEY. Thank you. My time is up.

Mr. SHAYS. Thank you. I can’t wait to jump in, but I’d like Mr.

Van Hollen to go and then I’ll jump in. I just want to make this

one point.

You have clearly pointed out what you consider the most serious

threat, but it seems to me that it also points out that the new

strategy of detect and prevent means that we want to have the

kind of capability to detect so that if they unfortunately do get this

weapons grade material we know about it and can stop it. And it

seems to me that goes with it.

Mr. Van Hollen.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. And I thank both

of you gentlemen for your testimony today.

Let me just start out with the issue of congressional reform and

oversight——

Mr. SHAYS. Could I ask the gentleman to suspend? I would like

Mr. Duncan to go and then to have you go, if you don’t mind, and

you will go next.

Mr. VAN HOLLEN. That’s fine.

Mr. SHAYS. I thank you for your patience. You’ve always been

very gracious with me. Thank you.

Mr. Duncan.

Mr. DUNCAN. Thank you very much, Mr. Chairman. And once

again I apologize for popping in and out——

Mr. SHAYS. Not necessary. Let’s get to the questions.

Mr. DUNCAN. I’ll just go back to Mr. Van Hollen. I will say this;

I did come back in, enough to hear the Governor express how difficult it is to set priorities and that he was mad about New York

City, and there is a lot of concern about that. And of course as Congressman Hamilton said, that’s our job to make these tough decisions.

But you know, the problem, as I see it, in addition to what I said

in my opening statement, there is not any congressional district

hardly in the country that’s not real close to some high priority facility. I mean, so many districts have major military installations.

In my own home, while I don’t represent Oak Ridge, it’s very close

to the Oak Ridge operations. And I live about 15 miles from the

Oak Ridge facility. I mean, every district in the country is in that

situation, and so that’s another one of the difficulties we face.

But I agree with what Congressman Hamilton said, that’s what

we have to do. And I apologize, I hope I can stay for a little while

now, but I’ll just turn it back over to Congressman Van Hollen.

Mr. SHAYS. Mr. Van Hollen, you have your 10 minutes starting

now.

Mr. VAN HOLLEN. Thank you, Mr. Chairman.

Let me start with the issue of congressional reform and oversight. You stated in your testimony Congress needs powerful intelligence and homeland security oversight committees, that Congress

has provided powerful authorities in the executive branch in order

to protect us against terrorism, and now there needs to be an effective check and balance on the executive. I think that’s very good

advice and I think you put it very diplomatically in your testimony.

50

From my own perspective, with few exceptions, the House of

Representatives has been totally AWOL on this issue. This has

been an oversight free zone. You talked about the need for checks

and balances. We have been much more of a blank check and a

rubber stamp, and I think that’s gotten us into a lot of trouble as

a country. And I think that much more vigorous oversight is needed in that area.

There’s no need for further comment, other than the fact I assume you haven’t changed your grade from a D to any higher

grade, have you?

Governor KEAN. No.

Mr. HAMILTON. We may lower it.

Mr. VAN HOLLEN. I would suspect so. I mean, as the Governor

said, you can’t get lower than an F, but I think an F might be more

suitable at this point in time.

I just want to also associate myself with the remarks you both

have made and Congresswoman Maloney has made with respect to

the distribution formula. It defies common sense to see cuts in the

amounts that are going to New York City and the Washington metropolitan area, clearly two of the top terrorist targets. Obviously we

don’t want to focus on the last war, we always want to look at future threats and evolving threats, but I think anyone knows that

those two centers remain highly symbolic and important targets

and it just makes no sense at all to cut the moneys in those areas.

With respect to the No. 1 threat that you both focused on, which

is the danger of nuclear materials falling into the hands of the terrorists and the fact that we have not addressed this with the urgency that we should, I’m interested in whether you’ve changed

your grade. You’re right, there was the Andrews-Leach amendment. It did provide an additional amount of funding; it has to get

through the process. The administration didn’t request that money.

Have you seen anything that’s significant enough to change the

grade in that area from a D?

Governor KEAN. No, no. It is not top of the priority list as we

think it ought to be.

Mr. VAN HOLLEN. Right. I think that’s clear. And I agree with

the chairman’s remarks, I’m sure he’ll elaborate on them, that we

do need to, in the event someone does get their hands on these nuclear materials, be in a position to go after them effectively.

Let me ask you with respect to the Civil Liberties Board, because

we’re going to have an opportunity to talk to them in a little bit.

Under your vision of the authorities of that board, would oversight

of the type of activity that’s going on at the NSA with respect to

domestic wiretapping be covered? Under your vision of what the responsibilities of that board would be, would they not include some

oversight and jurisdiction over the type of activities that are going

on at the NSA with respect to domestic wiretapping?

Mr. HAMILTON. Absolutely.

Governor KEAN. Yes.

Mr. VAN HOLLEN. And would it be your vision that board would

have the authority to get the information necessary regarding those

activities to draw some conclusions and recommendations?

Mr. HAMILTON. Absolutely, the answer is yes. Look, if the Board

does not have the power to get the information they need, you may

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as well not have the Board. They have to have that power, and

they’ve got to be able to reach into every nook and cranny of the

Federal Government to get the information that they need.

Mr. VAN HOLLEN. I agree, and I’m concerned that as it was set

up it wasn’t much of a tiger to begin with, and it will be totally

a paper tiger if it doesn’t have those authorities. And I think we

understand the challenge; I mean, this is an administration that

has refused to even give at least provisionally the members of the

intelligence committees in the House and Senate sufficient information to determine what was going on in this program. I mean,

as you said, Mr. Hamilton, we have to make a decision about

whether or not to amend the law to bring this program within the

jurisdiction, but not knowing enough about the program, it makes

it very difficult. And it would be interesting to find out whether or

not the members of the Board have had any luck, whether they’ve

asked for it and whether they’ve had any luck in getting information about that important program.

Let me ask you—you didn’t cover it in your testimony, but it was

one of your items on your report card back in December, which is

the question of long-term commitment to Afghanistan.

Mr. HAMILTON. The question?

Mr. VAN HOLLEN. The long term commitment to Afghanistan.

Now, I think this is an important time, as Mr. Kucinich actually

mentioned in his comments, to remember that September 11th

began, launched from Afghanistan, Al-Qaeda that was sheltered by

the Taliban regime, that this country was united in going after AlQaeda and demanding that the Taliban turn over Al-Qaeda, when

they refused to do so, taking the appropriate military action.

As we’ve all been seeing recently, there has been a resurgence of

Taliban activity in southern Afghanistan, and they have been clearly testing the resolve of the NATO force and the U.S. forces. There

are some of us who believe that this is not the right time, both in

terms of actual manpower, but also symbolically, to be reducing the

number of U.S. forces in Afghanistan, especially those in that

southern region. We also found out recently that the administration has modified its original plan with respect to the size of the

Afghan army. It was originally planned to be on the order of about

a 70,000-man size army, they’ve recently reduced the funding associated with that for about a 50,000-man army, which has created

considerable concern in Afghanistan, President Karzai and others.

I don’t know if you’ve had an opportunity to look at this as a Commission, but certainly if you haven’t, I’d be interested in your personal views with respect to what we need to be doing now with respect to Afghanistan, both on the military side, but also a commitment in terms of the economic support aspects.

I’ll close with this because I’m interested in your responses—just

remembering that the seeds of Al-Qaeda and the Taliban were really created when the Soviet Union left Afghanistan and the United

States decided at that point in time no longer to really engage in

Afghanistan. You then had a civil war there, the Taliban emerged,

Al-Qaeda took advantage of what was clearly a failed state, and

September 11th followed after that.

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So if you could please give us your assessment of what’s happening now in Afghanistan and what more, if anything, we should be

doing.

Mr. HAMILTON. Well, I know that you come by your interest in

Afghanistan from a family angle, your mother having served—I

think in INR, was it—State Department in Afghanistan over a period of years, and I think Governor Kean and I very much appreciate your interest in it.

We mean what we said in the report. We think there has to be

a long-term commitment. You point out the history. In the nineties,

I guess it was, when the Soviets withdrew, we withdrew. And I

suppose most Americans thought that there was very few spots on

the face of the Earth that we had less of an interest in than Afghanistan. But somebody else noticed our withdrawal, and that

was Osama bin Ladin, and he goes into Afghanistan and he creates

the mechanism and does the planning that has brought about September 11th.

I would hope that Americans have learned from that, and that

it will be necessary for us to have a long-term commitment to Afghanistan, and that means sufficient military power, whether it’s

the United States or NATO, to be able to secure that country. It

means that we have to stop that country from falling under the

control of the opium trade and of the warlords, and it means that

we have to support President Karzai fully with political and economic support in that country. And I know that’s costly, and not

all Americans will agree with it, but I think it’s a terribly important commitment that we have to follow through on. And if we do

not, then I think we’ll repeat the history of the early nineties.

Governor KEAN. We recognize in the Commission report that Afghanistan can be one of the most dangerous countries in the world.

Just its location between Iran and the Soviet Union and Pakistan

would make it vital if nothing else did. And then the fact there are

still largely ungoverned areas, one of which well may harbor

Osama bin Laden today. This is where the enemy still is, and we’d

better darn well pay attention, because if we again allow Afghanistan to become a training camp for the Taliban and Al-Qaeda, if

we avert our gaze because we’re interested in other parts of the

world, we’re going to suffer the consequences.

Afghanistan is an enormously important place. We should be not

only dealing with military, by the way, but we should be dealing

with economic aid, we should be dealing with educational aid. This

is an area, this is a part of the world where we cannot afford again

to have a lack of attention.

Mr. HAMILTON. Many of our recommendations are long term in

the Commission report, and that was certainly true with regard to

Chapter 12, which set out a policy really toward these countries

that Governor Kean has talked about, Pakistan, Afghanistan,

Saudi Arabia. And we’ve been pleased, really, that the Congress

and sense of Congress resolutions have supported the concepts and

ideas in our report. Likewise, we’ve been pleased that the administration has said many positive things with regard to those recommendations. The real key here, of course, is implementation and

follow-through, not over a period of a few months or a year but

over a period of a decade or more.

53

Mr. VAN HOLLEN. Well, that’s right. And I’ll close, Mr. Chairman, that the President took a trip not too long ago to India and

Pakistan, stopped off in Afghanistan. And as you pointed out, Governor Kean, he probably is as close as he’ll ever get to Osama bin

Laden, who is suspected to be in Pakistan along that border area.

And I do think it was a reminder that we have not completed the

mission, that this is not mission accomplished, that we have a long

way to go, and that the future success of the government of Afghanistan is a big part of that success.

Thank you, Mr. Chairman.

Mr. SHAYS. I thank the gentleman. Governor and Congressman,

I am so grateful for the work that you all have done over a long

period of time. I got carried away at one point in which I said the

work of the Commission was sacred, but it comes damn close to

that.

This subcommittee had 22 hearings before September 11th, and

we’ve had a total of now 90 on the terrorist threat, and what I’m

struck by is before September 11th we had a gentleman who was

a noted doctor of a major medical magazine, and he said to us his

biggest threat was that a small group of dedicated scientists would

create an altered biological agent that would wipe out humanity as

we know it, and I looked around and there weren’t many people.

Now there are a good number of folks here today, but I’m just fearful that we kind of are going through this exercise, and there’s

something that has to ignite the public’s will and ultimately the

will of Congress and the White House.

What rings in my ear is what you said, Governor Kean. You said

what the people don’t understand—or maybe you said that, Congressman Hamilton—and they don’t understand it because, in my

judgment, in the last Presidential debate we debated whether

someone had earned three Purple Hearts or someone had fulfilled

their national service. I believe if you tell the American people the

truth, they’ll have you do the right thing.

I had the good fortune to go into Russia and see what we do to

capture their weapons grade material and to see how we’re helping

them destroy their chemical stockpile, and also to see how poorly

they secure their biological agents, literally a refrigerator and a

string with wax on it so they know if someone’s opened it up.

So I think the potentials are huge for people to get weapons

grade material, to get dirty radioactive material. A thousand lighthouses in Russia, all unmanned, powered by a power plant that is

basically a radioactive battery, a nuclear-powered battery. And so

I just fear that when you say, Governor Kean, that you are fearful

of the consequence of a nuclear attack, that we will have a nuclear

attack, that’s what I believe. And so what we’re doing here in this

grading is not just an exercise, it is hugely important.

Having said how much I love what you’ve done, I’d like to ask,

is there anything that should have been part of the 41 recommendations that isn’t? Something that you all debated or something now that you think, my God, how could we have overlooked

it? Do you think it’s a pretty complete list?

Mr. HAMILTON. Well, I think the answer is we’ve probably been

so focused on trying to get the recommendations we put forward

implemented that we haven’t tried to think of additional recVerDate 11-MAY-2000 12:09 Jan 26, 2007 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 D:\DOCS\31096.TXT HGOVREF1 PsN: HGOVREF1
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ommendations. But many of our recommendations are very general, including the ones I mentioned with regard to Chapter 12.

But even the recommendation with regard to the Privacy and Civil

Liberties Oversight Board, for example, it’s a very general recommendation and needs much more refinement and precision.

Governor KEAN. The recommendation is there, but again they

were vague by necessity in the area of foreign policy, and changing

our approach really to particularly these parts of the world so that

we’re not simply a fish swimming in a tank, we’ve thought of other

ways. The change in the view of America in Indonesia after we

gave the aid to the tsunami victims, and you saw the soldiers, the

feeling about the United States changed dramatically. It’s much

cheaper than war. And I think we should look at other ways—

many of which, by the way, we pursued toward the end of the cold

war in Eastern Europe, with libraries and exchanges and all of

that; use some of those approaches particularly in this part of the

world who really don’t know us very well and we don’t know them

very well.

Mr. SHAYS. Well, you all have endorsed and spoken favorably of

5017. It’s really not my bill or Congresswoman Maloney’s bill, it’s

really a bill that was designed to help people you work with as well

as people we work with to implement what you all have done, not

what we have done. It would implement what hasn’t been done,

but it would also say to the various departments and agencies, OK,

you were tasked with this, now how are you doing? And they would

write a report. And if they haven’t gotten an A grade, in essence,

then—or at least a passing grade—and I don’t mean C a passing

grade, I mean getting it done—they would have to, every 30 days,

come back and say how much closer they’re getting to it.

For both of you to come here and say, having given a grade way

back when, that you really don’t see anything that you would give

a higher grade to is rather stunning. You say it in a rather calm

way, but what I’m hearing you say is that most of these grades

that you’re giving out, you’re not seeing much improvement, unless

I’m wrong and there’s one or two areas where you want to say

we’ve seen an improvement here. That, to me, is stunning, because

it just says to me that I’m back before September 11th, having 22

hearings, hearing people just say something and we’re not making

progress.

So I would like to ask you, is there anything on this chart where

the grade goes up? And I’m going to say that you are both so fair

minded and so—I’m not going to say apolitical, but not political,

that your comments are huge in the implication to me, at least.

Governor KEAN. Well, I would say one area, when we made the

report, we did not have a Civil Liberties Board, now we have one,

and I’ll say the people that have been appointed reached out to me

to ask my advice as to ways in which they could do their job better,

and that was gratifying to me because we have not—this is not a

government that reaches out that much, particularly to people

who—I’m not in a sense in their role anymore, and I was appreciative for that. So I have high hopes with the oversight of this

Congress that the Civil Liberties Board that’s been appointed——

Mr. SHAYS. I don’t, so I’m going to come back——

55

Mr. HAMILTON. You take an issue like the radio spectrum we

gave an F and a C, I think both there, the radio spectrum law has

been passed, that’s an improvement, but the date for the change

is 2009. You can certainly improve upon that. So there has been

improvement there for sure, but not enough.

You’re very close to making substantial improvements on the

risk-based homeland security, if that law goes through—and it

could go through in the balance of this session—then we would

move an F to an A. So there are several areas like that where action is pending in the Congress right now where you could dramatically improve, in our judgment, performance with regard to the recommendations.

Mr. SHAYS. I’m going to put it in my words. What I’m hearing

you say, Congressman Hamilton, is that—it’s hard to know what

to call you, should I call you chairman of this, vice chairman of

that?

Mr. HAMILTON. Everything that’s been used so far is OK with

me. I’ve heard a lot worse.

Mr. SHAYS. What I hear you saying is, since nothing has come

to fruition, they get the same grade, but there’s stuff pretty much

in process that change the grade noticeably.

Mr. HAMILTON. That’s right.

Mr. SHAYS. Governor, while I take issue, frankly, with your

hopes of the Commission, if I heard my colleague, Mr. Kucinich, I

kind of agree with him, I think it’s a train wreck. Having good people is great, but good people without power is frustrating. It took

too long to get established, not their fault; not funded enough by

Congress, our fault. It has no subpoena power of any consequence.

They have to go to the Attorney General to basically ask permission if the Attorney General doesn’t want them to move forward.

I don’t see how they have the instruments in the various 16 agencies to be able to know what the heck’s going on. So I’ll be interested to have them tell me.

But for me—and this is where Mr. Kucinich and I part company,

but respectfully so, I happen to believe that the cold war strategy

of containment, reaction and mutually assured destruction is now

an absurdity, I happen to believe it has to be protect and prevent.

I happen to believe that somebody is going to get weapons grade

material. Now if we can prevent 20 people from just getting it and

just one, that’s great, but we have to break into the cell. I happen

to believe it is easy as can be to get radioactive material, and it

astonishes me that someone hasn’t combined radioactive material

with a regular conventional weapon. I happen to believe that if suicide bombers worked in places like the Middle East, they got the

leader of India way back when, it is destined to happen in Europe

and then in the United States. We have to be able to detect. So

that gets me to this vital point. Since I want to give more power

to be able to detect, I want to give more power to make sure that

the civil liberties are there. And you’re going to have to explain to

me, both of you, how you can succeed without subpoena power, how

you can succeed when your appointment can be taken away by a

President who appoints you and doesn’t move forward.

So maybe I’ll do it in a more general way. Do you believe that

it’s essential to have subpoena power?

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Mr. HAMILTON. Mr. Chairman, we really did not address that. I

don’t pretend to be an expert on that. It raises a lot of legal questions, I think, the executive branch subpoenaing itself, for example,

and to what extent that can be done. We did not get into the legal

questions of whether or not you should have subpoena power. All

we said is that you should have robust power so that you can get

the information you need. Now that can come about through cooperation. It may have to come about through subpoena power, I

just don’t know.

Mr. SHAYS. Let me ask you this; were you part of the executive

branch or were you part of the legislative branch? You were neither? Your Commission.

Governor KEAN. We were legislative branch. We were appointed

by the congressional——

Mr. SHAYS. And I realize I have a red light, but this is something

I’d love just to have a sense of because you argue maybe it should

be taken out of the executive branch. I mean, the issue, it seems

to me, shouldn’t be whether the process would allow the executive

to subpoena the executive branch, it seems to me what we should

be asking is, can they do their job without subpoena power? And

it seems to me that this committee couldn’t do it—and you raise

a point, we’re a separate branch. But you had subpoena power.

Should it be a separate independent agency that by definition isn’t

under the thumb of the executive branch?

Mr. HAMILTON. Look, you now have a Civil Liberties Privacy

Board. The challenge before us now is to make it work, OK, and

that’s what your attention and their attention ought to be focused

on. If they go for a couple of years and we find out they’re weak

and ineffective and they’re not getting the information they need,

then you’re going to have to go back to the drawing board and figure out a way to give them the power they need. But I think where

you are today is you’ve got a board, let’s go forward and see if we

can make it work.

Mr. SHAYS. Do you want to——

Governor KEAN. Yes, this was such an important part of our recommendations because we did everything else and we started to

address some of the concerns that Congressman Kucinich was talking about earlier. We’ve got to have a balance if we’re going to

make government stronger, if we’re going to make it more intrusive

because we think to do so increases our security. Then we’ve got

to be aware how that is encroaching on our liberties, and we figured we needed a very strong board based internally to do that.

Now we used the word ‘‘strong’’ without defining it, and that’s what

you’re getting into. If it needs subpoena power to be strong, then

it ought to have subpoena power, but whatever you can do to make

sure this board can work, to make sure it’s strong, to make sure

it will do its job, to make sure it alerts us when we’re in danger

of losing some of our civil liberties so we understand we’re making

some of these choices, that’s what we’re after.

Mr. SHAYS. Let me ask the question this way and it would help

me understand.

I think the bottom line is, I’m sitting next to a gentleman that

would put a great deal more weight on the civil liberties part of the

equation, and I happen to be putting a great deal more weight on

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the detection part and the power that this administration or the

next administration needs to be able to detect and prevent so we

don’t have to deal with consequence. But having taken that position, I feel an absolute obligation that we have a Civil Liberties

Board that has tremendous power. In H.R. 5017 what we did is

said Presidential appointment, Senate ratification, fixed term so

you can’t be replaced, subpoena power, and that you have a representative in each of the 16 different intelligence agencies, so that

you’re getting information, a full-time chairman as well. And is

there anything conceptually that you would object to that in the

bill? Is there anything that you would find of concern, Mr. Hamilton, and Mr. Kean, any——

Mr. HAMILTON. Look, what impresses me about this discussion is

that we are asking this board to get all of the information they

need to determine whether or not civil liberties have been violated

or privacy has been intruded upon. And they are going to be asking

for information from all kinds of agencies and departments that

don’t want to give it to them and will resist giving it to them.

We confronted that in the 9/11 Commission. Tom and I spent

hours and hours and hours negotiating to get access to information.

We would request the information and it didn’t come flowing to us

in an avalanche the next day, it took us 6 months, 7 or 8 months

to get it. Now this board is going to confront that problem over and

over again, and the question is going to be how tough is the Board

in demanding the information and getting the information that

they ask for? That’s going to be their tough problem. Now they will

have to analyze and you will have to analyze what powers they

need and how those powers should be stated. I’m not enough of an

expert to tell you.

Mr. SHAYS. I’m going to just invite both of you to just have a

closing comment after Mr. Kucinich just asks one question. I know

you both need to get on your way and a place to go, and it is 4

p.m.

Mr. KUCINICH. I’ll be brief. One of the things I think anyone who

is in this room or anyone watching this will have come away with

is the statements that we made today about how the No. 1 priority

should be securing ourselves against a potential nuclear strike. I

don’t know of anyone who would disagree with that. In connection

with that, Governor and Congressman, have you ever had any discussions about the merit of an international effort toward nuclear

abolition? Governor.

Governor KEAN. I’m an old veteran of the freeze movement, so

I had those discussions years ago. But the immediate problem that

we saw work in the Commission—and we were enlightened a lot

by Sam Nunn and his work—was 100 sites, many of them totally

unsecured with rusty fences or with one person guarding them, and

that we saw as the immediate problem. International agreements

I would be very much for if we can achieve them, but they take

time. And in the meantime, there are unguarded or little guarded

sites that the terrorists know about and our borders that are not

as secure as we want them to be, and not too hard to put these

things together. And so we saw the immediate threat as trying to

secure these sites to the best of our ability as fast as possible.

Mr. KUCINICH. Congressman.

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Mr. HAMILTON. We did not discuss the abolition of nuclear weapons. I don’t recall that the word ‘‘abolition’’ even came up at any

time during our discussions.

My reaction to your statement is that I think most experts now

agree that we’re on the cusp of a period of time in which you could

see a very great proliferation of nuclear weapons. We’ve been very

fortunate in the past 50 years that we’ve been able to constrain it

as much as we had, but most of the experts I think recognize you’re

now in a very, very different climate and the proliferation of nuclear weapons is likely. Will that, just thinking out loud for a moment, bring back the demand of abolition of nuclear weapons? I

wouldn’t be surprised that would happen. If you come with me

down to the Wilson Center and listen to the Third World countries—if I may still use that word—the developing countries, believe you me, they’re interested in the abolition of nuclear weapons.

The people who are not interested in it include ourselves in the

United States and most of the powers that have nuclear weapons,

and we have been unwilling to discuss it.

Mr. KUCINICH. I want to thank the gentlemen and just conclude

by saying since we know that’s a great threat, this might be the

time for us to have a national discussion, an international discussion again about nuclear abolition. Thank you.

Mr. SHAYS. I thank both gentlemen. Would either of you, Governor, or Congressman Hamilton, like to make a closing point before we get to the next panel?

Mr. HAMILTON. Mr. Chairman, we’ve been very appreciative of

your personal interest in the work of the 9/11 Commission, your

willingness to support our recommendations. We took note of our

hearings that occurred before September 11th, which were very

valuable, and the hearings that occurred since our report came out

and your sponsorship of 5017, and we’re grateful to that.

Governor KEAN. I would second all of that. You and the work of

this subcommittee, as far as we’re concerned, you have done as

much as anyone in the Congress, you personally, as well as this

committee, to try to make sure that our recommendations get

adopted, and we hope therefore to have a safer country for us and

for our children. We thank you and members of the committee very

much.

Mr. SHAYS. Well, the subcommittee thanks both of you and the

members of the committee and all your staff. It’s just been one of

the bright spots in this country in the last few years. And thank

you both for working so well with each other. Thank you very

much.

We’re going to have a 1-minute recess, and then we’ll start with

our second panel, which will be Carol Dinkins, accompanied by

Alan Charles Raul, Civil Liberties Board. We thank them for being

here.

[Recess.]

Mr. SHAYS. This hearing is called to order. I want to thank you

both for being here. I understand, Ms. Dinkins, you will be making

a statement. Both will be responding to questions. Is that correct?

Ms. DINKINS. Yes, that is correct, Mr. Chairman.

Mr. SHAYS. I need to swear you both in and then we’ll go from

there.

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[Witnesses sworn.]

Mr. SHAYS. Note for the record our witnesses have responded in

the affirmative. Ms. Dinkins, you’ll need to hit that button in the

front there to just get it on, turn it on. I want to say to you, whatever feelings I have about the Commission in terms of power and

so on don’t reflect on either of you as newly appointed members.

I know you are starting, of course, and it may be that you will be

able to tell me that you have the capability to do what you need

to do. So, you know, I just want to make sure that you know that

you’re both very welcome here.

We appreciate you being here, and we just really want to learn

what your task is and how you think you can go about getting it

done. And then we’d like you to respond to the concerns that we

have and so on. So, welcome.

STATEMENT OF CAROL E. DINKINS, CHAIRMAN, PRIVACY AND

CIVIL LIBERTIES OVERSIGHT BOARD, THE WHITE HOUSE,

ACCOMPANIED BY ALAN CHARLES RAUL, VICE CHAIRMAN,

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD, THE

WHITE HOUSE

Ms. DINKINS. Thank you, Mr. Chairman. Mr. Kucinich, we appreciate very much——

Mr. SHAYS. Bring that mic a little closer.

Ms. DINKINS. Do I have it on? I think it’s on now.

Mr. SHAYS. Yes.

Ms. DINKINS. That sounds better, doesn’t it?

Mr. SHAYS. Yes.

Ms. DINKINS. Thank you very much, Mr. Chairman. We very

much appreciate the opportunity to testify on the organizational efforts of the Privacy and Civil Liberties Oversight Board. We are

pleased to be here with you today.

Since being administered our oaths of office on March 14th of

this year, the five Board members have worked diligently to organize, hire staff, educate ourselves, and begin to exercise our statutory responsibilities. The Board does take these responsibilities

very seriously, and we seek to convey this to you today.

The scope of the Board’s authority under the Intelligence Reform

and Terrorism Prevention Act is obviously broad. Congress envisioned the Board being empowered to carry out its mission in two

equally important ways. First, to advise policymakers on the development of the law, regulations and policy; and second, to conduct

oversight by reviewing government actions after those laws, regulations, and policies are implemented.

In exercising these authorities, the five members of the Board

seek to operate largely by consensus. We have met with a number

of organizations and individuals considered experts in privacy and

civil liberties matters, both within the Federal Government and in

the private and not-for-profit sectors. In these meetings, we have

sought to gather the information necessary to begin prioritizing

those issues most in need of our attention. We have made great

progress in this regard. We have met with senior leadership of the

American Civil Liberties Union, the Center for Democracy and

Technology, and the former Clinton administration OMB Chief

Counselor for Privacy, Peter Swire. We are scheduled to meet in

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the near future with senior officials of the American Conservative

Union and the Markle Foundation, which has spent a great deal

of time studying issues of privacy and civil liberties in the context

of homeland security and the Information Age. Additional fact-finding will take members of the Board to the National

Counterterrorism Center and the National Security Agency within

the next few weeks.

Additionally, Vice Chairman Raul and I had a very helpful telephone conference last month with the chairman of the 9/11 Commission, Governor Kean, to discuss with him the status of our efforts to stand this Board up. We deeply appreciate the Governor’s

support of this Board and its efforts.

Within the Federal Government, we have met with many senior

administration officials, including the then White House chief of

staff, Andrew Card; with Stephen Hadley, assistant to the President for national security; Frances Townsend, assistant to the

President for homeland security and counterterrorism; and Harriet

Miers, counsel to the President. We have also met with John

Negroponte, the Director of National Intelligence and with then

Deputy Director, General Michael Hayden. And we have received

guidance from the Department of Justice, Department of Homeland

Security and the Office of Management and Budget.

Our support staff has begun to build constitutional lines of communication and working relationships with the privacy and civil

liberties officers in the executive branch, all of whom we expect to

work with closely. All of these meetings have been immensely useful; and through them, we have been able to identify several areas

of initial interest where we believe the Board can play the constructive role envisioned by Congress when it enacted the Intelligence Reform and Terrorism Prevention Act.

The specific issue mandated by our enabling statute obligates the

Board to assist the executive branch in the implementation of information sharing guidelines; and to that end, at our most recent

Board meeting, we met with Ambassador Thomas McNamara, program manager at the Office of the Director of National Intelligence.

Ambassador McNamara, as you know, has been selected and designated to oversee the implementation of the information sharing

environment, including drafting appropriate guidelines.

Beyond information sharing, the Board hopes to focus its energies on those issues of practical concern to the American public as

the Federal Government protects the Nation from terrorism. The

President has made clear that the war on terrorism must also respect the privacy rights and civil liberties of the American people.

We will assist the executive branch in fulfilling this commitment.

The Intelligence Reform and Terrorism Prevention Act gave the

Board a broad mandate to review and provide advice to the President and to Federal agencies, and it contains specific provisions

which help ensure that the Board will have access to the information that it needs to do its work. This will be done to the extent

allowed by law and consistent with national security. The executive

branch agencies, within those confines, are required to cooperate

with the Board. Any disagreements between the Board and an

agency head will be presented to the Attorney General for resolution.

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The Board has no authority to veto or to delay executive branch

actions or to order specific remedial actions. The Board’s legal authority derives primarily from the compelling power of persuasion,

the ability to know what is going on, to develop informed assessments of whether privacy and civil liberties are being or have been

appropriately considered, to make observations and provide comments, and to render advice to appropriate executive branch leadership, up to and including the President, when issues are identified. The Board’s opportunity to report annually to Congress regarding its advice and oversight functions also provides a further

vehicle for advancing the Board’s mission.

In creating the Board, Congress considered and declined to give

it subpoena power. We agree with that determination of Congress.

The Board has and expects to continue to enjoy the support of the

White House staff and Department of Justice in obtaining the executive branch information it needs to carry out its responsibilities.

With regard to interaction with the public in general, while the

Board is not designed or equipped to handle individual case work,

citizens with concerns they would like to report to the Board may

do so through its Web site or e-mail address.

Setting up any new institution takes time and energy. We are

proud of how far we have come in the short time since our swearing-in less than 3 months ago. Personnel security clearances are in

place. Our Executive Director, Mark Robbins, is building a professional and administrative support staff through the direct hires

and detailees. We have a new suite of offices within the White

House complex, half a block from the Eisenhower Executive Office

Building, and that space includes secured space for classified matters. And our budget and resources are sufficient to pursue our

mission.

Most importantly, we are grateful that we have received tremendous support from all levels of the White House staff, the Executive

Office of the President, and the Federal departments and agencies

with whom we will continue to work.

Congress conferred important responsibilities on this Board, and

we look forward to working with Congress as we embark upon this

important mission. Thank you again for having us. Vice Chairman

Raul and I will be pleased to take your questions.

[The prepared statement of Ms. Dinkins and Mr. Raul follows:]

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Mr. SHAYS. Thank you both very much for being here. If I were

starting out doing what you are required to do, I would like to be

able to do it the same way all of you are doing it. I think it’s essential that you develop relationships with the various folks that

you’ve mentioned. So I congratulate you for doing that.

I am just having a hard time understanding how the system actually works. For instance, maybe you could describe to me what

you think your ultimate product needs to be. In other words, besides giving advice, what are you going to be able to do? And how

do you—because I’m sure you’ve wrestled with this in your own

minds. I could give you—for instance, let’s just say the NSA is reporting doing some information gathering that strikes many people

as conflicting with the law of our land; that it involves basically

getting records of Americans outside the FISA Court.

One, how would you even know about it? And, two, what powers

would you have to deal with it?

Ms. DINKINS. Mr. Chairman, you’ve——

Mr. SHAYS. And I’m going to ask both of you to respond to every

question that I ask.

Ms. DINKINS. Thank you, Mr. Chairman. You have identified that

the central function of this Board is to give its advice to the President and to the executive branch. And in fulfilling that mission, we

intend to take a hard look to examine carefully the matters at

hand and the matters that we believe should fall within the purview of the Board’s responsibility. And we will do that both as the

policies and programs are formulated, and then provide oversight

as they are implemented.

Mr. SHAYS. I’m going to ask you, Mr. Raul, to respond and then

I’m going to come back to you, Ms. Dinkins, in response to your

point, just to have you react to it.

Ms. DINKINS. In terms of our work products, which our Board

has given a great deal of thought to, obviously advice and even

more importantly, perhaps, influence in terms of the products of

other agencies with regard to the development of policies and implementation of policies and practices to fight the war against terrorism, it’s our mission, I think, to continually review these matters, become informed, see what processes have already been undertaken by others who are focused on privacy and civil liberties,

and to suggest where those processes are in our view sufficient, insufficient, could be improved, streamlined, or otherwise.

One of the things that we’ve already learned is that it’s a mistake to believe that the new Board, which I and all of us are on,

to serve on, is the exclusive means by which privacy and civil liberties issues are considered and protected within the executive

branch. That’s not at all correct. There are many places in each department and agency where that’s considered. But we have found

that already, I believe, that we can make suggestions to improve

the work products of other agencies and perhaps even bring personnel together who have related functions and help bring them together to improve the overall product.

Mr. SHAYS. I like to be candid, but let me be as direct as I can

possibly be. If you view your role as advisory and giving counsel,

I see logic in some measure with how we’ve constructed the Board.

I viewed it—and tell me if I’m wrong—that we wanted you to also

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be on the ground, aware of what was happening and say, ‘‘Hello,

don’t think you can do that. There’s a law that says this. You all

are doing this. Stop it.’’

Now, I don’t think you have the capability, one, to find out about

it. And second, I’m not sure you have the capability to stop it. Because I asked Ms. Dinkins—a particular issue with NSA: Who

would you have in NSA who would even tell you about it? Who

would be working and answerable to your Board that would let you

know that, by the way, we might be spying on American citizens,

that’s a borderline issue of whether it’s legal or not. Who would be

there for you? How would you know about it? And then, how would

you be able to stop it?

And I don’t want you to—obviously, I’m not asking you to suggest that you have powers you don’t have. I just want to know

within the framework that we’ve given you how you would do that.

And, frankly, do you even think that’s your responsibility?

So maybe I’ll start with you, Mr. Raul. And then I’ll come back

to you, Ms. Dinkins.

Mr. RAUL. Well, Mr. Chairman, there are two models you’ve alluded to as I have been thinking during this informative hearing

so far. There’s kind of an arm’s length adversarial model, which is

one way of doing this Board; and the other, which would be a more

cooperative influential Board within the process.

I was struck by Congressman Hamilton, whose reference in his

response to some of your questions spoke about giving the Board

a chance to work and to focus on the cooperation that the Board

can get from within the executive branch. The statute obviously

chose, in my view, the cooperative internally influential model.

So if that’s correct, that it is the cooperative influential model

rather than the arm’s length adversarial one, then I would submit,

Mr. Chairman, that the answer to your question of how we find out

is really with the support, active support, of the many most senior

officials in the administration that Chairman Dinkins referred to.

While I certainly recognize comments that have been made regarding independence and where this Board is placed and is it in

the executive branch or independent, there are benefits of being in

the White House, located in the White House, and with the active

support and cooperation of the White House.

So the way we find out about these issues in principle would be

through developing working relations with the National Security

Adviser, the counsel to the President, and Director of National Intelligence and so on.

Mr. SHAYS. OK. Before you respond, Ms. Dinkins, let me just

kind of respond to what I think I’m hearing you say. I’m trying

to—and I mean no disrespect to either gentleman, but I have not

seen Secretary Rumsfeld be the kind of person that allows you to

sit next to him and be an equal or, frankly, the Vice President.

They’re very extraordinarily intelligent, both of them, very strong

willed. I don’t see them having the mentality that says, hey, we’re

doing something in NSA which I’m aware of but I’m not sure the

Board would like to know about—I mean, they may like to know

about. I’m not sure I want the Board to know about it. If I let them

know about it, then I’ve raised an issue I’d just as soon not even

71

address. And frankly, this is so Top Secret, why even let them

know in the first place?

I mean, there’s no logic that tells me that these two individuals

would choose to have you even know about it, and if you did know

about it, even want you to get involved. I think they would dismiss

you so quick. That’s my sense of it. Sort that out for me.

Mr. RAUL. Well, I think that it will be our mission to develop the

kinds of relationships and to be perceived as providing the kind of

value that would encourage the senior officials in the administration to share the information with us and to get, as Congressman

Hamilton said, a second opinion, a second opinion on what’s being

considered and developed.

Can we tell you here today that we will in the future have those

relationships, having just started 3 months ago? It’s hard to say.

But there’s everything about the crafting of the statute, about the

support that we believe we’ve received to date from the administration, and from the White House in particular, that suggests we will

get the support that we need from the agencies and departments,

and the law would certainly require that.

Mr. SHAYS. OK. Let me just pursue a little bit more. There have

been more than one instance in the last few months of people being

surprised by the activity of particularly the NSA, the administration general as it relates to civil liberties. Do you think, one, you

have a right to say, what the heck’s going on here? Do you think

you have the right to go to the head of the NSA and say, I want

to know, and I want to know as quickly as possible?

Do you think that—I mean, it is—I mean, if they only told the

top four people in the House and the top four people in the Senate,

why are they going to tell you about it? I mean, I just don’t know

under what basis you’re going to be able to exert that authority.

Maybe, Ms. Dinkins, you can tell me. I mean, this is a real-life

example. This is highly classified information. What makes them

want the administration to say, OK, now that it’s been public,

we’re just going to just—I mean, let’s say now it’s public, you’re

going to say we didn’t know about it, and you want to find out

about it. How’s that system going to work?

Ms. DINKINS. Mr. Chairman, let me go back to what Vice Chairman Raul said. In the statute, we are provided with the authority

to seek information from executive branch agencies. And there’s an

exception in the statute, and that is if the Director of National Intelligence concludes that it should not be provided, if the Attorney

General concludes for very specific reasons that it should not be

provided to the Board, that is a statutory mechanism for us not to

receive information.

We expect that as we develop the areas that we will be addressing our attention to, that we will make various requests of agencies. And I’m speaking here generally. And to go to the specific

point that you raised, we would expect that if we make those requests of agencies, that if they choose not to provide us information

that we have sought, that they would go through the exception

process that’s laid out in the statute as it was established by Congress.

Mr. SHAYS. Let me thank you for responding to my questions,

and now turn it over to Mr. Kucinich.

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Mr. KUCINICH. I thank the gentleman.

Ms. Dinkins, can you name any example where the White House

Privacy and Civil Liberties Board has objected to or at least raised

concerns with a program initiated by the administration?

Ms. DINKINS. Mr. Kucinich, we have not existed for very long,

and being a new Board, we are developing not only the administrative matters I described—getting space and hiring staff—but we

are also evaluating the areas where we believe we can provide advice and be of substantive support and assistance in the area of

privacy and civil liberties. And as we move into that area, we will

be getting into specific matters. It is premature yet to be at that

point.

Mr. KUCINICH. Well, does the Board intend to review the administration’s snooping into Americans’ library records?

Ms. DINKINS. The Board is considering and we have sought

input, as I said earlier, from the American Civil Liberties Union

and from others, as to what areas they believe the Board would be

well advised to look into.

Mr. KUCINICH. Do you intend to review the administration’s NSA

shopping program?

Ms. DINKINS. As I said in my testimony, we have recently received all of our clearances, and within the next few weeks we will

be getting briefings at NSA and at the National Counterterrorism

Center. And as we get those briefings and as we understand the

processes, the procedures, the programs that are in place to protect

privacy and civil liberties, that will enable us to develop what we

believe is the agenda that is most immediate for this Board.

Mr. KUCINICH. Do you intend to review the administration’s NSA

domestic telephone record data-mining program?

Ms. DINKINS. We will be looking at data-mining issues, and, as

part of that, evaluate and then determine specific programs and

policies we think the Board should take a look at.

Mr. KUCINICH. Do you intend to review the administration’s Department of Defense talent program that uses domestic surveillance on peace groups?

Ms. DINKINS. That is another area where we will evaluate the

possible role of the Board in considering that program.

Mr. KUCINICH. Ms. Dinkins, would you permit the Board’s own

phones to be tapped if you knew it was in the interest of national

security?

Ms. DINKINS. I haven’t thought about that question. I think there

are probably a number of laws that would govern that.

Mr. KUCINICH. OK. One final question, Mr. Chairman. Ms.

Dinkins, would you be able to provide the subcommittee copies of

meeting transcripts or notations?

Ms. DINKINS. We will consider that.

Mr. KUCINICH. Thank you very much.

Mr. SHAYS. Just before the gentlelady goes—and she can have as

much time as she wants—when you’re asking—when you say you

haven’t thought of the security level, it would seem to me that you

would have to have the highest security level, if I’m hearing this

right, so that you could get into the areas which may in the end

be the most evasive to civil liberties. I can’t imagine that you would

want to have anything less than the highest, and even if it ended

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up being that the chairman and vice chairman would have the very

highest, I would think that would be essential. And I’m—I mean,

maybe we can—in the part of dealing with—as you explain how

you’re sorting this out, it’s so helpful it might be helpful for us to

have continued dialog with our subcommittee because we’ve

thought about this for 6 to 8 years, and we have opinions that may

be helpful to all of you. You need the highest security level possible, otherwise you’ll never even dent NSA.

Mrs. Maloney, you have as much time as you’d like.

Mrs. MALONEY. Thank you. What is the status of the Privacy and

Civil Liberties Board Oversight Board’s hiring of staff? How many

staff members will the Board have in total?

Ms. DINKINS. We have an executive director and brought him on

board at our very first meeting. And we have an administrative assistant. We are in the process of hiring a deputy executive director,

general counsel, and then Congress provided us a very important

opportunity for staff by providing that we would be able to have

detailees from the various agencies and departments on a nonreimbursable basis. And so we have reached out and begun the

process of bringing detailees into our work.

Mrs. MALONEY. So right now you have one staff member, the executive director; is that correct? And reaching out to how many

detailees, 5, 10, 20?

Ms. DINKINS. We also have an administrative assistant, and we

are seeking to engage a deputy executive director, general counsel.

And as to detailees, as we develop our agenda, then we will bring

on board the detailees that we need to further our work.

Mrs. MALONEY. So as of today you have two employees.

Ms. DINKINS. Yes, that’s correct.

Mrs. MALONEY. And is the Privacy and Civil Liberties Oversight

Board reviewing the following publicly reported matters that have

been all over the papers? Just say yes or no. The NSA’s reported

domestic eavesdropping program?

Ms. DINKINS. That is among the matters that the Board has considered and we will have a large number of items that we will consider what role it will have in our agenda.

Mrs. MALONEY. But right now the answer’s no, correct? You have

not requested any documents or interviews in connection with this

publicly reported matter; is that correct?

Ms. DINKINS. What the Board is doing, as I explained earlier, is

meeting——

Mrs. MALONEY. I heard that. I heard that. I just wanted to know,

have you requested any documents on this program? So far the answer’s no, correct? So far the answer’s no, you’re still getting ready.

Second, has the Privacy and Civil Liberties Oversight Board,

have you looked at the NSA’s reported domestic phone data collection program; have you requested any information, documents or

interviews on that particular program?

Ms. DINKINS. As I said earlier, we have just recently——

Mrs. MALONEY. OK. So that’s a no.

Ms. DINKINS [continuing]. Received our clearances, and we are

going to be.

Mrs. MALONEY. By the way, is your clearance level a TS level or

SCI level?

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Ms. DINKINS. SCI.

Mrs. MALONEY. SCI. OK, great. OK.

Has the Board looked into the DOJ’s reported data retentions request to Internet companies, again, publicly in the papers all the

time?

Mr. RAUL. Mrs. Maloney, may I respond?

Mrs. MALONEY. Sure.

Mr. RAUL. One of the important attributes of our role as providing advice and retaining credibility to have influence, which was

suggested in the earlier panel, and which I think is very important

to us, really obligates us to preserve that ability by not prematurely getting into what the nature of the internal discussion is.

We really do—I believe I can speak for the Board—take our role

very seriously and want to ensure that privacy and civil liberties

are appropriately considered in many of these topics that you’ve

raised, and I think that it wouldn’t be appropriate for us to say yes

or no, we’ve provided advice, requested documents on them, when

our ability to influence the executive branch really turns on our

credibility, on our not prematurely getting into whether we, you

know, think it’s good or bad or what.

So I would just suggest that if—with respect, if we could do what

we can to maintain our power internally, our credibility and influence, by not touching on some of these very sensitive subjects before, you know, before appropriate.

Mrs. MALONEY. Well, this body, Congress, is practicing oversight,

and I think it’s a totally legitimate question when an oversight

board has been created by the Executive and by the Congress, that

we inquire what you’re looking into. I don’t think that the whole

purpose of oversight is not to keep everything secret. We’re not

making a determination whether it’s appropriate or not. I am reading reports in the press. There’s a list of them that I’m concerned

about. And I’m wondering if you’ve requested any documents, requested any interviews, if you’ve initiated any investigation or

oversight.

I feel that for me not to ask what my constituents are bringing

to me as their top concerns would be, why have a hearing?

Mr. RAUL. Sure.

Mrs. MALONEY. So I think it’s totally legitimate for me to ask.

You can answer no, we don’t think it’s appropriate now, but at

least answer.

Mr. RAUL. Mrs. Maloney, I didn’t mean to suggest that the question isn’t appropriate. I believe it entirely is, and the issues you’ve

raised are certainly relevant issues. The question is, if we start discussing what requests we’ve made and what information we’ve received, then the people who—as it was said earlier by I believe

both Governor Kean and Congressman Hamilton who—I mean

this—the people that we need to talk to are appropriately very sensitive about all this information. And so it seems critical to the success of our job, our mission, if while the questions are all together,

completely legitimate, it can nonetheless undermine our ability to

play an influential role, which I think is the purpose of the statute.

Mrs. MALONEY. OK. Well, I’m not requesting you or asking you

to judge the programs. I just want to know whether or not you care

about it, whether or not you’re taking steps to look into it. This is

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called oversight. My constituents call me and say, are you looking

into this? And I think it’s totally appropriate to ask whether you’re

looking into what has been publicly reported. But the questions I’m

asking have absolutely nothing to do with secrecy. These are programs and activities that have been on the front page of all the

major newspapers and regional papers in the entire country. I don’t

feel that——

Mr. SHAYS. Would the gentlelady yield?

Mrs. MALONEY. Yes.

Mr. SHAYS. We obviously know you have just started. You

haven’t gotten to this point where you’re in full operation, but are

you in a process now where you are starting to ask questions about

particular programs? Just—or have you not even begun that process?

Ms. DINKINS. Yes. Mr. Chairman, we are looking at a wide array

of areas that we believe might be appropriate for the Board to focus

on. And we will do that through a number of mechanisms, perhaps

by having one of our Board members——

Mr. SHAYS. Let me just make sure. You can respond to the other

party. I don’t want to take Mrs. Maloney’s time right now, given

she can use as much time as she wants. I just want to know, because I’m trying to set up a point in which we can figure out how

we can get a response to questions without going too far. The bottom line: You have started operation, but you’re in the beginning

stages; is that correct?

Ms. DINKINS. Yes, that’s correct, Mr. Chairman.

Mr. SHAYS. So it would be logical if there’s something in the

news that is of interest to the public, the press, to Congress, for

you to say we’re looking at it—if you are. If there are things that

aren’t in the news and you choose not to make them news, that’s

another issue. I think that Mrs. Maloney would understand because we want you to be able to pursue issues where you have concern.

So I guess what I’m saying, it seems to me you can respond to

Mrs. Maloney if she’s asking are you looking at, for instance, the

issues in the NSA that have been so public. I don’t think—I think

it would be shocking if you weren’t, and I don’t think it reveals

much if you say yes. Probably reveals more if you say no. But do

you understand?

If we can figure out how we can have a meaningful dialog without pressing you too much on two issues, one, we know you’re just

getting started, and second, you’ll be back. We’ll have you back,

and there will be an opportunity to get into greater depth. Do you

have a sense of where I’m coming from?

Ms. DINKINS. Mr. Chairman, we were trying to answer the question and what we’re trying to say is because we are in the initial

stages of getting the Board up and running and we do believe that

we’ve made great progress in that regard, we are assembling an

array of areas that have been expressed to us by those whom we

have met both within the executive branch and outside, and we

have made ourselves available to meet with Members of Congress

and would welcome such meetings so that we can understand, as

Congresswoman Maloney said, what her constituents are bringing

to her attention that they’re interested in. We welcome all of that

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input so that we can then evaluate where we think it would be best

for us to spend our time and the resources of the Board. And we

are not at a point yet, because we have just been taking in these

suggestions and developing our own ideas about what we might

pursue. We’re not at a point where we can say, yes, we’re looking

at that, or no, we’re not looking at that; because at this point,

many things are on the table for us.

Mr. SHAYS. I’m sorry. Thank you.

Mrs. MALONEY. It has been publicly reported extensively, DOD’s

reportedly increased role in domestic surveillance activities. Is this

an area that you are considering looking into?

Ms. DINKINS. We are certainly cognizant of the reports on those

programs and those are things—that is the sort of thing that we

have on our list of areas to consider.

Mrs. MALONEY. OK. And DOD’s also reported data-mining activities. Is that on your list of things to possibly consider?

Ms. DINKINS. Yes.

Mrs. MALONEY. It is? Good. And what information has the administration provided to you to date? Have you even requested any

information from the administration to date? Have you requested

any information, any documents, any reviews, any interviews, have

you requested anything from the administration to date?

Ms. DINKINS. Speaking in a general sense, as I have said earlier,

we have had a substantial number of briefings, and we have requested information that will help us learn the areas that we

might have an interest in studying, and we will continue to do

that.

Mrs. MALONEY. Has the administration denied access to any information that any of its members have sought in connection with

the activities—of the privacy over in Civil Liberties Oversight

Board?

Ms. DINKINS. As I said earlier, we have had a very great amount

of support and assistance from the administration, and we have

felt that we have been provided with a great deal of cooperation.

Mrs. MALONEY. So I assume the answer is no, that the administration has not denied you any access to any information. Have you

requested information and they have denied to give it to you?

That’s my question.

Ms. DINKINS. As I have said earlier, the way the statute is set

up, it’s very clear under what circumstances if we make a specific

request, that information can be denied.

Mrs. MALONEY. So, has the administration invoked the legislative process not to provide information you have requested?

Ms. DINKINS. We have not gotten to that stage where that would

have been an issue.

Mrs. MALONEY. OK. So you have not been denied any information you’ve asked for, but you may not have asked for any information at this point. OK.

Is there a process in place for the administration to seek review

or consideration of new policies and procedures for the Privacy and

Civil Liberties Oversight Board so that you could assess the potential impact on privacy and civil liberties prior to implementation?

In other words, there have been some programs put in place that

some of the American public has protested to it. Do they have a

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process to speak to you first about what they intend to do, to see

whether or not there might be an objection because it violates privacy from your Board?

Ms. DINKINS. We have established a Web site, and we welcome

information, and if anything is brought to our attention, we will

consider it; or if it’s something that is about a specific matter that

is not within our purview, then we would refer it to whatever we

thought to be the appropriate entity to review it. We’re not established as a Federal advisory committee, and we’re not open—we’re

not subject to the open meetings requirements of Title 5.

So if your question is whether we have a process for open meetings or for public hearings, no, that is not part of the statute that

established us.

Mrs. MALONEY. The question was, was there a policy in place for

the administration to seek review or consideration of new policies

and procedures to the Board so that you can assess the potential

impact on privacy and civil liberties prior to implementation? In

other words, a preventive step or a review before taking policies

that might be controversial?

Mr. RAUL. Mrs. Maloney, I’ll just address that. We have established certain processes that are standard within the administration; namely, the OMB clearance process, the White House staff

secretary process, and establishing both a Board level and staff

level coordination within the White House with the relevant counsels.

I think anyone would—that the most sensitive matters are not

necessarily going to go through the OMB clearance process, although as former general counsel of OMB, sometimes I thought

that everything should go through that. But as Chairman Dinkins

indicated, our meetings with the individuals that she described in

the testimony is intended as a basis to establish dialogs and relationships and systems and processes so that we can carry out the

statutory mandate, which is to be in a position to continually review the development of these policies. So as a Board, we certainly

intend to establish those processes. We’ve begun to do so in what

I’ll call the more standard White House clearance mechanisms, but

we recognize that we do need to speak with other agencies that are

relevant.

Mrs. MALONEY. Is there a process in place for government employees to approach the Privacy and Civil Liberties Oversight

Board in confidence, to alert the Board of policies or practices that

they believe unduly infringe upon the privacy and civil liberties of

Americans?

Ms. DINKINS. As I said in my testimony, our executive director

is part of the community of these who are concerned with privacy

and civil liberties throughout the government, and he is working

with his counterparts in the various departments and agencies. We

expect that by virtue of the Board being visible and being accessible through his work and the fact that our members are known

and we have offices here in D.C., that those who might wish to contact us would have every opportunity to do so.

Mrs. MALONEY. And how will the Board, your Board, make its

findings and conclusions and advice known to the administration?

How often will you do so, and will you do it publicly?

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Ms. DINKINS. As Vice Chairman Raul said, we believe a big part

of our effectiveness is that we are working within the executive

branch, that we can bring to bear the suasion that I described in

my testimony and that was recognized, we believe, by the 9/11

Commission, and that much of that will be done, and the opportunities to meet with people one on one, to meet with them in groups

as we work through various issues.

But we also under our statutory authorization are to provide an

annual report to Congress, and so we expect that will be one of the

mechanisms by which the members and the public will have the

opportunity to see the work of the Board.

Mrs. MALONEY. Mr. Shays, some questions?

Mr. SHAYS. No. I’d like to make sure that Mr. Van Hollen goes,

and then we’ll come back to you if you have some followup. Mr.

Van Hollen, thank you for your patience.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. And I also thank

you, Mrs. Maloney, for all your leadership on these issues. And I

understand and appreciate the fact that the Board is just beginning to get up and running, and there’s a large amount of material

to cover and catch up within a short amount of time. So I am interested, though, in how you perceive your authority, and how would

you go about resolving potential issues that arise in terms of trying

to get potential information from the administration?

As the co-chairman and vice chairman of the 9/11 Commission,

Governor Kean and Congressman Hamilton, pointed out in their efforts on the 9/11 Commission, the fact that they had subpoena

power was a very important tool. On at least three occasions they

had to issue subpoenas to get material that they sought. They were

able to resolve those cases amicably. But the fact they had subpoena power, in their opinions, allowed them to get a lot of other

information that they didn’t have to issue subpoenas for.

So I guess the question is—and I know the statute sort of lays

out a process by which you can request information and that the

agency can then deny it; it gets reviewed by the Attorney General

and others make a final determination. Yet, what recourse will you

have if you go through that process? Do you think that there’s information essential to your function as an oversight board and

you’re unable to get that information? This piggybacks a little bit

on the questions Mrs. Maloney was asking you. That was something I assume you would be willing to come before Congress and

testify about. Or is it not?

Ms. DINKINS. We expect that as part of the executive branch, and

certainly given the fact that we are located within the Executive

Office of the President, that the executive branch departments and

agencies will understand the important role of this Board and that

they will cooperate with the Board as we seek information. We believe the process that’s laid out in the statute is for those instances

when the head of an agency and our Board simply cannot agree on

whether we should receive information or not, and so there is the

process for our Board to go to the Attorney General and ask that

the information be provided us. We think that is a process that is

clear. We think it is a process that is workable, and we expect that

when we seek information, that—in virtually all instances, we will

get it. And if we invoke the process laid out in the statute, it will

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be because there is a very real concern on the part of the head of

an agency about providing it to this Board. We think the Attorney

General is the right place for the ultimate decision to rest.

Mr. VAN HOLLEN. I understand the process. My question’s a little

different than that because I want to understand what you perceive

the role of Congress to be. After all, this Board was a creation of

the Congress. It was part of the statute passed by Congress, and

we are going to be relying in many cases on the Board to fulfill the

function of guaranteeing civil liberties, at the same time we provide

for the security of the Nation, that you strike that correct balance.

So my question is how forthcoming you’re going to be with Members of Congress or how you perceive your responsibilities to Congress? If, for example, you go through this process and you don’t

obtain the information that you requested—and the 9/11 Commission was stymied on several occasions—and you’re in front of a

committee hearing just like this, would you agree that it’s part of

your responsibility, if asked, at least to inform Congress when the

administration has, through the process outlined in the statute, denied you information that you think is needed to conduct your responsibilities?

Ms. DINKINS. Congressman, we haven’t faced that situation because we haven’t been in existence——

Mr. VAN HOLLEN. No, I understand that. I understand that.

That’s why I prefaced my comments by saying I understand you’re

just in startup mode. But I’m trying to understand how you envision your responsibilities and the oversight role of Congress with

respect to your activities.

Mr. SHAYS. Would the gentleman yield?

Mr. VAN HOLLEN. Yes.

Mr. SHAYS. I think that’s really an essential question. Maybe it’s

that you haven’t had a chance to talk to your other members of the

Board just to have them all have a buy-in. But I’d like to think if

you didn’t feel you were getting cooperation, that you would make

sure that it was known; because if you’re not getting cooperation,

then you’re not going to be able to do your job. We have a right

to know if you’re going to be able to do your job. And if you don’t,

then we have to appraise what needs to happen.

It strikes me that’s kind of logical. If you kind of wrestle with

that comment, maybe you could explain to Mr. Van Hollen and me

why you would be reluctant to be able to respond to that now, you

know.

Ms. DINKINS. Thank you, Mr. Chairman. And I understand, I

think, what it is you’re asking. I don’t feel that we are yet in a position to really look down the road and anticipate how this might

arise and in what context. And I think what would be best is for

the vice chairman and I to take back to the other members of our

Board the questions that you have raised and the concerns that

you have expressed about your oversight function and about your

ability to understand whether the Board feels that it is able to pursue its mission, and let us please contemplate that as the Board

is moving forward and getting underway with its work. It’s hard

to anticipate the specifics that would put us in a place where that

would be the next step, and I think that we need to understand

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that and work through it as we move into getting the important

work of the Board done.

Mr. SHAYS. I’m sorry. It’s hard for me to contemplate, though,

and you raised the question. You know, why don’t you just

respond——

Mr. VAN HOLLEN. No. No. I appreciate your jumping in on this,

because I do think this is an important area, and I hope the Board

will review it quickly because, again, I think that the statute’s

clear. There are certain steps you have to go through in terms of

this information gathering process, but at the end of the day, if

you’re denied information that you think is essential to your function, and I—I believe you should approach Members of Congress.

But at the very least, if you’re asked a question at a hearing, it

seems to me you have a responsibility to allow the Congress to

know.

Another thing that’s going to come up down the road is not just

whether you’re getting cooperation with respect to documents

you’re seeking but with whether or not the recommendations you’re

making in terms of protecting civil liberties are being followed by

the administration. I can assure you the chairman of this committee and other members of this committee are going to want to

know, not the details classified—I mean, if that can be done in a

classified forum—but they’re going to want to know if the Board

that is established to provide oversight over civil liberties makes

recommendations to the administration, if those recommendations

are being ignored or not ignored.

So if you haven’t considered that issue as a Board, I encourage

you to do so because I understand your view that this is somehow

a creature within the executive branch. On the other hand, I believe it is very much your responsibility to the American people

and Congress.

Let me just ask this question. I asked Governor Kean and Congressman Hamilton, when they were testifying, whether or not the

information that’s come out with respect to domestic wiretapping

would be something that you thought would be under your purview. The answer was yes from both. Whether you should seek documents and information on that, the answer was yes. And whether

you should have a role in oversight there.

Now, the fact of the matter is if the New York Times hadn’t broken that story back in December, the American people would not

have known about it. And the question is whether you, as a Board,

would have known anything about it, No. 1.

No. 2, if you had, whether you would have been able to get access

to any of the information that they have denied to members of the

Intelligence Committee, a majority of the members of the Intelligence Committee, and if you had made recommendations, whether they would have been heard. And it doesn’t do the American

people very good to have a Board that’s supposed to be oversighted

of civil liberties if you’re denied that information or you make recommendations that say this is a breach of civil liberties and nobody

ever knows, and we still have to rely on the New York Times rather than the Board.

So I’m very interested in how you view your responsibilities with

respect to congressional oversight and the extent to which you’re

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going to vigorously pursue documents and information. You have a

much more sanguine view of the degree of cooperation you may be

getting. Maybe it’s because this administration has essentially

thumbed its nose at many congressional requests for information.

I hope you’re more fortunate. I don’t think the track record is good,

and that’s why you are getting questions from a number of people

as to what recourse, what recourse do you think you have if you

are denied information beyond the provisions in the statute and

whether or not you’re willing to be public about it. So I hope you

will consider those issues.

And let me just end with a question I quoted with respect to recommendations. If you make a strongly felt recommendation that’s

ignored by the administration and you’re before the Congress and

you’re asked whether or not you think the administration, any administration, is adequately protecting the civil liberties and you

made a recommendation that has been ignored, are you going to

feel free to divulge to Congress that your recommendations were ignored?

Ms. DINKINS. As I said earlier, that’s putting us in a place where

we have not been and a place where we are not yet experienced

with. And we are certainly mindful of the oversight role of Congress, and one of the things that we will be considering is what

goes into the report to Congress when we provide that. And part

of that will be as well what would be the level of detail about the

work that we have done.

And may we have a word from our vice chair?

Mr. RAUL. If I may, Mr. Van Hollen, add a general comment. I

think it’s important for us to convey the sense that we very much

hold, which is, it is critical to the success of our mission of our

Board’s mandate to maintain good relations with Congress. I mean,

we are here today at the invitation of this subcommittee. We wanted to appear and testify before you. We have reached out to Members of Congress and the Senate to make ourselves available to

them to hear their thoughts. I think that Chairman Shays earlier

said that this subcommittee has lots of experience and knowledge

in these areas, and we’re very well aware of that. We would like

to benefit from that.

I think you heard Chairman Hamilton, Governor—I’m sorry,

Governor Kean say that we’ve reached out to him, we’ve reach out

to the ACLU, to the Center for Democracy and Technology, we’ve

been scheduling other meetings. And we really have tried to reach

out to hear the suggestions, the comments, the criticisms as well

from knowledgeable parties not—who may be coming from lots of

different perspectives. We do intend for the work of the Board to

proceed robustly, and part of that is having a good constructive dialog we hope with this committee and other congressional entities

as well. So that’s very much a part of the way we see our operation.

Mr. VAN HOLLEN. Well, I’m glad to hear that. We obviously don’t

know the end of the story. It’s an evolving process.

But I must just close by saying, Mr. Chairman, that I believe an

essential part of our role here is reporting and keeping Congress

informed of the extent to which you’re successful in your own views

of protecting civil liberties as we go about protecting the national

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security interests of the people of this country. And I can assure

you that, in addition to the annual report, there are going to be

congressional committees like this one—at least there’s some in the

House of Representatives who are interested in providing the necessary oversight. And beyond just an annual report, people are

going to be asking you the kind of questions that we’re asking

today, and it will be at a point in time where it will not be premature in the sense that you haven’t asked and been denied. And

so I just ask of you to prepare for that because in order for us to

have this productive relationship, I think that the Board’s going to

have to be forthcoming on these important issues. And I hope the

next time we meet—you know in this area of civil liberties, the 9/

11 Commission gave out two—there were three grades. Two of

them were Ds. One of them was a D with respect to this Board.

And I’m hoping, when they’re invited back, they will raise your

grade, and I guess the jury is still out on that question.

Thank you, Mr. Chairman.

Mr. SHAYS. Thank you.

I know Mrs. Maloney has one or two more questions. I want to

get to our third panel, and I look forward to their reaction to the

first two panels.

But what is coming across to me is obviously the fact that we

have the adversary model, and we have the cooperative influential

model, and given the structure of the committee, you’re arguing

that it’s going to be a cooperative influential model. In other words,

you’re going to seek cooperation and try to influence in an advisory

role to the White House. And I tend to believe, given the powers

you have, that’s probably the only way you could proceed. Even if

in an adversary model, it’s nice to find ways you can cooperate.

But what I’m struck with is that all of us up here know that

you’re going to have a point in time where you need to get information, and you’re not going to get it. You’re just simply not going to

get the information. And what will be curious is how you deal with

it after you have done everything under the sun to get the information. You’re not going to get the information. I mean, we have

worked with the administration—I speak as a Republican. They

have a view about this kind of stuff, and it’s not one that seeks to

facilitate. I think particularly of two strong personalities who are

very involved in this, and that would be the Secretary of Defense,

who has control over more of the intelligence than anyone else, and

a Vice President who I think he appears to support the view of the

Secretary of Defense. So there will be a point in time where you’re

going to have a head to head. And the question we have is, are you

going to just sweep it under the carpet? Or, eventually, are you

going to get the information? And if you don’t get the information,

are you going to make sure one way or the other that at least it’s

known that you didn’t get the information and you weren’t able to

do the job? That’s kind of where we’re coming from. I’m not looking

for an answer, but I’m just explaining to you that we’ve got some

issues here.

And the Attorney General basically can veto what you do. That’s

a fact. He can facilitate, or he can veto. He plays a huge role here.

And it raises questions about what happens when he doesn’t take

your side and you don’t get information that you need. Do we just

83

walk away? And then how can we up here have confidence that the

civil liberties of the American people are being protected? If I’m

giving more power to this administration as a Member of Congress,

I want to make sure there is more oversight and greater safeguards. And so it will be good to have you back when you have

been there a little longer.

And I will say, I believe there is only one Democratic member on

the Board; is that correct?

Ms. DINKINS. We have one Democrat, and we have as well a career military officer who’s retired now.

Mr. SHAYS. Does that mean he’s not affiliated or is he a Republican member?

Ms. DINKINS. I don’t know.

Mr. SHAYS. Well, it does matter. It does matter, because it does

matter to me that there be—in the 9/11 Commission, there were

six Republicans and six Democrats. I think if you were to have 12

Republicans, even if they came up with the same results, people

wouldn’t logically feel very comfortable, and I wouldn’t blame them.

Ms. DINKINS. Mr. Chairman, may I say just a word about the

Board? It is intended, specified in the statute that it be an independent and experienced group of Board members. And the Board,

as I have said, has met a number of times, and it’s been very collegial. And it’s been very enthusiastic about its mission and very

committed to carrying out the function that was assigned it by

Congress.

Mr. SHAYS. Yes, I don’t know how we have given you independence the way we set it up. I just don’t know how we’ve made you

independent. You’re part of the White House; most are of one

party; yet you have to use the cooperative model. The adversary

model isn’t in your powers. You don’t have subpoena power, and

just having subpoena power, frankly, we have threatened—in this

subcommittee, as a Republican chairman in a Republican controlled Congress trying to get information from the White House,

we have sometimes had to threaten use of subpoena power. If we

didn’t have that capability, we never would have gotten the information, never, ever. So, but, you know, it’s just what we’re going

to wrestle with. But Mrs. Maloney, and then we’ll get on to the

next panel.

Mrs. MALONEY. Following up on the chairman’s questioning,

when you reach a point where they will not provide the information

to you, will the Board request additional powers, additional authorities such as subpoena power? Would you publically request it

if you could not get the information you needed to make a determination?

Ms. DINKINS. Yes.

Mrs. MALONEY. You would?

Ms. DINKINS. No, I did not say yes. I was going to say that we

do not see that subpoena power would be a useful addition to the

powers of the Board because the Board rests within the executive

branch, and the executive branch doesn’t subpoena itself. The executive branch is one of the three parts of the Federal Government,

and so it is a different relationship than that between Congress

and the executive branch. It would be incongruous for one part of

the executive branch to subpoena each other. And we think that’s

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recognized in how the statutory authorities are established and the

processes that are established that we’ve already discussed.

Mrs. MALONEY. So you’re testifying that you are not independent.

You are part of the executive branch, and you would not be requesting—if you could not get information that you asked for,

you’re part of the administration and you would not push for it is

basically what you are saying. Your title says Oversight Board,

oversight.

You have now two employees. Would you request additional

funding so that maybe you could have a research assistant to help

you look into some of these publically reported alleged violations of

privacy?

Ms. DINKINS. As I said earlier, we are in the process of hiring

additional staff, and we are reaching out to bring detailees. We also

are authorized to engage consultants on a contract basis. So we

have a number of mechanisms to bring people on board to help this

Board with its work.

Mrs. MALONEY. Have you engaged any consultants yet?

Ms. DINKINS. We have not.

Mrs. MALONEY. And do you believe you have appropriate funding

to carry your responsibilities for it?

Ms. DINKINS. Yes, we do.

Mrs. MALONEY. How will the Privacy and Civil Liberties Oversight Board decide what issues or matters to prioritize for review?

There are so many out there in front of us now, I just mentioned

five that I would be looking into if I were in your position, but how

are you going to prioritize the issues coming before you?

Ms. DINKINS. The Board is actively reaching out to seek the

input of those who work closely in the area of privacy and civil liberties. We are asking what they think the priorities of the Board

might be and should be, and we are also asking the officials, who

I set out in my testimony, what they think the Board can most effectively focus on and prioritize. And when the Board has taken in

that information, then we will work hard to evaluate the various

suggestions and set the priorities based on our own look at and examination of all the input that we have gotten.

Mrs. MALONEY. And how will the Board coordinate its activities

with various departmental privacy officers and inspectors general?

Ms. DINKINS. As I said earlier, we have assured that our executive director is part of the network, the Privacy and Civil Liberties

Oversight Board officers, of whom there are a good number

throughout the executive branch. That’s a very important part of

making sure that the Board accomplishes its work.

Mrs. MALONEY. I would like to ask unanimous consent to place

into the record an article in the Miami Herald on civil liberties and

on hopes for the Board. And incidentally, it endorses legislation

that I’ve authored to strengthen the Board, and I’d ask permission

to put this excellent viewpoint into the record. No objection?

Mr. SHAYS. I’m sorry, without objection. I also want to at the

same time ask unanimous consent that the following be made part

of the record, the testimony of Mr. Frank Fetchet, father of Brad,

who passed away at age 24 and would now be 29, and the husband

of our witness here today, Mary Fetchet.

[The information referred to follows:]

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Mr. SHAYS. And a statement of Carie Lemack, a daughter of

Judy Larocque and co-founder of Families of September 11th. And

without objection, they’ll be submitted as well.

[The information referred to follows:]

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Mr. SHAYS. Should we get to the next panel?

Mrs. MALONEY. Yes, we should.

Mr. SHAYS. Before you leave, is there anything that we should

have asked that you would have liked to be part of this record? Any

comment that we should make, Mr. Raul, anything?

Ms. DINKINS. Mr. Chairman, again, thank you for inviting us,

and thank you for your interest in the work of the Board.

Mr. SHAYS. Well, we are interested, and your testimony is helpful. We have some very big concerns, but we don’t question the authenticity and the sincerity to which you both approach this job as

well as the other Board members. And we’ll look forward to continued dialog, and hopefully, we can be helpful.

Ms. DINKINS. Thank you.

Mr. RAUL. Thank you, Mr. Chairman.

Mr. SHAYS. We will now welcome Mrs. Mary Fetchet of New Canaan, CT. She is the mother of Brad, and we appreciate her being

here.

Mrs. Carol Ashley, the mother of Janice.

Mr. Abraham Scott, the husband of Janice Marie Scott.

Mr. Don Goodrich, father of Peter Goodrich.

We thank all four of you for listening to the other panels. We

would love a reaction—you might not sit down. I will swear you in

before you sit down. We would love your reaction to the first two

panels, and we look forward sincerely to your insights.

Mr. Scott, we’re going to swear you in. Let me say before swearing you in, it’s a privilege to have all four of you here. Thank you

for being here.

[Witnesses sworn.]

Mr. VAN HOLLEN. Mr. Chairman, I just wanted to say briefly,

again, what a privilege it is to have all of you. I have a previously

scheduled meeting with our service academy nominees that I’m already late to. I’m going to try to get back, but I just wanted to

apologize for having to leave. I’m going to do my very best to get

back. I’ve got people waiting. And these are people who were accepted to our military academies around the country, but it’s a

privilege to be here with you. And again, I hope to return.

Mr. SHAYS. Thank you, Mr. Van Hollen. Thank you for your participation today. And I think the families know you’re concerned

about this issue, and I’m sure they’re very grateful.

Let me say to you, I think you’ve all testified before. Mr. Goodrich as well?

Mr. GOODRICH. Never before.

Mr. SHAYS. Well, let me just welcome all four of you. You are the

driving force behind all the good that I think this Congress has

done, and I realize that we have a ways to go, but you are all heroes in our eyes, absolute heroes. And we thank you for your patience.

We wanted you to listen to what was said by the other government officials. Sometimes we have you testify first, but we wanted

your reaction. We want to know what you think about what you

heard, and we want you to feel comfortable to address this as long

as you would like.

And I’ll just, obviously, say for the sake of it, I have a constituent

among the four of you, Mrs. Fetchet is first among equals.

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Mrs. Fetchet.

STATEMENTS OF MARY FETCHET, NEW CANAAN, CT, MOTHER

OF BRAD, AN EMPLOYEE OF KEEFE, BRUYETTE AND WOODS

IN TOWER 2 OF THE WORLD TRADE CENTER; CAROL ASHLEY, ROCKVILLE CENTER, NY, MOTHER OF JANICE ASHLEY,

AN EMPLOYEE OF FRED ALGER MANAGEMENT IN THE

WORLD TRADE CENTER; ABRAHAM SCOTT, SPRINGFIELD,

VA, HUSBAND OF JANICE MARIE SCOTT, AN EMPLOYEE OF

THE PENTAGON; AND DON GOODRICH, BENNINGTON, VT, FATHER OF PETER GOODRICH OF BOSTON, A PASSENGER ON

UNITED FLIGHT 175 THAT CRASHED INTO THE WORLD

TRADE CENTER

STATEMENT OF MARY FETCHET

Mrs. FETCHET. Good afternoon, Mr. Chairman and members of

this distinguished committee. It’s an honor to appear here before

you today and to provide testimony at this vitally important hearing.

My name is Mary Fetchet. I’m founder and director of Voices of

September 11th, a September 11th family advocacy group I founded after the death of my 24-year-old son, Brad. My husband Frank,

who is unable to attend, is also submitting testimony. Thank you

from both of us.

My goal today is to advocate for something I feel strongly about,

creating the proper balance between increased security in a postSeptember 11th environment and preserving our sacred civil liberties. I’m also here to ask for Congress’s help in implementing the

September 11th recommendations.

September 11th was a defining moment in the history of our

country that changed how we view the safety of our families and

our Nation. Along with nearly 3,000 families, my family suffered a

tragic loss, the loss of our 24-year-old son, Brad. I share this photograph of Brad with you.

Since his death, I view my life in two chapters, before September

11th and after September 11th. Unfamiliar with the political system, I naively believed our government was performing its fundamental duty to protect its citizens. Like many Americans, my

sense of security and my faith in our government’s effectiveness

was shattered on September 11th.

My introduction to Washington began in July 2002, when I spoke

at a rally to support legislation proposed to create a 9/11 Commission. Over the next 3 years, I made many trips, too many to count,

to Washington, along with a handful of family members. As victims’ family members, we brought the human face and the voice of

the victims to the terrorism public policy debate.

Although we met many roadblocks on every level of government,

through a bipartisan effort of like-minded Members of Congress,

both Congressman Shays and Congresswoman Maloney, and also

with the help of the 9/11 commissioners, we succeeded in passing

the Intelligence Reform and Terrorism Prevention Act of 2004. But,

tragically, nearly 2 years after the legislation was signed, these reforms have not been fully implemented, and over half of the recommendations have not been legislated.

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Government has a fundamental responsibility to protect its citizens, and there can be no debate that our government failed us on

September 11th. Yet despite the ongoing threat of a more serious

terrorist attack, nuclear, biological or chemical, the government is

moving much too slowly.

I feel strongly that the 9/11 Commission’s final report set a comprehensive framework for long overdue sweeping government reform. The recommendations must be embraced in totality, not implemented in a piecemeal fashion. It is my opinion that currently

we are handpicking some, but not all, of the recommendations

which jeopardizes their effectiveness and creates an imbalance in

the system. Clearly this situation has occurred with regard to balancing increased security and establishing a civil liberties board.

The reauthorization of the PATRIOT Act and the expansion of

wartime powers makes it easier for America’s counter-terrorism

services to gather intelligence, yet progress in creating a civil liberties board to supervise these powers has been painfully slow.

With delays in a conformation process, limited funding and staff,

the Board has been slow to meet and lacks the necessary independence and subpoena power to investigate potential civil liberties violations.

Establishing a toothless board only creates an illusion that our

civil liberties are being protected and perpetuates an environment

of controversy and partisan debates among the misuse of powers.

Recent news reports raise serious questions about violations that

should be investigated. Without a robust, independent civil liberties board, there is little hope that these potential violations will

be appropriately investigated. I believe the Civil Liberties Board

should be empowered to protect against the violations of the fundamental principles of our democracy.

I’d like to talk about a couple of other issues that are important

to me on interoperability. On September 11th, over 600 individuals

I feel needlessly died in the south tower of the World Trade Center

buildings, the second building hit by an airplane; my son Brad was

one of them. The occupants of the building were ordered to remain

in their offices, and individuals attempting to evacuate were sent

back up.

On September 11th, hundreds of lives could have been saved if

the first responders were able to communicate accurate information

to the occupants of the building. I was shocked not just a year ago

to learn interoperability was identified as a problem in a GAO report of 1995, but Congress neglected to address the issue.

Although progress has been made in setting a deadline to allocate additional radio spectrum, Congress must now realistically

evaluate the moneys required to convert systems nationally and ensure an operating system is coordinated when the spectrum is

available. I have to say, I agree with the commissioners, that 2009

is much too late, it needs to be moved up.

Information sharing: The 9/11 Commission report concluded that

key information was not shared between and amongst government

agencies, allowing the September 11th plot to escape detection. The

December 2004 intelligence legislation sought to remedy that failure by creating the position of a program manager. Recent government reviews have been highly critical of the state of information

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sharing, and have indicated that almost 5 years later the status

has not greatly improved. We hear complaints from State and local

authorities that have chosen to operate independently because they

have not been included in receiving key information. For example,

New York City, the NYPD created their own counter-terrorism intelligence capability and have established relationships with foreign countries. Without a coordinated effort to share information on

the local, State and Federal level, we remain vulnerable today.

I’d also like to mention, I believe that Homeland Security funding should be determined by risk and vulnerability. And I am just

appalled to see what’s happened in New York and Washington with

the landmark buildings and the icons; we all know that these cities

are very vulnerable today. And I stand next to you to support your

effort in getting those funds back.

Congressional reform: Congress has little choice to tackle oversight reform of the September 11th legislation if the legislation is

to succeed. And I brought this organizational chart; it’s from the

108th Congress. And even my son looked at this and said, how did

they make a decision, and who’s in charge? As you can see, most

congressional committees have some jurisdiction over Homeland

Security, making the current system prone to turf battles and inertia. Simply put, and through my husband’s testimony with his

business background, the current system is dangerously dysfunctional and undermines America’s ability to prevent terrorist attacks, both at home and abroad.

Streamlining the number of committees may be a long and painful process, I understand, here in Washington, but it is necessary

to ensure proper oversight and accountability. Congress must reform itself to provide the focus and transparent oversight required

by the American people.

Afghanistan: Voices of September 11th facilitated a cultural exchange project with an organization sponsoring two schools in Afghanistan. We have been notified by the schools that they’ve had

to close their doors recently due to direct threats to their students

and a general state of unpredictability and unrest.

Although Afghanistan has made great progress since the Taliban

has been defeated, we are very concerned about the recent reports

of anti-American riots and an increase in insurgents. We have a responsibility in a narrow window of time to help create an infrastructure and cultivate an ally in the war against terrorism.

In addition, which was mentioned earlier, it is just shocking to

me that, 5 years after September 11th, Osama bin Laden and his

generals are still at large; and it seems to me that there’s really

no clear plan or sense of urgency to capture them. Has our government forgotten its responsibility to bring them to justice?

Our country came together on September 11th with a unified

promise that we will never forget. I am told that Congress stood

on the steps of the Capitol building and vowed to work together.

However, I am troubled by the partisanship, turf battles and the

agenda of special interest groups that are preventing implementation of the 9/11 Commission recommendations. Our families have

no alternative than to live with the constant reminder of the horrific nature of the death of our loved ones.

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My husband and I have been notified of bone fragments of our

son Brad on five different occasions, and yet we only have a very

small portion of his body. About half the people have never been

notified, their loved one just disappeared on September 11th.

I cannot begin to convey to you how difficult this is, after having

suffered this horrific loss, to have to travel here to Washington as

Carol and I have done over the last 5 years to convince our government officials to make our country safer and to make it a priority.

Words don’t describe it. Yet we’re here again today to act as your

conscience and, once again, put a human face on the victims that

lost loved ones on September 11th and to ask for your support in

implementing the 9/11 Commission recommendations.

I’m speaking to the choir here today because I’m indebted to both

Congressman Shays and Congresswoman Maloney, and certainly

the commissioners that were here earlier today and will continue

to stand beside you. Through Voices of September 11th, I commit

to provide ongoing support to those impacted by September 11th

and to continue to advocate for the implementation of the 9/11

Commission reforms, but I challenge everyone on this subcommittee and I challenge Congress to make these recommendations a priority in the upcoming election debates and to educate your constituents about the sense of urgency. America needs your leadership and determination. The future of our families and the safety

of our Nation ultimately rests in your hands. Thank you.

[The prepared statement of Mrs. Fetchet follows:]

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Mr. SHAYS. Mary Fetchet, Carol Maloney and I are indebted to

you and Congress is indebted to you and the country is indebted

to you; it goes the other way.

Carol Ashley, thank you for being here. It’s wonderful to have

you here.

STATEMENT OF CAROL ASHLEY

Mrs. ASHLEY. Thank you very much.

When one thinks of defending freedom, it’s usually in a military

context, but freedom is also defended by our Constitution and the

laws that uphold it. You, as Members of Congress, play a vital role

in preserving America’s freedom. Your legislative decisions and

oversight determine the level of protection we have from both external and internal threats.

My name is Carol Ashley. I appreciate having the opportunity to

appear before this subcommittee. And I especially wish to thank

Congressman Shays and Congresswoman Maloney for their dedication to working on our national security. And I appreciate also the

other members of the subcommittee who participated in this hearing.

National security became a priority for me on September 11th

when my 25-year-old daughter Janice died on the 93rd floor of

Tower 1, murdered by terrorists. Since that terrible morning, the

government’s investigative agencies have been vigorous in attempting to thwart terrorism, and I strongly support their efforts. But

I also believe that the rights and freedoms guaranteed by the Constitution must not be abridged in the name of security. The challenge is to maintain a balance between security and protecting our

constitutional rights. That balance can be successfully achieved if

these conditions are met. First, the data is collected, dispersed and

discarded according to civilian and military law. And if our intelligence agencies need more than 72 hours to apply for a warrant,

as required by the 1978 FISA law, then it is Congress’s responsibility to adjust the timeframe or to write new laws to ensure that

there are legal justifications for abrogating citizens’ rights.

The second condition would be that there is vigorous systematic

oversight to ensure compliance and integrity of mission. Oversight

is needed by three agencies, a strong independent Privacy and Civil

Liberties Oversight Board by Congress and by the FISA court.

We have seen many controversial programs as the government

attempts to prevent further terrorism, that includes TIPs, TIA, the

Jet Blue Data Mining Project, warrantless spying, AT&T’s secret

room for tracking Internet traffic. These things involved, among

others, Social Security numbers, income, family members, vehicles,

credit card information and others being merged without people’s

consent.

When warrantless spying was first revealed, America was told it

was only overseas calls that were being monitored, but we’ve

learned now that millions of domestic call records have been acquired, although they say they’re not being monitored. And reportedly, antiwar and environmental activists have also been under

surveillance by the Pentagon and the FBI.

The men and women in our law enforcement and security network who are working so hard to protect this Nation from terrorVerDate 11-MAY-2000 12:09 Jan 26, 2007 Jkt 000000 PO 00000 Frm 00115 Fmt 6633 Sfmt 6633 D:\DOCS\31096.TXT HGOVREF1 PsN: HGOVREF1
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ists should not be put in a position where they are asked to violate

the constitutionally protected rights of Americans.

The danger of these warrantless programs is the potential for

abuse. America needs a mechanism answerable to Congress for assessing sensitive programs that involve surveillance of Americans.

Such a mechanism is the Privacy and Civil Liberties Oversight

Board, with the power and independence envisioned by the 9/11

Commission. And here I would like to comment on the previous testimony.

First, I want to stress that this Board should be required to report back to Congress regularly. Second, its meeting with detailees,

inspectors general and other privacy officers should be on a regular

basis, and it should be formally required. Third, the Attorney General’s ability to control the investigations of this oversight Board

does not define an independent agency. And fourth, this Civil Liberties Board does need subpoena power, but it worries me that the

Board believes that it does not, that the executive branch does not

subpoena itself, so I’m not even sure they would use the subpoena

power if they had it.

In 2004, Congress failed. They need to correct the situation with

the Privacy and Civil Liberties Oversight Board. As a result of the

failure, America now has government entities which are able to

block legitimate inquiry and over which there is no independent

oversight. There must be accountability for the legality and efficacy

of the work being done. To aid in accountability, Congress is urged

to strengthen whistleblower protection for government workers, including those in the intelligence network, especially in light of the

recent Supreme Court decision denying government whistleblower’s

at work first amendment protection. That means less government

accountability. Unfortunately, congressional oversight is hamstrung

because the top line of the intelligence budget has not been declassified. I strongly urge Congress to take steps to declassify the top

line so that Congress can then reorganize itself so that it will have

the jurisdiction over appropriations to control what is happening in

our intelligence agencies.

The PATRIOT Act expanded the power and surveillance options

of the government and also reduced constraints, which leads to the

potential for abuse. Congress tried to correct that by amending the

PATRIOT Act when it was reauthorized, adding oversight provisions, which was a good thing. However, in a signing agreement,

the President indicated that he is not obligated to obey that requirement. How can the President’s signing an agreement which

overrides a law established by the legislative branch be reconciled

with the balance of power envisioned by our Founding Fathers? To

safeguard our rights and prevent any one branch of government

from exerting excessive power, Congress is urged to quickly and aggressively regain its authority in the balance of power. Secrecy is

integral to programs that gather actual intelligence, but secrecy

can be a tool to shield clandestine programs from inquiry and oversight. Denial of security clearance, stopping internal Justice Department probes into DOJ’s approval of the NSA warrantless wire

tapping program, and further, a former intelligence officer who had

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grams because neither the staff nor the Members of Congress

whom he would appear before have the necessary security clearance. If no one except the NSA or the DIA can be read in, given

clearance to investigate the surveillance programs, how can there

ever be rigorous independent oversight of programs that spy on

Americans? Secret domestic surveillance without legal boundaries,

oversight or accountability is dangerous to a free society. No government agency or entity should have unfettered power to stop a

legitimate independent investigation into the legality of its work.

In the fight against terrorism, Americans must guard against incremental surrender of the freedoms which set us apart from repressive cultures.

To protect our rights, surveillance inside our borders must be

monitored to ensure compliance with the law. We depend on Congress to validate the legality, the mission and the integrity of our

domestic surveillance programs. With your guidance, America can

fulfill its national security obligations and simultaneously preserve

the rights and freedoms that distinguish America. Thank you.

[The prepared statement of Mrs. Ashley follows:]

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Mr. SHAYS. Carol Ashley, thank you very much.

We will now go to Abe Scott.

Mr. Scott, thank you for being here. This is not the first time

that you have testified.

Mr. SCOTT. This is the first time.

Mr. SHAYS. This is the first time. Well, it’s long overdue, and it’s

wonderful to have you here.

STATEMENT OF ABRAHAM SCOTT

Mr. SCOTT. Thank you.

Before I begin, Mr. Chairman, I just want to say that while I

want to verify that we do have 3 days to correct the record, I don’t

have stature as you on the committee have in terms of having a

speech writer. I’ve made some mistakes in my testimony, written

testimony, as well as I’m half blind and I can’t hear out of one ear,

but the fight goes on.

Mr. SHAYS. You know what? Mr. Scott, I have heard you speak,

and you are a very articulate man. I don’t think you need to worry

for a second about your testimony. It’s very articulate, and it

makes extraordinary points to this Congress. So you should be very

proud of your contribution, and we are very grateful for your contribution, but welcome.

Mr. SCOTT. Thank you.

Good afternoon, Congressman Shays, Congresswoman Maloney. I

feel deeply honored and proud that you invited me here this afternoon to testify before the House Subcommittee on National Security, Emerging Threats, and International Relations as a result of

the loss of my loving wife, Janice Marie Scott, of 24 years in the

Pentagon on September 11, 2001.

It truly saddened me, saddened my heart that this invitation had

to be done under such grievous circumstances and not on a more

positive and happier one. Nevertheless, I did not hesitate to accept

your invitation because I was able, through divine intervention, to

maintain some glimpse of hope whereby enabling me to go on with

my life in spite of the trials and tribulations.

I eventually made a commitment to my wife and two daughters

after the tragic event that I would reaffirm my faith in the Lord

and Savior, Jesus Christ, keep the memory alive of those 2,971

beautiful individuals who were murdered at all three sites, especially my wife and those other beautiful individuals that were murdered in the Pentagon and on board American Airline flight 77. I

would like to interject that there were a total of 125 in the Pentagon and 59 on board flight 77 for a total of 184. And finally, to actively involve myself with this magnificent government body called

Congress to ensure that the right measures or steps are enacted

into law to minimize the chance of a similar atrocity ever occurring

again within the borders of the United States.

I have been accomplishing the latter by being in attendance of

many of those hearings facilitated by the 9/11 Commission, by participating in the congressional process which eventually led to the

passage of Intelligence Reform and Terrorist Prevention Act by

Congress and more recently by attending the September 11th trial

of Mr. Zacharias Moussaoui.

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As I begin my testimony, I must first give thanks, as always, to

the Almighty for this opportunity to sit in front of you this afternoon. And second, I pray that no one in this room or those who are

viewing this or might view this session in the future misconstrues

or misinterprets this testimony of mine as an attempt on my part

to make a political statement such as the one made my Mr.

Moussaoui at the end of his trial, for that is not my intention.

One thing that was most pleasing and gratifying to me during

my past September 11th life was having the opportunity to be

present at the conference last year—or over a year—where the 9/

11 Commission gave the final report on their 41 recommendations.

As you know, this report included an assignment of Alpha grades

as a measurement tool for evaluating the implementation status of

the 41 recommendations.

I was quite shocked, surprised and appalled to see that the most

important recommendation to me had received such low grades.

The title of this recommendation is civil liberties and executive

powers. Even though I do believe these grades were fair and just

ones, I consider them to be totally unacceptable because I unquestionably believe that those failures which generated this recommendation were the ultimate reason for the cause of those unjust tragic events on the morning of September 11, 2001.

Additionally, I consider the low grade given with respect to the

Privacy and Civil Liberties Oversight Board as being a disgrace

and totally a slap in the face for the hard work which was done

by the 9/11 Commission.

Based upon the low grades and importance of this recommendation, it is of my opinion that the Bush administration should have

the Privacy and Civil Liberties Oversight Board high on its priority

list in terms of bringing this organization fully functional as quickly as possible and providing it with the necessary power and support, as well as personal and funding resources, to allow it to effectively accomplish the assigned mission.

On the other hand, I do believe achieving this end result would

be a meaningless effort without the support of Congress to expedite

the deliberation and approval process so that the necessary acts

can be taken on implementing the other 9/11 Commission recommendations.

Mr. SHAYS. Mr. Scott, I want you to slow down just a speck, so

don’t feel you have to rush. You have as much time as you want.

And this is very important testimony that you’re sharing with us.

Mr. SCOTT. Thank you.

Mr. SHAYS. So you have a perspective that only you have, and

we need to hear that perspective, so take your time.

Mr. SCOTT. OK. Thank you.

I have not yet heard or read that such step will be completed any

time soon in the near future. I arrive at this conclusion due to several reasons. First, I sense that there is no urgency on the part of

Congress to expeditiously arrive upon a mutually agreed upon plan

to secure our borders, secure our support and to gain as well as to

maintain accountability of noncitizens who are already in and are

entering this country. These issues are near and dear to my heart,

of which I think need to be acted upon sooner rather than later.

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I am the first to admit that one thing this tragic event did to me

was change my mindset on the political process of this country. For

example, my pre-September 11th strategy for voting was to vote

strictly Democrat at all levels of government. I have since changed

this mindset by making absolutely sure my vote is given regardless

of party affiliation to the man or woman that I feel will not hesitate to make those tough decisions for the good of this country and

the people, and not worry about the impact those decisions will

have on his or her reelection campaign.

Second, I know that our Congress, Congressmen and Congresswomen are being asked to tackle a number of very sensitive issues

in reference to the implementation of these recommendations. I

know this will not be an easy road for you as this country’s lawmakers to navigate, but you and only you must take this journey

and be prepared to compromise and make small as well as big sacrifices in order to reach bipartisan decisions on these recommendations. You must be prepared to do so with a clear heart and mind,

even if the decision might not be in yours and/or the interest of

some of your constituents but will benefit the efforts of restoring

the faith of the American public as well as retain the value of our

civil liberties. This, too, is the least you can do to pay the dividends

on the return on our loved ones investing their lives on the morning of September 11, 2001, for the preservation of this great Nation.

You as public leaders and lawmakers must take heed and set

aside your differences and political agendas and start making decisions based on what I hope is placed in your heart by the supreme

being to do the right thing for the good of the people who have and

continue to give their all and all for the freedom of this great Nation. For I can assure you that this enemy called terrorism is not

going to patiently wait around for you to try and resolve the various stalemates in Congress before striking again. You must remember that we are dealing with a very unique enemy. We are

dealing with mentally unstable extreme fundamentalists of different nationalities who have declared a holy war to just kill Americans for no cause or justifiable reason.

While some have compared the attacks by those terrorists on

September 11, 2001, to the surprise attack on Pearl Harbor by the

Japanese, we must always remind ourselves that we are not engaged in a conflict with a sovereign nation like Japan and the other

Axis of Evil countries during World War II. This can’t be defined

as guerrilla-type warfare. I can only characterize this as being engaged in a ‘‘hear no evil, see no evil’’ type of warfare.

Another comparison is that this Nation had the utmost and undivided support of its government, people and resources through the

entire period of World War II that eventually brought about the demise of this powerful enemy comprised primarily of Germany, Italy

and Japan.

The events of September 11th also brought about a heightening

of patriotism as it was clearly visible by the number of dwelling

done with the American flag throughout this country. On the other

hand, this Nation, from a personal viewpoint, is becoming with the

passage of time more and more complacent, less patriotic,

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unfocused and not as united as it was right after the occurrence

of the tragic event on the morning of September 11th.

Finally, I honestly don’t think a great many people in this country have no idea what civil liberty means. The dictionary defines

it as a state of being subject only to law for the good of community

and individual rights protected by the law from unjust government

or other interference. Let’s not forget that you and only you alone

as the lawmaking body has earthly power in your heart, minds and

hands to ensure the people’s civil liberties of this great Nation.

So as I come to the conclusion of my testimony, I would like to

reflect, with your permission, back upon when I was a young African-American male growing up in a small little southern community and being educated in a segregated school system of Beaufort

County of South Carolina. We would recite the Pledge of Allegiance

and then sing My Country ‘Tis of Thee at the beginning of each

class every morning. As we sang the lyrics, My Country ‘Tis of

Thee, Sweet Land of Liberty, to the song, I can vividly remember

that this song would always instill in me a sense of comfort and

security. The events of September 11th have adversely affected my

views in regard to the lyrics of this song. I am asking you, your

help with reversing this negative effect upon me in regards to this

song, restoring confidence in the American people in the civil liberties, and last but not least, reassuring the family members that

their loved ones did not die in vain.

I thank you. And may God bless each and every one of you on

the House Subcommittee on National Security, and may God bless

America. Thank you.

[The prepared statement of Mr. Scott follows:]

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Mr. SHAYS. Abraham Scott, may God bless you.

At times like this, hearing just from our first three folks in this

panel, I just consider it a privilege to hear what you have to say,

and I just can’t tell you how grateful I am that you all are here.

Mr. SCOTT. And in conclusion, you will get a copy of this book,

I will give it to your staff as well as Congresswoman Maloney will

be getting a copy.

Mr. SHAYS. Why don’t you tell us what that book is?

Mr. SCOTT. This book contains the bio and picture of all 184 victims that perished at the Pentagon on September 11th, the 125 individuals at the Pentagon and 5 on flight 77. This book was authored by the Pentagon. Thank you.

Mr. SHAYS. Thank you.

Don Goodrich, thank you so much for being here. You’re kind of

the closer. We’ll take few questions, and then we’ll have a dialog

among us. Thank you for being here, Mr. Goodrich.

STATEMENT OF DON GOODRICH

Mr. GOODRICH. Thank you for inviting me. You, Mr. Shays, and

Mrs. Maloney have been great supporters of the families over the

past nearly 5 years.

I’m going to go way back in time in the beginnings of my remarks to some language of John Adams, and when I say way back

in time, I’m going back to 1765. It was then that he said, ‘‘Be it

remembered that liberty must at all hazards be supported. We

have a right to it, derived from our Maker. But if we have not, our

fathers have earned and bought it for us at the expense of their

ease, their estates, their pleasure and their blood. And liberty cannot be preserved without a general knowledge among the people

who have a right from the frame of their nature to knowledge, as

their great Creator who does nothing in vain, has given them understandings and a desire to know. But besides this, they have a

right, an indisputable, unalienable, indefeasible, divine right to the

most dreaded and envied kind of knowledge, I mean of the character and conduct of their rulers.’’

One hundred and fifty years or so later, George Russell, who was

a distinguished literary man in Ireland in the early part of the

First World War, wrote, ‘‘We’’—meaning the Irish people—‘‘have to

discover what is fundamental in Irish character, the affections,

leanings, tendencies toward one or more of the eternal principles

which have governed and inspired all great human effort, all great

civilizations from the dawn of history.’’

In the past 3 years or so after the initial outpouring of understanding, cross-communication and commitment following September 11th, I’ve come to wonder about what we understand as the

fundamental character of our American society. The first three Articles of our Constitution talk in terms of the American Government. In Marbury v. Madison, we established the notion that our

Supreme Court would resolve essentially constitutional questions

and issues of Federal law. In addition to those three branches of

government, the first amendment gave the press strong powers to

report on what happens in this country. And in the past 3 years,

it’s been my perception—and I’m just one guy coming from a little

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town in southwest Vermont—that balance of powers is in grave

danger.

The observations of the members of your subcommittee, about

the disclosures in the New York Times are very troubling. I look

to you to know those things. I don’t want to wait for the New York

Times to tell me those things. And if you can’t get that information,

and the judiciary has no role to play, as it appears it does not, we

as citizens have no access to the kind of knowledge that allows us

to make good decisions about how we vote, and what we say and

what we advocate for.

The Civil Liberties Oversight Board, about what we heard testimony today, is, in my mind, an undersight board. It would be like

my giving my business manager the task of determining what clients I take at my law practice and which ones I don’t take and how

much I charge. In the end, I’m going to tell her what I’m going to

do, and if she doesn’t like it, that’s too bad for her. So there’s a semantical problem, a problem of semantics in the notion of an oversight board, if it isn’t oversight at all, and I don’t see that it is.

These issues are of great importance not just from a historical

perspective for me. My wife and I recently came back from Afghanistan and observed the struggle of that nation to build institutions,

police, judicial, commercial, the whole panoply of institutions that

make a stable society. And I’m very troubled, as was observed during these hearings, about the notion that the commitment to Afghanistan is soft and eroding. If that takes place, we’re going to

have another area of this globe that is susceptible to the breeding

of more terrorists.

I attended a conference in Edinburgh, Scotland, recently on terrorism. And a mathematician, Gordon Woo, who works for Risk

Management Solutions, I believe is the name of the firm, is trying

to use game theory to evaluate the risk of terrorists, and in that—

in his presentation he used this illustration. The illustration shows

10,000 condoning terrorism, and above that are three groups of

people that were identified by Abdullah Azzam in the 1980’s, the

highest group, the red, being the cream of the cream of the cream.

Those are the ones who will give their lives for the jihad. The next

group are an even smaller group, and they’re the ones who flee the

world of the civil life that we know and become warriors; and the

third group, which consists of thousands who want an Islamic

state. But what’s important to me is the large group at the bottom

of the pyramid. They’re the ones who condone terrorism. They’re

the supporters of terrorism.

The two most difficult images for me following September 11th

were watching my son’s plane fly into the South Tower. The second

most difficult was watching the cheering crowds across the globe as

news of September 11th spread. It’s those cheering crowds that we

need to address, and we need to convince them that terrorism has

no place in the civilized world, and we will not convince them of

that if we have abandoned the essential character of our country.

If we live in a country where there is such secrecy that the people

on this panel, the people on the oversight board created by the legislation that we advocated for, cannot get information about what

their government is doing, it reminds me a little bit of Osama bin

Laden in the secrecy with which he conducts his operations.

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And I’m going to finish with a quote, one of my favorites, from

George Russell. He said that it is eternally true that we are condemned to be as that we condemned. We all condemn terrorism,

and we all condemn the secrecy and the tactics of violence toward

civilians that occurred on September 11th. What we must be cautious about is that we do not acquire the characteristics of our

enemy, and it’s my belief that unless we have civil liberties oversight here in this country that demonstrates to the world that we

do control the liberties we cherish, that the world will not believe

us when we try to advocate for the democracy that we seek in other

countries. Thank you.

Mr. SHAYS. Thank you, Don Goodrich. I think your poetic way of

starting off and ending was a nice way to end the testimony part

of this panel.

[The prepared statement of Mr. Goodrich follows:]

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Mr. SHAYS. I’m going to give Mrs. Maloney the gavel for a second

as well as the question while I’m just gone for a few minutes, and

she’ll start us off, and I will be right back.

Mrs. MALONEY [presiding]. Well, first of all, I just want to thank

all of you not only for your really stirring testimony today, but for

being such effective advocates for change. I truly do believe that

the 9/11 Commission would not have been created without your

support, that the funding and extension of time that they requested

in their subpoena powers would not have been given without your

support, and I truly believe that the passage—I know firsthand

that the passage of the Intelligence Reform Act would not have

happened without your constant vigilance and your constant work

here in Congress and across the Nation to garner and build support. And I’m very, very proud to have had the opportunity to be

part of your effort and to have worked with you, and I know that

you will be with like-minded Members of Congress, those of us that

are part of the 9/11 Commission Caucus, that you will be part of

our efforts to pass the remaining recommendations.

I’d just like to say that some in Congress believe that our work

is done, that we have really completed a major goal with the passage of the Intelligence Reform Act, and I’d just like to hear from

you in your opinion what is the best argument to rebuff that claim;

and are you surprised—I’d just like to know—are you surprised

that here it has been 5 years since September 11th, and 2 years

since the release of the 9/11 Commission Report, and are you still

surprised that we have so much more to do with the Oversight and

Civil Liberties Board and other areas, the radios, and, very importantly, the nuclear proliferation, that we haven’t captured the ingredients that could be made into bombs that could kill and hurt

other Americans? And I’d like to hear your comments on it. Are you

surprised that we have still so much more to do?

Mrs. FETCHET. Well, I think at every juncture—I know when the

Commission was established, I thought, well, our job is gone. Now

the Commission will be created and get up and going, and so here

we are at another juncture.

I guess my comment would be that I just—there was such—I

think it was so important this Commission—I had such high hopes

for them to be different than other commissions, because typically

commissions are established, they do their work, make their recommendations, and they dissolve. This Commission stuck with it

another year and put in the public policy, the PDP together, and

I think that was very valuable to have that continued time to

watch over things.

I am shocked, you know, to see the report card 6 months ago and

then to hear them say again today that not much has changed over

the last 6 months. I recognize the challenge because it’s sweeping

government reforms, but I do think that it’s a reluctance. As I mentioned, you know, I think there are people that, you know, are focused on other things. I think there are people with other agendas,

turf battles and so forth, that are the roadblocks that we face

today.

I think that your proposing this additional legislation might be

a vehicle to educate the general public and the media, you know,

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of where we stand today, and certainly we’re going to need the general public involved in this process.

Myself personally, I think that there is going to be another attack. I just think it’s a matter of time, and there have been some

measures that have improved, yet I think we’ve been lucky. And

so I feel that we really have to focus, too, on preparedness, to prepare the general public, who are the real first responders, they’re

on the plane, in the building, on the train, and to educate them

about preparing in their homes or communities.

I think that locally they’re, well, light years away from where we

are on the Federal level. I know in Connecticut they took it upon

themselves to raise their own money, to make their own command

center, to reach out to 14 surrounding communities that weren’t

part of the TOPOFF program and, because we’re in Fairfield County, part of the State activities.

So, you know, my sense is that people are mobilizing themselves.

NYPD is another example of that. They feel they can’t rely on the

Federal Government, and there’s actually some value in that. But

I do think we have a long way to go though.

Mrs. MALONEY. Much of the testimony today focused on the Privacy and Civil Liberties Oversight Board. I’d like to ask the panelists, were you surprised at the difficulties that we faced in getting

answers from the Board? And were you surprised that on their report to Congress on what they’re investigating, and what they’ve

accomplished so far, and their interpretation of their responsibilities and powers? And I’d like to ask—I guess go to Mrs. Ashley,

Mr. Scott, Mr. Goodrich.

Mrs. ASHLEY. I’m not sure I can say I’m surprised, because I

don’t believe the Board is independent with the number—it’s a disproportionate number of Republicans on the committee. The fact

that the Attorney General can control whatever it is they investigate, I don’t know. I think that much more needs to be done to

strengthen this Board and to turn it around, to protect our liberties.

I would like to respond just briefly to the first question you

asked. I am appalled that we are in the position we’re in right now,

that changes have not been made. I think in part it’s because there

are other factors coming in here. We have political issues, turf protection; we have special interest groups, lobbyists; and yet there

are 3,000 dead, and we have the recommendations to make us safe.

And Congress and the President have not responded in the way

that they should have. There’s a complacency that’s set in because

we have not had another attack, and it’s up to Congress and the

press and, I suppose, still the family members to keep this in the

public eye because we are not safe. Our ports are not safe. Our

cargo is not safe. We have the nuclear threat really out there because it’s accessible to terrorists, easily accessible to terrorists, and

we’re not taking the initiative that we need to combat that problem. So I just don’t think the American public is as aware as they

need to be, and the goal would be to try to enlighten them.

Mrs. MALONEY. Your testimony has, I’m sure, made many more

people aware.

Mr. Scott, would you like to comment?

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Mr. SCOTT. I can sum that up in three words: appalled, surprised

and unfocused. Appalled for what hasn’t happened to make this

country safe.

Unfocused, it is my opinion that we will not get anything done

until we get a leadership in this country that is willing to support

what we are doing. I’m not saying it can be Republican or Democratic, just as long as we get somebody in there that can get the

job done.

Surprised; yes, I was surprised this afternoon to hear what’s

going on in reference to the Board. I think that the administration

is holding them hostage there on the White House grounds, I

guess. And they can dictate what they do. As long as they are on

that compound, you have no control over that Board. So something

needs to be done.

Mrs. MALONEY. Thank you for your insights.

Mr. Goodrich.

Mr. GOODRICH. Yes. I’m not the least bit surprised at the comments you received today, as Mr. Van Hollen wasn’t here for my

remarks. But if somebody were asking my business manager those

questions, she would be just as circumspect as they were. I’m not

the least bit surprised. It’s not going to work. I think it’s palliative

at best. In fact, I think it’s worse than that because I think there’s

an illusion that there’s an oversight that does not exist, and therefore, it degrades, not enhances, the opportunities for civil liberties

preservation in our country.

With respect to the bigger question of the recommendations, the

broader recommendations, of the 9/11 Commission that have not

been adequately addressed and their mission fulfilled, you have an

awful lot on your plate here in Washington. There are an awful lot

of things going on. For us, the most important things are the loved

ones we’ve lost, and I’m sure that the others agree with me that

it’s a terrible challenge for me to try to do justice to what my son

would want me to do, but I cannot not do it. I have to be here, just

as these others have to be here. And yet we’re only four, and it’s—

the public is not going to wake up to this unless the people who

control the agenda here in Washington—that’s not us. It was us for

months, and even once the 9/11 Commission came out, it was us.

We’ll never control the agenda in Washington again, and so it’s

going to be another group of victims that are going to be sitting in

these chairs controlling the agenda, I hope later rather than sooner, unless you do.

And I’m not criticizing you, I’m applauding you. But by you, I

mean the people here in Washington. We talk about a war on terrorism, which I think, as I said earlier, a tautology, it’s a meaningless, amorphous and wastebasket term that provides a guise for all

kinds of behaviors that have nothing to do with capturing and killing terrorists. We’re not going to—we need to repudiate terrorism.

We need to marginalize it. We need to demonstrate that it has no

place in the civilized world, and we do that by our behaviors. We

do that by the way we treat our own citizens and the way we treat

citizens around the world. We do it by the way we spend our enormous resources in this country for attacking the poverty, the loss

of hope, the absence of institutional infrastructures in failed states,

in Third World countries.

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Those are where we need—that’s the agenda, so far as I’m concerned, that needs to be in the forefront, and it’s not. But I can’t

change that, and I don’t know who can.

Mrs. MALONEY. I want to thank all of you for your commitment

and your moving testimony and being here today.

Mrs. FETCHET. I wonder if I can make a couple more comments.

After hearing the panel on the Civil Liberties Board, I found myself

much more skeptical. I think they see themselves as an advisory

board, not an oversight board, and given the personalities involved,

there is no way that they’re looking for advice.

So I guess, I don’t even know how to address it. Do you address

it through legislation? Because I know just our personal experience,

people don’t want advice; they want to do what they want to do.

And so, you know, I think they see their role much differently. It

certainly was intended. So that would be my comment on the

Board.

And I guess to Don’s point about, you know, there’s going to be

other victims sitting here, you know, I feel so strongly that it’s

going to be a major attack next time, and it is going to be 500,000

people, not 3,000 people. And I know in conversations with Congressman Shays, he was concerned about these things before September 11th, and he—no one was listening, and, you know—and so

I think people escaped here in Washington accountability because

it’s a bureaucracy. And I know our first experience in going to offices, they had a narrow view of the world. It was who their constituents are and what committee they sat on, so it wasn’t them,

and we were pointed in a million different directions. But my sense

is the next time that people are going to be held accountable here

in Washington for not doing the right thing.

Mrs. MALONEY. Thank you. Thank you for your warning, really.

Always it’s an inspiration to me. Every time I hear you speak and

I’m around you, I’m always more dedicated to working harder on

passing these reforms. Thank you.

Mr. SHAYS. Let me again thank all of you for being here.

What I would like to do, it may seem a little redundant, but I

want to ask the question this way: What was the most surprising—

you have some choice here. What was the most surprising thing

you heard from the first panel or the second panel? What was the

statements that were made in either the first or second panel that

made you feel the most emotional or you reacted to?

I just want a sense of really your view of the first two panels.

You’ve answered to some degree, and so you can briefly touch on

it without giving a lot of detail. But if there’s something else—I’ll

give you an example. Actually, I found myself thinking, well, we

gave this—I’m talking about the second panel. We established a

Commission without a lot of clout, and so they were being realistic

in basically saying that it needed to be a cooperative model. It became almost clearer to me how they could function. I’m not saying

function well, but they viewed themselves more as an advisory—

well, I thought, well, that’s logical, given how we’ve done it, given

how they were appointed, given that their term is dependent on the

person making the appointment. And I could imagine in my own

mind that with that attitude, there would probably be some in the

White House who would say, you know, this is great to have you

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here, and we’ll seek out your advice and listen to it, but in the end,

when it comes to the big issues, I thought they’re not going to get

to first base.

Ms. ASHLEY. Right.

Mr. SHAYS. So that was my reaction.

But tell me, you know, what struck you the most positive and the

most negative? You can describe it in those terms, but something

striking about these comments. I’ll start with you, Mr. Goodrich,

and we’ll—no. I’ll start with you, Mrs. Ashley.

Mrs. ASHLEY. No. That’s OK. He can go first.

Mr. SHAYS. You can go first.

Mrs. ASHLEY. To tell you the truth, I envisioned the Privacy and

Civil Liberties Oversight Board as differently than it was portrayed

today.

Mr. SHAYS. Right.

Mrs. ASHLEY. I believed that they would have more power. I was

surprised of their view of their mission, where they were an advisory board. I was a little concerned that they didn’t really have an

answer when it was asked what they would do if someone refused

to give them the information that they needed, where they said,

well, if they refuse, it’s like they had a right to, because the DNI

can refuse or the Attorney General can refuse. But this, to me, is

not oversight then if somebody can refuse to give information that

they’re looking for because it’s been a complaint.

And also, I was just wondering, I don’t understand how the Civil

Liberties Oversight Board would work. Are they just going to respond to complaints, or are they actually going to just have an

overview—when I read the Commission’s charge, what they wanted

the Board to do, it was to look across the government to see that

our rights were being protected, and I had more of a global view

of what their mission might be.

Mr. SHAYS. You mean afterwards or before?

Mrs. ASHLEY. Before any complaints are made, just for them to

take a look.

Mr. SHAYS. I want to understand. You said you had a global

view.

Mrs. ASHLEY. When I read the Commission’s statement on the

Board that would—in the report they talk about a Board that’s established within the executive branch to oversee the government,

and my interpretation was that it would be like a global overview

of what our government was doing, especially in terms of the clandestine surveillance areas. So I was very surprised that their focus

really wasn’t globally, it was more like in response to complaints.

And maybe that’s the way it was intended; I just interpreted it differently.

Mr. SHAYS. OK. Let me go to you, Mr. Goodrich, and then to you,

Mrs. Fetchet, and then to you, Mr. Scott.

Mr. Goodrich.

Mr. GOODRICH. I wasn’t surprised at all. My emotional response

was disappointment. My lack of surprise I think I’ve already articulated.

Mr. SHAYS. You have.

Mr. GOODRICH. It’s just obvious they’re not in a position to force

outcomes, and if there’s no one there to force an outcome or make

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a clear disclosure that they failed to force the outcome so that the

press then—and you and the press and the public generally is

aware that there was an effort to force an outcome that was

thwarted. Nothing will come of it.

Mr. SHAYS. Mrs. Fetchet.

Mrs. FETCHET. I think I spoke of it already. It was with regard

to the Board. I was surprised, I’d have to say, to hear the Commissioners say that we haven’t got much further than 6 months ago,

because I was hoping that we would have progressed a bit.

Mr. SHAYS. You mention the Commissioners. I will tell you what

I was surprised at. I was surprised that they were as comfortable

with the Commission and appeared to be so supportive of what the

mission has done to date. That did surprise me.

Mrs. FETCHET. You mean with regard to the Board, the Civil Liberties Board?

Mr. SHAYS. Both the chairman and vice chairman of the 9/11

Commission, I think, spoke rather favorably of the outreach of the

committee. I mean, they were really magnifying the good and not

coming to the same conclusions we came to.

Mrs. FETCHET. They didn’t hear their testimony.

Mr. SHAYS. Exactly.

Mrs. MALONEY. I think they’d have a different opinion. I think

they’d agree with Mr. Scott that it’s an undersight board at this

point.

Mr. SHAYS. Thank you. Anything else before I go to Mr. Scott?

Mr. Scott.

Mr. SCOTT. From a positive aspect, I felt like they were making

great progress in terms of bringing the Board—in terms of getting

it staffed. They didn’t mention—at least I didn’t hear—about funding, but apparently they’re being funded, and they’re moving not

fast, but slowly. On the other hand, I was shocked to hear them

talk about—well, not talking about nothing, because, in my opinion, they don’t have any power, none whatsoever.

Mr. SHAYS. Yes.

Mr. SCOTT. It’s just like it’s to me, that’s just like having what

comes on the news, pork barrel, you just throwing in funding at a

nonessential entity.

Mr. SHAYS. Yes. Just responding to you, and then I’ll go to Mr.

Van Hollen. I was prepared to argue with the Commission that I

expected them to claim they had the authority to be aggressive and

so on. So I was then prepared to ask them, well, show me where.

And they took, I thought, a more realistic tack. They basically said,

it’s going to be through, you know, persuasion and cooperation and

so on. So it was—I was surprised they went in that direction, but

it’s a more realistic one in that sense, but obviously disappointed

to hear them, in my judgment, acknowledge what I think is quite

evident. So the one thing they got from me was I thought they

were being very up front and very honest with us, but naive.

Mr. SCOTT. The other thing I was surprised was that the person

in charge of the Board didn’t come to the hearing.

Mr. SHAYS. We had the chairman and the vice chairman. What

we didn’t have was the executive director, and—you know, testifying. So I think we had the two people that we should have had

there.

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Mr. Van Hollen, thank you for coming back. I knew you would.

Mr. VAN HOLLEN. Thank you, Mr. Chairman, and I’m very

pleased to have the opportunity to rejoin you, and thank you all for

your testimony.

I have had the opportunity to review some of the written testimony. I’m struck by the fact that all of you who really lost more

than anybody else on September 11th, you and the other families

who had loved ones who were killed, understand that in addition

to wanting to prevent future September 11ths, we want to do so

in a way that preserves what makes this country special, and an

important part of that is accountability, holding your government

accountable both for providing adequate protection and also for preventing unwarranted intrusions on civil liberty.

And the 9/11 Commission was part of holding this government

accountable, and I’m struck in remembering that if it hadn’t been

for the September 11th families, we wouldn’t have had a 9/11 Commission. We wouldn’t have had the report. We wouldn’t have had

the subsequent report cards. We wouldn’t be here today talking

about progress under the 9/11 Commission Report and fulfilling

those recommendations.

And that accountability is essential, and a part of that accountability was, of course, creating the Civil Liberties Board, and as I

listen to your testimony, read your testimony here, we’re struck by

the fact that the reason the 9/11 Commission was successful was

they were given that degree of independence and that ability to

issue subpoenas, and I—Mr. Goodrich, I was struck by your comment just a few minutes ago about the fact that in some ways, if

you create a Commission and a Board that is not equipped to do

its job, you do provide us all with a false sense of security that

someone is there minding the store and protecting our civil liberties, where, if they don’t have the power to do it, and we think

they’re all out there doing it, that is probably the worst of all

worlds.

You say we might as well get rid of them. Well, we should really

strengthen their powers, and I think you agree with that. But if

we don’t, you’re right. I think we’re creating a situation of a false

sense of security.

But I just want to thank all of you for being here today, and I

think the other point you raised, Mr. Goodrich as well as others,

that there is a danger as time goes on that people begin to forget

the lessons and not pay attention to the recommendations of the

9/11 Commission. After all, they’ve now issued their final report

card.

I was pleased to have them back here today. It’s great that the

chairman held this hearing, but we are going to continue, I hope,

to rely on you as well as Congress, which has not, for the most

part, done its job, to start doing a much better job of that oversight

because that is a critical piece of this effort. So I just—I thank you

for your comments and your testimony and all that you’ve done,

and for the sacrifices that you’ve all made for our country.

Mr. SCOTT. Thank you. And I also look forward to working with

you in the future.

Mr. SHAYS. Let me just say on behalf of the full committee, first

let me ask, is there anything that we need to put on the record

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that hasn’t been discussed that you would feel badly if you left not

having put on the record? Is there any last point? Yes, Mr. Goodrich?

Mr. GOODRICH. Actually, there is. And I won’t spend any time on

this except to say that I’ve been very much involved in terrorism

risk insurance, and I have the firm conviction that without a risk

transfer mechanism, namely insurance, to provide a vehicle for

remedies for those who suffer harm in a terrorist event, two things

happen. Those who suffer the harm have no effective remedy, or

the remedy comes ad hoc after the fact, which I think is a poor policy for running our affairs. And the more important part of it is

that with the risk transfer mechanism of insurance——

Mr. SHAYS. You know what, you’re speaking a little in tongues.

I understand a good deal of what you’re saying——

Mr. GOODRICH. Let me try to thin it out.

Mr. SHAYS. Without being as poetic, just get to the point here.

Mr. GOODRICH. The point is if you pay premiums based upon risk

and vulnerability for insurance to protect your property and protect

you against liability, you’re going to want to reduce those premiums. And by reducing those premiums, to reduce those premiums, you do risk-avoidance activities. So there’s a terrific benefit, very broad, broad basis, across our entire commercial sector in

having an insurance vehicle that is required for terrorist acts, that

is rated according to the magnitude of the risk and the nature of

the vulnerability, and people will then take steps to reduce the

risk, to reduce their premiums.

Mr. SHAYS. Thank you. Well said.

Mr. Scott, would you like to make any closing comments?

Mr. SCOTT. Yes. One comment, and that is, I have been approached on a number of occasions that, I’ve seen you on TV on a

number of occasions, you’re a celebrity. It’s not about me, as I’m

sure I can speak for all others. It’s about them, our loved one. And

I want to make sure that it goes in the record not Abraham Scott,

but the husband of Janice Marie Scott. Thank you.

Mr. SHAYS. Thank you.

Mrs. Ashley.

Mrs. ASHLEY. I have one other issue which I just wanted to make

a comment on. In the final report of the PDP, they talked about

the critical infrastructure risks and vulnerability assessment, and

this is something that I believe is very important that we—they

say that a draft infrastructure protection plan was issued in November 2005, but that no vulnerability assessments have actually

been made. This is very important that we get on this and make

sure that we have our critical infrastructure assessed and protected.

Mr. SHAYS. Thank you.

Mrs. FETCHET. My last comment is to just encourage you to do

this great work, to hold hearings, to educate the general public, to

provide oversight, and to talk about it during the elections because,

you know, the safety and security of our country really has to be

a priority.

Mr. SHAYS. Thank you. I close this hearing in the memory of

Brad, Janice and Janice Marie and Peter. Thank you, all four of

you, for being here.

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[Whereupon, at 6:36 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. C.A. Dutch Ruppersberger follows:]

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