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88–868 PDF 2004

S. HRG. 107–1043

TOOLS AGAINST TERROR: HOW THE ADMINISTRATION IS IMPLEMENTING NEW LAWS IN THE

FIGHT TO PROTECT OUR HOMELAND

HEARING

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY, TERRORISM, 

AND GOVERNMENT INFORMATION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 9, 2002

Serial No. J–107–110

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON TECHNOLOGY, TERRORISM, AND GOVERNMENT INFORMATION

DIANNE FEINSTEIN, California, Chairperson 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

MITCH MCCONNELL, Kentucky 

DAVID HANTMAN, Majority Chief Counsel 

STEPHEN HIGGINS, Minority Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 11

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1

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

statement .............................................................................................................. 123

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 3

WITNESSES 

Edson, Stephen A., Acting Deputy Assistant Secretary of State for Visa Services, Bureau of Consular Affairs, Department of State, Washignton, D.C. ..... 23

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C. .. 5

Fisher, Alice, Deputey Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C. ..................................................................... 8

Hastings, Scott, Associate Commissioner for Information Resources Management, Immigration and Naturalization Service, and Michael Cronin, Assistant Commission for Inspections, Immigration and Naturalization Service, 

Washington, D.C. ................................................................................................. 21

Lormel, Dennis, Chief, Terrorist Financing Operations Section, 

Counterterrorism Division, Federal Bureau of Investigation, Washington, 

D.C. ........................................................................................................................ 10

Wu, Benjamin, Deputy Under Secretary for Technology, Department of Commerce, Washington, D.C. ..................................................................................... 25

QUESTIONS AND ANSWERS 

Responses of Mr. Edson to questions submitted by Senators Feinstein and 

Kyl ......................................................................................................................... 36

Responses of Mr. Hastings and Mr. Cronin to questions submitted by Senators Feinstein and Kyl ....................................................................................... 52

Responses of Mr. Wu to questions submitted by Senators Feinstein and 

Kyl ......................................................................................................................... 74

SUBMISSIONS FOR THE RECORD 

Cronin, Michael, Assistant Commission for Inspections, Immigration and Naturalization Service, Washington, D.C., prepared statement ............................ 78

Edson, Stephen A., Acting Deputy Assistant Secretary of State for Visa Services, Bureau of Consular Affairs, Department of State, Washignton, D.C., 

prepared statement .............................................................................................. 90

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C., 

prepared statement .............................................................................................. 99

Fisher, Alice, Deputey Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., prepared statement .................................. 108

Hauer, Jerome M., Acting Assistant Secretary for Public Health Emergency 

Preparedness, Department of Health and Human Services, Washington, 

D.C., prepared statement .................................................................................... 125

Lormel, Dennis, Chief, Terrorist Financing Operations Section, 

Counterterrorism Division, Federal Bureau of Investigation, Washington, 

D.C., prepared statement .................................................................................... 130

Wu, Benjamin, Deputy Under Secretary for Technology, Department of Commerce, Washington, D.C., prepared statement .................................................. 144

(1)

TOOLS AGAINST TERROR: HOW THE ADMINISTRATION IS IMPLEMENTING NEW LAWS IN 

THE FIGHT TO PROTECT OUR HOMELAND 

WEDNESDAY, OCTOBER 9, 2002

UNITED STATES SENATE, 

SUBCOMMITTEE ON TECHNOLOGY, TERRORISM, AND

GOVERNMENT INFORMATION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

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

room SD–226, Dirksen Senate Office Building, Hon. Dianne Feinstein, Chairman of the Subcommittee, presiding. 

Present: Senators Feinstein, Feingold, and Kyl. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Chairperson FEINSTEIN. Good morning, ladies and gentlemen. It 

is a pleasure for me to welcome you to this hearing of the Technology, Terrorism and Government Information Subcommittee. 

I would like to welcome the Ranking Member, Senator Kyl, from 

Arizona, with whom I have worked now for 7 or 8 years either as 

chairman or ranking of this Subcommittee, and also the distinguished Senator from Wisconsin, Senator Feingold. We are delighted to have you with us this morning as well. 

The September 11 terrorist attacks were a wake-up call for our 

country. In the aftermath of those attacks, it quickly became apparent that our approach to combating terrorism was, to put it simply, broken. 

In response to the failures that led up to September 11, Congress 

passed a number of key legislative initiatives to beef up—well, we 

are working on beefing up homeland security, giving law enforcement a greater ability to go after potential terrorists, and improving the protection of our borders. 

Two of the most important of those initiatives were the USA PATRIOT Act and the Enhanced Border Security and Visa Entry Reform Act, each of which passed within just a few months of the terrorist attacks and each of which contained a number of key provisions and deadlines to enhance homeland security. It is these 

pieces of legislation that are the topic of today’s hearing. 

We are here to ask a number of questions of some very distinguished panelists. Are the new laws working? Are there things we 

left out? Are there improvements we should make? And most imVerDate 0ct 09 2002 09:17 Apr 09, 2004 Jkt 088868 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\88868.TXT SJUD4 PsN: 88868
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portantly, what progress is being made by the administration to 

implement these new items? 

The USA PATRIOT Act was passed by the full Judiciary Committee with the knowledge that it had been drafted and negotiated 

rather quickly—only 6 weeks elapsed between proposal and passage—and that Congress would need to exercise vigorous oversight 

to prevent abuses and solve unintended problems. That is one reason why some of the tools in the USA PATRIOT Act will sunset 

in a few years. 

If the new tools of this Act are working well and are effective, 

clearly we should keep them, and perhaps if needed, even strengthen them. If they are being abused, we should eliminate them or 

add new safeguards. 

The reforms in the USA PATRIOT Act were spurred by the fact 

that key agencies in our Government had information about the hijackers and their plans before they attacked, but didn’t share this 

information and didn’t act on it. These failures reveal fragmentation of anti-terrorism efforts and the need for better informationsharing. 

The lack of investigative and intelligence authority was another 

problem. As Judiciary and Intelligence Committee hearings have 

revealed—and both Senator Kyl and I sit on these joint Intelligence 

hearings—the FBI was unable to obtain a search warrant for the 

computer of accused terrorist Zacarias Moussaoui, who was detained by the FBI and the INS in August of 2001 after his enrollment in flight simulator training for jumbo jets raised considerable 

suspicion. 

Hearings also demonstrated that the terrorists made ample use 

of e-mail and the Internet in planning these attacks. The Government clearly needed and still needs adequate tools to monitor electronic communications. 

Senator Kyl and I worked together on the encryption issue. And 

yesterday at the hearings, Senator, you might be interested to 

know that I asked the question of former FBI Director Louis Freeh 

as to whether the informal arrangements that he had made as a 

product of some meetings I organized were adequate, and he said 

clearly, no, they are not adequate. 

There are some voluntary agreements between large computer 

companies and the FBI and other security organizations with respect to the key issue, but there were real problems and this remains a major point of American vulnerability. So I think this is 

something that this committee really should take another look at 

at a future hearing. 

Finally, the disclosure that hijackers entered the United States 

on legal visas showed a need for immigration reform. So the PATRIOT Act was an effort to solve some real problems. 

One issue is the ability of agencies to utilize the tools we gave 

them. The FBI can best use these new tools if it has a road map 

to ensure that it knows the nature, the likelihood, and the severity 

of the terrorist threat we face, as well as intelligence gaps that still 

remain. 

The DOJ Inspector General will testify today that the FBI has 

not yet performed a comprehensive written assessment of the terVerDate 0ct 09 2002 09:17 Apr 09, 2004 Jkt 088868 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\88868.TXT SJUD4 PsN: 88868
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rorist threat facing the United States. That came out yesterday in 

our Intelligence hearings as well. 

I don’t want to go on and on, but with respect to the Border Security Act, there are some things that are important. 

First, enhancing our intelligence capacity is key to increased security. Second, our most effective security strategy is to keep out 

those who do us harm, while admitting those who come to build 

America and be good residents. 

There still are five areas of vulnerability in our immigration system. We still have an unregulated visa waiver program in which 

23 million people arrive with little scrutiny from 29 different countries. Now, there are 28; Argentina is out of the program. Abuse 

of the visa waiver program is real and there are examples of it. 

Second, we have an unmonitored non-immigrant visa system in 

which 7.1 million tourists, business visitors, foreign students, and 

temporary workers arrive. To date, INS does not have a reliable 

tracking system. We need to know how progress is going because 

this remains a huge loophole. We don’t know if people leave, we 

don’t know where they are in the country, and that is 7 million 

visitors. 

Third, the porous nature of our borders, along with INS’ unreliable recordkeeping, have contributed to the agency’s inability to 

keep out criminals and terrorists. We need to continue to strengthen the border, and it can be done. 

Fourth, this is an era where terrorists use satellite phones and 

encrypted e-mail. The INS, our Nation’s gatekeeper, is considered 

by many observers to still be in the technological dark ages. The 

agency is still using paper files, archaic computer systems, often 

non-functioning. They don’t communicate with each other and they 

do not integrate well with other law enforcement systems. 

Fifth, about 50 to 70 percent of the estimated 7 to 9 million illegal immigrant population are visa overstayers. So people who come 

here illegally, 50 percent of them come with visas and then just 

simply disappear. 

In particular, I am going to be interested in learning more about 

the progress of the State Department, INS, and the National Institute of Standards and Technology in, one, establishing tamper-resistant visas and passports; two, establishing a non-immigrant 

tracking system using biometric data to verify the identity of persons seeking to enter the United States—I very deeply believe this 

becomes a key and critical tool in deterring terrorists from entry—

three, upgrading the information technology systems; and, four, 

building the necessary technology infrastructure so we can better 

protect our ports of entry. 

So this is a big agenda, and I want to stop here and see if our 

distinguished Ranking Member has some comments that he might 

wish to make. 

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

STATE OF ARIZONA 

Senator KYL. Thank you very much, Senator Feinstein. First of 

all, I am very interested in getting answers to the same questions 

that you have just propounded. Let me add to that that I will be 

asking at least on the first panel some questions about what addiVerDate 0ct 09 2002 09:17 Apr 09, 2004 Jkt 088868 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\88868.TXT SJUD4 PsN: 88868
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tional tools law enforcement may need. The question you asked 

about the FBI analysis of the threat, I think, is an important one 

to get an answer to. I will be curious about the assessment of the 

sunset provisions in the USA PATRIOT Act. 

On panel two, we were going to be talking about the response to 

the various requirements that we established in the law. You identified them, but we need to have some very forthright assessments 

of the features of the Border Security Act; for example, whether the 

deadlines in the Act are going to be met, where we are in the process of creating the interoperable data system that everybody agrees 

we need. 

As a matter of fact, I note that just this month there is a 171-

page report by the Brookings Institution and Center for Strategic 

and International Studies that concludes that we have to have an 

interoperable data system, the same one that we actually already 

require in the Act. 

How is the State Department responding to the visa issue requirement as it pertains to individuals from terrorist-sponsoring 

nations? How are INS and the State Department responding to the 

requirement that upon notification, stolen passport numbers must 

be entered into all relevant systems and to the requirement that 

INS must determine that any alien who is to be admitted at a port 

under the visa waiver system also be checked against relevant 

lookout data bases? Those and other questions we hold this hearing 

to determine answers to. 

I also would like to conclude my opening remarks by referring to 

a report that was just out today. It is in the National Review magazine, the very latest issue. It is called ‘‘The Terror Visas’’ and it 

says, ‘‘The applications of the September 11 hijackers should have 

been denied on their face, but the State Department approved 

them. Why?’’

The article goes on to note that in violation of our own provisions, Section 214(b), which essentially provides a presumption 

against the granting of visas for would-be immigrants, or puts the 

burden of proof, I should say, on the non-immigrant visa applicant 

to show that he has ties to his own country, that he has a stated 

purpose for the visa, a reason for coming back to his country so 

that he won’t be staying in the United States and be one of that 

50 percent that you identified—notwithstanding that presumption, 

the visa application forms of 15 of the 19 September 11 terrorists 

that were studied—all of the applicants among the 15 reviewed 

should have been denied visas under that provision on their face. 

The article goes into a lot of detail. I will just mention two because they are names we know. Hani Hanjour was first denied a 

visa. He conveniently changed many of the answers on the next application. Just 2 weeks later, he got a visa. Khalid al-Mihdhar, one 

of the terrorists who obtained a visa through the Visa Express program, simply listed ‘‘Hotel’’ as his U.S. destination—something that 

should have prompted the personnel in Saudi Arabia to inquire further. 

The bottom line is that apparently, according to this report, 

about 2 percent of the visas were denied, notwithstanding this presumption against their granting, for the Saudi nationals in the 12 

5

months prior to September 11. The worldwide refusal rate for temporary visas is about 25 percent. 

Now, obviously, things have changed. So how about in the 12 

months following September 11, Madam Chairwoman? It has gone 

from 2 percent to 3 percent, according to this article. We will want 

to know from our witnesses why, according to the State Department’s own documents with the letterhead of the embassy in Saudi 

Arabia, its refusal rate for Saudi nationals in the 12 months following September 11 is a mere 3 percent. That is something that 

we have got to get into, so I hope that those of you who haven’t 

had a chance to review this can do so and provide us your comments on it. 

Thank you, Madam Chairman. 

Chairperson FEINSTEIN. Thank you very much, Senator Kyl. 

Senator Feingold has indicated that he has to leave at 10:45 and 

so I will ask him to go first for questions. But do you have a brief 

opening statement? 

Senator FEINGOLD. In light of that, I will just wait and I appreciate it. 

Chairperson FEINSTEIN. All right, happy to do it. 

Let me quickly introduce the panel. The first panelist is Glenn 

Fine. He is the Department of Justice’s Inspector General. He is a 

Rhodes Scholar, a graduate of Harvard Law School. He was an attorney specializing in labor and employment law prior to going to 

Justice. He has prosecuted more than 35 criminal jury trials, handled numerous grand jury investigations, and argued cases in the 

District of Columbia and the United States Court of Appeals. 

He and his staff have made a tremendous contribution to the 

Subcommittee’s work in developing the Enhanced Border Security 

and Visa Reform Act, and I want to thank you for your cooperation. 

The second person is Alice Fisher, of DOJ. She serves as the 

Deputy Assistant Attorney General of the Criminal Division. In 

that capacity, she supervises several Criminal Division litigating 

sections, including the Terrorism and Violent Crime Section. That 

Section has handled all investigations and prosecutions relating to 

the 9/11 terrorist attacks. 

The next person is Dennis Lormel, of the FBI. He joined the FBI 

26 years ago as a special agent and he now serves as Chief of the 

Terrorist Financing Operation Section of the Counterterrorism Division. Immediately following the 9/11 attacks, he was given the responsibility for establishing and coordinating the FBI’s comprehensive terrorist financing initiative. He also oversees the Multiagency 

Terrorist Financial Review Group, which is responsible for tracking 

and investigating terrorists’ financial abilities. So he can update us 

on that. 

Why don’t we begin with you, Mr. Fine? If you can possibly truncate your statements into 5 minutes, it will give us more of a 

chance to have a discussion back and forth. 

Welcome. 

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Chairwoman Feinstein, Senator Kyl, members of the 

Subcommittee, thank you for inviting me to testify today regarding 

6

the Office of the Inspector General’s recent audit of the FBI’s 

counterterrorism program. 

Last week, our full 131-page classified audit was provided to the 

FBI and congressional committees, including this Subcommittee, 

and we publicly released an unclassified executive summary that 

highlighted our major findings and recommendations. 

Our audit was part of a series of reviews that we have undertaken regarding Department programs that affect counterterrorism 

and national security issues. The audit examined aspects of the 

FBI’s management of its counterterrorism resources, focused specifically on, one, the FBI’s progress toward developing a comprehensive written risk assessment of the terrorist threat to the 

United States; two, the FBI’s strategic planning as it relates to 

counterterrorism; and, three, the amount of resources dedicated to 

the FBI’s counterterrorism program over the past 7 years. 

It is important to note at the outset of my remarks that our 

audit does not purport to assess all aspects of the FBI’s 

counterterrorism program or how the FBI handled information that 

may have been related to the September 11 attacks. We have initiated a separate review that is examining aspects of the FBI’s handling of certain intelligence information related to those attacks, including the Moussaoui case, the Phoenix electronic communication, 

and other issues. 

The audit that we released last week contains several important 

findings. We determined that the FBI has not developed a comprehensive written assessment of the risk of a terrorist threat facing the United States, despite its statement to Congress in 1999 

that it would. We concluded that such an assessment would be useful not only to define the nature, likelihood, and severity of the terrorist threat, but also to identify gaps that need to be addressed. 

A comprehensive written threat and risk assessment would also be 

useful in determining where to allocate attention and resources on 

programs and initiatives to combat terrorism. 

By September 2001, the FBI had developed a draft of what it 

called a terrorist threat report. This report described terrorist organizations and state sponsors of terrorism, but the draft report did 

not assess the threat and risk of a terrorist attack on the United 

States. 

Among the report’s many omissions were assessments of the 

training, skill level, resources, sophistication, specific capabilities, 

intent, likelihood of attack, and potential targets of terrorist 

groups. 

Nor did the draft report discuss the methods that terrorists 

might use. For example, there was no analysis of terrorists’ 

progress toward developing or acquiring chemical, biological, radiological, and nuclear weapons, or any discussion of what the FBI 

had learned from its past terrorist investigations. 

We identified a number of causes for the FBI not adequately addressing these issues. First, no single individual at the FBI was accountable for managing the assessment. 

Second, some FBI officials said the FBI lacked the analytical capability or resources to complete such a broad threat assessment. 

Third, the FBI did not have a system of management controls 

that ensured compliance with GAO or OIG recommendations. Also, 

7

FBI counterterrorism managers had a tendency to rely on their 

own experience and professional judgment regarding the overall 

terrorist threat and did not value a formal written assessment that 

used a structured methodology. 

We believe that completing the national-level written threat assessment is critical to the FBI’s counterterrorism efforts. This assessment must also include an evaluation of the likelihood that 

specific weapons of mass destruction will be acquired or used 

against American targets and citizens. 

Fully assessing the threat, probabilities, and likely consequences 

of a terrorist attack by different methods will be of significant benefit not only to the FBI in allocating resources, but also for domestic preparedness efforts and counterterrorism programs at all levels 

of government. 

Our audit also found that the FBI’s strategic planning has not 

been guided by an overall strategic-level assessment of the threat 

and risk of terrorist attacks on the United States. The FBI’s strategic plan has not been updated since 1998 and does not conform 

to the counterterrorism priorities in the Department’s November 

2001 strategic plan, the FBI Director’s new priorities, or the FBI 

Counterterrorism Division’s approach to developing the maximum 

capacity to deal with the terrorist threat. 

We also found that the FBI had not developed a system for capturing and using lessons learned from past terrorism incidents and 

operations to improve the FBI’s counterterrorism capabilities. In 

addition, the FBI has not established a core training curriculum 

and proficiency standards for these new agents working in 

counterterrorism. 

Our report details the level of resources that the FBI has dedicated to counterterrorism and related counterintelligence over the 

last 7 years. While the FBI has indicated that the exact figures are 

classified, I can say that those resources have tripled between 1995 

and 2002. 

I want to be clear that our findings are not intended to criticize 

the expertise of FBI employees and managers who work on 

counterterrorism matters or the extensive knowledge they have developed through their casework and regular discussions with the 

FBI and the intelligence community. 

Our findings also should not be interpreted to mean that the FBI 

has not taken important steps during the past year to improve its 

counterterrorism program. After the September 11 attacks, the FBI 

identified as a critical weakness its ability to analyze intelligence 

and has begun taking steps to improve its capabilities in this area. 

But we believe the FBI can and must do more. Our audit report 

offers a total of 14 recommendations to help improve the management of the FBI’s counterterrorism program, including recommendations that the FBI prepare an authoritative, written, national-level threat and risk assessment of terrorism; identify the 

chemical and biological agents most likely to be used in a terrorist 

attack; develop criteria for evaluating incoming threat information 

and establish a guide for the distribution of threat information; 

build a core of professional trained and experienced intelligence analysts for assessing and reporting on threats at both the strategic 

and the tactical levels; and close the gap between FBI planning 

8

and operations by establishing an effective system of performance 

measures and holding FBI managers at all levels accountable for 

achieving those performance goals. 

The FBI responded that it concurred with our recommendations 

and that they provide constructive guidance. It described the steps 

it has taken to address the recommendations. We are pleased that 

the FBI has agreed with our recommendations and we look forward 

to monitoring the FBI’s progress toward implementing them. 

We believe these recommendations will aid the FBI in making 

the changes set in motion by the FBI Director to move the Bureau 

from a reactive, post-crime investigatory culture to a more 

proactive organization that seeks to identify and deter terrorists 

before they can strike. 

This concludes my statement and I would be pleased to answer 

any questions. 

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

the record.] 

Chairperson FEINSTEIN. Thanks, Mr. Fine, and again thanks for 

your help to this Subcommittee. We appreciate it. 

Ms. Fisher? 

STATEMENT OF ALICE FISHER, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. FISHER. Thank you, Chairman Feinstein, Senator Kyl, Senator Feingold. Thank you for providing me the opportunity to testify on behalf of the Department of Justice to inform the Subcommittee about the Department’s implementation and use of the 

important anti-terrorism provisions in the USA PATRIOT Act. 

I want to thank this Subcommittee’s members who helped to develop and enact the USA PATRIOT Act so swiftly in the wake of 

last September’s attacks on our Nation. As Deputy Assistant Attorney General in the Criminal Division, I am personally involved in 

using the tools myself and in working with others in the Department in seeing that the tools Congress provided in the Act have 

been used as intended, to enhance the ability of law enforcement 

to bring terrorists to justice. 

The unprecedented and heinous attacks on our Nation, in which 

over 3,000 innocent civilians were killed, occurred just over 1 year 

ago. At that time, the President pledged to the American people 

that we would not relent until justice was done and our Nation secure. 

Members of this committee and the Congress in general joined 

the President as key partners in this important undertaking. Congress’ swift and comprehensive response was to develop and pass 

the USA PATRIOT Act, which provided law enforcement with vital 

new tools and updated those tools already at our disposal that have 

been instrumental in our efforts to combat terrorism and the most 

extensive criminal deeds in history. 

One year later, I am pleased to report that we have used these 

tools effectively, aggressively, and I believe responsibly. As the Attorney General told this committee in July, the Department’s single 

overarching goal since September 11 has been to prevent future attacks on the United States and its citizens. 

9

In furtherance of that goal, we have been aggressively implementing the USA PATRIOT Act from the outset. Law enforcement 

uses the tools in our ongoing cooperative effort to identify, disrupt, 

and dismantle terrorist networks. We are expending every effort 

and devoting all available resources to intercept terrorists and defend our Nation. 

Never was this so apparent as last Friday—as the Attorney General describing it, a defining day in the war on terrorism—when 

law enforcement neutralized a suspected terrorist cell in Portland, 

Oregon, convicted attempted suicide bomber Richard Reid, and saw 

John Walker Lindh, an American captured fighting for the Taliban 

in Afghanistan, sentenced to 20 years in prison. 

In the last 6 weeks, we have charged 17 individuals involved in 

terrorist-related activities. In addition to Portland, we have 

charged an individual with attempting to set up an Al-Qaeda training camp in Oregon. Tools authorized by the USA PATRIOT Act, 

such as information-sharing provisions and enhanced penalty provisions, have been critical in all of these cases. 

The PATRIOT Act has aided law enforcement efforts in the war 

on terrorism in four key areas. First, it updated the law to reflect 

new technology. Second, it removed obstacles to investigating terrorism. Third, it strengthened criminal laws and enhanced penalties. And, fourth, it facilitated increased intelligence-sharing, 

gathering, and analyzing. 

As examples, over the past year the Department has used the 

following important new authorities and tools provided by the Act. 

We have charged a number of individuals under 18 U.S.C. 2339A 

and 2339B, which prohibit providing material support to terrorists 

or terrorist organizations and now carry enhanced penalties. 

We have used, newly streamlined authority to use trap and trace 

orders to track communications of a number of criminals, including 

the terrorists, kidnappers, and murderers of journalist Danny 

Pearl, as well as identity thieves and a four-time murderer. 

We have used new authority to subpoena information about 

Internet users’ network addresses to track down terrorists and 

computer hackers. We have used newly authorized nationwide 

search warrants for terrorist investigations at least three times, including during the ongoing anthrax investigation. 

We have used, on many occasions, provisions in the Act to foster 

an unprecedented level of cooperation and information-sharing between Government agencies. For example, we have disclosed grand 

jury information on at least 40 occasions. 

We have saved precious time and resources through a provision 

that permits officials to obtain court orders for electronic surveillance pertaining to a particular suspect rather than a particular 

device. We have used the provision allowing Internet providers to 

disclose records to law enforcement in emergencies preventing risk 

of life. This authority allowed us to track down a student who posted electronic bulletin board threats to bomb his high school and 

shoot a faculty member. We have also made sure that the prosecutors in the field know what valuable tools Congress has provided 

them by training and through guidance. 

I would like to conclude by thanking the members once again of 

your committee for your efforts in so swiftly giving us these tools. 

10

[The prepared statement of Ms. Fisher appears as a submission 

for the record.] 

Chairperson FEINSTEIN. Thank you very much, Ms. Fisher. 

Mr. Lormel, welcome back to the committee. 

STATEMENT OF DENNIS LORMEL, CHIEF, TERRORIST FINANCING OPERATIONS SECTION, COUNTERTERRORISM DIVISION, 

FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C. 

Mr. LORMEL. Thank you, ma’am. I also appreciate the opportunity to participate in this forum today. I have submitted a formal 

statement for the record and I would just like to augment that with 

some comments, and particularly to stress the importance of interagency cooperation. Clearly, that is important in our mission. 

I would like to commend the Treasury Department, who aren’t 

here, for their outstanding efforts in furtherance of methodologies 

being developed for use of the PATRIOT Act and working with us, 

and particularly David Offhauser for his leadership role in the Policy Coordinating Committee on Terrorist Financing. 

I would like to focus my comments on the progress that we are 

making in terrorist financing investigations and the operational 

benefits that we have specifically derived from the PATRIOT Act. 

I think that will be important for your benefit. 

First, our mission is two-fold. We were formed to investigate the 

events around the 19 hijackers and identify the financial infrastructure and flows. We have pretty much completed that, and at 

the same time we set up a template for investigations in the future 

to be much more proactive and progressive and predictive. We have 

adopted a centralized approach. We are looking outside the box to 

develop new methodologies in our approaches, and clearly the PATRIOT Act really helps us in that regard. 

Our strategies are to conduct full financial analysis of terrorist 

suspects and their financial support structures; disrupt and dismantle terrorist funding mechanisms; coordinate the joint participation and liaison and outreach efforts to exploit financial investigative resources of private, government, and foreign entities; utilize the FBI and LEGAT expertise in reaching out and fully exploiting those relationships; work jointly with the law enforcement, 

regulatory, and intelligence and business communities to develop 

predictive models based on terrorist cell financial traits; and conduct data-mining analysis to proactively identify terrorist suspects. 

We are also providing financial investigative components to the 

Counterterrorism Division and the overall mission. We are a support component of the Counterterrorism Division. 

Our investigative initiatives include support to significant terrorism investigations and deployments, and strategic investigative 

targets that we are going after, which include Al-Qaeda cells and 

other cells of Hamas and Hezbollah, in particular. 

We are looking at financial institutions, particularly non-banking 

financial institutions, the hawalas, the money services businesses 

and others. Clearly, in that regard, the PATRIOT Act is a big help 

to us. We are looking at NGO’s and charities, fundraisers, 

facilitators, couriers, and donors. 

We are conducting a number of data-mining initiatives. We are 

looking at undercover possibilities and platforms, clearly looking at 

11

the Internet, and we have established a 24/7 financial monitoring 

capability where we have a network of over 411 financial institutions involved. Clearly, human intelligence and outreach are important. 

We are striving to disrupt the flows of funding to terrorists by 

going back to the donors and forward to the strike teams. There 

are clearly three or four tracks, and I will come back to that in 

questions, if you like, as to how we are proceeding in that regard. 

Again, I would like to reiterate the importance of our cooperation 

and coordination particularly with the CIA and Treasury, and 

FinCEN in particular is an important partner for us with regard 

to the PATRIOT Act and the utilization of the provisions. 

The benefits that we have derived from the PATRIOT Act—clearly, on the financial side, the enhanced reporting requirements regarding suspicious activities, particularly with the non-banking financial institutions; registration requirements for licensed money 

remitters, and this provides us with a broader data-mining and investigative avenue to go after information. 

The authority to seize terrorist assets has been beneficial. The 

ability to seize foreign bank accounts, or funds in foreign bank accounts through correspondent accounts here in the U.S. has been 

helpful. The ability to prosecute unlicensed money remitters is 

going to be very important to us; more timely access to reports on 

currency transactions in excess of $10,000; authority for the service 

of administrative subpoenas on foreign bank accounts concerning 

records of foreign transactions. 

Clearly, the sharing of intelligence information and the criminal 

information between us and the CIA, in particular, has been very 

important. The mandated FinCEN establishment of the secure network is going to be a tremendous benefit. I believe that our operation will be the primary beneficiary from that. 

There are some other things, Senator, but in deference to time 

and Senator Feingold, I will stop here. Again, I can expand on this 

during questioning. 

Thank you very much. 

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

for the record.] 

Chairperson FEINSTEIN. We certainly want you to. Thank you. 

Senator we will turn to you. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Madam Chairman, and I want to 

commend you and Senator Kyl for holding this very important 

hearing and your tremendous courtesy in letting me go first. I really do appreciate that. My opportunity to speak on the Iraq resolution is at eleven, so I am grateful. 

One of the most vital tasks Congress has is to ensure that the 

powerful tools we give to law enforcement are used effectively and 

appropriately. I hope that this hearing will become part of a vigorous and consistent review of the tools Congress has given law enforcement. 

On July 24, I sent a letter to the Attorney General requesting 

a full report on the implementation of the USA PATRIOT Act, and 

12

asked specific questions about the business records, computer trespass, and FISA roving wiretap provisions. I still have not received 

answers to my questions about the use of the business records, 

computer trespass, and FISA roving wiretap provisions of the USA 

PATRIOT Act. 

These provisions deserve close congressional oversight because 

of, among other reasons, the enormous potential chilling effect on 

the First Amendment rights of innocent Americans who simply 

want to buy a book from an online retailer or borrow a book from 

a local public library. 

Nevertheless, I have received the Department’s unclassified responses to a House Judiciary Committee letter that requested information on the USA PATRIOT Act. The Department answered in 

response to many of the questions posed by Chairman Sensenbrenner and Ranking Member Conyers that the information would 

be shared with the House Intelligence Committee, but not the Judiciary Committee. 

This is not a response, in my view. There is no reason why the 

Department should not share with me or my colleagues on this 

committee or the House Judiciary Committee information like the 

number of times the Government has requested records from public 

libraries, bookstores, or newspapers. 

Congress has an important responsibility to exercise our oversight of the Department’s application of the USA PATRIOT Act, a 

law that significantly expands the Federal Government’s power to 

intrude in the lives of law-abiding Americans. To the extent the responses are classified, of course, we have well-tested procedures for 

handling that type of information in this committee. 

I am still hopeful that I will receive a full and complete response 

to my July letter, as well as copies of the responsive material that 

the Department has apparently conveyed to the House Intelligence 

Committee but has so far refused to share with the House and Senate Judiciary Committees. 

I would like to just ask a couple of questions. 

Ms. Fisher, I have heard that the Justice Department is gathering proposals from various divisions from within the Department 

for a possible sequel to the USA PATRIOT Act. Could you please 

describe what efforts are being made within the Department to 

seek to broaden the powers of the USA PATRIOT Act through additional legislation and what other changes to existing law you anticipate the Justice Department will propose? 

Ms. FISHER. Thank you, Senator. We have been internally within 

the Justice Department looking at potential proposals following up 

on the PATRIOT Act for new tools, and we have also been working 

with different agencies within the Government and they are still 

studying that. Hopefully, we will continue to work with this committee in the future on new tools that we believe are necessary in 

the war on terrorism. 

Senator FEINGOLD. Can you give us some sense of what you are 

looking at? 

Ms. FISHER. At this point, I can’t. I am sorry. They are studying 

a lot of different ideas and a lot of different tools that followup on 

information-sharing and other aspects. 

13

Senator FEINGOLD. I would ask you and the Department to provide us with some sense of where they are heading on this as soon 

as possible so that we are not confronted again—and it was more 

understandable last time, of course—with such a brief period of 

time in which to review such a significant series of proposals. 

Ms. FISHER. Yes, Senator. 

Senator FEINGOLD. Listening to the witnesses, I am struck by the 

tools being used in the war on terrorism that are not being spoken 

about today. Since September 11, the Justice Department has declared and imprisoned two U.S. citizens as enemy combatants, and 

detained people as material witnesses. In each of these instances, 

the Justice Department has opposed judicial review and refused to 

answer congressional questions about the affected people. 

I think the rules under the Constitution are pretty simple. If you 

have evidence of criminal misconduct, then you should provide people with attorneys, bring them into a courtroom and prosecute 

them. And if you don’t have evidence, the Constitution dictates that 

you cannot hold them indefinitely. 

Given the successes that you just, I think, reviewed that DOJ 

has had in criminal cases arising from the war against terrorism, 

what is it about the criminal justice system that leads the Justice 

Department to fear criminally charging the accused and prosecuting them in a courtroom? 

Ms. FISHER. I take it that is directed at me. 

Senator FEINGOLD. Please, yes. 

Ms. FISHER. The Justice Department does not fear bringing of 

criminal charges, but it is important to understand that these are 

two separate tracks. ‘‘Enemy combatant’’ is something that comes 

under the President’s authority as Commander-in-Chief of our 

country and it provides the military—and this has been upheld by 

the Supreme Court—with the authority to detain combatants that 

would cause harm to our country. 

Therefore, a determination is made on a case-by-case situation 

whether someone—for example, if you are referring to Mr. Padilla 

or Mr. Hamdi—should be detained as enemy combatants under 

those powers or should be charged in an Article III Court. But I 

will say that even if they are held as enemy combatants, they are 

not held indefinitely, as you suggest. In fact, they are held for the 

duration of the conflict. 

Senator FEINGOLD. Well, why was the choice made not to charge 

them in a criminal proceeding? What is it about them that means 

that they can’t be charged in a criminal proceeding? 

Ms. FISHER. Well, I wouldn’t comment on saying that they can’t 

be charged. It often may be the case that you could qualify as both 

an enemy combatant and be charged in a criminal Article III proceeding, such as John Walker Lindh. 

However, in this case when the Department and other aspects of 

the Government looked at the facts and looked at the national security interests and the information available, it was the Commander-in-Chief power utilized by the President to detain these 

two individuals as enemy combatants. 

Senator FEINGOLD. I understand that is the decision, but let me 

just say that I think it is deeply troubling to many Americans to 

not really understand why the decision was made. I understand 

14

that the decision was made, but given the lack of rights and procedures that are associated with this rather startling enemy combatant concept, I think that it would be in the interests of the administration to provide a better explanation of why this rather unusual 

procedure is used. 

Finally, Mr. Fine, pursuant to Section 1001 of the USA PATRIOT Act, your office submitted a report concerning complaints 

alleging abuses of civil rights and civil liberties by employees and 

officials of the Justice Department covering the period from October to June 2002. 

According to the report, there were 458 complaints suggesting a 

USA PATRIOT Act-related civil rights or civil liberties connection. 

These complaints included charges of excessive force, illegal detention, and a denial of the right to counsel. 

What is the status of the IG investigation and what can you tell 

us about the merits of the complaints that you have investigated? 

Mr. FINE. Senator Feingold, I can tell you that we have a number of ongoing investigations, both criminal and administrative. We 

have also referred several of the allegations to other agencies, including the FBI, which is reviewing and investigating some of 

them. 

In addition to the individual ongoing investigations, we also have 

a review that tries to look at it in a systemic way. So we have 

looked at the treatment of special-interest detainees at two facilities, the Metropolitan Detention Center in Brooklyn and the Passaic, New Jersey, facility, looking at issues such as their access to 

counsel, the conditions of confinement, the timing of charging decisions. We are pretty far along in that review and we hope to have 

a comprehensive review done in the near future. So we are working 

hard on that and look forward to having findings soon. 

Senator FEINGOLD. You don’t have any comment on the merits 

of the complaints at this point? 

Mr. FINE. I wouldn’t want to comment on an ongoing investigation. 

Senator FEINGOLD. My time, I think, has expired, but I would 

ask the Justice Department—Ms. Fisher, I really hope you can get 

an answer to my letter of July, and if there is any information that 

needs to be presented in a classified manner, so be it. I have that 

clearance; others on my staff do. I surely think that the members 

of the Senate and the House Judiciary Committees are entitled to 

answers to those questions. 

I do thank all the witnesses, and I especially thank the Chair for 

letting me do this. 

Chairperson FEINSTEIN. Thanks, Senator. 

My first question is of Ms. Fisher and I want to just sort of set 

this question in some context, if I might. In June, the Department 

of Justice announced that a man was being held. His name was 

Abdullah al-Muhajir. He was 31, a former Chicago gang member 

who was born Jose Padilla, in Brooklyn. He was raised as a Roman 

Catholic, but he converted to Islam and began using a new name. 

Mr. Padilla traveled to Pakistan and received training from AlQaeda in the wiring of explosives, intelligence officials have said. 

While he stayed at an Al-Qaeda safehouse in Lahore, he conducted 

research on radiological devices on the Internet. 

15

Now, in the PATRIOT Act we changed the definitions of pen register and trap and trace devices to include devices that track dialing, routing, addressing, or signaling information. For that might 

be interested, pen registers and trap and trace devices are like 

called I.D. on a telephone. They record the date, the time, and the 

phone number of outgoing and incoming calls, but they don’t reveal 

their content. 

This change allows the tracking of e-mail and Internet usage 

rather than just phone calls. However, e-mail routing information 

and Web addresses provide a lot more information than a telephone number. The e-mail address johnsmith(at)yahoo.com identifies a person, not a fixed piece of equipment, and a Web address 

such as www.plannedparenthood.com provides information about a 

person’s thoughts and interests. To solve this problem, the PATRIOT Act requires that pen registers and trap and trace devices 

do not capture the content of any communication. 

My question to you is how extensively has DOJ been using pen 

registers and trap and trace devices to track e-mail and Internet 

usage, and how do you ensure that these devices do not capture the 

contents of any communication? 

Ms. FISHER. Thank you, Senator. We do share your concern 

about content and we have not used the tools, as we should not, 

to gather content information. But the pen/trap and trace statute 

and the tool authorized by the PATRIOT Act has been used on several occasions. 

Although I don’t have the particular number of times at my fingertips, it was used in the Danny Pearl case. It was used with regard to other terrorist conspirators, one major drug distributor investigation, identity thieves, an investigation to track down a fourtime murderer, as well as a fugitive who was fleeing using a false 

passport. 

So we have been using this tool and we have been cautious not 

to get into content or the Web addresses, as you suggest. 

Chairperson FEINSTEIN. So it has been a successful tool? 

Ms. FISHER. Absolutely. 

Chairperson FEINSTEIN. Do you see any violations of privacy? 

Ms. FISHER. No. In fact, I am not aware of any violations of privacy. This tool has been used very carefully. The Deputy Attorney 

General issued a memo clearly delineating the Department’s policy 

with regard to avoiding over-collection and avoiding the collection 

of content in the use of this authority. 

Chairperson FEINSTEIN. Thank you. 

Mr. Lormel, I want to give you an opportunity to expand on the 

strike aspect that you spoke about in your opening comments, and 

this, of course, relates to Title III of the PATRIOT Act which focuses on money laundering. The title provided for increased information-sharing. It allows suspicious activity reports received by the 

Treasury Department to be shared with intelligence agencies, and 

it authorizes the sharing of surveillance information between law 

enforcement and intelligence agencies. 

Perhaps you can bring us up to date on any new activities that 

you are taking in that regard, how well this is working and what 

you are finding. 

16

Mr. LORMEL. Yes, Senator. Some of our agents are assigned over 

the CIA Counterterrorism Center, and conversely they have got 

people assigned with us. As I mentioned, we work very closely with 

FinCEN, and in that regard the sharing of information back and 

forth between us and the CIA has been outstanding. 

I don’t have any anecdotes that I can really get into in this 

forum. 

Chairperson FEINSTEIN. You don’t have any nuggets like you had 

last time you appeared before us? 

Perhaps I should ask about that. Have banks done anything 

about the hijackers? 

Ladies and gentlemen, six of the hijackers went into a bank to 

open an account, Mr. Lormel informed us at one of our earlier 

hearings, and in doing so they just made up Social Security numbers. 

Mr. LORMEL. Well, in regard to the Social Security numbers, let 

me clarify that. The numbers that were used weren’t necessarily 

made-up numbers, but they were on the application in the Social 

Security field itself. So they are numbers that for automation purposes they had to fill in, and in a couple of instances Social Security numbers were listed which may have been FAA numbers, as 

opposed to Social Security. But in the instances where the banks 

themselves listed the numbers, it was basically for administrative 

purposes in the use of those particular numbers. 

But going to the greater question of the cooperation with the 

banks, a comment I wanted to make was some observations, Senator, that I have seen in implementation of the PATRIOT Act. In 

anticipation of the implementation between the banking community, and particularly the non-banking financial institutions, their 

concern about consequence and their concern about doing the right 

thing in terms of reporting and working closer with us has been 

outstanding. 

That includes forums that we have had through FinCEN, and 

independent of FinCEN where we are trying to promote the use of 

the PAC system that FinCEN is implementing. We believe that 

that is going to enable us in terms of the data-mining to get information in an electronic format that we will have more timely access to and more timely responsiveness in terms of following up on 

leads in investigations. 

Chairperson FEINSTEIN. To date, tell us what you are able to do 

with respect to the hawala method of transferring funds to terrorist 

organizations. 

Mr. LORMEL. In regard to that, let’s go beyond the specific 

hawala, but into that whole informal mechanism. The fact now 

that there are licensing or reporting requirements helps us tremendously. We are going to have a conference in the next few weeks 

where we are bring prosecutors together with our agents to determine the best vehicles out there for proceeding with prosecutions. 

We have had some success in the disruption of money flows, and 

I think there are intelligence reports that will support that. In 

terms of the actual hawalas and that informal networking, the registration requirements through FinCEN are enabling us to identify 

who is a licensed money remitter that is outside the normal banking confines and who are unlicensed and perhaps illegal. It enables 

17

us to set up strategies and methodologies on both of those tracks, 

so we are proceeding accordingly. 

Chairperson FEINSTEIN. My time is up. 

Senator Kyl? 

Senator KYL. Let me begin with Mr. Fine. The threat assessment 

with regard to terrorism that you strongly suggest the FBI should 

get on with producing, you said, was hampered to some extent by, 

at least according to the FBI, a lack of analytical capability within 

the FBI. Is that correct? 

Mr. FINE. Yes. 

Senator KYL. What would it take to correct that deficiency for 

the FBI? 

Mr. FINE. I think the FBI needs to focus attention and energy 

on developing a core of trained professional analysts. They have 

some, but they need more, and I think the FBI recognizes that. In 

the past, it has not valued it as much as it perhaps could have and 

should have. 

There has been a focus in the past on reactive crime-solving. 

Agents’ work has been valued, but the more strategic, analytical, 

overarching analysis that needs to be done and should be done 

hasn’t received as much attention in the past. I think it needs to 

receive more attention in the future. 

Senator KYL. I know FBI Director Mueller immediately brought 

some CIA analysts over to the FBI. I know he doesn’t want to raid 

the CIA, but that kind of thing could at least in the short term help 

to augment his cadre, could it not? 

Mr. FINE. Yes, it could. He has brought over 25 CIA analysts as 

detailees that can help in the short term. In the long term, I think 

the FBI needs to develop its own permanent professional analyst 

capabilities. 

Senator KYL. If they were able to engage in this analytical discipline, it would also require the integration of their field office personnel and the information that they derive from that with the 

other aspects of the intelligence community, including the CIA, because you can’t do analysis without a full knowledge integration. 

So that in itself would be a useful exercise for further analytical 

capability at the FBI, would it not? 

Mr. FINE. Absolutely. The FBI can’t do it on its own. It needs to 

use intelligence and information from throughout the Government 

and elsewhere to factor into its analysis. It did try, as we indicated 

in our report, to look into the threat of weapons of mass destruction, but it didn’t do it with all the information that it should have. 

It has to reach out outside the FBI for expertise that can help them 

in this area. 

Senator KYL. I think we are all aware of the fact that the FBI 

had some really good nuggets of information, but they weren’t 

brought together in a central place. This call that you are making 

for an analytical document which would then presumably be ongoing is a very important thing. 

I want to ask Mr. Lormel, I gather the FBI has acknowledged 

the need for this. I suspect that you are not in a position to tell 

us why it hasn’t been fully implemented, but at least perhaps you 

could confirm to us that you will help convey the message to those 

with whom you work that we think this is an important thing to 

18

do, to move on with very quickly, and to let us know what you 

need, if anything, that Congress can help to provide in order to get 

this done. 

Mr. LORMEL. In that regard, Senator, I am aware that we are 

taking steps to move forward. For instance, we have, I believe, 240 

analysts in some stage of backgrounds to come on board. Clearly, 

the Director deserves a lot of credit for his vision to integrate the 

analytical component with the operational component, and also the 

third leg, the financial component. Our financial analysts and 

things are going to be integrated into that process. 

There are strategic reports that are now being drafted that the 

analytical component, the people from the agency, are involved in 

in finalizing which will be going forward, I believe, in the very near 

future. 

Senator KYL. Well, just to conclude this point, be sure and convey to those with whom you work our view that this is a very important aspect of the FBI’s contribution to the war on terror. The 

recommendations of the Inspector General should be closely examined and if there is any disagreement with any of that, let us know. 

Otherwise, we will expect that it will be done with some alacrity. 

Mr. LORMEL. Again, Senator, if I may, we embrace those recommendations and I know that the Director is looking to continuously improve our performance. 

Senator KYL. Let me just make one other point. We heard testimony yesterday from Louis Freeh, and I remember him coming before this very Subcommittee three and 4 years ago asking us for 

authority and Senator Feinstein and I supporting those authorities. 

We couldn’t get total cooperation from other members of the Senate 

and the House, and as a result it wasn’t until after September 11 

that a lot of what he was asking for was actually done, like the 

trap and trace, for example, was a good example, the roving wiretap. Those are authorities he asked for long ago. 

He also asked for more agents. He asked for something like 1,800 

agents and I think we gave him 76 over a 3-year period, or at least 

numbers in that general realm. So part of the problem is us not 

necessarily providing what is needed and if there is something 

needed here to get this job done, we expect to be told. 

The red light is on. Let me just close with one question for Ms. 

Fisher. 

In response to Senator Feingold, you indicated that there was an 

ongoing review of needs within not just the Department of Justice 

but other agencies of the Government to augment what has already 

been done in the USA PATRIOT Act, and that that study would 

produce a set of recommendations, hopefully early so that we can 

act on that very early next year. That last part I am adding to your 

testimony. 

In this regard, I am especially interested in having you look at 

the provisions—I think there are some 14 of them in the PATRIOT 

Act—that will sunset in 3 years. Unless you are aware of specific 

problems that have arisen with the application of those provisions, 

several of which are very important, I would hope that you could 

assess the desirability of making those provisions permanent as 

part of the recommendations for legislative reform. 

Your comment? 

19

Ms. FISHER. We certainly will. As we all know, we don’t expect 

the war on terrorism to sunset in the near future, unfortunately, 

and we certainly are using all the tools and we don’t believe that 

they should sunset. We have put them to good use, and so making 

that part of our recommendations, I think, is a very good idea. 

Senator KYL. All right. Then, finally, I am kind of catching you 

off guard here, but Senator Schumer and I have an amendment 

that we would like to get adopted sometime before Congress adjourns that would slightly modify the FISA warrant procedure to 

add to the definition ‘‘a foreign person.’’

This perhaps would pertain to Moussaoui, but I don’t ask for 

your comment on that. Where you have an individual you believe 

is engaged in terrorism, but you can’t necessarily connect him to 

a specific terrorist organization or foreign power, it would still permit the warrant to be obtained to investigate further. 

Previous witnesses representing the Department of Justice or the 

FBI have testified in favor of that. Is that still the position of the 

Department? 

Ms. FISHER. Absolutely. The Administration supports your bill on 

that. We think that it is an important and needed fix. 

Senator KYL. Thank you. 

Chairperson FEINSTEIN. To you, Ms. Fisher, I need to say one 

thing. I authored legislation that was signed into law in 1999 that 

mandates up to 20 years in prison for anyone who distributes 

bomb-making information, knowing or intending that the information would be used for a violent Federal crime. That is 18 U.S.C. 

842P. 

This law has been on the books for 3 years. It has not been enforced. We know that bomb-making information has been found. 

We know that in Afghanistan and we know that it has been found 

from the Internet. We know that its intent is clearly for terrorists 

to use it to violate a Federal law. 

Federal prosecutors have only charged a single person under the 

statute, and then these charges were quickly dropped for lack of 

evidence. I see this as an indispensable supplement for anti-terrorism tools. Terrorist groups, we know, are not only actively 

searching out bomb-making information, but they are even distributing it for recruitment and instructional purposes. If they do that, 

you have got them for 20 years. 

Why don’t you use the law? 

Ms. FISHER. Well, Senator, you raise a good point. Clearly, you 

are right. We do know that there are individuals out there that are 

doing this kind of activity with regard to bomb-making materials. 

I can’t speak to the one case where it was used and dropped. We 

can certainly take a fresh look at that statute and, where appropriate, charge it. 

Chairperson FEINSTEIN. One Al-Qaeda videotape consisted of a 

lab session showing the materials and processes needed to make 

TNT and high-explosive bombs. So you have a cause, and this ties 

in with my second question and I was very surprised to see this. 

My staff did some research and according to an analysis of DOJ 

records by the Transactional Records Access Clearinghouse, associated with Syracuse University, from October 2001 to March 2002, 

Federal prosecutors turned down 55 percent of referrals in interVerDate 0ct 09 2002 09:17 Apr 09, 2004 Jkt 088868 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\88868.TXT SJUD4 PsN: 88868
20

national terrorism cases and 46 percent of referrals in domestic terrorism cases. 

What is surprising about this is the likelihood was to decline 

prosecution for terrorism cases to a much greater extent than for 

other cases. The declination rates for referrals in non-terrorism 

cases during the same period was 32 percent. 

Why is that? 

Ms. FISHER. Well, Senator, a couple of points on that. First, over 

the past year, and certainly since September 11 when I think you 

said the data started, I have been involved in overseeing terrorism 

prosecutions. Terrorism prosecutions, regardless of where they are 

in the U.S. Attorney’s office, come up for approval through Main 

Justice and I am not aware of one terrorism case that we have declined. 

Chairperson FEINSTEIN. Can I ask that perhaps you then research it and give the committee a response in writing? I will be 

happy to give you the question in writing right now. 

Ms. FISHER. Sure. 

Chairperson FEINSTEIN. Perhaps you would answer it in writing 

within the next week. 

Ms. FISHER. OK. I am aware that there is a definitional issue of 

how the FBI characterizes what is a terrorism case, and I know 

that the FBI is working with the Executive Office of U.S. Attorneys 

on these statistics to figure out what the definitions are. 

It may be that included in those numbers are intelligence cases 

which don’t necessarily go to the Criminal Division because they 

are continuing as intelligence operations. It also may be that something is catalogued as a terrorist investigation initially, but later 

it is determined that it has no links to terrorism and it is some 

other type of charge, and so therefore it is not pursued as a terrorism case. 

But it is important to note that I am not aware, and I don’t think 

that the people at Main Justice are aware of any terrorism cases, 

certainly no international terrorism cases where we have declined 

prosecution or stepped away from that. We are very aggressively 

pursuing those cases, and I will be happy to look at your question 

and get back to you with an answer. 

Chairperson FEINSTEIN. Thanks so much. 

Senator do you have anything else? 

Senator KYL. No. 

Chairperson FEINSTEIN. Well, let me just thank the panel very 

much. You have been very gracious with your time and also with 

your expertise, and we appreciate it. Thank you. 

We will now go to the Visa Reform and Border Entry Act, and 

I will introduce the witnesses. We have Scott Hastings, from INS. 

Scott is the Associate Commissioner for the Office of Information 

Resources Management with INS. He is responsible for the information technology programs, including all electronic enforcement 

technology programs. He is also responsible for examining the role 

of Federal information technology organizations and their future 

configurations and structure. 

Michael Cronin, also of INS, serves as Assistant Commissioner 

for Inspections. He is responsible for program and policy development relating to INS operations at our Nation’s ports of entry. He 

21

is the principal point of contact between the INS and other Government agencies active at ports of entry as well as numerous foreign 

governments. 

Stephen A. Edson from the State Department began his work 

with State in 1981. He now serves as the Acting Managing Director 

of the Visa Services Directorate with the Department’s Bureau of 

Consular Affairs. He has served in the State Department all over 

the world, including Thailand, India, and Japan. 

Mr. Benjamin Wu represents the Commerce Department. He is 

the Deputy Under Secretary for Technology at that department. In 

that role, he supervises policy development and direction among 

numerous Federal offices that work on technology policy, including 

the National Institute of Standards and Technology, which was directed in the USA PATRIOT Act and the Enhanced Border Security and Visa Entry Reform Act to work with INS and the State 

Department to develop a biometric standard for immigration documents. Clearly, we want to know where that is today. 

So if I might, perhaps I could begin with you, Mr. Hastings. If 

you gentlemen would confine your remarks to 5 minutes, go right 

down the line, and then we will be able to ask you some questions. 

STATEMENT OF SCOTT HASTINGS, ASSOCIATE COMMISSIONER 

FOR INFORMATION RESOURCES MANAGEMENT, IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C.; 

AND MICHAEL CRONIN, ASSISTANT COMMISSIONER FOR INSPECTIONS, IMMIGRATION AND NATURALIZATION SERVICE, 

WASHINGTON, D.C. 

Mr. HASTINGS. Madam Chairman, the INS has prepared a single 

statement and Mr. Cronin will summarize, so I will defer to him. 

Chairperson FEINSTEIN. That is fine. Thank you. 

Mr. CRONIN. Thank you, Madam Chairwoman, and Senator Kyl. 

Thank you very much for the opportunity to participate in this 

hearing concerning coordinated information-sharing among Federal 

agencies in the war on terrorism. 

Since September 11, INS has witnessed an unprecedented increase in information flow among agencies. We strongly recognize 

our need for vital enforcement and intelligence data, and we are 

committed to providing accurate and timely immigration data to 

other agencies that require it. 

We are also strongly committed to the use of this data in a fashion that improves the security of our borders, while limiting disruption to legitimate travel and trade. We appreciate the support and 

the leadership of the Congress for this information-sharing effort, 

especially as embodied in the USA PATRIOT Act and the Enhanced Border Security Act. 

The Office of Homeland Security, in conjunction with the Office 

of Management and Budget, is leading critical initiatives to improve and monitor information-sharing among key Federal agencies, and to ensure the timely provision of critical data to State and 

local law enforcement and emergency management agencies. We 

are also working internationally to develop new and better ways of 

sharing information that will support intelligence and enforcement 

efforts. 

22

INS has been engaged in broad-based information-sharing efforts 

since long before the terrorist attacks of September 11. For more 

than a decade, INS has joined with the U.S. Customs Service in development and management of the Interagency Border Inspection 

System, or IBIS, which is the principal border lookout system containing data from more than 20 Federal agencies, as well as realtime linkage to the National Crime Information Center, or NCIC. 

Since the late 1990’s, INS has been working with the Department of State to develop and expand the Data Share Project, under 

which visa data is transmitted electronically through IBIS to our 

ports of entry. In January 2002, the Consolidated Consular Data 

base was made available to ports of entry. Through use of this system, inspectors can access non-immigrant visa information, as well 

as a photograph of a rightful bearer of a visa. 

Before and after September 11, INS has worked with the U.S. 

Marshals Service and the Federal Bureau of Investigation to include wanted persons’ fingerprint data in the INS fingerprint system, IDENT. For nearly a decade, INS has received data from the 

State Department TIPOFF data base of suspected terrorists. Each 

of these systems and projects has led to significant enhancement 

of the security of our borders through the interdiction or apprehension of numerous terrorists and criminals. 

Also related to and supported by the USA PATRIOT Act and the 

Enhanced Border Security Act are several key programs designed 

to manage and track the entry, stay, and departure of foreign visitors. 

INS has formed an interagency project team with representatives 

from the Departments of State, Treasury, Transportation and Justice to effect the creation of the statutorily mandated entry/exit 

tracking system. This effort has led to implementation of electronic 

tracking of the arrival and departure of visa waiver program travelers as of October 1 of this year, with full implementation for all 

foreigners arriving by air anticipated as of January 1, 2003. This 

information will be fed automatically into the Arrival Departure Information System, ADIS, which will be the repository for arrival 

and departure data, eventually replacing the current non-immigrant information system. 

INS has also very quickly implemented the National Security 

Entry/Exit Registration System, under which certain non-immigrant aliens who may potentially pose a national security risk are 

fingerprinted and interviewed upon arrival in the United States 

and registered periodically if they remain in the United States for 

a period of 30 days, and again if they remain for more than 1 year. 

Registration information is also updated in the event of changes of 

address, employment, or schools, and again upon departure from 

the United States. 

The legislation we are discussing today mandates use of biometrics in various documents and processes. INS is awaiting the 

results of evaluation and development of biometric standards by 

the National Institute of Standards to proceed to develop approaches to this statutory direction. 

In the interim, we are working with the Departments of Justice 

and State to design and evaluate processes and technologies which 

could potentially be used in the integration of biometric checks and 

23

border operations. Next week, we will begin deployment of bordercrossing card readers to selected ports of entry for test and evaluation prior to a large-scale procurement of readers for all ports of 

entry. 

The INS has made significant progress in development and implementation of the Student and Exchange Visitor Information System, and we are confident that we will meet the January 1, 2003, 

deadline for full implementation established in the USA PATRIOT 

Act, with gradual, incremental implementation of use of this system by schools throughout 2003. 

In May 2000, INS initiated a project to develop a business-driven 

enterprise architecture. The result is a multi-year modernization 

plan which provides a blueprint and build-out plan for modernizing 

information systems and technical infrastructure. 

This clearly has been a broad brush over a great deal of activity 

in the area of systems development and information-sharing. Once 

again, we thank the committee for this opportunity to testify on 

these important issues and we welcome any questions. 

[The prepared statement of Messrs. Hastings and Mr. Cronin appears as a submission for the record.] 

Chairperson FEINSTEIN. Thank you very much. I appreciate it. 

Mr. Edson, do you have comments? 

STATEMENT OF STEPHEN A. EDSON, ACTING DEPUTY ASSISTANT SECRETARY OF STATE FOR VISA SERVICES, BUREAU OF 

CONSULAR AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, D.C. 

Mr. EDSON. Madam Chair, Senator Kyl, thank you for allowing 

me to speak this morning concerning the progress of the Department of State’s efforts to implement the provisions of the Enhanced 

Border Security and Visa Entry Reform Act of 2002. 

In implementing the immigration laws of the United States, the 

Department of State has no higher priority than our national security. We participate with the border security agencies and the 

broader law enforcement and intelligence communities in a wide 

range of activities, including but not to limited to the visa process, 

to ensure the greatest possible cooperation in our joint efforts to secure our borders and fight terrorism. 

Although these relationships are longstanding, they have been 

significantly expanded in the past year. We are dedicated to meeting the opportunities provided by the Enhanced Border Security 

and Visa Entry Reform Act, both to build on our efforts to date and 

to break new ground in our common search for a safer United 

States. 

In my written remarks, I have provided a comprehensive review 

of our efforts by section in the implementation of the Act. Now, I 

would like to just provide some highlights. 

Significant progress has been made in the past year to increase 

the amount of information available to visa officers overseas, and 

conversely to INS and other law enforcement and intelligence agencies in the United States. The State Department’s Consular Lookout and Support System, CLASS, is a principal example of this 

progress. 

24

We have been able to leverage the provisions of the Enhanced 

Border Security Act and the USA PATRIOT Act to make CLASS 

an evermore effective tool for fighting terrorism. CLASS uses sophisticated search algorithms to match lookout information to individual visa applicants. Every single applicant is run through this 

system. CLASS is only as good, however, as the data it contains, 

and I am happy to report that post-9/11 this situation has improved dramatically. 

CLASS records have doubled in the past year. More than 7 million names of persons with FBI records have been added to CLASS 

by August of 2002, augmenting the 5.8 million name records that 

we already had from State, INS, DEA, and intelligence sources. 

These NCIC records include the FBI’s Violent Gang and Terrorist 

Data base, a particularly valuable resource. 

Twenty thousand Customs serious violator name records have 

been added to CLASS since September 11, 2001. CLASS now has 

over 78,000 name records of suspected terrorists, up 40 percent in 

the past year. Most of this information has entered CLASS through 

TIPOFF, a program run through the Department’s Bureau of Intelligence and Research that acts as a clearinghouse for sensitive intelligence information provided by other agencies. Since September 

11, 2001, approximately 20,000 new terrorist lookouts have entered 

CLASS through TIPOFF alone. 

Chairperson FEINSTEIN. Say that again, would you? 

Mr. EDSON. Twenty thousand new entries into CLASS concerning terrorists that we have gotten through TIPOFF in the past 

year. 

The State Department’s CLASS lookout system has used for 

some time now linguistically sensitive algorithms for checking Arabic and Russo-Slavic names. A Hispanic algorithm is developed and 

ready for implementation, and an algorithm for East Asian languages is under study. We have been a leader in the development 

of linguistic logic for search purposes, and we are actively engaged 

with other U.S. Government agencies to help share this expertise 

as we work to expand those language algorithms. 

The State Department currently shares electronic data with 

other agencies, including INS, and is rapidly expanding information-sharing arrangements through the law enforcement and intelligence communities. Our CLASS data base is already interoperable with the Interagency Border Inspection System, IBIS, that 

INS uses. In fact, we have been sharing information between 

CLASS and IBIS since 1995. 

The Department’s systems use open, flexible architecture consistent with industry standards in order to facilitate informationsharing. All non-immigrant and immigrant visa activities at all of 

our posts worldwide are replicated back to a consular consolidated 

data base in Washington at 5-minute intervals, providing the Department, INS, and other U.S. Government agencies with a nearreal-time window into this work. 

We in the State Department are actively participating in the design and the development of the Student Exchange and Visitor Information System, SEVIS, the permanent system that will contribute to our national security as it adds integrity to the student 

and exchange visa-issuing process. 

25

At the same time we are working on SEVIS implementation in 

response to a separate legislative mandate, the Department has 

launched the Interim Student and Exchange Authentication System, ISEAS, which will provide for electronic verification of student 

and exchange visitor visas until SEVIS is fully implemented. 

As of October 7, nearly 3,000 educational institutions and exchange program sponsors had entered approximately 72,000 

records into ISEAS. Two hundred and thirteen visa-issuing posts 

around the world had used this system to verify 9,000 cases. 

ISEAS has provided both the Department and INS a better system 

to verify incoming foreign and exchange students until SEVIS becomes fully operational. 

This concludes my testimony and I would be happy, of course, to 

take any questions. 

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

for the record.] 

Chairperson FEINSTEIN. Thank you very much. 

Mr. Wu? 

STATEMENT OF BENJAMIN WU, DEPUTY UNDER SECRETARY 

FOR TECHNOLOGY, DEPARTMENT OF COMMERCE, WASHINGTON, D.C. 

Mr. WU. Good morning, Madam Chairwoman and Ranking Member Kyl. I appreciate the opportunity to update you on the Department of Commerce’s implementation of the USA PATRIOT Act and 

the Enhanced Border Security and Visa Reform Act, of which the 

bulk of the work is performed by our Technology Administration’s 

National Institute of Standards and Technology. 

NIST is our Nation’s oldest Federal laboratory and the only laboratory with the express mission of working closely with industry 

to develop measurements, standards, and a variety of technologies. 

Consequently, NIST has been working with the biometrics industry 

and other Federal agencies for years, and has especially been in 

very close collaboration over the past year in meeting its statutory 

requirements to develop a biometric standard for visas and passports. 

In this Congress, Congress provided by statute appropriate tools 

required to intercept and obstruct terrorism in our country. These 

laws call for the Departments of Justice and State, working with 

NIST, to develop and certify technology standards to be used in 

visa control systems. 

NIST has responsibility to develop and certify a technology 

standard that can be used to verify the identity of persons applying 

for a U.S. visa or using a visa to enter the country. The Department of Justice and the Department of State also expect NIST to 

certify the accuracy of specific government and commercial systems 

being considered for use in the visa system. 

At this time, biometrics that are included in NIST studies are 

face and fingerprints, including the ten-finger rolled fingerprint 

system, the flat fingerprint matching system, and also a single flat 

fingerprint for verification as well as face-based verification. 

NIST has received large-scale data bases from both the INS and 

the State Department, and is conducting tests to be used for setVerDate 0ct 09 2002 09:17 Apr 09, 2004 Jkt 088868 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\88868.TXT SJUD4 PsN: 88868
26

ting standards for certifying the accuracy of proposed fingerprint 

and facial biometric technologies. 

NIST is also establishing interoperability standards for use between systems for both identification and verification functions. 

This is being done jointly with industry through the——

Chairperson FEINSTEIN. Can I just stop you there? We heard testimony, oh, maybe a year ago about all these biometric cards that 

went on to the border between our country and Mexico; I think 5 

million, but no readers for those cards. 

Is the biometric system that you are now talking about the same 

as the system that is on those cards, or is this a different one? 

Mr. WU. The system that we are using could be used. My understanding is that it could be used for implementation with the system that we already have, but I am not clear as to whether or not 

it is the exact same system that you are referring to. But we can 

certainly check on that. 

Chairperson FEINSTEIN. It seems to me you would want one system that is used all over so that all readers can gibe with the system. 

Mr. WU. That is the goal ultimately to have one system that is 

interoperable that can be used with multi-systems, and ideally 

even using these standards and applying them internationally so 

we have a worldwide network for verification and authentication 

for visas and border control. 

Chairperson FEINSTEIN. Please continue. 

Mr. WU. Thank you. 

This is being done jointly with industry through the International Committee for Information Technology Standard’s Biometric Committee in trying to achieve this international interoperable 

standards system. 

NIST has also contributed greatly in laying the foundation for 

interoperable data exchange for one of the primary biometric technologies, and that is fingerprint technology. NIST, working closely 

with the FBI, State and local law enforcement agencies, and product vendors of fingerprint classification systems, recently completed 

a joint American National Standards Institute, ANSI, and NIST 

standard for the data format for exchange of fingerprint information. This standard promotes the exchange of fingerprint data 

among different law enforcement agencies using systems from different vendors. 

NIST is also spearheading the Face Recognition Vendor Test 

2002 which is evaluating automated facial recognition systems that 

eventually could be used in the identification and verification processes for people who apply for visas who visit the United States. 

The significance of the Face Recognition Vendor Test 2002 is evident by its large number of sponsors and supporters. This includes 

16 Federal Government departments and agencies. The current 

evaluation builds on the success of NIST personnel who have had 

success in evaluating face recognition systems over the past decade. 

This evaluation methodology developed for FRVT 2002 will become a standard for evaluating other biometric technology and we 

will learn precisely how accurate and reliable these systems are. 

Fourteen companies are currently participating in FRVT 2002, and 

we deliberately designed a tough test that involved matching exVerDate 0ct 09 2002 09:17 Apr 09, 2004 Jkt 088868 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\88868.TXT SJUD4 PsN: 88868
27

tremely challenging real-world images that require participants to 

process a set of about 121,000 images and match all possible pairs 

of images to this image set. In other words, this required some 15 

billion matches. As you can imagine, this generated a mountain of 

data and we are crunching all the numbers to see how well this 

system worked. 

Also, open consensus standards and associated testing are critical to providing higher levels of security through biometric identification systems. Throughout the years, NIST has worked in partnership with U.S. industry and other Federal agencies to establish 

formal groups for accelerating national and international biometric 

standardization. 

The Biometric Consortium which NIST is leading serves as the 

Federal Government’s focal point for research and development 

testing, evaluation, and application of biometric-developed personal 

identification and verification technology. This Consortium has 

grown to more than 900 members, including 60 Government agencies. NIST and the National Security Agency co-chair the Consortium. 

NIST has collaborated with the Consortium, the biometric industry, and other biometric organizations to create the CBEFF, the 

Common Biometric Exchange File Format. This format already is 

part of a Government requirement for data interchange and is 

being adopted by the biometric industry. 

The specification is a candidate for fast-track approval as an 

ANSI standard and as an international standard for exchange by 

many types of biometric data files, including data on fingerprints, 

faces, retinas, palm prints, and iris and voice patterns. 

Later this year, also, NIST expects to submit a report, as required by the Acts, on our work to the State and Justice Departments for transmittal to the U.S. Congress. The due date, I believe, 

is November 10. The report will make a recommendation on which 

biometric or combination of biometrics would best secure the Nation’s borders. The report will also address interoperability standards and tamper-resistant standards. 

Madam Chairwoman, I want to thank you and the committee for 

the passage of the Act, not just because it has made our country 

safer, but also it allows for NIST to cooperate closely with several 

Government agencies in the development of biometric standards 

and testing. This cooperation has really been successful and allowed for us to determine appropriate test scenarios for biometrics 

and exchange of very large data sets of fingerprints and face images obtained under operational conditions. As a result, we believe 

that the underlying science and technology for biometrics will 

greatly benefit, and the overall biometrics industry will also benefit 

as well. 

We thank you and Congress for providing legislative tools to 

allow us to achieve this goal, and I thank you for the opportunity 

to testify this morning. 

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

the record.] 

Chairperson FEINSTEIN. Thanks very much, Mr. Wu. 

28

I am going to try and shorten my questions. I have a number of 

them and I think I would like to send them to you in writing, if 

I might, and hopefully you could respond within a week. 

I have a big concern over the visa waiver program, largely because it is so huge. Twenty-three million people a year come in and 

I recognize why it is necessary. On the other hand, I recognize that 

it is a very easy thing to abuse. 

Now, as I understand it, in our bill, by October 26, 2004, every 

person participating in the visa waiver program should have a machine-readable passport, I assume, with biometric data. 

Will you meet that date? You are on the record, Mr. Cronin or 

Mr. Edson. 

Mr. EDSON. Yes. 

Chairperson FEINSTEIN. Say that, ‘‘yes.’’

Mr. EDSON. Yes. Many of the visa waiver countries have had machine-readable passport programs at varying degrees of implementation for some time now. We used the passage of the legislation 

to sort of heat up discussions with them on this issue. 

The EU countries have indicated to us that they are planning on 

a uniform standard within the European Community for the biometric to be adopted. ICAO is proceeding apace with work on a sort 

of a triple standard, and it is our understanding right now that the 

ICAO members would be allowed to choose one of those three. 

Although no one is committing to us to definite deployment plans 

right now in these foreign governments, it looks as if they will have 

some biometric that is accepted by ICAO within the time allotted. 

Chairperson FEINSTEIN. Well, I might say both Senator Kyl and 

I worked very hard on some of these aspects of the bill and this 

is very important to us, so we are going to be watching with glasses on. 

To what extent are you able to develop a pre-screening for visa 

waiver passport-holders so that you know who is coming into that 

program ahead of time? 

Mr. CRONIN. If I may, Senator, basically that is done through the 

collection of data on departure by airlines. When flights depart for 

the United States, a manifest is provided to the U.S. Customs 

Service and to INS. We use the data provided while the flight is 

in the air to screen the names of the individuals on the flight to 

identify persons who may be the subjects of lookouts. 

We do analysis on that data to identify persons who might fit 

broad criteria that would indicate that they should be examined 

more closely for criminal reasons, for terrorism reasons, for reasons 

relating to migration issues or customs issues. 

Chairperson FEINSTEIN. Does the manifest alone contain sufficient data to do that? 

Mr. CRONIN. It provides us the name, the date of birth, the nationality, passport number of the individuals who are coming, as 

well as other data. 

Chairperson FEINSTEIN. And that is in operation now? 

Mr. CRONIN. Correct. 

Chairperson FEINSTEIN. And is it observed one hundred percent 

of the time? 

Mr. CRONIN. I can’t say we are at—we are very close to one hundred percent. Both INS and Customs are working closely with the 

29

carriers to ensure that we are hitting one hundred percent as to 

both the data in the system and the accuracy of the data. 

That is going to continue to be an issue. I mean, we will always 

be faced with keying errors to some degree in the check-in process 

or similar aspects of error that can’t be avoided, but we are very, 

very close to a hundred percent in terms of working with the carriers. 

Chairperson FEINSTEIN. That is good news. 

Now, the 7.1 million non-immigrant visas—what is being done to 

assure that it is properly filled out, that it isn’t falsified, and that 

the exit date is carried out? 

Mr. CRONIN. In terms of departure data, we are basically using 

the same system of gathering data from the airlines to close out 

the departures of persons who have arrived. The data is all coming 

to us electronically based on airline manifests. 

The way the system functions is the airline provides a departure 

manifest based on check-in information. They provide a subsequent 

departure manifest based on boarding gate information to verify 

that all persons that have checked in have, in fact, departed. 

We are going to have to continue to work with the airlines in 

terms of the integrity of the system to ensure that there aren’t elements of fraud introduced into the system, persons using other 

identities. At this point, we are still relying on provision of data 

from the airlines, albeit in electronic form. 

Chairperson FEINSTEIN. At this point, it could all be fraudulent 

data. 

Mr. CRONIN. Sure. 

Chairperson FEINSTEIN. You would have no way of knowing? 

Mr. CRONIN. We are relying on data provided at check-in to the 

airlines. The airlines are required to check documentation when 

the individual checks in. By and large, as part of the statutory 

scheme, they are required to check that documentation and we get 

that data from them. 

I would distinguish, then, the national security entry/exit registration system where we are tracking select individuals. Those individuals on departure will be interviewed by an immigration officer. Their biometric will be verified against the data collected when 

they arrived and their departure will be recorded by an immigration officer. But, again, that is a select group of people that are 

subject to national security entry/exit registration. 

Chairperson FEINSTEIN. I want to turn to Senator Kyl, but can 

you give me a percent compliance of the airlines with this? 

Mr. CRONIN. I would prefer to go back and give that to you for 

the record. I am not sure off the top of my head that what I would 

give you would be accurate, but I am certainly happy to do that. 

Chairperson FEINSTEIN. Fine, thank you. 

Senator Kyl, I know you have to leave. 

Senator KYL. Thank you, Senator Feinstein. I would like to submit some questions for the record to the entire panel here, but because of the timeliness of this article, I would really like to focus 

there. 

Primarily, I suspect, Mr. Edson, these questions will go to you. 

You did not choose to be the subject of my questioning this morning and I don’t mean this in any way personally, but I would like 

30

to start by reading three paragraphs from the beginning of this article to set the stage for it. 

‘‘On June 18, 2001, Abdulaziz Alomari filled out a simple, twopage application for a visa to come to the United States. Alomari 

was not exactly the ideal candidate for a visa. He claimed to be a 

student, though he left blank the space for the name and address 

of his school. He checked the box claiming he was married, yet he 

left blank the area where he should have put the name of his 

spouse. This ‘student’ indicated that he would self-finance a 2-

month stay at the ‘JKK Whyndham Hotel’ and evidently provided 

no proof, as required by law, that he could actually do so.’’

‘‘Despite the legal requirement that a visa applicant show strong 

roots in his home country (to give him a reason to return from 

America), Alomari listed his home address as the ‘AlQUDOS HTL 

JED,’ ’’ in Saudi Arabia. ‘‘Alomari didn’t even bother filling in the 

fields asking for his nationality and sex, apparently realizing that 

he didn’t need to list much more than his name to obtain a visa 

to the United States. He was right. He got his visa.’’

‘‘When he arrived in the United States, he connected with his 

friend Mohamed Atta. And less than 3 months later, on September 

11, he helped smash American Airlines Flight 11 into the north 

tower of the World Trade Center. Alomari never should have gotten 

the visa that allowed him to be in the United States on that day, 

and neither should at least 14 of the other 9/11 terrorists.’’

Now, I discussed in my opening statement some of the other 

facts that are in this story that relied upon the analysis of six experts, people who were in the State Department or INS looking at 

these applications. Their conclusion was unanimous that of those 

that they reviewed, none of the individuals should have been granted a visa. 

With that as the background, let me just confirm some information and then ask the questions. 

Is it correct that Section 214(b) has always been determined to 

create a presumption that the immigrant has the burden of proof 

of demonstrating that he will return to the country of origin and 

not remain in the United States? 

Mr. EDSON. Yes, the non-immigrant visa applicant, yes. 

Senator KYL. And I should have stated these are for non-immigrant visas, of course, yes. 

And that is a relatively high burden that consular officers are 

trained to try to cause the applicant to meet? 

Mr. EDSON. Yes. 

Senator KYL. Ordinarily, with the kind of application that I read 

to you, if you assume those facts to be true, there should have been 

an oral interview, should there not, to inquire into the reasons why 

the information was left blank that was left blank and to inquire 

further as to what the applicant could say that would cause the 

consular officer to believe that he would return to Saudi Arabia? 

Mr. EDSON. That is a harder question to answer just because we 

cannot tell from—well, we can’t tell how much of the article is accurate at this point. I just read it this morning. But we also can’t 

tell from looking at the applications whether or not an interview 

took place, whether or not additional evidence was submitted with 

31

the application and returned to the applicant, questions asked over 

the phone and answered. 

Senator KYL. That is unclear, although let me get back to my 

question. Ordinarily, wouldn’t an application of the kind that I 

read you be followed up with an oral interview? The visa wouldn’t 

just be granted on the basis of that information on its face, would 

it? 

Mr. EDSON. Not on the basis of that information on its face. 

Senator KYL. OK. If there had been an oral interview, wouldn’t 

it be probable that that application, the two pages or the face page 

of it, would have had some notation of an oral interview? 

Mr. EDSON. It should have. Our instructions would be that the 

officer should have annotated the application. 

Senator KYL. OK, so either interviews were not held or the instructions to annotate the interview application were not done. In 

either case, the consular officers should have done something that 

apparently was not done, is that correct? 

Mr. EDSON. Yes. They could have done what they did better, it 

seems. 

Senator KYL. By the way, let me say I am not blaming any consular officers here. The article itself notes that they are not implicated in the problem. The problem was the culture that had been 

created by their superiors. 

Since the time is getting beyond us here, let me turn right to the 

penultimate point I wanted to make that these individuals should 

be demonstrating that they have a means of financial support, that 

they have a destination in the United States that is clear, that they 

have a specific reason for being in the United States, especially if 

they are young, single men—and every one of these applicants 

were single and none was even 30 years old, by the way—and that 

they be able to demonstrate to the consular officers that they will, 

in fact, return to their country of origin, in this case Saudi Arabia. 

Those are all of the kinds of things that the consular officers 

should have looked at, is that correct? 

Mr. EDSON. Yes. 

Senator KYL. Now, the last point that I want to make is this: According to the article—and I will ask you if you have any reason 

to believe that this is not true—the consulate in Jeddah where 

many of the terrorist visas were issued refused applications for 

fewer than 2 percent of the Saudi nationals in the 12 months prior 

to September 11, whereas the worldwide refusal rate for temporary 

visas is approximately 25 percent. 

Do those numbers sound reasonable to you, or would you have 

any reason to know? 

Mr. EDSON. We track refusal rates based on the source of the application, the nationality of the applicants, and the type of visa 

being issued. So it is very difficult to speculate and I would much 

rather answer in writing concerning the refusal rates because they 

could be comparing rates against two different populations. 

Senator KYL. Sure. One thing I would like to ask is if you or 

someone at the Department could get these statistics for us and 

could respond to the allegations in the article as to whether or not 

these statistics are true or, if there are some other statistics, what 

they are. I think that would be very useful to us. 

32

That answer probably then also applies to the 12 months following September 11, where the article asserts that according to 

documents bearing its letterhead, the embassy there in Saudi Arabia, the refusal rate for Saudi nationals in the 12 months following 

September 11 is a mere 3 percent. I gather you would have the 

same answer with respect to that. 

Mr. EDSON. Yes. I need to check and see what they were counting. 

Senator KYL. Just as a matter of visceral reaction, if these numbers are correct, would it seem to you that they are highly out of 

balance with the probability that Saudi nationals, especially those 

under 30 years of age, males, could prove a likelihood of returning 

to Saudi Arabia, that those numbers do seem to be out of balance? 

Mr. EDSON. Not necessarily. Again, not knowing what we are 

counting, it is difficult to speculate. But remember that much of 

the population we are talking about is now subject to special additional screening procedures that have been put in place since September 11, much of it throughout the U.S. law enforcement and intelligence communities. So that the ultimate refusal rate might be 

in that neighborhood would not necessarily surprise me, but I don’t 

know. We will have to check on the numbers for you. 

Senator KYL. Well, let me just conclude, then, with this general 

question. Given the fact that all of these people were under 30, single males from Saudi Arabia—we were talking about the hijackers 

that caused the terror on September 11—and that so many of 

them, according to this article anyway, obtained a visa notwithstanding those facts and notwithstanding the kind of omissions 

that they article reported on their applications, would it not suggest to you a need for the State Department to immediately investigate what the practices of the State Department were at the time 

in that location, as well as other Middle Eastern countries that 

might be of concern to us, and to compare what the instructions 

are today to the consular officers with respect to how they handle 

such applications as a means of ensuring us that the State Department is on top of the situation and that its officers are making the 

right kinds of decisions with respect to people coming into this 

country on temporary non-immigrant visas? 

Mr. EDSON. Yes. I do not agree with some of the conclusions 

reached by the article, but the important thing is just what you 

have just raised. The article raises the question that we have to 

ask ourselves constantly: Did we do the right thing and have we 

made changes since then to ensure that we are doing the best possible thing now in the visa process? That is what we do on an ongoing basis and that is what I hope that we do again in response to 

the article as we are looking to it and answering your questions. 

Chairperson FEINSTEIN. The Senator is good enough to yield, and 

I would like to associate myself with his comments because I asked 

this question informally and I was told that every applicant goes 

through a special screening process now. If that is not true, then 

I would like to know it because I believe it should be and if we 

need legislation to accomplish it, we should do that. 

Mr. EDSON. You are speaking to Saudi nationals? 

33

Chairperson FEINSTEIN. In all these countries where there is a 

very real risk to the United States, every visa applicant from those 

countries goes through this special screening process. 

Now, Saudi Arabia isn’t on our list as a terrorist state, but 

maybe it should be. 

Senator KYL. It is, is it not, one of the states that is subject to 

the special screening requirement, nevertheless? 

Mr. EDSON. Correct. I assume we are talking about the visa Condor process which applies primarily to adult males in all of these 

states that we are talking about. 

Chairperson FEINSTEIN. Every one should be specially screened. 

Mr. EDSON. It doesn’t apply to all of them. I ran some numbers 

yesterday and it is in the high 90’s. The criteria are driven by intelligence community concerns and don’t cover everyone as currently 

constituted. 

Chairperson FEINSTEIN. Well, I think we need to take a look at 

that and see if we have some views. 

Senator KYL. I concur with Senator Feinstein. I think probably 

with some of the questions that we will submit in writing, you can 

clarify some of this and we will probably need to have some additional oral testimony. 

I would also like to conclude, if I could, by making one thing 

clear. This Section 214(b) does not relate to terrorism, per se. It 

rather is a standard part of our immigration policy to ensure that 

non-immigrant visas return to their country of origin. So this 

should have been standard procedure before September 11. It is not 

a terrorism-related filter for applicants, but rather one designed to 

ensure that people will comply with the laws of the United States 

when they seek to be our guests temporarily. 

The reason this has such special meaning to me is that Senator 

Feinstein and I were the ones that prepared the Border Security 

Act and part of it was based upon testimony that we received in 

the Subcommittee. And I will never forget the testimony of Mary 

Ryan, who said we didn’t have the information we needed to deny 

these visas. 

She specifically talked about Mohamed Atta and I remember her 

saying it is like the person that hits the child who dashes out in 

front of the car in the school zone. You feel horrible about it, but 

there isn’t anything you could have done about it. 

But it appears to me that there was something that we could 

have done about it, not because of anything related to terrorism, 

but simply enforcing the laws of the United States of America. And 

had those laws been enforced, it is likely that most of the terrorists 

who committed the heinous acts of September 11 would not have 

been permitted into the United States, at least under the circumstances in which they were. They would have had to come back 

and complete their applications in a very complete way and demonstrate to consular officers that they were committed to returning 

to Saudi Arabia. 

Of course, what they would be trying to prove is something that 

was utterly false, so that the likelihood is that consular officers 

being the good people they are would have found this out, discovered the problem, and never granted the visas to these people in 

the first instance. 

34

If you have any comment, fine. It is not really a question. Again, 

Mr. Edson, I am in no way casting any aspersions upon you. You 

came here to represent the Department, really to deal with some 

other questions, but I hope that you will be a conduit of information because we need the answers from the State Department with 

respect to this. 

I don’t expect you to have those here this morning, but I would 

hope that you would be as upset as I am that when we talk about 

being able to prevent September 11, this perhaps could have prevented September 11 if we had just done our job, having nothing 

to do with terrorism, but just abided by the law of the United 

States. If consular officers had done their job, it is quite—and I 

shouldn’t say ‘‘if our consular officers’’ because I am again not suggesting that they didn’t do their job. 

If the State Department had had the proper policies in place to 

be followed by its employees, it is possible that these terrorists 

would never have made it to the United States. 

Chairperson FEINSTEIN. Thank you, Senator Kyl, and I know you 

are under time pressure. I am, as well, but I have four quick questions I must ask. 

Let me just make a comment on this. One of the things that I 

really believe is true is that prior to 9/11 immigration policy in this 

country was really forged on humanitarian concerns, and then 

there were also economic concerns of facilitating travel. After 9/11, 

this has changed dramatically and national security concerns have 

to dominate. 

So I think from the perspective of this Subcommittee which oversees technology and terrorism, and as that technology impacts each 

of your departments, the goal clearly has to be that national security is protected. If anybody errs, they have to err toward the conservative, not toward the other side. 

I had taken a position early on in the student visa program and 

I have just four questions. 

In the past year, how many schools have you investigated for 

fraud or violating the terms of the student visa program? 

Mr. CRONIN. I don’t know the answer to that, Senator. I would 

have to get that for you for the record. 

Chairperson FEINSTEIN. I would like to have the answer. 

How many schools have you dropped from the foreign student 

visa program after finding they were either sham operations, had 

fraudulently obtained student visas for persons not intending to attend classes, or had ceased operations? 

Mr. CRONIN. Again, I apologize. That is not data that I have 

available. 

Chairperson FEINSTEIN. How many cases of student visa fraud 

has the INS referred for further investigation or prosecution in the 

past 5 years? 

Mr. CRONIN. I will have to get that for you for the record. 

Chairperson FEINSTEIN. How many individuals have you deported in the past 5 years for foreign student visa violations? 

Mr. CRONIN. Again, an answer I will have to provide for the 

record. 

35

Chairperson FEINSTEIN. What type of institutions have you identified as high risk in terms of fraud and lack of compliance with 

the law? 

Mr. CRONIN. I will provide that for the record, Senator. 

Chairperson FEINSTEIN. What is the INS’ timetable for conducting site visits to those institutions? 

Mr. CRONIN. SEVIS is not under my responsibility. We will provide that answer for the record. 

Chairperson FEINSTEIN. I understand, but these are the questions that we are going to ask about this program and we are going 

to ask them in the next 3 months, for the next 3 months. I am 

going to ask you to come back and I will give you a list of the questions, and I would ask you to answer them with specificity 3 

months from today. 

Mr. CRONIN. Absolutely. 

Chairperson FEINSTEIN. Thank you very much. I thank everybody. This hearing is adjourned. 

[Whereupon, at 12 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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