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91–288 DTP 2004

S. HRG. 108–257

LESSONS LEARNED—THE INSPECTOR GENERAL’S

REPORT ON THE 9/11 DETAINEES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JUNE 25, 2003

Serial No. J–108–19

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(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 ............. 19

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

statement .............................................................................................................. 77

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 79

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 91

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 22

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 21

WITNESSES 

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C. .. 6

Lappin, Harley G., Director, Federal Bureau of Prisons, Department of Justice, Washington, D.C. ......................................................................................... 26

Nahmias, David, Counsel to the Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C. ................................................. 32

Rolince, Michael E., Acting Assistant Director in Charge, Washington Field 

Office, Federal Bureau of Investigation, Washington, D.C. ............................. 28

QUESTIONS AND ANSWERS 

Responses of Glenn A. Fine to questions submitted by Senators Kennedy, 

Leahy and Durbin ................................................................................................ 46

SUBMISSIONS FOR THE RECORD 

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

to Attorney General Ashcroft .............................................................................. 57

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

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

Lappin, Harley G., Director, Federal Bureau of Prisons, Department of Justice, Washington, D.C., prepared statement ...................................................... 82

Legal Times, Stuart Taylor, Jr., June 16, 2003 .................................................... 88

Nahmias, David, Counsel to the Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., prepared statement .............. 96

Rolince, Michael E., Acting Assistant Director in Charge, Washington Field 

Office, Federal Bureau of Investigation, Washington, D.C., prepared statement ...................................................................................................................... 104

Washington Post, David Cole, June 8, 2003, article ............................................. 109

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LESSONS LEARNED—THE INSPECTOR 

GENERAL’S REPORT ON THE 9/11 DETAINEES 

WEDNESDAY, JUNE 25, 2003 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Specter, Chambliss, Leahy, Feinstein, 

Feingold and Schumer. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning. I want to welcome everyone to 

this hearing, especially our distinguished witnesses. 

As we continue to strive as a Nation to combat the grave terrorist threat we face, it is more important than ever that we exercise vigilant but responsible oversight with respect to our law enforcement agencies. We need to do all in our power to ensure that 

these agencies are able to investigate, detect and prevent terrorist 

attacks on our country without threatening or undermining our 

country’s cherished freedoms, and I am committed to this process. 

In fact, this is one of several oversight hearings I intend to hold 

in the coming weeks. As I have announced, FBI Director Mueller 

will appear before us on July 23rd, and I am working to arrange 

a hearing with Asa Hutchinson, Under Secretary for Border and 

Transportation Security at DHS. Later this year I will hold a general oversight hearing with the Attorney General himself. 

The subject of today’s oversight hearing is the Department of 

Justice Office of Inspector General’s Report on the September 11th 

detainees. It is apparent from the IG’s report that in response to 

the September 11th attacks, well-meaning law enforcement officials, working around the clock under great stress and amid very 

difficult conditions, made some mistakes. There are valuable lessons to be learned from the report. 

My intention here today is to conduct a forward-looking hearing. 

We need to examine mistakes that were made with respect to the 

9/11 detainees with an eye toward ensuring that the problems do 

not arise in the future should we ever face a similar catastrophic 

emergency. To this end we will hear from the component parts of 

the Department of Justice, the Bureau of Prisons and the Federal 

Bureau of Investigation. I had hoped to have a witness here from 

the Border and Transportation Security Division of the Department 

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of Homeland Security, but was prevented from doing so because of 

scheduling conflicts. So we will do that later. However, as I mentioned, we expect to hear from Under Secretary Hutchinson in the 

next several weeks. I am hopeful that the witnesses here today will 

offer us, based on their firsthand experiences during the 9/11 investigation, the knowledgeable perspectives that we need to begin our 

critical assessment of the IG’s report and recommendations. 

I want to express my deep appreciation to Inspector General Fine 

and his staff, who have worked so hard to prepare the comprehensive report that is before us. The report contains a number of critical findings and recommendations which we must examine carefully to ensure that we will be better prepared if we as a Nation 

face another devastating attack on our soil. 

As we consider these criticisms with 20/20 hindsight nearly 2 

years after the 9/11 attacks, it is important to recognize the monumental challenges our country, the Government, and in particular 

the Justice Department faced n the immediate aftermath of the 

September 11 attacks. 

In the days following the attacks our country did not know 

whether or not we faced additional even more devastating attacks. 

It was not clear how imminent any such attack might be, how extensive the Al-Qaeda network in the United States was, or whether 

those individuals who had contact with the 9/11 hijackers were coconspirators or unwitting accomplices. The Government’s response 

was one that I believe was correct: aggressive oversight and investigation and enforcement efforts against all persons who surfaced 

in the thousands and thousands of leads generated from the 9/11 

investigation. 

It is also important to acknowledge that the 762 detainees who 

are the subject of the IG’s report, were illegal aliens who had no 

right to be in this country. They were individuals who had violated 

our Nation’s immigration laws, and they were individuals who 

well-intentioned law enforcement agents believed at the time may 

have had ties to or knowledge of terrorism or terrorists. 

But let me be clear: neither the fact that the Department was 

operating under unprecedented trying conditions, nor the fact that 

9/11 detainees were in our country illegally, justifies entirely the 

way in which some of the detainees were treated. 

The IG report highlights a number of significant problems, many 

of which related to the Department’s ‘‘hold until cleared’’ policy. I 

believe that the Department’s decision to detain illegal aliens who 

were suspected of having ties to or knowledge of terrorism or terrorists, until they were investigated thoroughly, was fully justified 

by the emergency at hand. The stakes were simply too high to proceed any other way. There are, however, countless examples of illegal aliens being released on bond to the streets of the United 

States or returned to their country of origin only to commit future 

serious crimes against innocent Americans. 

So while I do not take issue with or second guess the policy, I 

do question the manner in which it was implemented. As the IG 

report makes clear in implementing the ‘‘hold until cleared’’ policy, 

officials failed to take adequate steps to distinguish promptly between aliens who were legitimate subjects of the 9/11 investigation 

and those who were encountered coincidentally as a result of the 

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9/11-generated leads. And because the clearance process was 

plagued by administrative logjams and paperwork overload, a number of detainees who turned out to have no links to terrorism were 

held longer than they should have been. 

Perhaps the clearest message in the IG report is that the component parts of the Department of Justice and Main Justice did not 

effectively and efficiently communicate and share information with 

one another. Logjams were not identified in a timely fashion. Other 

pressing concerns and legal issues were not promptly raised to the 

highest levels within Main Justice. 

The IG report also illustrates that the problems caused by the 

classification of detainees and the inefficient clearance process were 

magnified by the conditions in which some of the detainees were 

actually confined. Aliens classified as high-interest detainees, who 

were housed at the Metropolitan Detention Center, the MDC, in 

Brooklyn, were subjected to highly restrictive confinement policies 

for long periods of time. 

But without a doubt, the most disturbing aspect of the IG report 

relates to the allegations of abuse and mistreatment of several detainees who were housed in the MDC. Let me state this unequivocally: abuse of inmates, no matter what the actual or potential 

charges, is wrong. It cannot be tolerated. And should any of the allegations in the IG’s report be sufficiently corroborated, the responsible parties should be prosecuted to the fullest extent under the 

law. 

Inspector General Fine, I am pleased to hear that you are continuing to investigate these matters, and I personally implore you 

to do so vigorously. 

Although our Nation remains a target of terrorists we now have 

the ability and the resources some 20 months after 9/11 to assess 

our performance and to institute needed reforms. The time has 

come. 

As noted in the IG report, the Departments of Justice and Homeland Security need to develop a crisis management plan that clearly identifies their respective duties should another national emergency occur. 

Now, specific standards should be adopted that will improve the 

ability of our law and of our law enforcement officials, and of 

course, of our immigration and intelligence agencies to classify subjects of terrorism investigations appropriately, and to process and 

complete clearance investigations expeditiously; and most certainly, 

corrective action should be taken to ensure that all detainees are 

treated with appropriate respect and restraint. 

I was pleased to learn several weeks ago that the Justice Department has instituted, or is in the process of instituting such reforms. 

I strongly urge you to continue these efforts. With commitment and 

dedication, I am confident that the Department of Justice and its 

component parts, as well as the Department of Homeland Security, 

can eliminated the likelihood that the problems highlighted in the 

IG report will occur in the future. 

So we are happy to welcome the witnesses that we have here 

today to testify to us, and we will hold additional hearings in this 

area, and we look forward to hearing all of our witnesses who are 

experts here today. 

4

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

Senator Leahy, we will turn to you. 

Senator LEAHY. Thank you, Mr. Chairman.. 

Chairman HATCH. Then we will turn to the witness. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. On June 2nd the Office of Inspector General released, I might say, Mr. Fine, a long and anxiously awaited report. 

This report criticized the conduct of the Department of Justice toward those aliens who were arrested in connection with the investigation into the September 11 attacks. I want to thank Glenn Fine 

and his superb staff at the Office of Inspector General for doing 

their job. They noted where we have gone wrong, but more than 

that, they also noted where we can improve. I know they could not 

conduct a truly comprehensive national review of every case or 

every setting, but what they did review is important. 

I think it is unfortunate we do not have the Attorney General or 

other senior witnesses from Main Justice and the FBI, or even outside experts who could shed light on the Department’s performance 

at this hearing. Their absence calls into question the hearing’s 

value. I understand that these people will be testifying on a whole 

host of things later on. It would be good to have them here to testify on this one thing, and it is particulary disappointing that the 

Attorney General is not here for this hearing. Last Monday the 

Legal Times published a column by Stuart Taylor, Jr. It was entitled, ‘‘Why Won’t He Apologize?’’ In it, Mr. Taylor, who criticized 

civil libertarians and defended many of the Department’s policies, 

then added, Mr. Ashcroft ‘‘does owe apologies to several hundred 

people for holding them far longer than necessary. He also owes 

apologies to at least 84 people for the unduly harsh conditions at 

the Metropolitan Detention Center. And he owes apologies to all (or 

almost all) 762 detainees for his implication...that they deserved to 

be treated like terrorists.’’ 

The Attorney General has declined similar requests for an apology even from somebody who has been strongly supportive of a lot 

of his actions, so I assume he would not agree that an apology is 

necessary. I wish he was here today to explain why he has not followed that call for an apology. 

I know he is a busy man. There are other busy people in the 

Cabinet. Secretary of Defense Rumsfeld and Secretary of State 

Powell are also busy. A June 9 article in Roll Call reported that 

while Secretary Rumsfeld has testified before the committees that 

authorize the Defense Department 10 times since 2002, and appears nearly weekly for briefings for members, and Secretary Powell has appeared before the State Department’s authorizing committees 8 times during that span, the Attorney General has appeared before the House and Senate Judiciary Committees only 3 

times. In fact, in his most recent appearance, he did not even appear by himself, but with FBI Director Mueller and Homeland Security Secretary Ridge, and we were told that the time for each 

witness had to be limited. 

5

We also requested that Deputy Attorney General Larry Thompson, whose office is mentioned in the OIG report, and FBI Director 

Mueller testify at this hearing. I regret they were not invited. I understand that Mr. Thompson is at a Ninth Circuit meeting in Hawaii, but I also feel that it would help if these people were here 

directly, on just this issue, not on the whole host of other issues 

that they have not been available to testify to. 

I do welcome the witnesses who are here today, and I say to Inspector General Fine, you and your office handled a difficult assignment. I think your report carefully balances the pressures that the 

Department of Justice faced along with its obligations as the Nation’s preeminent law enforcement agency. It took courage to 

produce a report that offers substantive criticisms of the Department’s response to the September 11 attacks, and General Fine, I 

admire you for doing this. 

As the report clearly states and as all of us readily acknowledge, 

the Justice Department and the Government as a whole were 

under tremendous stress in the wake of the September 11 attacks. 

The report, however, also makes clear that the Department committed a series of errors that could have been prevented or minimized. I understand that DOJ and the Department of Homeland 

Security, which now has primary responsibility for immigration, 

have agreed to implement a number of the OIG’s recommendations. 

That is good news. This hearing should be part of a larger oversight mission for the Committee, as we monitor how and whether 

those changes take place, and whether they solve the problems 

raised in the OIG report. In addition, I would renew my call for a 

hearing with FBI Director Mueller on FISA issues. 

I would also like, Mr. Chairman, to have the Committee consider 

the Leahy-Grassley-Specter Domestic Surveillance Oversight Act. 

This is bipartisan a piece of legislation as we might imagine. 

I have a longer statement regarding the OIG report, and, Mr. 

Chairman, I ask consent that the statement be made part of the 

record. 

Chairman HATCH. Without objection we will place it in the 

record. 

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

Senator LEAHY. Let me close by saying the OIG has performed 

a valuable service in producing this report. I was dismayed by the 

defensiveness of the Justice Department’s initial reaction to the report, which suggested that Department officials somehow read the 

report as a vindication. These findings are not a vindication. They 

are a portrait of mistakes and policy misjudgments made in a difficult time. I am pleased that both DOJ and DHS have since recognized the wisdom of the Inspector’s conclusions and recommendations. We all know how difficult a time it was, but remember, we 

are constantly telling the rest of the world about the standards 

they should hold themselves to, and the example they should follow 

from the United States. We should do more than just exhort. We 

should prove that we follow that example ourselves. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

6

Mr. Fine, we are happy to have you with us. We will take your 

statement at this time. 

STATEMENT OF HON. GLENN A. FINE, INSPECTOR GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Mr. Chairman, Senator Leahy, and members of the 

Committee on the Judiciary, thank you for inviting me to testify 

about our report, which examines the treatment of aliens held on 

immigration charges in connection with the investigation of the 

September 11 terrorist attacks. 

Our review was initiated pursuant to our responsibilities under 

the Inspector General Act as well as the PATRIOT Act, which specifically directs us to review claims of civil rights and civil liberties 

violations by Department of Justice employees and to inform Congress about the results of our review. 

In my testimony today I will briefly summarize the findings and 

recommendations from our full 198-page report. Before doing that, 

I would first like to discuss the context of our review. 

In response to the September 11 terrorist attacks, the Department of Justice and the FBI initiated a massive investigation 

called PENTTBOM to identify terrorists who committed the attacks, or knew about or aided their efforts, and to prevent any follow-up attacks. The FBI devoted enormous resources to this task, 

and the amount of information that it received was staggering. As 

the report points out, the FBI and the Department were faced with 

unprecedented challenges in the investigation, including the chaos 

caused by the attacks. The FBI in New York, for example, was 

forced to evacuate its offices and set up command posts in a parking garage and other sites. Department employees worked tirelessly and with extraordinary dedication over an extended period of 

time to meet these challenges and the ongoing threat of terrorism. 

Our findings should not diminish in any way the contributions Department employees made and continue to make to ensure the safety of this country. 

With respect to our review, we determined that 762 aliens were 

detained on immigration charges in connection with the terrorism 

investigation in the first 11 months after the attacks. These aliens 

had violated immigration law either by entering the country illegally, overstaying their visas, or committing some other immigration violation. 

Our review focuses on the detainees held at the Passaic County 

Jail in New Jersey, a county facility under contract to the INS, and 

at the Metropolitan Detention Center in Brooklyn, the MDC, which 

is a Federal facility operated by the Bureau of Prisons. We chose 

these two facilities because they held the majority of September 11 

detainees, 84 in the MDC and 400 in Passaic. The two facilities 

were also the focus of many complaints about detainee mistreatment. 

Let me now turn to the findings of our report. Although we recognize the difficulties and challenges that confronted the Department in responding to the terrorist attacks, we did find significant 

problems in the way the Department handled the September 11 detainees. Many detainees did not receive timely notice of the charges 

against them. Many did not get their charging documents for 

7

weeks and some for more than a month after being arrested. These 

delays affected the detainees in several ways, from their ability to 

understand why they were being held, to their ability to obtain 

legal counsel and request a bond hearing. 

In its investigation the FBI pursued thousands of leads, ranging 

from information obtained from a search of the hijackers’ cars, to 

anonymous tips called in by people who were suspicious of Arab 

and Muslim neighbors who kept odd schedules. Outside the New 

York City area the FBI attempted to screen out, or vet, cases in 

which illegal aliens were encountered only coincidentally to a lead 

and showed no indication of any connection to terrorism. 

However, this vetting process was not used in New York. Rather, 

the FBI in New York made little attempt to distinguish between 

aliens actually suspected of having a connection to the September 

11th attacks or terrorism, and those aliens, who while guilty of violating Federal immigration law, had no connection to terrorism, 

but simply were encountered coincidentally to a PENTTBOM lead. 

For example, if an agent searching for a particular person on a 

PENTTBOM lead arrived at a location and found other individuals 

who were in violation of their immigration status, these individuals 

were arrested and considered to be September 11th detainees. 

The Department instituted a ‘‘hold until cleared’’ policy for these 

detainees. Although not communicated in writing, the policy was 

clearly understood and applied throughout the Department. The 

policy was based on the belief that the clearance process would proceed quickly and would take only a few days or a few weeks to 

clear aliens arrested on PENTTBOM leads. That belief was inaccurate. The FBI cleared less than 3 percent of the 762 detainees 

within 3 weeks of their arrest. The average length of time from arrest of a detainee to clearance by the FBI was 80 days. 

As we note in the report, in contrast to this untimely clearance 

process, the FBI did a much better job handling clearances for a 

‘‘Watch List’’ that was sent to airlines. The FBI created guidelines 

for who should be placed on the Watch List, and it worked diligently to remove people from the list who had no connection to terrorism. The FBI’s efficient handling of this Watch List contrasts 

markedly with its handling of the clearance process for September 

11 detainees. 

With regard to the detainees’ conditions of confinement, our review raised serious concerns about the treatment of the detainees 

housed at the MDC. The MDC held September 11 detainees under 

extremely restrictive conditions, including lockdown for 23 hours a 

day. The MDC also designated the detainees as witness security inmates in an effort to restrict access to information about them. 

This designation hindered efforts by detainees’ attorneys, families, 

and even law enforcement officials, to determine where the detainees were being held. As a result of this designation, MDC staff frequently and mistakenly told people who inquired about specific 

September 11 detainees that they were not held at the facility, 

when in fact they were there. 

The MDC’s policies on telephone access for detainees prevented 

some from obtaining legal counsel in a timely manner. The MDC 

permitted detainees only one legal call per week. In addition, legal 

8

calls that resulted in a busy signal or calls answered by voice mail 

counted as the one legal call for that week. 

Other conditions of confinement for MDC detainees were unduly 

harsh, such as subjecting them to having two light illuminated in 

their cells 24 hours a day. 

With regard to allegations of abuse, we concluded that the evidence indicates a pattern of physical and verbal abuse by some correctional officers at the MDC against some September 11 detainees. This abuse consisted of actions such as slamming some detainees into walls, dragging them by their arms, stepping on the chain 

between their ankle cuffs, twisting their arms, wrists and fingers, 

and making slurs or threats such as, ‘‘You will feel pain’’ and 

‘‘you’re going to die here.’’ Although these allegations have been declined for criminal prosecution, the OIG is continuing to pursue administrative investigations of them. 

In contrast to the MDC, our review found that the September 11 

detainees at Passaic had much different and significantly less 

harsh conditions of confinement. Passaic detainees were housed in 

the general population and treated like regular INS detainees. Although we received some allegations of physical and verbal abuse, 

we did not find the evidence indicated a pattern of such abuse at 

Passaic. 

We believe that chaotic circumstances and uncertainty regarding 

the detainees’ role in the attacks explained many of the problems 

we found in our review, but they do not explain or justify all of 

them. We therefore offered 21 recommendations to address the 

issues in our review. 

Among our recommendations are: 

The Department and the FBI should develop clearer and more 

objective criteria to guide their detainee classification decisions. 

Immigration officials should enter into an agreement with the 

Department and the FBI to formalize policies, responsibilities and 

procedures for managing a national emergency that involves immigration detainees. 

Immigration authorities should document when charging determinations are made. Further, they should define what constitutes 

extraordinary circumstances and the reasonable period of time 

when circumstances prevent the charging determination from being 

made within 48 hours. 

Other recommendations concern issues such as requiring a more 

particularized assessment before placing detainees in such restrictive conditions of confinement, and better oversight over their conditions of confinement. 

We have asked for written responses to our recommendations 

within 30 days. We are pleased that the Department and its components are reviewing our recommendations carefully and are considering implementing many of them. 

Finally, I believe it is important to point out that the Department fully cooperated with our review. In addition, the fact that it 

permitted our full report to be released publicly is a credit to the 

Department. It is also a strength of the system established by the 

Inspector General Act, which allows internal evaluations of sensitive Government actions by an independent entity. Although various people have interpreted our report differently, in the report we 

9

attempted to describe in detail the treatment of the September 11 

detainees, to lay out the facts underlying the policies that were implemented, and to provide the basis for the recommendations we 

made. I believe the report can have a positive impact by detailing 

these facts and making recommendations for improvement. 

That concludes my prepared statement and I would be pleased 

to answer any questions. 

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

the record.] 

Chairman HATCH. Thank you very much for your statement. 

One of the primary criticisms in your report is that the—we will 

have 7-minute rounds, and I will interrupt at the end of 7 minutes 

in each case, so that we can all have an opportunity. 

But one of the primary criticisms in your report is that the FBI 

did not give the detainee clearance process sufficient priority following 9/11. You indicate that the FBI failed to provide adequate 

field office and headquarter staff to clear, coordinate and monitor 

the clearance process, and I understand that the FBI had approximately 7,000 employees working on the September 11th investigation, many of whom had been transferred from their other duties. 

And as you report, the Bureau received and pursued hundreds of 

thousands of 9/11 investigative leads following the 9/11 incident, 

and I understand nearly 80,000 in the first week alone. 

Now, since 9/11 we in Congress have given the FBI additional 

funding and personnel to fight the war on terrorism, but do you believe at the time of the attacks that the FBI had adequate resources to clear the detainees promptly and thoroughly, and that 

they could promptly and thoroughly pursue the critical leads that 

were generated as a result of the PENTTBOM investigation? And 

if so, do you believe that there were other tasks to which the FBI 

gave too much priority during the weeks following 9/11? 

Mr. FINE. Senator Hatch, I do believe that the FBI had resources, had they made it a priority. I do note that they devoted 

enormous resources to the task, but the FBI is a large organization. It has approximately 28,000 employees, about 11,000 agents, 

and I believe that there was nothing that should have had a higher 

priority than the terrorism investigation at the time. I believe that 

had they allocated, as a management priority, additional resources 

to the task, it could have been done. 

I also note that there were joint terrorism task forces and other 

Federal law enforcement agencies and agents with clearances who 

could have been used to help in the clearance process, had the FBI 

chose to do so. 

I also note that there are several problems with detaining an 

alien and then moving on to the next lead without adequately investigating whether that alien had a connection to terrorism. One, 

it let the detainees languish without a clearance investigation 

being conducted. But second, if these aliens were of interest to the 

terrorism investigation and potentially had information, they 

should have been investigated as an investigative priority. It made 

sense to do that for the FBI, rather than to move on to the next 

one without adequately investigating this one. 

I also note part of the problem was that they had requested 

checks, for example CIA clearance checks, and got the checks back, 

10

but took months to even look at the checks. So I do believe that 

there were resources that could have been devoted to it and not to 

take them off necessarily other high priority matters, but some of 

the other matters that the FBI traditionally handles, and could 

have been devoted to this task had the FBI done so. 

Chairman HATCH. The second part of that question is do you 

think we need to give them more resources? 

Mr. FINE. Well, on an overall level, I think the FBI has enormously difficult and diverse responsibilities, and more resources 

could help them with their very, very important mission. 

Chairman HATCH. As you mentioned in your testimony, your report focuses on those aliens who were detained by the INS for violations of immigration law, not those detained pursuant to material 

witness warrants, criminal complaints or those classified as enemy 

combatants. This is an important point to make: all of the 762 detainees you examined were foreign nationals who had violated U.S. 

immigration laws. Now, in a report issued earlier this year, you 

found that the illegal immigrants who are not detained, frequently 

flee and evade deportation. Now, I believe you determined that approximately 87 percent fail to honor deportation orders and slip 

back into our society. Now, given this astonishing statistic, I assume you do not take issue with the Department’s decision to first 

verify that September 11 detainees did not have ties to terrorists 

before releasing them or deporting them. Am I right on that or am 

I wrong on that? 

Mr. FINE. No, you are right. I do think it makes sense to look 

and see whether the detainee had any suspected ties to terrorism, 

and if they did, to investigate that. I think part of the problem was, 

particularly in the New York City area, they did not make that determination, and anybody who was picked up, even coincidental to 

a PENTTBOM lead, and had no indication of a connection to terrorism, was considered a September 11 detainee. And then they 

were not adequately investigated in a timely fashion. 

Chairman HATCH. That was the problem. Your report also criticizes the way in which the FBI classified September 11 detainees 

and recommends that it develop a basic protocol to guide its classification decision in future terrorism investigations that involve 

mass arrests of illegal aliens. Have you given any thought to the 

specific criteria that should be included in such a protocol? 

Mr. FINE. Well, I do not know whether we have this specific 

checklist that should be done, but I do note that the FBI has done 

that in other contexts, and it makes sense to do it so that people 

are treated uniformly so that it is not one situation in one area and 

another situation in another. For example, as I pointed out, in the 

Watch List that they created, they did create screening characteristics and characteristics that should be used to determine whether 

someone should be put on the Watch List as well. I think that 

makes sense, to create objective and uniform criteria for use by FBI 

employees so that one does not act in one way and another acts in 

another way. 

Chairman HATCH. With the exception of evidence suggesting that 

certain correctional officers in the Brooklyn Metropolitan Detention 

Center verbally and physically abused some of the detainees, which 

we all find deeply troubling, am I correct that you did not find any 

11

evidence that officials in the Department of Justice or any of its 

components intentionally violated the legal rights of any of the 9/

11 detainees. 

Mr. FINE. No, we did not state or we did not find that anyone 

intentionally violated the law or the legal rights of detainees. We 

did find—and we point out—that there was some concern and some 

dispute within the Department about the legality of holding detainees for more than 90 days beyond the removal period. The Office 

of Legal Counsel subsequently opined that that was permissible. I 

note that that is still an ongoing legal issue in the courts. We also 

did note that the detainees who had reached the 90-day period 

were entitled to a custody review to determine whether their continued detention was warranted, and the INS did not conduct such 

custody reviews. We also note the abuse that you have referred to, 

but we did not find that there was intentional misconduct or an intentional violation of civil rights. 

Chairman HATCH. I would like you to give us any other further 

help you can give us up here as to what we might be able to do 

to assist the FBI to do a better job the next time around if we happen to have another incident like this or any other similar type incident. So we would love to have your best advice on these matters. 

Mr. FINE. I think one issue is the resource issues, and I do think 

the FBI could use additional resources given the many tasks they 

face. I believe that this hearing is a good thing, that it helps to look 

at the examples of what happened and try and make recommendations and provide impetus for improvement. So I think that the 

Congressional oversight and Congressional concern that is being 

conducted is a positive thing and can help improve the situation 

should it happen again. 

Chairman HATCH. Well, thank you. We sure appreciate your testimony and your willingness to be here today. 

We will turn to Senator Leahy. My time is up. 

Senator LEAHY. Thank you, Mr. Chairman. I would submit for 

the record an article by David Cole that is in the Washington Post, 

and I would urge people to look especially at his reference to the 

Palmer raids and what happened after those. I also submit for the 

record the artcle by Stuart Taylor that I mentioned earlier. 

Chairman HATCH. Without objection, they will go into the record. 

Senator LEAHY. I note, General Fine, your reference of 11,000 

FBI agents. I think the best way to help them is to resist the temptation here in the Congress to federalize more and more crimes. We 

should not federalize crimes that could very easily be handled by 

the local sheriffs departments and State police and local police. By 

allowing States to handle them, which they can do just as well if 

not better, we could reduce the demands on FBI resources so that 

the FBI can do the things that they are uniquely equipped to do, 

and in fact are the best in the world at doing. But that is probably 

for another hearing, although I wish at some point we could go 

through the State laws that we have federalized—and I have probably been guilty of voting for some myself, and find some way to 

look at which ones we could take out of the list in order to let the 

FBI do their real work. 

Your report is dated April 2003. It was not transmitted to Congress until June 2nd. One, would you tell us why it took 2 months 

12

to get here, whether the text of the report changed in any way during that period, and if so, what those changes were? Secondly, 

when did you originally complete your report and submit it for 

comment to Department officials; how long did that comment period last, and how does that compare to the average comment period for one of your reports? 

Mr. FINE. We originally completed a draft of the report in March, 

and consistent with the way we treat these reports, we provided it 

to the Department and its components for assessment and comment, and to let us know if there is anything that is factually inaccurate in that report. We received some comments, made some 

minor adjustments for accuracy, and we finished our report, as you 

pointed out, on April 29th. We then submitted it to the Department 

for its review and for its determination of whether they believe 

there was anything too sensitive in that report to be released publicly. There were a number of components that were involved with 

this review—the FBI, the BOP, others in the Department—and at 

the end of the review period, they did ask us to take out a very 

few phrases and words that we blacked out in the report because 

they specifically identified individuals or countries, and the FBI 

considered them law enforcement sensitive. 

The report was not changed between April 29th and the time it 

was released. And as I stated in my statement, I believe it is to 

the credit of the Department that they allowed the full report and 

they did not invoke the Inspector General Act to block the release 

of the report from the time we submitted it to them on April 29th. 

Senator LEAHY. I understand the need to block out particular 

names, and all of us on here are used to handling classified materials where names are blacked out in the public record and only 

viewable in a classified section, but I am assuming by your answer 

that none of your conclusions were changed. 

Mr. FINE. None of our conclusions were changed. 

Senator LEAHY. This comment period, how did that compare with 

the comment period you normally have in such reports? 

Mr. FINE. It was slightly longer, the comment period, but I think 

the issues here were very sensitive. We do give our reports—and 

sometimes they take longer than others depending on the length of 

the report or the issues involved. I note that we have completed a 

draft of the Hanssen report, for example, and it is undergoing a 

comment period by the FBI as well. That is taking slightly longer 

than normal because of the length of the report and the issues involved. 

Senator LEAHY. Am I correct in understanding your testimony to 

be that they did not make changes in your report, they may have 

blacked out some names, but did not make changes, or seek 

changes in your report? 

Mr. FINE. They did not make any changes in the report. They 

had some concerns about issues and impact on ongoing litigation. 

We did not change the report from April 29th to the time it was 

released. And we were the ones who actually blacked it out eventually. It was our report and we put in the black out marks that you 

see in the report. 

Senator LEAHY. Your report makes a number of recommendations, and according to an article in the New York Times, June 

13

13th, Department officials plan to implement 12 out of your 21 recommendations and consider an additional 9 for implementation. Do 

you evaluate their compliance in that regard? 

Mr. FINE. Well, we have not received the official response from 

them as to which they are going to implement and which they are 

not. We have asked them for a response in writing. We have asked 

for that response—I think July 11th is when we have asked for the 

response. And when we get that response, yes, we will evaluate the 

response and whether we think it is a sufficient response to the 

recommendations we have made. 

Senator LEAHY. One thing that concerns me and a lot of people 

in this country is the situation of the so-called Evansville 8. These 

are a group of Egyptian men living in Evansville, Indiana. I have 

been in touch with the Attorney General about this. They were 

among the individuals held as material witnesses in maximum security jails. They were never charged with a crime following the 

September 11 attacks. The FBI in fact eventually publicly acknowledged that each of the men had been wrongly accused and had suffered severe repercussions. The small community the Evansville 8 

came from shunned them, despite our understanding that the constitution means innocent until proven guilty. In this case, even 

when declared innocent, many of the community considered them 

guilty. A lot of members of Congress have voiced a concern that the 

Material Witness Statute, as currently drafted, invites such abuse. 

But efforts to clarify or reform that statute have met with disinterest in the administration. Efforts to oversee the basic use of the 

statute have been stonewalled. At least one Federal judge has 

ruled the Department is improperly using the statute. Another has 

ruled the Department is erroneously keeping secret basic information about the scope of the statute. 

I copied you on a letter I wrote to the Attorney General to keep 

you informed of the situation, in light of the fact that your recent 

report on 9/11 detainees did not include a review of those who were 

detained under the Material Witness Statute. Do you plan to investigate the treatment of this specific class of detainees, that is, the 

material witness detainees? 

Mr. FINE. We have not opened that kind of a review on material 

witnesses or on the actions of the Department in conducting the 

criminal investigations. I note that many of them are ongoing and 

to some extent we do not want to interfere with the ongoing criminal investigations. 

I also note that many of these are subject to oversight by courts 

and we try not to interfere with the courts’ processes. So in light 

of that we have not opened a review of material witnesses. 

Senator LEAHY. What about something like the Evansville 8, because that is not an ongoing court matter? It is not over for the 

8. I mean their lives, particulary their economic prospects, have 

been ruined. Their standing in the community has been ruined. 

Their families are being shunned. Mistakes were obviously made. 

Is that going to be the subject of an investigation? 

Mr. FINE. Well, we will certainly consider that in light of your 

comments and concern, but as of now, we have not opened such an 

investigation. 

14

Senator LEAHY. Mr. Chairman, I will submit my other questions 

for the record. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Chambliss at this point. 

Senator CHAMBLISS. Thank you, Mr. Chairman. 

Mr. Fine, certainly your obligation here was to do the oversight 

necessary to determine how the FBI and INS and other agencies 

acted in a very difficult time in the history of our country, and it 

was not a very enviable position that you were placed in. But, by 

the same token, it was not a very good position for our law enforcement officials to be in also, with us being attacked for the first time 

on domestic soil. 

With respect to the information you gathered on the treatment 

of the prisoners, I am bothered by that, as I think everybody 

should be and is. Where did you get that information? Where did 

it come from? 

Mr. FINE. We got it from a number of sources, some of them from 

the detainees themselves; some of them from the attorneys; some 

of them from the Bureau of Prisons, who had received complaints; 

some of them from public documents. So we received them from a 

number of different sources. 

Senator CHAMBLISS. How about from the prisons guards and the 

prison personnel? Did any of the information come from them? 

Mr. FINE. The initial allegations did not, but we have spoken to 

the prison guards and the prison personnel. 

Senator CHAMBLISS. Do they agree that that took place? 

Mr. FINE. The officers who were the subjects of the inquiry denied it, as we point out in the report. There are at least some that 

have confirmed it, but the subjects have denied it. 

Senator CHAMBLISS. I notice that the complaints of prisoner 

treatment were primarily at the Brooklyn MDC Center. Did you 

make any investigation as to whether or not the folks who were accused of this type of activity had any friends, relatives, family 

members who were killed on September 11? 

Mr. FINE. I believe that some of them did, and they let us know 

that. 

Senator CHAMBLISS. So it was still a pretty emotional feeling on 

the part of those folks with respect to anybody who might have 

been involved. 

Did you take into consideration the fact that there is a great likelihood that because of the actions of the FBI both here with respect 

to these detainees and also with other work that they were doing, 

the FBI has been pretty successful in having no further attacks 

take place within the United States? 

Mr. FINE. Yes, we have taken note of that. Everyone, I think, has 

taken note of that. That is certainly a fact. 

Senator CHAMBLISS. I notice you state in your report that you do 

not criticize the ‘‘hold until cleared’’ policy for the FBI to help determine any links between a detainee and terrorism activities. If 

you support thorough FBI clearances of the September 11 detainees, how can you criticize the Department for not distinguishing 

which detainees were related to terrorism before the clearances 

were complete? 

15

Mr. FINE. I think the problem that we found was that in other 

parts of the country they made a determination: Is there any indication, is there any allegation, is there any evidence to indicate 

that this person is connected to terrorism, knew anything about, or 

was simply someone who was out of status who was confronted 

pursuant, coincidentally, to a PENTTBOM lead? 

In New York, that did not occur, and if they arrived at a place 

and they were looking for somebody and found others who happened to be there, they detained them. But they also considered 

them of interest to their investigation, and they did not make any 

determination or discrimination as to this person we suspect of 

having connections to terrorism. 

They then considered them a September 11th detainee, and they 

did not attempt to expeditiously clear them or find out if they had 

any evidence to indicate that they did have information connected 

to the attack. They moved on to the next lead without adequately 

investigating that, and that actually concerned us, as I mentioned, 

for two reasons: one, because the clearance process was unduly 

slow; and, two, if they were of interest and if they really believe 

that there was some indication that they had information connected to the terrorism attack, it made sense to investigate that. 

Senator CHAMBLISS. Was the clearance process conducted solely 

by the FBI? 

Mr. FINE. I think it mostly was by the FBI, although I do believe 

that there was some Joint Terrorism Task Force members who also 

participated. But it was mostly an FBI activity. 

Senator CHAMBLISS. In my role as Chairman of the House Intelligence Subcommittee on Terrorism and Homeland Security, we did 

a thorough investigation of the intelligence community and the deficiencies that allowed September 11 to happen. And one strong 

criticism we had of the FBI, as well as other agencies, is the fact 

that there was not a full and open sharing of information. 

Now, if the problem with respect to clearances was being handled 

by the FBI, my guess is most of the information that they had with 

respect to each individual was information gathered by the FBI or 

information that they reviewed that had previously been gathered. 

Did you find that there was any sharing of information with the 

FBI by other Federal agencies with respect to any individual detainee? And did that have anything to do with the length of time 

before these folks were cleared? 

Mr. FINE. We did find that there were attempts to obtain information from other agencies, particularly the CIA, where they asked 

to get CIA checks. And initially we were told by the FBI that that 

was part of the delay, that it took the CIA a while to get the checks 

back. 

But when we investigated, we found out that that was not the 

problem, that the CIA was fairly timely in getting the checks back. 

But it was the FBI who took an extremely long period of time in 

many cases to even review the checks, that the checks had come 

in and were not looked at and not reviewed. 

So I do think that there were problems in the sharing of information to some extent, but I believe it was a question of the FBI not 

looking at it carefully and expeditiously enough. 

16

Senator CHAMBLISS. What about the INS? What was their role 

in sharing information with the FBI with respect to clearances? 

Mr. FINE. I do not believe they had much of a role with respect 

to clearances. When the FBI confronted an alien who was out of 

status, the INS would be called in to make the arrest and decide 

where the person would go, but based solely upon information from 

the FBI. And the INS was seeking information from the FBI. It 

was seeking information to be used in bond hearings. It was seeking information for other purposes and had difficulty getting any 

information from the FBI. Not in all cases, but in many cases. 

Senator CHAMBLISS. Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Senator Feingold, you were next. 

Senator FEINGOLD. There is no question that the investigation of 

the September 11th attacks presented one of the greatest challenges to Federal law enforcement in American history. And I 

think we can all agree that in countless ways, the men and women 

of the Department of Justice performed admirably in the weeks 

and months after the horrific attacks on our Nation. And for that, 

I and the American people will be forever grateful. 

That gratitude is not diminished by concern over abuses of power 

that occurred. But it should also not diminish our determination to 

understand what occurred and demand that the Department address those abuses and assure that they never occur again. 

I would like to commend and thank the Inspector General for his 

fair and candid review of the Department’s conduct in the aftermath of September 11th. He has performed an invaluable service. 

The Inspector General’s report is a powerful reminder to Congress 

and the American people of the importance of independent internal 

watchdogs in Federal agencies. 

Mr. Chairman, a year and a half ago, when this Committee held 

oversight hearings on the Department’s post-September 11th conduct, including a hearing I chaired, this Committee asked questions about many of the issues raised by the Inspector General’s report. I must say that I certainly did not imagine that I would 1 day 

be sitting here and hearing from one of the Department’s own officials criticizing the Department’s conduct. 

I cannot emphasize enough the significance of the Inspector General’s report, and I again commend him for his work. 

Before I get to my questions, Mr. Chairman, I also want to say, 

in agreement with the ranking member, that I find it very troubling that neither the Attorney General nor the Deputy Attorney 

General are here to testify today. I know that Senator Leahy requested that one of them appear. The absence of a high-level official from Main Justice frustrates legitimate and meaningful oversight of the Department. This is unfortunate. Imagine, the Attorney General or the Deputy Attorney General are not here to respond to an Inspector General’s report about serious abuses within 

the Justice Department. 

There are inconsistencies between the abuses identified by the 

Inspector General and the Department’s explanation of its conduct, 

including statements by the Attorney General and other high-level 

officials to this Committee in 2001 and by the Attorney General at 

a House Judiciary Committee hearing earlier this month. It obviVerDate 0ct 09 2002 11:48 Jan 19, 2004 Jkt 090303 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91288.TXT SJUD4 PsN: CMORC
17

ously would have been useful to have the Attorney General or the 

Deputy Attorney General before this Committee that we could seek 

clarification of these issues from the Department’s leaders. 

Mr. Chairman, in view of the Attorney General’s absence today, 

I have sent him a letter asking him to respond to the questions I 

would have asked him had he appeared before us today. Mr. Chairman, I ask unanimous consent that this letter be made part of the 

record, and I ask the Attorney General to respond to these questions promptly. 

Chairman HATCH. Without objection. 

Senator FEINGOLD. Thank you, Mr. Chairman. With that, I will 

turn to my first question. 

Mr. Fine, in response to your report, the Department stated in 

a press release ‘‘that the law was scrupulously followed.’’ Now, just 

so we are clear, that is still an unresolved question, at least as far 

as your office is concerned, because your review did not include an 

analysis of the legality of the Department’s conduct. Isn’t that correct? 

Mr. FINE. We did not take a position on certain aspects of the 

Department’s conduct. We did not state, we did not find that things 

were illegal, but there are certain issues that are involved with the 

courts and that we did not take a position on. 

Senator FEINGOLD. Your report did not conclude that the Department’s conduct was legal, correct? 

Mr. FINE. We did not state that in our report. 

Senator FEINGOLD. According to the Department’s press release 

and the Attorney General’s testimony before the House Judiciary 

Committee earlier this month, the Department cites an Office of 

Legal Counsel opinion purportedly providing a legal basis for its 

continued detention of individuals who had been issued a final 

order of removal. Yet that OLC opinion was issued just this year 

in February. It had not been issued at the time the Department 

was making these detention decisions during the fall of 2001 and 

2002. 

On the issue of access to counsel, your report found that senior 

Department officials actively sought to undermine detainees’ communications with counsel and consular or diplomatic officers as 

well as their families. And, of course, your report presents disturbing allegations of verbal and physical abuse of some detainees. 

Given the abuses you chronicled in the report, do you agree with 

the Department’s assertion that ‘‘the law was scrupulously followed’’? If not, how would you describe the Department’s conduct? 

Mr. FINE. Well, I think the whole report has to be reviewed, and 

we laid out in significant detail the issues and some of the concerns 

that people had. I know even within the Department there were 

some issues and concerns about some of the policies and the legality of the policies. We also pointed out, as you just mentioned, the 

Office of Legal Counsel opinion, which did come well after the conduct at issue, and that was one of the criticisms that we had, that 

it should have been considered, the legality of it, in a more careful 

and timely way at the time that it was occurring. 

We also note that there is ongoing litigation and court suits 

about this. So I do think it is important to review the entire report, 

18

and we tried to lay out the facts and let people make their own 

judgments about that. 

Senator FEINGOLD. Thank you. 

Mr. Fine, as a follow-up to a question from Senator Hatch about 

whether DOJ officials intentionally physically or verbally abused 

detainees, did you find that DOJ officials or its component employees were aware or had knowledge that some detainees were experiencing verbal or physical abuse? 

Mr. FINE. We did not find that. I think there is one instance in 

the report where we mention that there was an allegation of abuse 

that was brought to the Department, and the Department asked to 

look at it—to look into that. 

What we state in the report is that the physical and verbal 

abuse, we did not have evidence that it was condoned or encouraged by anyone higher up than the correctional officers who engaged in it. 

Senator FEINGOLD. With regard to a question Senator Leahy 

asked, just to be sure, could you tell the Committee how Department officials reacted to the report once it was completed and forwarded to them? Was there any internal debate about its findings, 

conclusions, or recommendations or the decision to make it public? 

And were you or your staff asked or encouraged to modify any sections of the report before it was finalized? I understood your testimony to be that nothing was changed, but I am asking about 

whether there were these kinds of conversations and concerns. 

Mr. FINE. When the report was provided to them initially for a 

factual accuracy review, there were some comments made about 

the accuracy of certain things, and there were some adjustments 

made. As to the conclusions, I am sure there were some concerns 

about the conclusions, but it was our report and we wrote the report, and we stuck with the report, and we stick with the report. 

Senator FEINGOLD. Were you asked or encouraged to modify any 

sections of the report before it was finalized? 

Mr. FINE. There were some concerns about the sensitivity of it 

and whether it would have an impact on ongoing litigation. And so 

there were concerns about the release of some of those sections. We 

included them in there. They are in there, and we did not drop 

those issues that could have an impact on ongoing litigation. We 

thought it was important to keep— 

Chairman HATCH. Senator, your time is up. 

Let me just state for the record, I understand the desire to have 

the Attorney General appear before the Committee. You know, as 

I have said earlier, I will hold a general oversight hearing concerning the Department of Justice at which the Attorney General 

will have to appear as a witness. But it is important to note that 

oversight does not require the Attorney General at every hearing. 

Today’s hearing is a good example. We have knowledgeable witnesses who can provide excellent firsthand information for us, 

which is what we are really after. And I urge my colleagues to take 

advantage of this opportunity to ask these excellent witnesses— 

Senator FEINGOLD. Mr. Chairman? 

Chairman HATCH. —any questions they feel like about the Inspector General’s report and to find ways to improve the Department of Justice and the Department of Homeland Security. 

19

Senator FEINGOLD. Mr. Chairman, if I could just make one brief 

comment? 

Chairman HATCH. Sure—well, let me just finish my comment 

first. 

In my view, I think time spent complaining about who the witnesses are today is wasted time. Let’s get on with the hearing, and 

then we will have follow-up hearings. I have mentioned I am going 

to have the FBI Director in on July 23rd, and we are certainly 

going to have the Attorney General. But we have excellent witnesses here today who will help us to understand this IG report, 

and they are firsthand witnesses. 

Yes, Senator? 

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

FROM THE STATE OF WISONSIN 

Senator FEINGOLD. Mr. Chairman, I appreciate your courtesy. 

Ten seconds on this. I certainly understand that the Attorney General should not appear at all the hearings, but the symbolic importance of an Inspector General’s report about abuses within the Justice Department I think requires the top person to be here— 

Chairman HATCH. Well, he will be here. 

Senator FEINGOLD. —to respond. But in a context— 

Chairman HATCH. So will the FBI Director. 

Senator FEINGOLD. Mr. Chairman, if I may finish, in a context 

where that is the focus of the entire hearing, not one of these 

around-the-world hearings where we all bring up 8,000 different 

issues, as we must, in a general oversight hearing. This is unique, 

this is important, and this should be the exclusive focus of a hearing where the Attorney General should respond. 

I thank you, Mr. Chairman. 

Chairman HATCH. Well, I would like the exclusive focus to be on 

the facts and what we can do about them, and we have good witnesses here who are experts in this area who we want to listen to. 

Senator Specter? We have a vote on, so we are going to finish 

with Senator Specter, and maybe if we have time, we will go to 

you, Senator Feinstein. 

Senator SPECTER. On these illegal immigrants who have been detained because they are out of status, I think it is important to enforce our immigration laws. But the real thrust here has been a security concern, and a factor which concerns me is whether there is 

some reason beyond their being out of status to be detained on security grounds. 

Has there been any showing that they are security risks or any 

threat? And I don’t think it requires a whole lot, but I think there 

ought to be some reason to believe they are security risks to have 

them detained. Was there any such showing to any even minimal 

extent by the Government? 

Mr. FINE. I think it varied on the cases. I think there were some 

cases where there was evidence linking them to the terrorism or 

the terrorist attacks. I think the FBI will point out those cases. But 

the vast majority of them, I am not sure there was that indication. 

And what concerned us was that there was not that attempt to discriminate between the ones where there was evidence or an indication that they were a security threat, that they had knowledge of 

20

terrorism, that they were connected to terrorism, and the ones who 

were simply encountered and were out of status. 

Senator SPECTER. Well, if the Justice Department is making an 

approach to move against immigrants out of status, that is fine if 

they are all treated uniformly. But I think the point ought to be 

made abundantly clear that if they are really talking about security matters, there ought to be some showing. 

This runs through a fair number of activities, and you have the 

case of Jose Padilla who has been in custody for more than a year. 

Counsel was appointed by the court, and Padilla has not been permitted to talk to counsel. He has been classified as an enemy combatant. The counsel was appointed by the court. This is not Padilla 

retaining somebody where you might have a mob defendant and 

mob connections where the attorney would be a conduit to other 

people. 

Does your department, the Inspector General, get involved at all 

with a case like Padilla on raising a question as to whether there 

is a justifiable basis for denying access to counsel, court-appointed 

counsel? 

Mr. FINE. No, we have not and we do not. I believe that is a 

Presidential decision to make the determination that someone is an 

enemy combatant and that they are held by the Department of Defense. And so we as the Department of Justice Inspector General’s 

Office do not get involved in those enemy combatant cases. 

Senator SPECTER. Well, there is a pretty fine line as to where the 

Department of Justice ends and the Department of Defense begins. 

And on some of these cases, they are criminal defendants in the 

criminal justice system, Department of Justice, and then when the 

problems arise, they are transferred to the Department of Defense. 

You have the case of Yaser Hamdi where the District Court for 

the Eastern District of Virginia questioned the Government’s affidavit as to whether there was a justification for designating Hamdi 

as an enemy combatant. The court said it fell far short, and that 

case is now on appeal. 

Does your role as Inspector General have anything to do with 

that? 

Mr. FINE. No, it really does not. We do not get involved with the 

court processes or the litigation decision, and we have not opened 

a review of that particular aspect. I do note it is subject to the 

court and the oversight of the court. 

Senator SPECTER. Well, Mr. Fine, the Department of Justice is 

the entity which is fighting to preserve the President’s enemy combatant regime, that is, including the denial of access to counsel. 

Doesn’t that implicate the Inspector General where the Department of Justice is taking that position? 

Mr. FINE. Well, we do have oversight over the Department of 

Justice. I will note that litigation decisions by Department attorneys are actually not subject to the Inspector General’s authority. 

They are subject to the authority of the Office of Professional Responsibility of the Department of Justice, who has authority to investigate issues involving misconduct related to litigation, providing legal advice, and that kind of strategy. 

So while we do have oversight in a broad sense over the Department of Justice, those kinds of particular issues have not been ones 

21

where we have gone behind them and second-guessed the Department’s policy issues or litigation decisions. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, where the Inspector General is really intimately involved in the civil liberties issues, it seems to me that 

that is a dotted line. 

A concern I have, Mr. Fine, is this: We passed the PATRIOT Act 

and gave the Attorney General vastly increased powers. And the 

Attorney General wants to come back and have another PATRIOT 

Act. And when you have a series of cases—and I compliment you 

on your report, and I agree with you said this oversight hearing is 

very salutary. 

One of the great problems is that this Committee is so busy, just 

incredibly busy. We were on the asbestos markup for hours, and we 

are going to do it again tomorrow. We have so many hearings. We 

do not have the time to do an adequate job of oversight. And when 

these cases get into the court, there are very, very long delays. It 

would seem to me that the courts ought to be expediting these 

issues where people are in detention to make judgments because 

they bounce back and forth. 

But it also seems to me, Mr. Fine, that you ought to take a close 

look where the Department of Justice is acting, and the internal 

decision to make it to the Office of Professional Responsibility I 

would suggest does not bind you, that you have broad powers as 

Inspector General. And the Congress has been very active in giving 

those broad powers. 

When I chaired the Intelligence Committee in the 104th Congress, we had a big fight about creating an Inspector General in 

the CIA. And we did that because we expect you to be aggressive 

and tough. You are a governmental employee. But I would urge you 

to move into those gray areas and to cross those dotted lines. And 

I say that really to help the Department of Justice and to help 

America. 

If there is not public confidence in what is going on, and as 9/

11 recedes, there is lesser public concern, and I think it is unfortunate because I think we really are at risk. And I think we have 

to have strong security measures. But when these detainees are 

treated as they are and you have a group of cases where people 

have been in detention, cannot consult with court-appointed counsel on the statement that it may get back to the enemy, where 

there is not a statement which satisfies the court as to enemy combatant status, I think the Department of Justice would be well 

served by having an aggressive Inspector General so there is public 

confidence. Because when Attorney General Ashcroft—and he used 

to sit in this chair, and he was pretty tough on witnesses, a lot 

tougher than—well, not as tough as Senator Hatch, but tougher 

than I am. But you will be serving him very well if you try to ease 

the public concern so that when he comes back for the next PATRIOT Act we do not have a wave of public opposition and we can 

feel confident in what the Department of Justice is doing. And we 

are looking to you, Mr. Inspector General. 

Thank you, Mr. Chairman. 

22

Chairman HATCH. Thank you, Senator. 

We are going to go vote. We are going to let you go, Mr. Fine. 

We appreciate your testimony. You have been a good public servant. You have really done a very good job here, and, frankly, we 

have appreciated what you have had to say. 

Well, I have been informed that Senator Schumer wants to ask 

you some questions, but we have three votes, so you are going to 

get stuck here for upwards of an hour. Senator Kennedy also. 

So we will be back as soon as we can. We will recess until we 

can get these votes over with and I can get back. 

[Recess 11:13 a.m. to 12:12 p.m.] 

Chairman HATCH. We are going to turn to Senator Schumer now 

for 7 minutes, and if he goes over, I am going to cut him off, as 

I have done with everybody so far. So just be forewarned, Senator 

Schumer. If you would like, you can come sit by me. 

STATMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. 

First, I want to thank you, Mr. Inspector General, for your fine 

report, and I guess I would like to make a few general comments 

here. 

To me, the key in all of these things is balance, and I have always had objections to people on both sides. People on the far left 

say, ‘‘Never change anything. You cannot adapt to the new circumstances.’’ People on the far right say, ‘‘Hey, we can sort of 

throw out the whole thing.’’ And in a new changing world, balance 

is careful—balance is hard to achieve because you are recalibrating, you have a new fact base, et cetera. 

And so I guess what I would say here is the best way to deal 

with these things, all of these changes, these sort of post-9/11 

changes, when you are dealing with the age-old problems of how 

to balance security and liberty, is that there ought to be discussion, 

there ought to be justification. Well, that is first. In other words, 

if you are going to take away any liberty, there has to be a justification for it. That is number one. 

Number two is discussion. There should be open and broad discussion. I think many of the things that the Attorney General has 

done are very defensible, but he does them sort of by fiat. He does 

not first say, ‘‘Here is the problem, here is what we are trying to 

do, I welcome comment,’’ and lots of people just sort of go off and 

get overly worried because he is not doing as much as they had 

feared. 

And, third—and this is, I think, what is key here—there should 

be some rules and there should be some independent check that 

those rules are being carried out. We should not do this on an ad 

hoc basis. And I think with the detainees we can learn all of that. 

When it first happened, it is hard to fault DOJ that they believed 

it would take only a few days to clear detainees who were not tied 

to terrorism. And let’s remember that these detainees were not 

American citizens. They have some rights. There are some who believe anyone should have all the panoply of the Constitution, 

whether they are a citizen or not. I do not agree with that. That 

has never been the philosophy of this country, and there should be 

23

some rights and there should be rules. But it does not mean that 

you get the same rights as being an American citizen. 

But, in any case, that is how it looked at the beginning, and it 

seemed to just go on and on and on, and people clearly were 

abused. The average length of time from arrest to clearance was 80 

days, and for some it took more than 3 months. To hold people incommunicado, to not charge them with anything, to not allow communications for a short period of time is justified. We even do that 

with citizens, you know, for 48 hours or 72 hours. To do it for too 

long a time is wrong, and no one came in and re-examined and 

said, ‘‘Hey, this is taking us more than 2 weeks What do we do? 

What should be our rules? What should be our standards?’’ 

I hope in the future that the Justice Department will adapt 

them. There is a requirement that DOJ—there is a dispute whether it is legal that you cannot be held more than 90 days to be deported. I do not know if you think that is a legal—let me just ask 

you that. I have a few more things I want to say, but the one thing 

I want to ask you is: Do you think that is a legal requirement, or 

has that just sort of been a standard that can be raised or not? 

Mr. FINE. Well, there is that regulation, and it is an issue. But 

the question is whether beyond 90 days you can still detain an 

alien if you are still investigating the alien for terrorism. 

The Office of Legal Counsel of the Department of Justice opined, 

based on its review of the regulations and the Constitution, that it 

is permissible. Others believe that it is not, and it is the subject 

of ongoing litigation. We did not take a position on that, but we 

pointed out that as an issue, and an issue that should have been 

addressed, as you point out, at an early stage. I think that it is absolutely critical that these legal issues ought to be carefully considered at an early stage of the— 

Senator SCHUMER. And you would certainly say that given the 

experience—and, again, I am not one who wants to whip the Justice Department or anything. 9/11 occurred and, you know, those 

on the left who say this is just like the internment of the Japanese, 

that is way overboard. Mistakes were made, but, on the other 

hand, the two are not even comparable. 

But don’t you believe that the Justice Department should try 

now to come up with some rules for future situations in case, you 

know, and say here is the amount of time you can be held without 

being informed of what the charge is, here is the amount of time 

you can be held incommunicado? And then there might be an escape valve for very unusual situations, but in those cases, I would 

recommend you go to some independent source outside of Justice, 

an Article III judge. This works with wiretaps eminently well rather than do—tell me what you think about that kind—in other 

words, if I had to learn from this instead of just browbeating the 

Justice Department, which I don’t think is fair in this case even 

though mistakes were made, and I have great sympathy for some 

who were held too long. Every person here did violate the law, as 

it turns out. That is right, isn’t it? Because they are illegal aliens. 

Mr. FINE. All but one. 

Senator SCHUMER. All but one. But it wouldn’t be to browbeat 

the Justice Department but, rather, to say what are the new rules 

so this does not happen again, and yet we can protect our security. 

24

Would that be a fair summation of where we ought to go from here 

in your judgment? 

Mr. FINE. I do think it is fair to use this situation or use this 

report as an opportunity to learn lessons, as the title of the hearing 

is, to see where there were problems and try and avoid them in the 

future. That was our purpose in laying out the facts, and that was 

our purpose in offering 21 recommendations for improvement 

should a similar situation, larger scale or smaller scale, arise in the 

future. So I do think that is a benefit of this kind of report. 

Senator SCHUMER. Good. There were some more serious allegations of abuse which trouble me, you know, slamming into walls, 

dragging by the arms, stepping on the chain connecting ankles, 

slurs and threats. How widespread was that? 

Mr. FINE. I would say that it is not the entire institution. It is 

not everyone in the MDC, and we did not find that there was an 

organized policy to condone or encourage that. 

We did find that there were, you know, some—evidence indicated 

that some, a handful of correctional officers did engage in this 

abuse. 

Senator SCHUMER. A handful means less than ten? 

Mr. FINE. I don’t know the exact—I wouldn’t want to say the 

exact number because it is ongoing, but, yes, I would say there is 

not a widespread pattern of abuse by most correctional officers at 

the MDC. I think that would be unfair to say. 

Senator SCHUMER. Right. And there was, of course—only 60 percent, as I understand it, at MDC were notified within 72 hours. 

The average time between arrest and notice of charge was 15 days. 

Mr. FINE. At the MDC that was the average time. 

Senator SCHUMER. And that should be corrected, too. 

Mr. FINE. I think that is something that should be corrected. The 

INS had an unstated rule that they wanted to notify people within 

72 hours. I think that ought to be made a requirement. 

Senator SCHUMER. Yes. But just again, because some of the news 

reports made it seem, I think—you know, when I read this stuff, 

I said, hey, some mistakes were made but they weren’t so far out 

of line that this is a huge blot on our National honor that will be 

there like the Japanese interment was. 

Overall, can you give us some characterization of how good a job 

under these trying circumstances the Justice Department did with 

these detainees? I know that is hard to do, but it is important because, again, I think you get people on each side who overblow this. 

Mr. FINE. I think your comments are fair, Senator Schumer, in 

that some have taken this on one side to say—to exaggerate what 

was said in the report, and others have taken it and said, well, 

there were no problems whatsoever. I think that it is in the middle 

and that we tried to lay out in very careful detail what the facts 

were, what the problems we thought were, so that people could 

make their judgments. But I do think balance is appropriate, so I 

wholly agree with you. 

Senator SCHUMER. So, in other words, on a one to ten, with ten 

being egregious abuse and one being everyone fine, this is in the 

four, five, six range, maybe, three, four, five kind of thing? I am 

not asking you to give it a number. I am just trying to— 

25

Mr. FINE. I am not sure I could give it a number, but I do think 

your comments are correct, that you have to keep a balance of the 

situation that confronted the Department, the chaos, the uncertainties, but also look at it to see what the problems were. 

Senator SCHUMER. Right. And you— 

Chairman HATCH. Senator, your time is up. 

Senator SCHUMER. Just one point I would make, Orrin? 

Chairman HATCH. Make one last point. 

Senator SCHUMER. One more, because you will have sympathy 

with it. I am sure if you did nothing and then, God forbid, one of 

these people committed a terrorist act, all the articles would be the 

other way: What the heck? Why didn’t you do it? You didn’t move 

quickly enough. 

These are very easy things to guess in hindsight, and I think the 

Justice Department didn’t do a great job, but under the circumstances, as long as they move to correct it in the future, the 

changes, you know, doesn’t deserve the kind of opprobrium that I 

have heard from some quarters about this. That would be my view. 

Thank you, Mr. Chairman. 

Chairman HATCH. That is my view as well. I really believe— 

Senator SCHUMER. I told you you would like my last comment. 

Chairman HATCH. Listen, I like most everything about you except some of the questions from time to time. 

[Laughter.] 

Senator SCHUMER. Which you will not characterize. 

Chairman HATCH. I will not. I think I have done enough characterization. No, I care a great deal for you. I just wish you would 

be as reasonable on other matters. 

[Laughter.] 

Chairman HATCH. Mr. Fine, you have been very helpful to us 

here today. I get a big kick out of some of these people who think 

you have got to have a big show here to get to the bottom of oversight matters. I think you have provided us with the correct approach here. You have not whitewashed anything. You have talked 

very strongly about the defects and the deficiencies in our Justice 

Department and our FBI, our prison system, among other things, 

and I personally respect you very much. I think your report is a 

work of great honor and will help all of us to do a better job in this 

Government, regardless of ideology. And that is the way it should 

be. And I think the folks who supervise you ought to be proud of 

what you are doing, and I personally am. 

Senator Kennedy is going to submit questions for you. He has 

been called to some other things. Otherwise, we would have continued to wait. But we are going to let you go now, and I am sorry 

you had to wait for that extra hour, but it was important that Senator Schumer have his opportunity to talk to you. 

Mr. FINE. Thank you very much, Senator Hatch. 

Chairman HATCH. Thank you so much. We appreciate it. 

Now, our second panel of witnesses from the Justice Department 

is well suited to assist the Committee in conducting its oversight 

responsibilities. These witnesses from the Department and its component parts are those who can fully address the specific concerns 

and recommendations in the IG’s report as well as the efforts that 

have been taken to address the problems highlighted in the report. 

26

Mr. Lappin is the Director of the Bureau of Prisons. He is the 

BOP official ultimately responsible for the conduct and management of the Federal prison system and can address any specific 

concerns Committee members have regarding alleged treatment of 

the 9/11 detainees. 

Mr. Rolince I am very familiar with. He has testified many times 

in front of the Senate Select Committee on Intelligence. He is one 

of the true leaders in this country. He performed a crucial role at 

the FBI in the days following the September 11th attacks. At the 

time he served as Chief of the International Terrorism Operations 

Section in the Counterterrorism Division. He was actively involved 

in the overall PENTTBOM investigation, including the investigation of detainees described in the report. 

Last, but not least, is Mr. Nahmias. He is Counsel to the Assistant Attorney General for the Criminal Division. You cannot have 

better people than these three. His primary responsibility is the supervision and coordination of the Department’s terrorism investigations around the world, particularly those associated with the AlQaeda organization. 

So I want to thank you all for being here today. This is a very 

important hearing, and we look forward to your testimony. We will 

start with you, Mr. Lappin. 

STATEMENT OF HARLEY G. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. LAPPIN. Mr. Chairman and members of the Committee, I appreciate the opportunity to appear before you today to discuss the 

various issues raised by the Department of Justice Office of Inspector General’s report on the September 11 detainees. The OIG plays 

a crucial role in providing objective oversight and promoting efficiency and effectiveness within the Department of Justice. We appreciate the opportunity that the Inspector General provides to 

help us continue to improve. 

On September 11, 2001, this country experienced events that we 

have never faced in the history of our Nation. In the months following these tragic events and continuing today, the Department 

of Justice’s central mission has been protecting Americans from 

further acts of terrorism. The Bureau of Prisons helped in that effort and continues to play a significant role in the war on terrorism. 

We continue to work closely with the Federal Bureau of Investigation and other components on the largest criminal investigation 

in the Nation’s history to bring to justice the individuals responsible for the tragedy of September 11 and to prevent future acts of 

terrorism. 

Within days of the terrorist attacks on September 11, the Bureau 

of Prisons was tasked with detaining aliens deemed by law enforcement to be of great significance to its terrorism investigations. In 

the months following September 11, we had 185 detainees incarcerated at several Bureau of Prisons facilities. The Metropolitan Detention Center in Brooklyn was one such facility and housed a substantial number of the detainees. Given its proximity to the World 

Trade Center, the institution suffered some substantial disruptions 

27

to its operations. Nevertheless, the institution staff were able to 

keep the institution operating in a safe and secure manner. 

Beginning on September 14, 2001, the Bureau of Prisons received 

detainees who were suspected of having ties to the terrorist organizations. However, limited law enforcement data was available on 

these individuals; law enforcement agencies lacked the standard 

data normally used by the Bureau to assess detainees. Thus, to ensure the safety of our staff and the public, we housed the detainees 

under the same conditions we employ for other persons believed to 

be capable of committing acts of violence, directly or indirectly. It 

was our concern about the indirect actions—specifically the threat 

that they could pose to the United States by communicating key information or directions that could lead to further acts of terrorism 

on U.S. soil—that contributed substantially to the greatly restricted communication with friends, family, and even counsel. 

Tragically, on November 1, 2000, at our detention facility located 

in Manhattan, two detainees associated with Al-Qaeda brutally assaulted a correctional officer. The assault left the officer comatose 

for a number of days. He remains permanently impaired and will 

require assisted care for the remainder of his life. This event 

caused us to go back and carefully review many of our policies and 

procedures for housing offenders, particularly those suspected of 

violent tendencies. In fact, some of the decisions we made regarding the housing of September 11 detainees were intended to protect 

against just this type of event, particularly given the assailant’s 

ties to Al-Qaeda. 

The OIG report regarding the September 11 detainees contains 

allegations by some detainees that they were abused by one or 

more Bureau employees. We take all allegations of staff misconduct 

and mistreatment very seriously and investigate every allegation 

thoroughly. We do not tolerate any type of abuse of inmates. When 

allegations of serious abuse are accompanied by credible evidence, 

staff members are often removed from contact with inmates or 

placed on administrative leave. We refer serious cases of staff misconduct for criminal prosecution when warranted. 

With respect to the detainees, the Bureau referred any and all 

allegations of abuse that we became aware of to the OIG. To our 

knowledge, all allegations by the post-September 11 detainees 

housed at Brooklyn have either been investigated and found to be 

without substantiation or are currently being investigated. If these 

allegations of misconduct are substantiated, I want to emphasize 

that the Bureau will take appropriate and decisive action. However, in the 21 months since the Bureau began detaining individuals related to the September 11 investigation, the Bureau has not 

been provided with any information from the OIG that any charges 

are going to be brought against any employees or that any administrative misconduct has been substantiated. 

In closing, I am proud of the work of the Bureau of Prisons and 

its staff as they accepted the challenges of this truly unique situation. The Bureau continues to effectively meet the mission to protect society by confining offenders in facilities that are safe, humane, cost-efficient, and appropriately secure. We take this role 

and our expanding role in the fight against terrorism very seriously. 

28

Mr. Chairman, this concludes my prepared remarks. I would be 

pleased to answer any questions you or other members of the Committee may have. Thank you. 

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

for the record.] 

Chairman HATCH. Thank you, Mr. Lappin. 

We will turn to Mr. Rolince at this point. 

STATEMENT OF MICHAEL E. ROLINCE, ACTING ASSISTANT DIRECTOR IN CHARGE, WASHINGTON FIELD OFFICE, FEDERAL 

BUREAU OF INVESTIGATION, WASHINGTON, D.C. 

Mr. ROLINCE. Mr. Chairman and members of the Committee, on 

behalf of the Federal Bureau of Investigation, I would like to thank 

you for the opportunity to discuss the Inspector General’s report on 

the September 11th detainees. I would also like to recognize the Inspector General and his staff for their efforts in putting the report 

together. 

The FBI is aware that delays in the clearance process led to 

some extended, but legal, detentions. I believe delays in our clearance process and inconsistencies in the classification of detainees, 

while unintentional, should be recognized, as should the fact that 

each of the 762 illegal aliens was lawfully detained. The Office of 

the Inspector General pointed out possible areas of improvement, 

and we are in the process of closely examining their findings and, 

in concert with the Department of Justice, implementing recommendations that we believe will improve the process in the future. We will certainly work with the OIG as we continue our ongoing efforts to improve the FBI’s counterterrorism program. 

That being said, I think it is important to understand the context 

in which these detentions occurred. 

In the days, weeks, and months after the terrorist attacks of September 11, 2001, the FBI by necessity worked under the assumption based on consistent intelligence reporting that a second wave 

of attacks could be coming. We did not know where, when, or by 

whom, but we knew that the lives of countless Americans could depend on our ability to prevent that second wave of terror. The pressure placed on both law enforcement and the intelligence community was tremendous, and we certainly had more questions than 

answers. 

If air travel resumed, would one or more planes slam into a 

building full of people? Could the attack come in another form, 

such as chemical or biological? We had to proceed with an excess 

of caution because the consequences of releasing someone who really was a terrorist could have cost thousands of lives. And given the 

choice between finishing checks on those already in custody or locating and neutralizing the seemingly endless threats that were 

still being reported and investigated, we made a conscious decision 

to prioritize and neutralize potential threats first. 

In addition, given the primary goal of protecting the security of 

the American public, the FBI believed it would have been irresponsible to simply release individuals who not only were in the country 

illegally but also were potential threats or who may have crucial 

information related to the attacks, particularly given that the Federal Government had the legal authority to detain them based 

29

upon their illegal presence in the United States. In fact, the OIG 

report recognizes and agrees with the priority of prevention over 

investigation in the days following 9/11. 

In order to put the 9/11 response in proper perspective, it is important to understand the responsibilities of the International Terrorism Operations Section within the FBI’s Counterterrorism Program in the years that preceded these unprecedented attacks. As 

Director Mueller noted recently, prior to 9/11 we had only 535 special agents assigned to international terrorism matters worldwide 

and only 82 agent and support staff serving at FBI headquarters. 

In spite of that finite staff, our response to the threats posed and 

the resultant successes should not go unrecognized. As you now 

know, Osama bin Laden and Al-Qaeda were subjects of sealed indictments obtained prior to the attacks on our embassies in Dar es 

Salaam, Tanzania, and Nairobi, Kenya, on August 7, 1998. Following those attacks, the FBI deployed over 1,000 agents and later 

secured the indictments of 23 individuals responsible for the deaths 

of 244 persons to include 12 Americans and the wounding of over 

5,000 mostly Kenyan and Tanzanian citizens. The FBI in concert 

with the United States Attorney’s Office in the Southern District 

of New York gained convictions of four subjects, and we await the 

extradition of three others currently in custody in the United Kingdom. 

Additionally, the FBI’s International Terrorism Operations Section, known as ITOS, was responsible for coordinating the forensic 

deployment to Kosovo, the massive investigation and offshore recovery efforts following the October 1999 crash of Egypt Air Flight 

990, the response to Al-Qaeda’s December 1999 millennium conspiracy to attack us in the United States, Jordan, and Yemen, and 

the October 12, 2000, attack on the USS Cole in which 17 brave 

U.S. sailors lost their lives. 

While those investigations consumed significant resources, we remained committed to and actively involved in dozens of 

extraterritorial cases to include the June 1985 Hizballah hijacking 

of TWA Flight 847 which ended in the brutal murder of U.S. Navy 

diver Robert Stetham. The United States holds three of the top 22 

international terrorist fugitives responsible for that crime. 

I would be remiss if I did not point out that today we meet on 

the seventh anniversary of the June 25, 1996, attacks by Saudi 

Hizballah at Khobar Towers which resulted in the deaths of 19 

courageous airmen. Thanks largely to the tireless efforts of former 

FBI Director Louis Freeh, 5 years after the attack, a painstaking 

and at times frustrating investigation reached a milestone. Thirteen individuals were indicted in the Eastern District of Virginia, 

four of whom remain on the Top 22 International Terrorist fugitives list. 

Additionally, ITOS coordinated the FBI’s response to the 

kidnappings and murders of Americans by the Abu Sayyaf in the 

Philippines and by the FARC in Colombia. In fact, on April 30, 

2002, Attorney General Ashcroft announced the indictment of six 

FARC members charged with killing three Americans in 1999. 

ITOS also coordinated the FBI’s response to the killing of U.S. citizens over a 20-year period by the terrorist organization 17 November in Greece. The first killing attributed to 17 November was the 

30

December 23, 1975, assassination of CIA station chief Richard 

Welch. Today, 19 defendants are currently on trial in Greece for 

the murder of 23 people including four Americans. 

Simply stated, Senators, the men and women in ITOS were fully 

engaged in the war on terrorism and applied every resource available. 

In the aftermath of the 9/11 attacks, the FBI’s response was immediate. In a matter of hours, we had deployed to each of the crash 

sites, ordered dozens of seasoned management personnel back to 

Washington, and fully staffed a 24/7 operation at our Command 

Center with up to 500 persons representing 30 agencies. At the 

height of the 9/11 investigation, known as PENTTBOM, the FBI 

assigned 7,000 agents to assist full-time. The majority were reassigned from other national security and criminal investigative 

work. The lack of prior counterterrorism training and experience, 

although not recognized by the OIG, needs to be factored into this 

discussion. 

Before the month was out, we were faced with another unique 

attack—anthrax. Not knowing whether we faced a domestic threat, 

an international threat, or a follow-on attack by Al-Qaeda, we 

again responded with significant resources as we dealt with an unknown killer or killers, first of Florida, then in New York, and finally here on Capitol Hill. Additionally, we turned our attention to 

the kidnapping of journalist Daniel Pearl and the crash of an 

American Airlines flight in Queens November 12, 2001. In order to 

ensure the security of the Winter Olympics in Salt Lake City and 

drawing lessons from the prior attack in Atlanta, we deployed over 

1,100 agent and support personnel in addition to those assigned to 

the Salt Lake City office. 

Meanwhile, PENTTBOM became the largest and most complex 

investigation in the history of the FBI. In spite of operating under 

severe handicaps, the New York office—relocated to a garage on 

26th Street, and lacking a proficient infrastructure—began a 24/7 

operation utilizing 300 investigators from 37 agencies. The 1–800 

toll-free line set up in our Atlanta office received 180,000 phone 

calls from a shocked public eager to assist; 225,000 e-mails were 

received on the FBI’s Internet site. Evidence response teams from 

throughout the country were dispatched to New York, Washington, 

and Pittsburgh. 

Nationwide we covered over 500,000 investigative leads and conducted 167,000 interviews. We collected over 7,500 pieces of evidence which were submitted for analysis. Working in conjunction 

with New York City agencies and authorities, we helped process 

over 1.8 million tons of debris for victim identification and investigative lead purposes, and we took over 45,000 crime scene photographs. 

As this massive investigation unfolded, the concern of follow-on 

attacks was critical to our thinking and to our development of an 

investigative strategy. As investigators came upon individuals who 

were in this country illegally, it was absolutely essential to determine to the extent possible any connection to the attacks and the 

threat posed by them, if any. To do otherwise would have been irresponsible, if not negligent. 

31

As for the clearing process itself, the OIG report states that some 

investigations were straightforward. That is true, but even socalled straightforward investigations take time. Many of the investigations were far from straightforward. For each detainee we had 

to conduct a preliminary investigation. This is more than a name 

check or a Lexis-Nexis search. It often requires getting court-approved checks for phone records and computer records. It may involve translation services, multiple interviews, surveillance, and 

other time-consuming work. 

This policy was sound. We did not know who these people were. 

Some had numerous identity documents, and others had failed 

polygraphs on questions such as, ‘‘Did you know any of the hijackers?’’ or ‘‘Were you involved in the September 11th attacks?’’ 

It is also important to clarify another point which I believe has 

been significantly confused in the media, and that is the issue of 

some individuals being ‘‘cleared’’ of terrorism ties. The fact that an 

illegal alien was prosecuted for non-terrorism crimes or deported 

rather than prosecuted does not mean that the alien had no knowledge of or connection to terrorism. For example, one immigration 

detainee who pled guilty to conspiracy to commit identification 

fraud and aiding and abetting the unlawful production of identification documents traveled overnight with two of the hijackers. 

The name and address of another immigration detainee, who pled 

guilty to identification fraud, was used by Al-Qaeda cell members 

in Hamburg, Germany, to attempt to obtain U.S. visas. 

In many cases, the Department of Justice, in conjunction with 

the FBI, determined that the best course of action to protect national security was to remove potentially dangerous individuals 

from the country and ensure that they could not return. Charges 

may have been withheld in such situations if, for example, they 

could have compromised ongoing investigations or sensitive intelligence matters. 

Many leads took us overseas and, therefore, took time to resolve. 

It would have been a disservice to the American public we work so 

hard to protect for the FBI not to check with the law enforcement 

and intelligence organizations of the countries of origin for name 

checks and traces in certain instances. Then, as now, we had no 

control over the length of time our counterparts overseas took to 

accomplish these tasks. Please do not lose sight of the fact that 

these investigations were taking place simultaneous with the investigation of the 19 hijackers, the processing of the crash sites, and 

the resolution of the second wave threats. 

The OIG report concluded, ‘‘The Justice Department faced enormous challenges as a result of the September 11 terrorist attacks, 

and its employees worked with dedication to meet these challenges.’’ I am pleased that the IG recognizes the dedication displayed by so many in the FBI, other Department of Justice agencies, and our local, State, and Federal partners on the JTTFs 

throughout this country. 

At the same time, we recognize that we can always improve, and 

we have done so. Over the past 20 months, Director Mueller has 

refocused the FBI’s priorities, and the Bureau has made great 

strides in adapting to its mission of preventing terrorist attacks. 

The changes we have implemented and others that are ongoing will 

32

ensure that should we ever face a similar crisis, we will handle 

that crisis with even greater efficiency and speed. 

As I mentioned earlier, the vast majority of special agents engaged in the PENTTBOM investigation in the early months were 

not experts in counterterrorism. Today, we have a much larger pool 

of agents dedicated to and trained in counterterrorism. We have 

greatly increased the number of strategic analysts, vastly improved 

their training through the new College of Analytical Studies, and 

provided them with advanced new software tools to enhance their 

strategic intelligence capabilities. We have hired nearly 300 additional foreign language translators. New ‘‘Fly Away Squads’’ are 

now on standby to lend specialized counterterrorism knowledge and 

expertise, language capabilities, and analytical support around the 

country and the world as needed. This particular capability was 

utilized in Buffalo, Detroit, and Portland to assist local FBI offices 

and recently in Morocco to assist our counterparts in their investigations. 

We have new flexibility to mobilize additional personnel as needed. The newly created Office of Intelligence will enable the FBI to 

assess gaps, devise strategies, and implement plans for intelligence 

collection. It will help us quickly make the connections necessary 

to prevent terrorist attacks and to determine a subject or suspect’s 

connections to terrorism with greater efficiency than ever before. 

Today, we have better coordination and information sharing with 

our partner agencies than ever before, and yet we recognize the 

need for continued improvement. The number of regional Joint Terrorism Task Forces has been increased from 35 in 2001 to 66 today. 

The new National JTTF acts as a national liaison entity and transmits information on threats and leads from the 30 participating 

agencies at headquarters to the local JTTFs. We have CIA terrorism experts detailed to the FBI and our terrorism experts detailed to CIA. We are working with our former INS colleagues, now 

in the new Department of Homeland Security. The Bureau of Immigration and Customs Enforcement has and continues to play a 

critical role on our JTTFs. 

The FBI acknowledges that our success is measured not only by 

how effectively we disrupt acts of terrorism, but also by how well 

we protect the constitutional rights and cherished liberties of 

American citizens in the process. We will continue to work to find 

new ways to meet both of these crucial missions. 

Thank you, Senator, for affording me the opportunity to participate in today’s discussion on this important topic, and I look forward to answering any questions that you may have. 

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

for the record.] 

Chairman HATCH. Thank you so much. 

Mr. Nahmias, we will turn to you. 

STATEMENT OF DAVID NAHMIAS, COUNSEL TO THE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. NAHMIAS. Mr. Chairman, members of the Committee, on behalf of the Department of Justice, I want to thank you and the 

Committee for inviting me and my colleagues to appear before you 

33

today to participate in this hearing. I have submitted a full written 

statement which I would ask to be included in the record. 

Chairman HATCH. Without objection, we will put it in the record. 

Mr. NAHMIAS. As the Attorney General recently testified before 

the House Judiciary Committee, the Inspector General plays a valuable role in the Department of Justice in critiquing our performance and recommending ways in which we can improve. To put the 

most recent IG report into context, however, I would urge you to 

remember that we experienced a crisis of unprecedented proportions during the months that followed September 11, 2001. 

Beginning moments after the attacks, we took immediate steps 

to find out who had planned and executed the attacks, who had 

conspired with those terrorists, and who might be planning future 

acts of terrorism against our Nation. Senior members of the Department formulated a general investigative strategy in response to 

the September 11th attacks. The strategy was as follows: 

First, to follow each of the many thousands and thousands of 

leads generated from the September 11th investigation; 

Second, to identify individuals linked by those leads with the hijackers or other terrorists; to investigate those persons fully; and 

to charge persons if there was evidence that they had violated the 

law; and 

Third, to make appropriate legal arguments in court to detain 

those charged persons until such time as we concluded that they 

were not part of the September 11th terrorist conspiracy or any 

other terrorist activity. 

This strategy was built on the recognition that it can be extremely difficult to detect terrorists and terrorist plots and that 

every lead must, therefore, be pursued as far as possible, because 

even a single missed lead could be the connection to another catastrophic attack. 

The Inspector General’s report focuses on 762 aliens who were 

detained, pursuant to this strategy, during the course of the September 11th investigation; 762 aliens out of more than 167,000 witnesses interviewed by the FBI. All of the 762 detained aliens were 

in the United States illegally and were lawfully detained while 

their ties to terrorism were investigated. They were all charged 

with violations of the Federal immigration laws. 

Examples of those detained include an illegal alien who was a 

roommate of one of the 19 hijackers and who also knew a second 

hijacker; and an illegal alien who admitted to the FBI that he had 

trained in terrorist camps in Afghanistan and who was linked to 

known members of a terrorist organization. 

It should be understood that under the immigration laws, an illegal alien in removal proceedings is not entitled to bail or bond as 

a matter of right. It is a matter of discretion. 

However, as the Attorney General stated during his recent testimony, the Department of Justice has no interest in detaining people any longer than is necessary to properly investigate them. 

The Attorney General has reaffirmed the judgment that this investigative strategy was and is sound. We came across these people 

as a result of following leads about the 9/11 attacks. We knew that 

these people were here illegally, but we did not immediately know 

the details of their activities. If we had released or granted bond 

34

to an illegal alien who went on to commit further additional attacks against the United States, we would have failed in our responsibility to keep this country safe. 

Indeed, in the past the Inspector General has issued reports critical of the Department’s failure to protect citizens from violence 

perpetrated by previously detained illegal aliens who were then released, removed, or allowed to depart, such as the Texas railway 

serial killer, Rafael Resendez Ramirez, and one of the 1997 Brooklyn Bombers. 

In fact, just this last February, the Inspector General issued a 

detailed report that found that 87 percent of aliens who are not detained flee and elude their deportation orders. The risk after our 

experiences on September 11, 2001, was too great to take such 

chances. 

I would like to respond briefly to the criticism that we have not 

brought terrorism-related immigration charges against these 

aliens. These detainees were all immigration law violators and, 

thus, removable on that ground alone. Unlike in the criminal system, the sanction for immigration violations—removal from the 

United States—does not increase if additional or more serious violations are alleged. Indeed, in the past, aliens who have been 

charged or detained based on national security concerns have then 

asserted claims for asylum based on the fact that they have been 

labeled as terrorists by the U.S. Government. The goal is to accomplish the right result—in this case, removal—in a manner that best 

protects the national security and uses our limited resources most 

wisely. 

Likewise, as Mr. Rolince indicated, just because we do not charge 

someone criminally with a terrorism offense does not necessarily 

mean that the person has no terrorist ties. As in the immigration 

context, the decision not to charge in any criminal case may be 

made because, for example, while there is significant evidence of 

terrorist connections, the evidence is insufficient to prove terrorist 

activity beyond a reasonable doubt. Or it may be that we do not 

want to reveal sensitive intelligence sources or because other critical intelligence is classified or for other reasons. 

It is also important to distinguish between our policy of detaining 

illegal aliens suspected of terrorist ties and the conditions of their 

confinement. As Mr. Lappin’s testimony makes clear, we do not in 

any way condone the abuse of anyone who is held in Federal custody. The Inspector General’s report discusses allegations that 

some specific detainees were abused and other problems with the 

conditions of confinement at one facility where 84 of the 762 illegal 

aliens were detained. As the Attorney General stated on June 5, 

‘‘We do not stand for abuse, and we will investigate those 

cases...We don’t tolerate violence in holding individuals, and that 

is not and will never be a policy of our Department.’’ 

The Department of Justice welcomes constructive criticism. We 

are still in the process of reviewing the recommendations of the Inspector General in detail. I would like to note that before the report 

was issued, the Department had already made adjustments that 

are consistent with several of the IG’s recommendations. 

In closing, I would like to emphasize four important points. 

35

First, all of these 762 detainees were illegally in the United 

States and their detentions were legally and constitutional valid. 

Second, it is clear that the vast majority of non-detained illegal 

aliens flee, even those who are not suspected of having terrorist 

ties. 

Third, our central mission was and is to prevent another terrorist attack. 

And, finally, the Department of Justice is always looking for 

ways to improve. 

Mr. Chairman, I also wanted to comment in response to several 

questions about the process by which this report was generated 

and the comments that the Department provided. I think it is important, because it did not come out during Mr. Fine’s testimony, 

to note that from the beginning of this process, the Deputy Attorney General’s office requested of the Inspector General that if he 

found any problems that required immediate attention before his 

report was completed, that he communicate those to the Department’s leadership so that we could understand what issues were 

out there and take action on anything that needed immediate attention. 

The Inspector General in July of 2002, nearly a year ago, provided two comments regarding BOP processes. We reviewed those 

immediately and took action upon them. During the period from 

that time until the draft report was actually issued, we received no 

other information from the Inspector General regarding things that 

in his judgment required immediate attention. So I think it is important to point out that we treat the Inspector General process as 

a way of learning about potential problems in the Department, and 

we actually asked that while this process was ongoing, if anything 

that needed immediate attention was noted, that it be communicated to us. 

With that, Mr. Chairman, I appreciate the opportunity to be here 

and hope to be able to answer any questions you or members have. 

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

Chairman HATCH. Well, thank you. All three of you have been 

helpful here, but we have some questions for you, if you do not 

mind. 

We will put Senator Kennedy’s statement in the record and another document that he has submitted as well. And maybe I can 

ask a couple of questions here and then turn to Senator Feingold. 

Special Agent Rolince, one of the main points the IG makes in 

his report is that these so-called clearance checks could have proceeded on a timelier basis. And while I doubt anyone would dispute 

that had the clearances occurred more rapidly and many detainees 

would have been deported sooner, it is very easy for us in retrospect to sit here with 20/20 hindsight and make observations like 

that. And I do not think the American people can or should lose 

sight of the enormous and unprecedented challenges that you outlined in your statement and that the Bureau faced in the weeks 

and months after 9/11, which is also one of the points mentioned 

by the IG. 

I know that, for example, your New York field office had to be 

relocated to a garage and at the same time was tasked with doing 

36

much of the leg work in the initial investigations of the 9/11 hijackers. And one of the things I also think we need to understand is 

just what went into the Bureau decision to either clear or not clear 

a given detainee. It seems to me that once someone was cleared, 

they were gone. They were not there to be interviewed. They were 

not there to face any potential charge, and for all intents and purposes, they were irretrievable. I do not think there is any question 

about that. 

And so it is not surprising to me in the least that the Bureau 

would want to err on the side of caution before issuing any form 

of clearance. So I guess a starting point for me is: Can you explain 

just what went into the decision on whether to issue a clearance? 

And I think we need to know what kind of information had to be 

gathered and from where. Was this information available within 

the Bureau, or did it have to be gathered from outside agencies and 

other sources? And, secondly, what type of things did the Bureau 

look for in deciding whether to issue a clearance? 

Mr. ROLINCE. Thank you, Senator. I think you hit on a couple of 

very important points, and I think we would all agree it is difficult 

to sit in this room, much more difficult than it was to sit in the 

Operations Center or to sit in the garage in New York or in 

Shanksville, Pennsylvania, or over at the Pentagon and really get 

a sense of the urgency, on the one hand, and the seeming sense of 

despair on another, and couple that with the fact that we were convinced a second wave of attacks was coming. 

The New York office, the largest in the Bureau, also suffered the 

most catastrophic attack. It is the office wherein the first attack on 

the World Trade Center took place and the conspiracy to bring 

down the United Nations, the Lincoln and Holland tunnels and 

commit other terrorist acts occurred. They made a conscious decision that everyone that was arrested by Immigration—and all 762 

of these arrests were Immigration and Naturalization Service arrests—would be given a full investigation and a background conducted, checking every relevant database within the FBI, the CIA, 

the State Department, Customs, Immigration. Any bank that was 

out there that may contain information on these people was 

checked. 

If within one of these investigations information surfaced to the 

group that did prioritize this in New York and that was put together specifically to do nothing but the detainee issues, if the authority issuing the clearance letter—in this case, Ken Maxwell, 

then the Assistant Special Agent in Charge—decided there was 

something about the investigation that had been done that required further scrutiny by people steeped in counterterrorism, that 

it would then move over to the Joint Terrorism Task Force. And 

this touches on Mr. Fine’s point about resources, while the FBI also 

has all these Joint Terrorism Task Forces, they could have used, 

and we would have used, and we should have used, and we did use. 

The Joint Terrorism Task Force in New York consists of 30-

some-odd agencies, over 400 NYPD detectives attached to it. So in 

a case wherein we thought there was something more that needed 

to be investigated or scrutinized, that was moved from the detainee 

squad over into the JTTF, and that took time. 

37

Chairman HATCH. Okay. Let me go to you, Director Lappin. The 

Inspector General’s report contains serious allegations of physical 

and verbal abuse of some of the 9/11 detainees. Now, during his investigation, the IG interviewed detainees who complained of such 

abuses as well as correctional officers who had contact with these 

detainees. 

Not surprisingly, there are disputes about what actually happened and what actually occurred. Some of the detainees have alleged that they were abused by officers without provocation. In at 

least one instance, an officer has claimed that a detainee reacted 

violently when being moved. According to the IG, after 9/11 the Bureau of Prisons installed surveillance cameras to monitor the detainees’ activities. However, the Bureau of Prisons did not retain 

these videotapes for very long, and it goes without saying that 

videotaped records would have been helpful in evaluating such 

claims of abuse or misconduct. 

Now, what are the Bureau’s future plans with respect to surveillance cameras inside the BOP facilities? 

Mr. LAPPIN. Thank you, Mr. Chairman. Let me first state again 

for the record that mistreatment of inmates by staff in any correctional setting is totally unacceptable. We take all allegations of 

mistreatment seriously and do our very best to investigate all those 

allegations thoroughly. 

Considering the fact that we at times receive allegations of mistreatment, realizing the emotion of the situation related to the detainees, the staff took it upon themselves at MDC Brooklyn to install cameras. It was intended to record interactions between staff 

and inmates. Our policy only requires recording of staff-inmate 

interactions during an emergency situation, if one is available, and 

during a forced cell move or a calculated use of force in a particular 

case to remove an inmate. So what we did was actually above and 

beyond what policy requires us to do. 

However, we did record interactions between staff and inmates. 

As you can imagine, that ongoing recording resulted in many tapes, 

and certainly cost and maintenance of those tapes became an issue. 

Our policy on this issue was to retain tapes of those situations 

that had been brought up in reference to allegations. So if a detainee made an allegation, we would not destroy those tapes. Or if 

there was a use-of-force incident, we would not destroy those tapes. 

Chairman HATCH. Do you have the tapes now? 

Mr. LAPPIN. Yes, we have the tapes on some situations where inmates were forcibly removed from their cells, and in some cases, 

at least one, where allegations were made, we have retained those 

tapes. 

We set a 30-day time frame because it is our policy that an inmate has 20 days to file a complaint or a grievance with the warden on treatment or any other issues. We extended that to 30 days 

just in case someone brought it to our attention. But after a 30-

day period, if there were no allegations, at that point we saw no 

need to continue to retain those tapes that did not have related allegations or uses of force attached to them. 

Chairman HATCH. Okay. My time is up, but I am going to submit 

questions, and we will keep the record open until 5 o’clock today 

for any members of the Committee to submit any questions or 

38

statements that they care to submit. I will put Senator Grassley’s 

statement in the record as well. 

We will turn to Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Let me just say to all of you, thank you, and I want you to know 

that I sincerely admire what you are charged with doing, the incredible difficulty of what you had to do after 9/11, and your continuing responsibilities to prevent terrorist attacks on the American people. I do not think there is any other more important job 

in this country, and that is sincere. 

We do have to ask you questions about this report because it is 

troubling, and I want to first ask Mr. Nahmias, if I understand 

your testimony correctly, neither you nor the Department refute 

any of the findings, conclusions, or recommendations in the OIG report. Is that correct? 

Mr. NAHMIAS. Senator, I think with regard to the findings and 

the recommendations, we have learned a lot from the report, and 

we may quibble over minor details, but there is nothing at all significant about the report that we refute. We have found it to be 

very educational for us, and with regard to the recommendations, 

we agree in principle to all the recommendations, and we are preparing detailed responses as the IG has requested in the next couple weeks. 

Senator FEINGOLD. I appreciate that answer. 

Mr. Rolince, I understand that you filed affidavits in the bond 

proceedings of September 11th detainees who were held on immigration violations. How many of the 762 INS cases, with regard to 

how many of those did you submit an affidavit? 

Mr. ROLINCE. Senator, I do not have an exact count. I could certainly get that for you. And I moved away from the process in January of 2002 when I moved over to the Washington field office. So 

my number would not be the total number that I think you are 

probably looking for. I could give you a rough approximation of 

maybe 20 to 30. 

Senator FEINGOLD. Okay. I am told that in your affidavit you articulated a theory for the investigation called the mosaic theory, 

which, as I understand it, is the idea that there are different pieces 

of an investigative puzzle and a particular person plays a particular role in the big picture, a crime or, in this case, terrorist activity. Is that right? 

Mr. ROLINCE. Yes, sir. 

Senator FEINGOLD. In how many of those INS cases in which you 

submitted an affidavit did you have evidence of criminal activity 

concerning the specific individual whom the Department was seeking to hold without bond? 

Mr. ROLINCE. Again, I could not give you an exact number. I can 

certainly find that for you. But there were instances when we became aware of suspicious activity on the part of different individuals. Two people down in Texas that were taken off a train, for instance, comes to mind. They had box cutters and shoe polish and 

an inordinate amount of money. And it just looked suspicious on 

the front end. We did not get a lot of cooperation, but ultimately 

they would plead guilty to charges relative to that money. And I 

believe there were some sort of bank fraud charges. 

39

So there were a finite, a very finite number of cases wherein information of criminal activity came to our attention, and in order 

to be able to fully vet that information, we would put one of those 

letters before the court. 

Senator FEINGOLD. But as I understand your answer, there were 

quite a few of these affidavits where there was not evidence of 

criminal activity. Is that correct? 

Mr. ROLINCE. That is correct. The vast majority of those letters 

went forward simply because we were not convinced that we had 

all the answers to the questions or all the record checks were back, 

and we clearly erred on the side of caution. 

Senator FEINGOLD. So the Government submitted affidavits in 

INS cases in support of the Government’s desire to deny bond, and 

in many of these cases, you did not have specific evidence of criminal activity or terrorist activity with regard to the individual with 

respect to whom you are seeking to detain? 

Mr. ROLINCE. That is correct. And I think it is also worth pointing out, sir, that on occasion those letters were brought to me and 

I read them, and I refused to sign them, for lack of a better word, 

because I just did not feel that we had justified and uncovered 

enough information to ask a judge to extend that. 

Senator FEINGOLD. But in many cases, they were signed? 

Mr. ROLINCE. Yes, sir. 

Senator FEINGOLD. Okay. Did you know that in almost every one 

of these cases the individual did share the same religion or ethnicity as the September 11th hijackers? 

Mr. ROLINCE. Thank you very much for that question, Senator. 

No, I did not know that. I should not know that. There is no reason 

that we should ask that. It did not play any role whatsoever in the 

9/11 investigation, and I would submit that it should never play 

any role whatsoever in any FBI investigation, with relatively few 

exceptions. Maybe in the hate crime area, you might want to know 

that. But I categorically— 

Senator FEINGOLD. Would it be fair to say that—you know, to 

take two other very large immigrant communities in the United 

States, Mexican nationals or Chinese nationals, were there members from these groups picked up and detained on immigration violations without bond in connection with the September 11th investigation? 

Mr. ROLINCE. There were members of other nationalities who, 

upon our making a determination on the Immigration and Naturalization Service making a determination that they were out of 

status, they were, in fact, arrested. For instance, there were two 

individuals of Russian ethnicity who I am aware of were observed 

by a motorist filming within either the Lincoln or the Holland Tunnel. The police pulled them up coming out at the end and they 

were arrested. 

Senator FEINGOLD. Would it be fair of me to suggest that the 

number of people who were in those categories would be a handful 

of the 762, at best? 

Mr. ROLINCE. Of? 

Senator FEINGOLD. Not being of the same ethnic or religious 

background as the September 11th hijackers. 

40

Mr. ROLINCE. I believe the majority of the 762—and we can 

check this—were Pakistanis. So it would be accurate to say that 

there were not great numbers of other ethnicities, yes. 

Senator FEINGOLD. In fact, it would be far more than a majority? 

Wouldn’t it be fair to say it would be far more than a majority that 

were of the same religious background? 

Mr. ROLINCE. I would not know what religious background they 

were. We should not ask that question. I do not think we gathered 

that information. Somebody might know it, but I hope the FBI does 

not. 

Senator FEINGOLD. Well, isn’t it the case that they were nationals of Arab or predominantly Islamic countries in almost every 

case? 

Mr. ROLINCE. I think that is fair to say, sir, yes. 

Senator FEINGOLD. Fair enough. 

Mr. Nahmias, I think everyone can agree that it might be proper 

to arrest and detain individuals who would pose a flight risk or a 

danger to the community, and that is what the law provides. The 

problem, though, is that the department appears to have not had 

the facts to support a determination in every case that someone 

was a flight risk or a danger to the community. Instead, it appears 

that ethnicity or religious background may have been used as proxies for real evidence of criminal activity. 

Can you tell us here today that for each of the 762 individuals 

arrested on immigration violations and held without bond the Department had a factual basis to believe, not based on ethnic or religious stereotyping but real facts, that an individual was tied to terrorism and posed a danger to the community or a flight risk? 

Mr. NAHMIAS. Yes, Senator Feingold. I begin that by saying, to 

reiterate what Mr. Rolince was saying. With regard to ethnicity or 

religious background, these were people who were come across in 

the course of pursuing 9/11 leads. And if that led to—it did not 

matter which ethnic or religious background the person had. If 

they were here and they were illegally here, as a part of the 9/11 

investigation they would be arrested on immigration law violations. 

We then sought to clear them. In going into court and seeking 

detention, it is also important to point out that under the immigration laws, illegal aliens do not have a right to release. And we were 

very concerned because we know—and the Inspector General has 

more recently told us in a very formal way—that if we release 

someone, there is an 87-percent chance that we will not see that 

person for their scheduled deportation. 

So in going into court and laying out the facts that supported a 

detention decision, sometimes they were very specific, and sometimes, particularly in the early part of an investigation, the facts 

that were presented to a judge, an immigration judge, were largely 

the fact that this person had been arrested in the course of pursuing a 9/11 lead, and we were trying to determine where he fit 

in the investigation. All of those facts were submitted to immigration judges, who then, I believe with very few exceptions, held the 

person without bond. 

It is also critical, I think, to recognize that it is extraordinarily 

difficult in many cases to identify who terrorists are. To give a couple of examples of that, we learned very quickly after September 

41

11th that among the 19 hijackers, there were 17 of them whom the 

kind of quick checks, background checks, name checks, CIA traces, 

and checks for other clear illegal activity, would have gotten us nowhere. Seventeen of them had come in under the radar and remained under the radar. And so we knew from that example that 

it was going to be very difficult to figure out who might be here 

as a sleeper agent. 

To give you another recent example that has just come out in the 

last couple days, the person who was designated as an enemy combatant by the President on Monday was originally come across by 

the FBI in the course of pursuing a routine 9/11 lead—very little 

of a lead to start with. He was interrogated, interviewed voluntarily in September of 2001, and nothing came of that. There was 

no other real development of the case at that point. And because 

he was here legally at that point on a student visa, he was not arrested, because we do not arrest people who are here legally. And 

he was allowed to remain in the community. There was some ongoing investigation, and it was only over the course of the next couple 

months that we developed through further investigation clear evidence that he had contact with an Al-Qaeda terrorist operative connected to 9/11. 

And so in December, he was approached again, interviewed, and 

when he denied that contact and we were not able to clear things 

at that point, he was actually made a material witness. And that 

has been made public since that time. 

Now, by that point, he was also in violation of his student visa, 

and INS put a detainer on him. And had he not been made a material witness, he would have been held under this policy until the 

investigation was completed. 

Then after the material witness period, he was charged with 

criminal offenses that did not involve terrorism. They involved 

credit card fraud and making false statements. And the investigation continued, now with him at least detained, for more than a 

year. And it was only a couple of months ago that we received information from high-level Al-Qaeda operatives that he, in fact, had 

been sent to the United States just before September 11th as an 

Al-Qaeda sleeper to help operatives coming into the United States 

after September 11th to plan additional attacks against the United 

States. 

I think it is important to look at that type of example of how an 

investigation develops, because the reality is that, had he been 

here illegally when he was first encountered in September, he 

would have been arrested under this policy, and he would have 

been safely in custody between September and December when we 

got enough information to at least make him a material witness 

and then to charge him criminally. And even at that point, we had 

not figured out that he was, in fact, clearly a terrorist. 

I would have been much happier and we would have been much 

safer had he been off the street from September to December under 

this policy than the way things played out, where he was here legally and we allowed him to stay out. 

So I think it is critical to understand in presenting this information that we were operating in a world where it is almost impossible to figure out who these people are unless we get some breaks. 

42

Senator FEINGOLD. Well, I appreciate that answer— 

Chairman HATCH. Senator, can you wrap it up? 

Senator FEINGOLD. Will there be opportunity for a second round? 

Chairman HATCH. I want to— 

Senator FEINGOLD. I tell you what. If you will just let me ask one 

more question, after this I will— 

Chairman HATCH. Sure. That would be fine. 

Senator FEINGOLD. I want to just follow up on this question and 

one other question. 

Chairman HATCH. That would be fine. And Senator Leahy has 

asked me to keep the record open for one week, and we will do 

that, for any further questions. 

Senator FEINGOLD. I allowed the witness to give an extensive answer, First A, because I believe it is terribly important for members 

of the Committee to understand what you are trying to accomplish 

here and how important it is; second, I wanted to understand this 

example you were using. This was an example not of somebody 

who was detained on the basis of an immigration violation. This is 

somebody who, as I understand, was a material witness. 

As I understand the IG’s report, it does not relate to those who 

were detained on the basis of material witness. This is not—isn’t 

that correct? I understand from the IG’s report that that is not one 

of the categories that was addressed by the IG’s report. Isn’t that 

correct? 

Mr. NAHMIAS. That is correct. 

Senator FEINGOLD. So I wanted to hear your example because I 

think it is important, but it does not relate to the question directly 

of these 762 individuals. I take your point, which is that had this 

person been detained because he had an immigration violation, 

then you could have more easily pursued him. And I think that is 

a fair point. I do not think it undercuts the major thrust of my 

question, which was: Did we really have information of criminal or 

terrorist activity with regard to most of these 762 individuals? And 

I think it is fairly obvious we did not. But I appreciate your answer. 

Let me just ask one other type of question. The IG reports that 

senior Justice Department officials in the Deputy Attorney General’s office told the Director of the Bureau of Prisons to ‘‘not be 

in a hurry’’ to provide the September 11th detainees with access to 

communications, including legal and social calls or visits. In the 

meantime, your boss, Assistant Attorney General for the Criminal 

Division, Mr. Chertoff, reassured Congress and the American people in his testimony before this Committee on November 28, 2001, 

that the right to counsel would be protected. 

At the time of Mr. Chertoff’s testimony, were you aware of the 

fact that other senior officials had instructed the Bureau of Prisons 

to do the exact opposite, to frustrate detainees’ attempts to contact 

counsel? 

Mr. NAHMIAS. Senator Feingold, having read the report, I do not 

agree that that is, in fact, what the Inspector General found. The 

Inspector General found that people at various levels of the Department had indicated that policies and legal issues might often be addressed aggressively in terms of not taking a conservative position 

43

on how long someone might be detained, whether to seek detention, 

and so forth. 

Actually, in the section of the Inspector General’s report that you 

are referring to—I think it is page 113—just a few lines after that 

quote about supposedly saying do not be in a hurry, the Inspector 

General makes clear that the person to whom that was supposedly 

said, the then-Director of the Bureau of Prisons, understood that 

to mean within the limits of applicable policy and law. And that 

is really the point. 

I also believe that that statement was made in the context actually not of these 762 people, but in the context of discussions of 

what to do with regard to already imprisoned terrorists who were 

under special administrative measures in the ADMAX facility in 

Florence, Colorado. So it is somewhat out of context as presented 

in the Inspector General’s report. 

Senator FEINGOLD. But you were aware that instruction had 

been given to not be in a hurry, even though you add the caveat 

within normal procedures. But you were aware that that type of instruction had been given. 

Mr. NAHMIAS. I was not aware that that specific instruction was 

given. I think it is critical to say it was always with that caveat, 

that at any time, to my knowledge, that anyone has discussed taking any kind of aggressive position on policy issues or on how to 

treat any of these detainees, it was always done with the caveat 

that it remain within the law. And a good example of that is when 

the confusion about whether or not detainees could be held more 

than 90 days after a removal decision was made clear, the immediate reaction by the Deputy’s office was: If that is the law, we 

have to change the policy. And that is just one very clear example 

expressed in the report where, when a clear legal issue came up, 

the reaction was, in an abundance of caution, to avoid crossing any 

legal line. 

Senator FEINGOLD. Again, just to clarify. I heard your answer. At 

the time of Mr. Chertoff’s testimony, were you aware of the fact 

that other senior officials had given these instructions? However 

you want to characterize them, were you aware of that? 

Mr. NAHMIAS. Personally, I was not aware of that, but I am confident that the instructions that were given were to remain within 

the law. 

Senator FEINGOLD. I heard that part. I just want to know what 

you were aware of. 

Do you know whether at the time of his testimony Mr. Chertoff 

was aware that other senior officials had instructed the Bureau of 

Prisons to frustrate communications by detainees with counsel? 

Mr. NAHMIAS. I do not believe that that instruction was given or 

that the Inspector General makes that finding. 

Senator FEINGOLD. Well, I would disagree with that, but you do 

not know of any specific knowledge about these instructions. 

Mr. NAHMIAS. No. I think that there was—and Mr. Lappin might 

be able to address this more clearly. There was a brief period of 

blackout generally, but I do not think anyone ever gave the instruction to frustrate people’s ability to communicate with counsel. 

Senator FEINGOLD. Let’s hear Mr. Lappin’s answer. 

44

Mr. LAPPIN. Yes, sir. The Bureau of Prisons initially determined 

the conditions of confinement for the detainees. In fact, on September 11 itself, before we received any detainees, we had a number of terrorists in our existing populations, at which time we 

pulled those inmates out of general populations, moved them into 

the segregation units of those facilities, and placed them in a restricted environment, primarily because we did not know at that 

time if they had had any communication outside of the institution 

with the target group of individuals being investigated, and we 

wanted to preclude any further communication with those individuals if it, in fact, had occurred in the past and might result in further terrorist attacks. 

Based on that, as we received detainees on September the 14th, 

based on the information we received from the investigating and 

detaining authorities that these individuals were of high interest to 

the PENTTBOM World Trade Center investigation, we employed 

those same restrictive conditions. 

I am aware that discussions did occur after that decision was 

made with individuals in the Department who affirmed our approach to the conditions of confinement we had determined for 

those individuals. 

So the Bureau of Prisons initially made that determination, not 

only based on the threat to the public but, as I mentioned in my 

opening statement, also based on the fact that these individuals, 

Al-Qaeda individuals, had exhibited aggressive acts against our 

employees in the past, and certainly as well as for the protection 

of these individuals themselves. 

Realize that here you are in New York, the facility in Brooklyn 

houses 2,500 inmates, many of whom were from that area. Many 

of those inmates could have and may have had families, friends, 

and relatives in the buildings. It would have been unwise of us to 

allow those inmates to go out into a general population where another inmate may have taken aggressive action towards them because of their association with the investigation. 

Senator FEINGOLD. I appreciate your elaborating on that. I will 

just say to conclude, Mr. Chairman, that I do read the IG’s report 

as clearly suggesting a problem in some circumstances with the 

right to counsel, that this is a failure here in this situation, and 

although there may be individual situations that make sense in 

that regard, that we have got to take very seriously the IG’s conclusion and not let this happen again with regard to those who did 

not certainly deserve that kind of treatment. 

But, again, I thank the witnesses and I thank the Chairman. 

Chairman HATCH. Thank you, Senator Feingold. Those are good 

questions. 

Mr. Nahmias, you are in agreement that where there is a need 

for right to counsel that counsel will be provided? 

Mr. NAHMIAS. Yes, Mr. Chairman, and— 

Chairman HATCH. In other words, you are saying that the direction has always been and you believe it has always been carried 

out that you would live within the law, even though you could be 

criticized for living within a broad interpretation of the law. 

Mr. NAHMIAS. I think it is important—there were problems with 

the ability of people to have access to their counsel. Some of those 

45

are inherent in the Bureau of Prisons setting. Some of them are inherent in the type of custodial situation within the Bureau of Prisons these people were in. There were some problems with that. 

Those are the types of things that we have learned from the Inspector General’s report, we learned them along the way, and we 

would try to correct them in the future. But there was never a policy of the Department, and I can’t believe there will ever be a policy of the Department, that anyone who is detained by the Department should not have the ability to communicate with counsel in 

their defense. 

Chairman HATCH. I think this is important because there have 

been a lot of articles written pro and con on this issue. Let me just 

say that you folks have very difficult jobs to do, and I can just hear 

the screaming and wailing and shouting if we had had another terrorist attack because you let some of these people go prematurely. 

I think Senator Schumer is absolutely right when he indicated that 

you would never live it down. And even at that, we know that there 

are known terrorist organizations and terrorists in this country 

that we are monitoring that we are pretty sure may try to do something like this in the future. And that does not stop other methods 

of terrorism. 

It is easy to criticize, but you folks have been handed basically 

an impossible job in many ways. But I think you are doing the very 

best job you can to take care of it, and where there are defects, 

where there are questionable acts, where there are questionable 

approaches, we up here want you to end those and make sure that 

our laws are followed. And if we cannot rely on the law enforcement agencies, who can we rely on? 

So this hearing has been very helpful, and I think having experts 

here has been extremely helpful for me personally. And I appreciate all that you do and all that you have done, and I understand 

some of the criticisms. And I think it was good to get the Inspector 

General’s report out, and we can all grow from that and learn from 

that and hopefully do things even better in the future. 

But, with that, we will recess until further notice. 

[Whereupon, at 1:24 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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