S. Hrg. 111–1070 

INTELLIGENCE REFORM—2010 

HEARINGS 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JANUARY 20, 2010 

INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK—PART I 

JANUARY 26, 2010 

INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK—PART II 

MARCH 10, 2010 

THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY 

ATTACK: WATCHLISTING AND PRE-SCREENING 

MARCH 17, 2010 

THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK: 

INTELLIGENCE REFORM AND INTERAGENCY INTEGRATION 

APRIL 21, 2010 

THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY 

ATTACK: SECURING THE VISA PROCESS 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

INTELLIGENCE REFORM—2010 

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56–838 PDF 2011

S. Hrg. 111–1070 

INTELLIGENCE REFORM—2010 

HEARINGS 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JANUARY 20, 2010 

INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK—PART I 

JANUARY 26, 2010 

INTELLIGENCE REFORM: THE LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK—PART II 

MARCH 10, 2010 

THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY 

ATTACK: WATCHLISTING AND PRE-SCREENING 

MARCH 17, 2010 

THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY ATTACK: 

INTELLIGENCE REFORM AND INTERAGENCY INTEGRATION 

APRIL 21, 2010 

THE LESSONS AND IMPLICATIONS OF THE CHRISTMAS DAY 

ATTACK: SECURING THE VISA PROCESS 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

PAUL G. KIRK, JR., Massachusetts* 

EDWARD E. KAUFMAN, Delaware* 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts** 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

ROBERT F. BENNETT, Utah** 

MICHAEL L. ALEXANDER, Staff Director 

CHRISTIAN J. BECKNER, Professional Staff Member 

JEFFREY E. GREENE, Counsel 

SEAMUS A. HUGHES, Professional Staff Member 

GORDON N. LEDERMAN, Counsel 

BLAS NUNEZ-NETO, Professional Staff Member 

JASON M. YANUSSI, Professional Staff Member 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

ROBERT L. STRAYER, Minority Director of Homeland Security Affairs 

IVY A. JOHNSON, Minority Deputy General Counsel 

JOHN K. GRANT, Minority Counsel 

LUKE P. BELLOCCHI, Minority Counsel 

MATTHEW L. HANNA, Minority CBP Detailee 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 

* Senator Kaufman replaced Senator Kirk on the Committee effective March 9, 2010. 

** Senator Brown replaced Senator Bennett on the Committee effective March 9, 2010. 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lieberman..................................................................... 1, 49, 81, 119, 153 

Senator Collins ........................................................................... 3, 51, 83, 121, 155 

Senator Tester .................................................................................................. 17 

Senator Burris................................................................................................. 20, 74 

Senator McCain ...................................................................................... 22, 68, 173 

Senator Ensign ................................................................................................. 24 

Senator Coburn ................................................................................................. 27 

Senator Akaka .................................................................................................. 30 

Senator Levin .................................................................................................... 32 

Senator McCaskill ............................................................................................ 35 

Senator Carper ....................................................................... 37, 65, 104, 136, 176 

Senator Bennett ................................................................................................ 70 

Senator Kirk ..................................................................................................... 72 

Senator Brown .................................................................................................. 85 

Senator Voinovich ............................................................................................. 170 

Prepared statements: 

Senator Lieberman............................................................. 185, 284, 301, 355, 453 

Senator Collins ................................................................... 188, 287, 303, 357, 456 

Senator Carper ................................................................................................. 305 

WITNESSES 

WEDNESDAY, JANUARY 20, 2010 

Hon. Michael E. Leiter, Director, National Counterterrorism Center, Office 

of the Director of National Intelligence .............................................................. 5 

Hon. Dennis C. Blair, Director of National Intelligence, Office of the Director 

of National Intelligence ....................................................................................... 7 

Hon. Janet A. Napolitano, Secretary, U.S. Department of Homeland Security . 9 

TUESDAY, JANUARY 26, 2010 

Hon. Thomas H. Kean, Former Chairman, National Commission on Terrorist 

Attacks Upon the United States, and Hon. Lee H. Hamilton, Former Vice 

Chairman, National Commission on Terrorist Attacks Upon the United 

States .................................................................................................................... 54 

WEDNESDAY, MARCH 10, 2010 

Russell E. Travers, Deputy Director, Information Sharing and Knowledge 

Development, National Counterterrorism Center, Office of the Director of 

National Intelligence ............................................................................................ 86 

Timothy J. Healy, Director, Terrorist Screening Center, Federal Bureau of 

Investigation, U.S. Department of Justice ......................................................... 88 

Gale D. Rossides, Acting Administrator, Transportation Security Administration, U.S. Department of Homeland Security .................................................... 90 

David V. Aguilar, Acting Deputy Commissioner, U.S. Customs and Border 

Protection, U.S. Department of Homeland Security ......................................... 93 

WEDNESDAY, MARCH 17, 2010 

Hon. Benjamin A. Powell, Former General Counsel of the Office of the Director of National Intelligence (2006–2009) ............................................................ 122 

Hon. Jeffrey H. Smith, Former General Counsel of the Central Intelligence 

Agency (1995–1996) ............................................................................................. 125 

Page

IV 

Richard Nelson, Senior Fellow and Director, Homeland Security and Counterterrorism Program, Center for Strategic and International Studies ............... 127 

WEDNESDAY, APRIL 21, 2010 

Hon. David F. Heyman, Assistant Secretary, Office of Policy, U.S. Department 

of Homeland Security .......................................................................................... 157 

Hon. Janice L. Jacobs, Assistant Secretary, Bureau of Consular Affairs, U.S. 

Department of State ............................................................................................ 159 

Hon. John T. Morton, Assistant Secretary, U.S. Immigration and Customs 

Enforcement, U.S. Department of Homeland Security ..................................... 164 

ALPHABETICAL LIST OF WITNESSES

Aguilar, David V.: 

Testimony .......................................................................................................... 93 

Prepared statement .......................................................................................... 328 

Blair, Hon. Dennis C.: 

Testimony .......................................................................................................... 7 

Joint prepared statement with Mr. Leiter ..................................................... 191 

Hamilton, Hon. Lee H.: 

Testimony .......................................................................................................... 54 

Joint prepared statement with Mr. Kean ....................................................... 290 

Healy, Timothy J.: 

Testimony .......................................................................................................... 88 

Prepared statement .......................................................................................... 310 

Heyman, Hon. David F.: 

Testimony .......................................................................................................... 157 

Prepared statement .......................................................................................... 458 

Jacobs, Hon. Janice L.: 

Testimony .......................................................................................................... 159 

Prepared statement .......................................................................................... 465 

Kean, Hon. Thomas H.: 

Testimony .......................................................................................................... 54 

Joint prepared statement with Mr. Hamilton ................................................ 290 

Leiter, Hon. Michael E.: 

Testimony .......................................................................................................... 5 

Joint prepared statement with Mr. Blair ....................................................... 191 

Morton, Hon. John T.: 

Testimony .......................................................................................................... 164 

Prepared statement .......................................................................................... 475 

Napolitano, Hon. Janet A.: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 200 

Nelson, Richard: 

Testimony .......................................................................................................... 127 

Prepared statement .......................................................................................... 445 

Powell, Hon. Benjamin A.: 

Testimony .......................................................................................................... 122 

Prepared statement with attachments ........................................................... 359 

Rossides, Gale D.: 

Testimony .......................................................................................................... 90 

Prepared statement .......................................................................................... 316 

Smith, Hon. Jeffrey H.: 

Testimony .......................................................................................................... 125 

Prepared statement .......................................................................................... 427 

Travers, Russell E.: 

Testimony .......................................................................................................... 86 

Prepared statement .......................................................................................... 306 

APPENDIX 

JANUARY 20, 2010 

Statement for the Record submitted by Mr. Blair ................................................ 214 

Document titled ‘‘Office of the Director of National Intelligence Instruction 

No. 80.05,’’ submitted by Mr. Leiter and Mr. Blair for the Record .................. 215 

American Civil Liberties Union (ACLU), prepared statement ............................ 234 

Page

V 

Responses to post-hearing questions for the Record from: 

Mr. Leiter .......................................................................................................... 245 

Mr. Blair ............................................................................................................ 251 

Secretary Napolitano ........................................................................................ 255 

JANUARY 26, 2010 

Responses to post-hearing questions for the Record from: 

Mr. Kean and Mr. Hamilton ............................................................................ 298 

MARCH 10, 2010 

Responses to post-hearing questions for the Record from: 

Mr. Travers ....................................................................................................... 338 

Ms. Rossides and Mr. Aguilar ......................................................................... 339 

MARCH 17, 2010 

Responses to post-hearing questions for the Record from: 

Mr. Smith .......................................................................................................... 452 

APRIL 21, 2010 

Responses to post-hearing questions for the Record from: 

Mr. Heyman and Mr. Morton .......................................................................... 484 

Ms. Jacobs ......................................................................................................... 515 

(1) 

INTELLIGENCE REFORM: THE 

LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK—PART I 

WEDNESDAY, JANUARY 20, 2010 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:33 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Levin, Akaka, Carper, Pryor, 

McCaskill, Tester, Burris, Collins, Coburn, McCain, Ensign, and 

Bennett. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. Good morning and welcome to the hearing. As we all know, on this past Christmas Day, December 25, 

2009, Umar Farouk Abdulmutallab slipped through the multi-layered defenses we have erected since September 11, 2001, to stop attacks against our homeland and boarded Northwest Flight 253 

from Amsterdam to Detroit over which he attempted a suicide 

bombing. A faulty detonator and courageous and quick action by 

the passengers and crew prevented the deaths of 290 people on 

board that plane and many more on the ground below. We were 

very lucky. 

Because it has now been 5 years since the enactment of the 

9/11 Commission recommendations for intelligence reform, Senator 

Collins and I decided last year to initiate a series of oversight hearings this year to examine how well these reforms have been implemented and whether further changes in the law, regulation, or implementation are needed to protect our country. That is, in fact, the 

inquiry we begin today, but now, of course, we must carry out our 

oversight responsibilities through the unsettling prism of the 

Christmas Day breach of our homeland defenses by the terrorist 

Abdulmutallab. 

The Intelligence Reform and Terrorism Prevention Act of 2004 

(IRTPA), which is commonly known as the ‘‘9/11 Commission Act,’’ 

was the most sweeping intelligence reform since the creation of the 

Central Intelligence Agency (CIA) more than 50 years earlier. 

Among its many significant improvements, the 9/11 Commission 

Act established a Director of National Intelligence (DNI) to integrate our 16 intelligence agencies. It also created the National 

2 

Counterterrorism Center (NCTC) to ensure that there was a single 

place in the government that would assess terrorism threats using 

the full resources and knowledge of the intelligence community. 

Earlier, in 2002, our government’s failures on September 11, 

2001, also moved Congress to act on recommendations to create a 

Department of Homeland Security (DHS) to better cope with the 

threats our country would face in the 21st Century. I believe these 

post-September 11, 2001, reforms have worked very well. The 

record shows that after the creation of the Department of Homeland Security in 2002 and the establishment of the DNI and National Counterterrorism Center in 2004, there was not a terrorist 

attack by Islamist extremists on America’s homeland for almost 7 

years. No one would have predicted that on September 12, 2001. 

So we have a lot to be grateful for. 

Some of the most successful defenses of our homeland, in my 

opinion, have been truly amazing, although the details of these, of 

necessity, remain largely unknown. Two of the most impressive of 

those successful defenses of our homeland occurring in 2009 with 

regard to Najibullah Zazi and David Headley. One of the most impressive cases to me was the Zazi case, he was arrested last September with the plans and materials needed for devastating bombing attacks on New York City. This was the most dangerous terrorist plot on our soil since September 11, 2001, dangerous in the 

sense of the consequences it would have had, and it was only 

stopped by brilliant, courageous, and cooperative work by our intelligence, law enforcement, and homeland security agencies. 

Senator Collins and I, and other Members of this Committee and 

other committees, have been briefed on the details, but everything 

worked just as we hoped it would when we adopted the post-September 11, 2001, legislation. There was remarkable agility, brilliant judgment, and total cooperation between intelligence, homeland security, and law enforcement communities both here within 

the United States and throughout the world. 

Notwithstanding these remarkable achievements over the 7 

years after the enactment of the Department of Homeland Security 

and some of the extraordinary defenses in the Headley and Zazi 

cases, which occurred in 2009, the record also shows that in 2009 

three Islamist terrorists broke through our defenses: Carlos 

Bledsoe, who murdered a U.S. Army recruiter in Little Rock, Arkansas, in June, simply because he was wearing the uniform of the 

U.S. Army; Nidal Hasan, who murdered 13 Americans at Fort 

Hood in November; and Umar Farouk Abdulmutallab, who would 

have killed hundreds more if the explosive he had hidden in his 

clothing on Christmas Day had worked. So, clearly, there are some 

things about our homeland defenses that are not working as we 

need them to, and we have to find out together what is going 

wrong and why and then fix it. 

I know it is probably not realistic to promise the American people 

that we will stop every attempted terrorist attack on our homeland, 

but I feel very strongly that must be our goal. It certainly is the 

standard that will guide our Committee in this inquiry and the 

other we are conducting on the terrorist attack at Fort Hood and 

any recommendations for Executive or Legislative action that we 

make as a result of our inquiry. 

3 

Our purpose is to review the current state of our homeland security through these cases and to make recommendations for reform 

that will get our homeland—America—as close as possible to 100- 

percent security from terrorist attacks. 

In the Christmas Day bombing case, there was so much intelligence and information available to our government that pointed 

to Abdulmutallab’s violent intentions that it is beyond frustrating—it is infuriating—that this terrorist was able to get on that 

plane to Detroit with explosives on his body. He was able to do so, 

in sum, as President Obama has correctly said, because of systemic 

failures and human errors. 

Our responsibility is clear: We have to find what the systemic 

failures were and fix them, and if the Administration or we, in our 

deliberations, find that there were personnel of the Federal Government who did not perform up to the requirement of their jobs 

in these cases, they should be disciplined or removed. 

As is clear from the Christmas Day attack which almost killed 

hundreds, the Fort Hood attack which did kill 13, and the thwarting of the Zazi plot that saved countless American lives, the decisions of the public servants who work to protect us from terrorists 

every day have life-and-death consequences. If we do not hold accountable those who made these human errors, the probability is 

greater that they will be made again. 

I have not called this hearing along with Senator Collins to 

knock down the new walls of homeland security that we built after 

September 11, 2001. We have called it to repair and reinforce them 

so that they better protect the American people from terrorist attack. It is in that spirit that I thank our witnesses, the Director 

of the National Counterterrorism Center, Michael Leiter; the Director of National Intelligence, Admiral Dennis Blair; and the Secretary of Homeland Security, Janet Napolitano, for being with us 

today. I look forward to your testimony and the questions and answers that will follow. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. 

Every day the men and women of our military, homeland security, law enforcement, and intelligence community work hard to 

keep our Nation safe. They serve on the front lines of the war 

against terrorism, and over the last year alone, their efforts have 

helped thwart numerous terrorist attacks. 

But as the attempted Christmas Day attack demonstrates, our 

government’s efforts to detect and disrupt terrorist plots must be 

strengthened. 

We dodged a bullet in the skies above Detroit on Christmas Day. 

A mere fluke—a mistake by the terrorist on that plane or a failed 

detonator—prevented that attack from succeeding. The quick action of courageous passengers and crew helped spare the lives of 

nearly 300 passengers on Flight 253. 

We cannot escape the cold, hard facts. Terrorists have not relented in their fanatical quest to frighten our Nation’s citizens and 

to slaughter as many Americans as possible. Their tactics continue 

to evolve. Attacks inspired by al-Qaeda’s violent ideology, including 

4 

those by lone wolves or those perpetrated by smaller uncoordinated 

cells, are incredibly difficult to detect. The threat posed by America’s enemies continues to grow, and our Nation’s efforts to defeat 

them must be nimble, determined, and resilient. 

In response to the terrorist attacks of September 11, 2001, this 

Committee offered the most sweeping reform for the intelligence 

community since the Second World War. The Intelligence Reform 

and Terrorist Prevention Act of 2004 did much to improve the management and performance of our intelligence, homeland security, 

and law enforcement agencies. The increased collaboration and information sharing have helped our Nation prevent numerous attacks, at least nine in the last year alone. 

But reform is not a destination. It is a work in progress. Reform 

requires constant focus and attention to stay a step ahead of the 

threats we face. 

For example, despite the considerable improvements in information sharing, our intelligence community continues to rely on internal systems and processes that are relics from the days before 

reform. These systems did not effectively surface intelligence information so that analysts and security officials can effectively identify threats in real time. 

The President has asserted—and I agree—that there was ample 

credible intelligence on Abdulmutallab to warrant his inclusion on 

the No Fly List, yet that did not occur even though his own father 

warned U.S. officials about his ties to Islamist extremists. Whether 

this failure was caused by human error, poor judgment, outmoded 

systems, or the sheer volume of data that must be analyzed, we 

simply must develop systems and protocols to prevent these failures. 

Consider what I believe to be the most obvious error in handling 

Abdulmutallab’s case. After his Islamist extremist connections in 

Yemen were reported by his father, the State Department should 

have revoked his visa. At the very least, he should have been required to report to our embassy and explain his activities and answer questions before he was allowed to retain his visa. 

The State Department has this authority. In fact, our law, the 

Intelligence Reform Act, protects the State Department from lawsuits when its officials revoke a visa overseas. But the State Department failed to act. Most disturbing, the State Department is 

also pointing fingers at other agencies to explain this failure. 

The President has now directed the intelligence community to determine which of the 400,000 suspected terrorists in the Terrorist 

Screening Center’s watchlist have valid U.S. visas. But that response is not sufficient. 

The government should immediately identify and suspend the 

visas of all persons listed in the broadest terrorist database operated by the NCTC, known as the Terrorist Identities Datamart Environment (TIDE) list, until a further investigation is undertaken 

in each case. These visa holders with suspected connections to terrorism should shoulder the burden of proving that they do not intend to harm this Nation or its citizens, and if they cannot meet 

this burden, then we cannot take the risk of permitting them the 

privilege of traveling to our country. 

5 

1The joint prepared statement of Mr. Leiter and Mr. Blair appears in the Appendix on page 

191. 

But immediately revoking the visas of suspected terrorists is only 

the first step. The Department of Homeland Security has an obligation to confirm the validity of visas held by every foreign passenger. This is done only in some airports now. Instead, what happens now is that confirmation of valid visas only occurs once the 

passengers have arrived on our land. There is no technological reason why this cannot occur. 

We did not choose this war. It was thrust upon us by terrorists 

who are determined to destroy our way of life. Our counterterrorism efforts must be tireless and steadfast. We must continue to 

build on the intelligence reforms already in place to make America 

more secure. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

Let us begin the testimony with Michael Leiter, who is the Director 

of the National Counterterrorism Center. Thanks for being here. 

TESTIMONY OF HON. MICHAEL E. LEITER,1 DIRECTOR, 

NATIONAL COUNTERTERRORISM CENTER, OFFICE OF THE 

DIRECTOR OF NATIONAL INTELLIGENCE 

Mr. LEITER. It is my pleasure, Chairman Lieberman, Ranking 

Member Collins, and Members of the Committee. It is a privilege 

to appear before this Committee—again, the Committee that was 

most instrumental in reforming the intelligence community and 

creating the NCTC. 

To open, I want to offer what I hope is an absolutely crystal-clear 

assertion: Umar Farouk Abdulmutallab should not have stepped 

onto a plane on Christmas Day. The counterterrorism system collectively failed, and I, along with Director Blair and Secretary 

Napolitano and others, want to tell you and the American people 

the same thing we told the President: That we have to do better. 

As one of several attacks, several of which you cited, we have 

been reminded again how unceasing our enemy is and how committed they are to attacking the United States and how committed 

we have to be in protecting Americans. 

To begin, I would like to give a short rundown of the bombing 

attempt and try to tell you from our perspective what we did miss. 

And I want to start by debunking what has become conventional 

wisdom to some, which is that this failure was just like September 

11, 2001. And, in fact, it was not. Now, that does not make the failure any less significant, but it does mean that the solutions might 

be very different from what we approach in our reforms post-September 11, 2001. 

It was not a failure to share intelligence. Instead, it was a failure 

to connect, integrate, and fully understand the intelligence that we 

had collected. Although NCTC and the intelligence community 

have long warned about the threat posed by al-Qaeda in the Arabian Peninsula, as I did in the fall before this Committee, we did 

not correlate the specific information that would have identified 

Abdulmutallab and kept him off that flight on Christmas Day. 

More specifically, the intelligence community, as I said, had 

highlighted the growing character of al-Qaeda in Yemen and the 

6 

potential for it to strike targets not just in Yemen, but the possibility of reaching beyond Yemen to the homeland. And we also analyzed information that al-Qaeda in the Arabian Peninsula (AQAP), 

was working with an individual who only after the fact did we realize was, in fact, Abdulmutallab. And I would also note that the intelligence community repeatedly warned of the type of explosive device throughout the fall that was used by Abdulmutallab in this attack, and the ways in which it might prove challenging to screening in, of course, the way it did in Amsterdam. 

But despite all of that and the overall themes that we identified, 

again, we failed to make the final connections—the last tactical 

mile that linked Abdulmutallab’s identity to this plot. We had the 

information that came from his father saying that he was concerned that his son had, in fact, gone to Yemen, that he was coming under the influence of unknown religious extremists, and that 

he was planning not to return home. And we also had other 

streams of information coming from other intelligence channels 

that provided different pieces of the story. We had a partial 

name—Umar Farouk; we had the indication of a Nigerian; but 

there was no single piece of intelligence that brought that all together, nor did our analysts at NCTC or elsewhere bring that information together. 

As a result, as you have both noted, although Abdulmutallab was 

identified as a known or suspected terrorist and his name was entered into our database, the Terrorist Identities Datamart Environment, the derogatory information that we associated with him at 

the time did not meet existing policy standards—those that were 

adopted in 2008 and promulgated in 2009—for him to be 

watchlisted, let alone placed on the No Fly List or Selectee Lists. 

But let me be clear again. Had all of the information the United 

States had available been linked together, his name undoubtedly 

would have been watchlisted, and, thus, he would have been on the 

visa screening list and the border inspection list. And whether he 

would have been placed on the No Fly or Selectee List then, would 

have been based on the existing strength of the analytic judgments 

at the time. And as I have already noted, one of the clear lessons 

that I think we have learned is the need, as the President has directed us to do, to re-examine those standards for inclusion in 

those critical lists before people reach our borders. 

Finally, Mr. Chairman, Senator Collins, and Members, without 

trying to make any excuses for what we did not do—because as I 

think I have already stated, as I hope I have made clear, we did 

not do things well and we did not do things right—I do think it 

is critical that we note some context in which this failure occurred. 

And I thank you for your kind words for the intelligence community, NCTC, law enforcement, and homeland security in noting 

some of the successes. But we have to have more successes. 

Each day NCTC receives literally thousands of pieces of intelligence related to terrorism. I will tell you it is more than 5,000 

pieces a day that flow into our center, and we review literally thousands of names each day—again, more than 5,000 names a day 

that we review. And every day we place more than 350 people on 

the watchlist. So although in hindsight we can assess with a very 

high degree of confidence that Abdulmutallab was, in fact, bonding 

7 

1The joint prepared statement of Mr. Blair and Mr. Leiter appears in the Appendix on page 

191. 

with AQAP, we did not do it at the time. Although we must and 

will do better—because I believe we have the people who will make 

sure we do better—we must recognize, as the Chairman did, that 

there is no silver bullet. And, in fact, as the terrorist threat becomes more nimble and more multi-dimensional, as illustrated by 

the threats we have seen over the past year, we as well have to 

have a multi-dimensional, multi-layered set of defenses—intelligence, technology, international cooperation, law enforcement, 

and military—to keep our Nation as safe as possible. 

With that, I will turn the microphone over to Director Blair, but 

I do look forward to answering the Committee’s questions and, 

most importantly, I look forward to getting the Committee’s guidance on how you believe we can improve the system that we have. 

Thank you. 

Chairman LIEBERMAN. Thanks, Director Leiter. 

Admiral Blair, it is encouraging that your cooperation has even 

gone to your testimony before this Committee. Thank you. 

TESTIMONY OF HON. DENNIS C. BLAIR,1 DIRECTOR OF 

NATIONAL INTELLIGENCE, OFFICE OF THE DIRECTOR OF 

NATIONAL INTELLIGENCE 

Mr. BLAIR. Sir, I am glad to be here to talk about this because 

you need to know and the American people need to know what we 

are doing and what we need to do, and so thank you for inviting 

me to talk with you this morning. 

Let me echo Director Leiter’s words that Umar Farouk Abdulmutallab should not have stepped on Northwest Flight 253 for Detroit. The overall counterterrorism system did not do its job. It is 

in large part my responsibility. I told the President that I and the 

other leaders of the intelligence community are determined to do 

better in the future. 

And you have heard from Director Leiter the sequence of events, 

and you would be correct to conclude that the system that existed 

to protect the country was capable of stopping this attack, but it 

did not do so in this case for a set of reasons that I think we understand and that we are working right now to fix. 

And I should make it clear to this Committee that a lot of the 

responsibility for pushing us forward in this area, that the system 

we now have, was due in great measure to the Intelligence Reform 

and Terrorism Prevention Act of 2004, which created my position, 

the National Counterterrorism Center, and other key parts of the 

system, such as the Terrorist Identities Datamart Environment; 

the watchlists, including the No Fly List; aggressive collection and 

analysis against terrorist threats; and a great improvement in 

sharing intelligence information across both the intelligence community and the entire government. So we should not underrate the 

progress of the past as we move forward. But the threat is also 

evolving, and I would say we have a good capability to detect and 

disrupt these sort of multi-purpose teams that take months to plan, 

rehearse, fund, provide the logistics support for, and attack. 

8 

But we are not as capable as we should be of carrying out the 

much more difficult task of detecting these self-radicalized citizens 

of the United States, Europe, and other countries like Nigeria, who 

are given a very simple mission and an advanced bomb to carry it 

out, or who plan their own attacks inspired by al-Qaeda’s message 

but not directed by al-Qaeda. 

Last year, as you mentioned, Mr. Chairman, we stopped Zazi. We 

also stopped Michael Finton and Hosam Smadi. But Hasan and 

Bledsoe we did not stop, and as you said, we were lucky with 

Abdulmutallab. So we have to improve our intelligence system further so that we can identify and stop these lone contacts with a 

minimum of communication and, frankly, with a lot more knowledge of how our system works due to the public discussion of it 

that is taking place. 

And as Secretary Napolitano will tell you, we have to improve 

not just the intelligence component of this but the active defenses 

which we have, some of which depend on intelligence, but some of 

which cannot depend on intelligence. 

So what are the improvements that we are making based on this 

incident and the other things that we have learned over the course 

of recent years? They really fall into four categories. They are currently underway, but we will continue to refine them and work on 

them both in the short term and certainly over the long term. 

First, changing the way we apply these no-fly criteria so that 

they are less restrictive, more flexible, while at the same time they 

continue to protect the civil liberties of U.S. persons. The no-fly criteria that we were working under on December 24 of last year had 

been arrived at by a bureaucratic process that stretched across two 

Administrations. It started in the summer of 2008. They were implemented just before this Administration came in and were reaffirmed by this Administration, and they were, frankly, a too legalistic and rote process rather than having the flexibility to react 

to the situation, which they really needed. And we have fixed that, 

and that is very important. 

Second, I need to assign more clearly defined responsibilities for 

analysis and follow-up of the information we now have. Frankly, 

we had a situation in which everybody was responsible for working, 

everybody had the dots to connect, but I had not made it clear exactly who had primary responsibility, who had secondary responsibility, so when the time crunch comes the people know who cannot 

go home at night until they carry that out while other people are 

working on other things. 

Third, we have to have an ability—and we are doing so—to adjust the resources as the threat shifts. As Director Leiter said, we 

had strategic warning of al-Qaeda in the Arabian Peninsula’s intent to send operatives outside of Yemen, and yet I allowed the analytical resources focusing on Yemen to focus more on the internal 

Yemen problem, where we also had active threats to Americans 

and to American interests. We did not add more resources, shift 

the emphasis, ensure that both priorities were covered, and we 

need to do so. We are doing so. We are adding resources immediately, and we are setting up a system so that we can adjust more 

to threats. 

9 

1The prepared statement of Secretary Napolitano appears in the Appendix on page 200. 

And, fourth—you have alluded to this, Mr. Chairman and Senator Collins—we have to improve both the technical and the 

human ability to deal with this massive information that our terrorist analysts must distill to enable them to provide tactical level 

warning on individuals, which is a very tough task. And although 

we have used a lot of technical tools in recent years, we have put 

them in. Some were outdated, as you said, Senator Collins. We 

have a priority effort to re-examine those, make sure that we are 

going with the best that is available. We are using both outside experts as well as those that we have inside. 

These improvements that we are making are not years in the 

making. We are working on them now. We have already made improvements in the 3 weeks since that attack. We have a press on 

them for getting short-term ones done immediately, and, more importantly, we will continue to work them dynamically over time 

rather than waiting for artificial deadlines to take place. And I 

have also convened a panel of outside experts that will both review 

exactly what happened in the December case. We have done preliminary inquiries, but we need to take a more careful look, and 

also it will review the changes we are making to see if we are getting it right, to tell us what we are not doing that we should do. 

It is important—and I share your goal, Mr. Chairman, about the 

100-percent goal that we shoot for, but we have to make it clear 

that we cannot give an absolute guarantee of identifying every single one of these terrorists. We need a system of offense and defense, go after them where they are, push our intelligence on all 

points, and then have defenses that are strengthened by intelligence but do not completely depend on it in order to defend our 

citizens. And we are dedicated to pushing toward that 100-percent 

goal as quickly and with as much determination as we can. 

Thank you, Mr. Chairman. I turn it over to Secretary Napolitano. 

Chairman LIEBERMAN. Thanks, Director Blair. Secretary Napolitano, good morning. 

TESTIMONY OF HON. JANET A. NAPOLITANO,1 SECRETARY, 

U.S. DEPARTMENT OF HOMELAND SECURITY 

Secretary NAPOLITANO. Good morning, Chairman Lieberman, 

Senator Collins, and Members of the Committee. Thank you for 

this opportunity to testify on the terrorist attack aboard Northwest 

Flight 253 on Christmas Day. I am pleased to be here today with 

my colleagues Admiral Blair and Director Leiter. 

As President Obama has made clear, this Administration is determined to find and to fix the vulnerabilities in our systems that 

allowed this attack to occur. Our country’s efforts against terrorism 

include the actions of DHS and of many other agencies, as well as 

those of our international allies. 

I would like to take a moment to explain and describe the DHS 

role in securing air travel. 

First, DHS is and can be characterized as a consumer of the U.S. 

Government’s consolidated terrorist watchlists which we use to 

help keep potential terrorists from boarding flights and to identify 

travelers who should undergo additional screening. Within the 

10 

United States, DHS performs the actual physical screening at airport checkpoints and provides further in-flight security measures. 

Outside the United States, DHS works with foreign governments 

and airlines to advise them on which passengers may prove a 

threat and required security measures for flights inbound to the 

United States. Transportation Security Administration (TSA), of 

course, does not screen people or baggage at international airports. 

Regarding the Christmas Day attack, Umar Abdulmutallab 

should never have been allowed to board this U.S.-bound plane 

with explosives. The interagency process to fix these vulnerabilities 

is well underway, and we are all working on it jointly. 

We welcome, at the Department, the opportunity offered by the 

process described by Admiral Blair and Director Leiter to contribute to improving the Federal Government’s ability to connect 

and assimilate intelligence, and we appreciate the work that they 

have done and the ongoing relationship that we have. 

We are also focused on improving aviation screening and expanding international partnerships to guard against a similar type of 

attack. I have submitted a longer written statement describing the 

various DHS programs that are at work to keep terrorists from 

boarding airplanes. But in terms of the DHS role in this case, the 

bottom line is this: He was not on the No Fly List, which would 

have flagged him to be prevented from boarding; nor was he on the 

Selectee List, which would have flagged him for secondary screening. Furthermore, the physical screening performed by foreign authorities at airports in Nigeria and the Netherlands did not detect 

the explosives on his body. 

Now, immediately after the attack, DHS responded. We directed 

the Federal Aviation Authority (FAA) to alert all 128 flights from 

Europe bound for the United States of the situation. We increased 

security measures at domestic airports. We implemented enhanced 

screening for all international flights coming to the United States. 

We reached out to State and local law enforcement, air carriers, 

international partners, and other relevant agencies to provide them 

the information they needed on the ground. 

In our reports to the President, on fixing what went wrong on 

Christmas Day, we have also outlined five other areas of action. 

First, as this incident underscores, aviation security is increasingly an international responsibility. That is why I dispatched Deputy Secretary Jane H. Lute and other top DHS officials on a multicontinent tour to meet with our international counterparts about 

airline and airport security. This evening, I will travel to Spain to 

meet with my European Union (EU) colleagues to strengthen international security measures and standards, and we will include in 

that information-sharing technology and other related issues. 

Second, DHS has created a partnership with the Department of 

Energy and the National Labs to use their scientific expertise to 

improve screening technology at domestic airports. 

Third, DHS will move forward in deploying enhanced screening 

technologies like advanced imaging technology and explosive trace 

detection machines to improve our ability to detect the kind of explosives used in the Christmas Day attack. TSA currently has 40 

of the Advanced Imaging Technology (AIT) machines deployed now. 

We will deploy at least 450 more this year. 

11 

Fourth, we will and have strengthened the capacity of aviation 

law enforcement, including the Federal Air Marshal Service. 

And, finally, DHS will work with our interagency partners to reevaluate and modify the way the terrorist watchlist is created, including, as mentioned, how names are added to the No Fly and Selectee Lists. 

I am glad to be working with leaders like Admiral Blair and Director Leiter in addition to this Committee, who have done so much 

to improve our homeland security apparatus, and I am also grateful to the men and women of the Department of Homeland Security 

who do so much every day to guard our country against attack. 

Last, I wish I could tell you, with all of this ongoing work and 

all of these upcoming actions, that there will never again be another Umar Farouk Abdulmutallab. I cannot do so. What I can tell 

you is that this Administration and the men and women of the 

DHS are working 110 percent every day to minimize the likelihood 

of a successful terrorist attack against the homeland, and I am 

proud to be with the Department in that work. 

Thank you for the opportunity to testify, and I look forward to 

your questions. 

Chairman LIEBERMAN. I thank the three of you for the substance 

and spirit of your opening statements. 

I do want to indicate to my colleagues on the Committee that the 

three witnesses have made themselves available for a closed session with the Committee immediately following the public session 

if there are questions that are asked here that cannot be discussed 

in public session. We are going to have 7-minute rounds of questions. 

Let me just go back to the post-September 11, 2001, period and 

to say what I think is common belief now, which is that our response at that point was to the fact that there was not information 

sharing going on among—there was enough information in the Federal system that we should have found and been able to stop the 

attacks of September 11, 2001. That is a personal conclusion. But 

it was not, as we used the metaphor at that time, together on the 

same board, so the connections could not be seen. 

One of the great goals of the 9/11 Commission legislation was to 

make sure that, metaphorically speaking, all the information came 

together on the same board so it could be seen. I think what we 

have learned painfully now is that there is so much information 

that is being collected by the intelligence and other agencies of our 

government, it is not enough to put it on the same board. We have 

to create systems to find out how to connect the information that 

we have, either technological or human. 

As you mentioned, part of what emerges from the Christmas Day 

bombing case is there was intelligence information about al-Qaeda 

in the Arabian Peninsula being involved with somebody names 

Umar Farouk—not the full name but the beginning of the name. 

His father came into the embassy in Nigeria, and said he was worried about his son, Umar Farouk Abdulmutallab. There are references from conversations picked up by the National Security 

Agency (NSA) from al-Qaeda in the Arabian Peninsula of a Nigerian that they were going to use for an attack. Obviously, the faVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
12 

ther indicates a Nigerian. And somehow that did not all come together. 

Now, here is what troubles me. We live in an age when any one 

of us and our young children, our grandchildren now in my case, 

can go on the computers, go to Google, and search an enormous 

array of databases immediately. My impression—and, Director 

Blair, Mr. Leiter, you respond to this—is that at NCTC we do not 

have that ability now. You have a series of separate databases from 

different parts of the intelligence community and the government, 

and you have access to all of them, plenty of sharing. But there is 

not a program, a search engine right now by which you, by act or 

by some automatic software programming, can have expected in 

this case, for instance, that there would have been a hit and an 

alarm on Umar Farouk Abdulmutallab, a Nigerian, December 25, 

2009. Am I right? Do we not have that capacity within the NCTC? 

Mr. LEITER. Senator, we do not have that exact capacity, but I 

would note that over the past several years we have worked with 

folks from across government and some of the private sector companies that you would expect have that technology. 

Chairman LIEBERMAN. Right. 

Mr. LEITER. And the answer uniformly has been that it is not as 

easy a problem as people would expect. I think we have some potential technological solutions on the very near-term horizon that 

we are attempting to implement within weeks. And, frankly, we 

were surprised, I was surprised, at the extent to which other agencies’ searches were not hitting against very critical data sets that 

might have uncovered this, and then highlighted them for NCTC 

and others. 

Chairman LIEBERMAN. Director Blair, do you want to add anything to that? 

Mr. BLAIR. I would only amplify on what Director Leiter said, 

Mr. Chairman. The search tools that we now have depend on certain characteristics, and I do not want to describe them here, but 

they also have blind spots that do not allow the sort of Google-like 

idea that we have from our personal computers. 

Chairman LIEBERMAN. Right. 

Mr. BLAIR. Several of those shortcomings came up in this case, 

which we can fix. I think that the other thing that I have learned 

from this is that almost all of our energy was focused on building 

these systems, hooking together, and getting the search engines. 

We do not have enough of a testing regime so that we do the ‘‘what 

if’s’’ before we have one of these incidents, put partial information 

in and see where it goes, fix those and find those for ourselves. And 

that sort of continued self-testing is going to be a greater part 

going forward so that we can make some of these mistakes for 

practice before we make them for real. 

Chairman LIEBERMAN. So you are, with a sense of real urgency, 

going now after improving what I would call the search capacity 

across the databases you have automatically to come up with linkages. Correct? 

Mr. LEITER. Correct. And I would just stress that this is not actually a new problem from our perspective. 

Chairman LIEBERMAN. Right. You have been working at this. 

13 

Mr. LEITER. This is something we have been working with vehemence on. We have obviously not gotten to the point we need to 

get, and we are trying to accelerate that now. 

Chairman LIEBERMAN. Now, the other way to deal with this, 

which I believe the President mentioned—or perhaps one of the reports to him did—is to assign cases, suspected cases, to people to 

follow. Now, that is a tough thing to do, so I would like to ask you 

to talk about it a little bit. In other words, presumably at some 

point somebody has to be concerned enough about picking a particular matter out of the thousands of cases that you add every day 

to your watchlist concerns. Let us take this case, that somebody 

would have had to say, based on the father coming into the embassy, ‘‘We have to follow this,’’ or based on the intelligence stream 

that said al-Qaeda in the Arabian Peninsula was working with 

somebody named Umar Farouk, a Nigerian, and something was 

going to happen on December 25, 2009, somebody had to make that 

baseline decision. 

But what then? Do you have the human capacity to assign people 

to chase these down and have a responsibility, almost as if this was 

a police department and you were assigning a detective to pursue 

a case—except, of course, here it is not to try to find the murderer, 

it is to try to prevent a murder from happening. So what is our capacity to deal with this with better use of personnel? 

Mr. LEITER. Mr. Chairman, I think your question is exactly right. 

We do a very good job at hunting down the threats when we know 

it is a threat. 

Chairman LIEBERMAN. Right. 

Mr. LEITER. The more difficult thing is deciding what is a threat 

in the first instance and hunting it down. 

There are two things that we are doing to try to improve this. 

Right now, I have not had the capacity to do this in the way it 

needs to be done because we are going to expand the scale of it, 

the breadth of the things that we chase down. We have been very 

good at chasing down those threats that come out of Afghanistan 

and Pakistan. We are going to be better now at chasing down those 

small bits of data that come out of Yemen, North Africa, or East 

Africa. 

Two, with new resources, the plan is to establish teams that 

have no responsibilities other than to do that. We are calling them 

pursuit teams for the very reasons you identified, to find those 

small bits and hunt them down until we either figure out what is 

going on or there simply is nowhere else to go and there is no other 

data out there to be applied to the problem. 

Chairman LIEBERMAN. Director Blair. 

Mr. BLAIR. Just for context, Mr. Chairman, I would cite two 

things, not by way of excuses but just by way of understanding. 

The only conversation on resources that I had with Director Leiter 

in the weeks leading up to Christmas was a conversation a week 

before on how we were going to allocate a $30 million cut in the 

Office of the DNI, part of which funds the NCTC. So the general 

fiscal climate we are dealing with was one which was reducing resources to this. 

The second thing is the pressure on No Fly Lists, as you all 

know, for several years before 2008 had been to make them smallVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
14 

er. My cousin has a name on it and gets hassled every time. And 

you can tell as you read through the guidance given to analysts 

that they were expected to cast a very fishy eye on the inclusion 

of lots more names, and the pressure was in the other direction. 

Shame on us for giving in to that pressure. We have now greatly 

expanded the No Fly List from what it was on December 24, and 

have done a lot more of what is prudent; to put names on it just 

in case, and then take them off as we need to. But the pressure 

was quite the other direction, and as I say, I should not have given 

in to that pressure, but it was a factor, and we have certainly 

changed that attitude, and we have to maintain that over a course 

not just of 6 years but of 12 years and until this campaign finally 

ends. 

Chairman LIEBERMAN. Director Blair, I cannot thank you enough 

for what you have just said because it seems to me that in the 

process for deciding what watchlists people were being put on, we 

were using a standard that was, as you said, legalistic. It was a 

legal standard. In fact, the very words, the terms being used, ‘‘reasonable suspicion,’’ come from Supreme Court cases that govern 

warrantless searches by police in the United States. But we are at 

war with these people, and it just seems to me that if somebody 

brings some information to the U.S. Government that suggests in 

any way that a person is involved in terrorism, it at least is justification for putting them on a list that will subject them to secondary screening before they board a plane to come to the United 

States. It is not being used as a basis for arrest, certainly not for 

conviction, but this is a classic example of the ongoing tension between security and liberty. And I appreciate your admission here 

and your commitment to change this, that I think we were erring 

too much on the side of a legalistic vision of privacy or even convenience that ultimately jeopardized the security of the majority. 

So that is very good news, and I thank you for it. 

Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Good intelligence is clearly critical to our ability to stop terrorist 

plots, and that is why I am very concerned about the decision to 

quickly charge Abdulmutallab in civilian court because I believe 

that we, by doing so, have lost an opportunity to secure additional 

intelligence from him, not only about his own training, but intelligence that possibly would allow us to uncover other plots that are 

emanating from Yemen. 

We know that those interrogations can provide critical intelligence, but the protections afforded by our civil justice system as 

opposed to the military tribunal system can encourage terrorists to 

lawyer up and to stop answering questions. And, indeed, I am told 

that with Abdulmutallab, once he was Mirandized and received civilian lawyers, that is exactly what he did. 

Mr. Leiter, were you consulted regarding the decision to file 

criminal charges against Abdulmutallab in civilian court? 

Mr. LEITER. I was not. 

Senator COLLINS. Mr. Blair, were you consulted? 

Mr. BLAIR. Senator Collins, I have been a part of the deliberations which have established this high-value interrogation unit 

which we started as part of the Executive Order and as part of the 

15 

1 A statement for the Record provided by Mr. Blair appears in the Appendix on page 214. 

decision to close Guantanamo. That unit was created exactly for 

this purpose, to make a decision on whether a certain person who 

is detained should be treated as a case for Federal prosecution or 

for some other means. We did not invoke the High-Value Interrogation Group (HIG) in this case. We should have. Frankly, we were 

thinking more of overseas people, and, we did not put it in. That 

is what we will do now, and so we need to make those decisions 

more carefully. I was not consulted. The decision was made on the 

scene. It seemed logical to the people there. But it should have 

been taken using this HIG format at a higher level.1

INFORMATION PROVIDED BY MR. BLAIR FOR THE RECORD 

My remarks today before the Senate Committee on Homeland Security and Governmental Affairs have been misconstrued. The FBI interrogated Umar Farouk 

Abdulmutallab when they took him into custody. They received important intelligence at that time, drawing on the FBI’s expertise in interrogation that will be 

available in the HIG once it is fully operational. 

Senator COLLINS. Madam Secretary, were you consulted? 

Secretary NAPOLITANO. I was not. 

Senator COLLINS. Mr. Chairman, I think that is very troubling. 

It appears to me that we lost an opportunity to secure some valuable intelligence information and that the process that Director 

Blair described should have been implemented in this case. And I 

think it is very troubling that it was not and that three key intelligence officials were not asked their opinion. 

I would like to move to another issue that I raised in my opening 

statement. The facts surrounding the failure to revoke Abdulmutallab’s visa really trouble me because it appears that ultimately no 

agency considered itself responsible for this decision. The State Department spokesman said, when asked why the State Department 

did not revoke the visa, ‘‘Because it is not our responsibility. It 

would be up to the National Counterterrorism Center to make the 

determination on whether to revoke a person’s visa.’’ That is not 

how I read the law. 

Secretary Napolitano, part of the Homeland Security Act of 2002 

gives DHS broad authority to set visa policy, and, in fact, it vests 

in the Secretary the exclusive authority to issue regulations with 

respect to administer, and enforce the provisions of the law relating 

to consular officers in connection with granting or refusal of visas, 

and it says the Secretary shall have the authority to review and 

refuse visas in accordance with the law. 

So I want to get at the issue of why Abdulmutallab was allowed 

to keep his visa and who has the authority to look at those individuals listed on the broadest terrorist watchlist, the TIDE list, identify those who have visas, and take action to suspend those visas 

pending further investigation. Whose job is it? Mr. Leiter. 

Mr. LEITER. Senator Collins, I will admit that when I was told 

of that authority that I do not have, I was surprised to learn from 

the State Department that they thought I did have that. And I 

have since spoken with Secretary Clinton, and it is quite clear that 

the legal authority for revoking resides within the State Department, and NCTC does not have any authority to do so. 

16 

To your question about have we reviewed visas against the entire 

Terrorist Identities Datamart Environment, we have, although the 

initial look was at the Terrorist Screening Center, and that number 

we have already reviewed, anyone who has a visa who has any information on them in TIDE and re-reviewed whether or not we 

should recommend to the State Department that visa be revoked. 

We have also been quite aggressive in applying the no-fly criteria 

to individuals who have a visa, using, I would say, a less legalistic 

standard in applying those standards. 

Finally, I do want to note that beginning in the late summer— 

July 2008, we began fully, in conjunction with the State Department, reviewing these applications in a way that I believe is far 

more advanced than that which was previously used by the State 

Department, and in conjunction with the State Department, NCTC 

now provides the State Department, Department of Homeland Security, the Federal Bureau of Investigation (FBI), and the CIA 

some more advanced Google-like technology to screen these visas 

more effectively. And I am happy to speak about that more in 

closed session. 

Senator COLLINS. Thank you. Director Blair, whose job is it? 

Mr. BLAIR. I think you are putting your finger, Senator Collins, 

on a characteristic of this combating terrorism effort that we need 

to tighten down with the strong enthusiasm for counterterrorism, 

the sense that we all ought to be working on it. I think we did not 

drive some of these responsibilities as far as we should have in 

terms of everybody is helping, but who is it at the end, and I think 

you have identified one more which we need to and are going to 

tighten right down so that primary, support, and ultimate responsibilities are made clearer, because there is a tendency to say, I 

have this new capability, let me help you, and we ought to do that. 

But we should not allow that to interfere with a clear understanding of who has the ultimate call. 

Senator COLLINS. Thank you. Secretary Napolitano, you do have 

some broad authority in this area. Whose job is it from your perspective? 

Secretary NAPOLITANO. Well, under Section 428, the Department 

has the legal authority to refuse the issuance of a visa. The State 

Department has retained the ultimate authority to revoke a visa 

once issued. But I think all of us have a role, along with the State 

Department, in measuring pre-existing visas against information or 

subsequently acquired information that comes into the system. I 

think that is part of the tightening that Admiral Blair just talked 

about. 

Senator COLLINS. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Collins. Those are excellent questions. I want to make two brief points with regard to 

the questions you asked. 

The first is to say I share Senator Collins’ concern both about the 

decision to try Abdulmutallab in a regular Federal court as opposed 

to a military commission because, in my opinion, he is a prisoner 

of war, an enemy combatant. I am also troubled that the three of 

you were not asked to be involved in that decision before it occurred, and I want to say particularly as the Chairman of the 

Homeland Security and Governmental Affairs Committee, that I 

17 

am troubled that Secretary Napolitano was not asked to comment 

on that because there are obvious homeland security implications 

of a decision to try an accused terrorist in New York, Detroit, or 

Washington, DC, as we can see most practically and obviously in 

the recent request by Mayor Bloomberg for a first payment of $200 

million for additional security required in New York around the 

trial of Khalid Sheikh Mohammed and the other September 11, 

2001, suspects. 

In fact, the Committee, Senator Collins and I are going to convene a hearing on this subject in February, the homeland security 

implications of the decision to try terrorist suspects in Federal 

courts. 

The other point I want to mention very briefly—I apologize to my 

colleagues—is that in focusing on the visa question, I think Senator 

Collins has really put her finger on an important point, and we 

want to come back and raise a fresh question here, which is whether the visa processing responsibility really ought to be with the 

State Department—in other words, whether it should be with the 

Department of Homeland Security, and this is not really a matter 

of foreign policy. In some sense it may be a waste of the time of 

Foreign Service officers to have them interviewing people to decide 

whether they are eligible for a visa or not. It really is much more 

a question of the law and homeland security, whether it is in terms 

of the legitimacy of immigration or the threat of terrorism. So we 

are going to come back and do a separate hearing on that as part 

of this oversight. I am not inviting a response unless you wish one. 

As a matter of fact, I am going to ask you to hold it until my time 

because I do not want to intrude on my colleagues’ time. 

I will call Senators in order of arrival, as is our custom. That 

would be Senators Tester, McCain, Burris, Ensign, Bennett, and 

Pryor. Senator Tester. 

OPENING STATEMENT OF SENATOR TESTER 

Senator TESTER. Thank you, Mr. Chairman. I want to thank Director Leiter, Admiral Blair, and Secretary Napolitano for being 

here today. 

There have been some reports coming out of Canada that suggest 

an increasing concern about radicalization of some Canadians with 

ties to the Middle East and the possibility of Canada becoming a 

stopover point for terrorists who try to enter the United States. 

What do you think about these assessments? How seriously 

should we take these reports? Canadian Television (CTV) reported 

regarding the efforts to actually bringing trained terrorists into the 

United States through Canada. Could you tell me what you think 

of that potential threat and potentially what we are doing about it? 

Secretary NAPOLITANO. Senator Tester, I think the answer to 

that question should be discussed in the closed part of this meeting. 

Senator TESTER. That would be fine. 

Secretary NAPOLITANO. I will say, however, that we have had extensive personal discussions with law enforcement and security officials in Canada, not just in the wake of December 25, 2009, but 

also in preparation for the Olympics that will be held there. 

18 

Senator TESTER. And no problem, we can do that in closed session. You feel the same way. OK, that will be good. 

Our borders are only as strong as the weakest link, and we do 

not want a panic and shut down of the border because we have 

trade issues and we need to have a balance there. But when folks 

can come into the country with explosives sewn into their clothes, 

as happened on Christmas Day, it means that we have issues not 

only in our airports but also our ports, and it means that the issues 

that you folks talked about in your opening statements are critically important. 

I want to talk about the technology portion of this. Secretary 

Napolitano, you talked about this being an international situation 

as far as the screening goes. Director Leiter and Admiral Blair deal 

with the issues before they get to the point where they walk in the 

airport, and if that information is sorted through correctly and 

went through the sieves right, we can catch them before they even 

go through the screening. 

Is the screening adequate in other countries to be able to even 

catch—I mean, Admiral Blair talked about the fact that these explosives were known about, this type of explosive. Is the screening 

inadequate to catch the technologies that are coming down the 

pike, even when we know about them? 

Secretary NAPOLITANO. Senator Tester, I think the point is that 

there are multiple layers of security that need to happen, no single 

one of which is a 100-percent guarantee or a silver bullet. The layers, when they act properly, increase the likelihood that you will 

prevent something from happening. 

Once you get to the airport domestically, that includes explosive 

detection machines; it includes the advanced imaging technology; it 

includes law enforcement; and it includes dogs. Now, internationally, it is different. We do not control in that sense international 

airports or screening procedures. Indeed, we do not even do the 

screening ourselves. What we do is if we have somebody on the 

Terrorist Screening Database list, it is advised that additional 

screening should be done. 

What we are doing now is embarking on a very aggressive international effort using this incident as the catalyst for all countries, 

all of whom have passengers who fly, to lift their overall screening 

and airport procedures because indeed there is great variation 

around the world. 

Senator TESTER. OK. So what you are saying is at this point in 

time—and we are talking generally here—the screening that goes 

on in foreign countries is not as adequate as the ones that go on 

here domestically. 

Secretary NAPOLITANO. It depends on which airport you are talking about. For example, let us use Schipol, the airport in Amsterdam. The screening there is not dissimilar from the screening in 

the United States, and the screening that Abdulmutallab went 

through is not dissimilar from what he would go through in many 

of the airports in the United States. What we have added and are 

adding domestically are more canines, and more explosive detections, more advanced imaging technology. 

Now, airports in other countries or other countries have resisted 

using some of those items because of other concerns that they have, 

19 

about privacy, for example. This incident, however, like I said, is 

serving as a catalyst to reopen that dialogue, particularly with the 

airports in countries where we have a large throughput of passengers to the United States. 

Senator TESTER. I want to come back to that, and I am assuming 

there will be another round of questions. We are going to shift totally off of this just for a second while I have you here. 

We all know what has happened in Haiti over the last 7 to 10 

days. It has been devastating, and that is an understatement. 

There is an issue about adoption of potential Haiti children who 

have been left without their parents. We have about five families 

right now that have completed all the paperwork to get the children from Haiti. And yet they are being held up. I need to get a 

commitment from you that the Citizenship and Immigration Services, an agency within your Department, will work with my office 

to help expedite our ability to get those kids out. As you can imagine, the constituency is very anxious. It is a terrible situation. I 

just need your help in making this work. 

Secretary NAPOLITANO. Senator, you have that commitment, but 

may I give a longer answer to that? 

Senator TESTER. Sure. 

Secretary NAPOLITANO. Because I think the public needs an understanding of this. 

Senator TESTER. Yes, absolutely. 

Secretary NAPOLITANO. And this actually has been one of the— 

the DHS can work at so many levels on so many things, so the 

Coast Guard has been in Haiti. The Federal Emergency Management Agency (FEMA) has been helping U.S. Agency for International Development (USAID) get help into Haiti. Customs and 

Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have been providing assistance. The issue of orphans 

is one that is tragic, and I think as we go forward and begin to 

learn the amount or the number of casualties, it is going to grow. 

Senator TESTER. Yes. 

Secretary NAPOLITANO. It is something that needs to be handled 

very carefully because there are many issues involved in terms of 

making sure that people—I am not going to say these five children, 

but other children that come to us are indeed orphans until all the 

search and rescue is done or other families are located. 

There are other issues involved as to whether the adoptive parents in the United States are qualified for adoption under the applicable law. 

There are issues about the health and welfare of the children 

when they are brought to the United States. Many of them need 

to be immediately put into the care of the Department of Health 

and Human Services (HHS) and checked over thoroughly before 

they can be moved. 

So we have formed a team—it is the State Department, it is us, 

it is HHS, as three of the big components, to really work on this 

adoption issue because we all want the right things for these children. This issue is only going to grow over time. 

Senator TESTER. That is correct, and I appreciate the opportunity 

to work with you and your group of people on this issue. And I 

20 

thank the Chairman’s indulgence for pulling off topic for a moment. 

We will be back. Thank you very much. 

Chairman LIEBERMAN. Thank you very much for your questions, 

and particularly the last one, Senator Tester. We are all sharing 

your concern. 

Next is Senator Burris. Good morning. 

OPENING STATEMENT OF SENATOR BURRIS 

Senator BURRIS. Thank you, Mr. Chairman. Happy New Year to 

everyone. I was just going to say that it is crucial to recognize the 

contribution of Office of the DNI, NCTC, and DHS for making our 

homeland as secure as it is. So you all are to be complimented for 

the work that you have done. And there have been numerous terrorist plots foiled since September 11, 2001, some of which have occurred in my home State of Illinois. So we are very grateful to you 

all for that effort. 

And I just wonder, is there a resource problem here? Mr. Leiter 

or Mr. Blair, is there a resource problem? 

Mr. LEITER. Senator, first of all, thank you for your kind words. 

The kind words we really want are just the thank you’s when we 

keep doing things right, so I appreciate the kind words now. But 

this is not an occasion that we are happy about in any way. 

Resources have been an issue. As Director Blair said, we were 

facing cuts at the end of last year. Thankfully, with the Director’s 

help, those have been avoided. And in order to do some of the enhancement of the watchlists so we make sure that when you have 

an Umar Farouk, you put that together with Umar Farouk 

Abdulmutallab and all the information, and you have teams that 

can pursue the small bits of information rather than just the highprofile threats, it does take more resources. And Director Blair has 

been extremely supportive of that, as has been the White House. 

Mr. BLAIR. Senator, we have moved money and people in the 

near term to put more on helping NCTC, and there will probably 

have to be some adjustments in the overall budgets in order to sustain that. 

Senator BURRIS. I just wonder, in our democracy, as I was watching the news on this issue of that Detroit bomber and watched it 

on Media Report, I just had some concern about what was being 

reported for future actions. And I do not know whether or not this 

can come up in a closed hearing or not, but I was concerned when 

the media was reporting where the airports are that we are now 

going to be screening from. So the simple response is, OK, if I am 

a terrorist, what am I going to do? I am not going to be bothered 

with it. There is some information that we have to keep classified 

in terms of where the international screening is going to come from 

and will not be knowledgeable to the general public. Americans demand our right to know, but there are some things that are not 

going to make us safe if we know them and everybody else knows 

them. 

Mr. BLAIR. I could not agree more, Senator Burris, that the public discussion of the specifics of the defensive measures we take are 

making it that much easier for people to evade our defenses and 

come in. The kind of hearings that we are having this morning 

where you have responsible witnesses who think through what 

21 

could be unclassified and what is classified I think are absolutely 

essential for the functioning of the democracy. The unauthorized 

leaks of the NSA intercepted this or a CIA human report said this 

or this airport is good, I think, is just making the job of those who 

are working hard to try to defend us that much harder. It costs the 

taxpayer that much more money, and I wish people would just shut 

up. [Laughter.] 

Senator BURRIS. It makes sense to me because that was my immediate reaction when I see this list reported on television of what 

airports we are now going to be putting in special screeners. 

Which leads to another question that might not be answered 

here, and I probably will not be able to attend the closed session 

because I have to preside very shortly. But I am concerned about 

the possibility and the techniques that are now being used by the 

terrorists. I mean, I did see a movie just recently coming back from 

China. There was a movie on the plane, Mr. Chairman, and the 

movie was ‘‘The Traitor.’’ I do not know if anyone has seen that 

movie. It is really about the terrorists and how they were going to 

set bombs here in America. And I just hope that we are anticipating all the various processes. One time it was a shoe. This time 

it was underpants. What will it be the next time? And I am pretty 

sure you all cannot disclose this at this point, but please disclose 

this for the record in our closed hearing. What are some of the 

techniques that you all are assessing that would try to be on the 

offensive, as you said, Director Blair? You have to be on the offense 

and the defense, but we have to be on the offense in these regards. 

And I am sure that you are, but I just want to re-emphasize that, 

because I can say for the record I think about the small towns 

across America. If I were a terrorist, I would not go after Chicago, 

I would not go after New York. You know where I would go? I 

would go to my hometown of Centralia, Illinois, where there are 

14,000 people, and raise havoc in there which would scare Americans to death. 

So, Madam Secretary, we have to be concerned about homeland 

security as we look at our small communities and the resources 

that they would have in case of being struck by a terrorist. Is there 

a comment there, please? 

Secretary NAPOLITANO. Senator, yes. One of the criticisms that 

we have talked about amongst ourselves is being reactive as opposed to proactive all the time. Well, of course, you have to react 

and fix what went wrong. Once you have identified a problem, you 

have to fix it. But we also need to be thinking ahead to be 

proactive. 

That is why, for example, we have entered into this agreement 

to really get some of the best scientists in the world who are in our 

National Labs thinking well ahead about the next generation of 

screening technology and what it can show us. 

The other thing is that the threat is constantly evolving, Senator. 

When I came into office, I was receiving very little information 

about American or U.S. citizens that were themselves radicalized 

to the point of terrorism. That has changed over the course of the 

year. Director Leiter has already talked about the emergent threat 

out of Yemen. So there is a constantly evolving environment that 

we have to deal with and be thinking ahead. 

22 

So the challenge for us—and it is a challenge for us at this table, 

it is a challenge for others, it is a challenge for the Congress, it is 

a challenge for our international partners—is to always be thinking 

about the next iteration that is being conceived. 

Senator BURRIS. Mr. Chairman, just one quick point, and I would 

like to comment on something that Ranking Member Collins made 

in reference to where this person would be tried. And I understand 

that intelligence was gathered from this person prior to him being 

given his rights. So I do not know whether or not that could be disclosed in a closed hearing as well to alleviate some of the anxiety 

in reference to whether or not we were able to get any information 

from this young man, which I understand there was substantial information acquired prior to Miranda. 

Thank you very much, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Burris. Senator McCain. 

OPENING STATEMENT OF SENATOR MCCAIN 

Senator MCCAIN. Well, thank you, Mr. Chairman. I thank the 

witnesses, and I thank them for their continued service to the 

country. 

I think everybody knows the facts of the Christmas Day bomber. 

A person buys a ticket with cash, a one-way ticket. His father has 

already warned the CIA. The series of missteps that have taken 

place led to this near tragedy. And I thank the witnesses for their 

candor and being forthcoming about these failures. 

The President said, on January 7, ‘‘I repeatedly made it clear in 

public with the American people and in private with my national 

security team that I will hold my staff, our agencies, and the people in them accountable when they fail to perform their responsibilities at the highest level.’’ 

I would like to ask all three witnesses who has been held accountable. I will begin with you, Mr. Leiter. Has anybody been 

fired? Has anybody been transferred? Has anybody received a letter 

of admonition? Has anybody been put on leave? 

Mr. LEITER. Senator, we are, in fact, conducting internal reviews 

to determine whether or not any of those should be pursued. 

Senator MCCAIN. And how long will those reviews take? It is 

fairly clear the facts of what happened. Isn’t it? 

Mr. LEITER. Well, actually, I think many of the facts are clear. 

I would correct the record on a couple of points. 

In fact, the fact is not that he bought a one-way ticket. He 

bought a round-trip ticket. 

The fact that he used cash, frankly, in Africa is completely and 

utterly—— 

Senator MCCAIN. That was in Copenhagen, not Africa. 

Mr. LEITER. No, sir. I believe he bought that—— 

Senator MCCAIN. Did he have someone who facilitated his—if 

you are defending—— 

Mr. LEITER. No, sir. 

Senator MCCAIN. That we should not have found—should not 

have been alerted to this individual, sir, then—— 

Mr. LEITER. Senator, I apologize. I do not want to—— 

Senator MCCAIN. All right. Has anybody been held accountable? 

23 

Mr. LEITER. We are reviewing all the individuals, and I think the 

President is reviewing my performance as well. That is absolutely 

appropriate. 

Senator MCCAIN. Admiral Blair. 

Mr. BLAIR. You and I have a Navy background, Senator McCain, 

and you know that you do two investigations when something bad 

happens. The first is a safety investigation to fix the parts of the 

system so that you get the word out and ensure it does not happen 

again. The second is the accountability part of the investigation—— 

Senator MCCAIN. Actually, it has been my experience, Admiral, 

that when the captain of the ship does something wrong, or something goes wrong on his watch, the captain is relieved immediately. 

You can go all the way back to the USS Missouri, sir. 

Mr. BLAIR. The captain is sometimes relieved, and sometimes he 

is not. It depends what happened in the cases. 

Senator MCCAIN. The captain is relieved until such time as he 

is cleared. So I will be glad to go over naval history with you. Has 

anybody been held accountable? 

Mr. BLAIR. We are doing the investigations now so that we do 

not hold people accountable based on bad information but we do 

hold them accountable based on what actually occurred and what 

the standards that they were expected to perform to were. And that 

is underway. 

As I said in my opening statement, the system was capable of 

doing this. All the pieces did not operate the way they should. I 

personally have a large degree of responsibility for making sure 

those pieces are working, and we are working to make that happen. I do not feel good about it, and I am fixing it. 

Senator MCCAIN. I was not asking whether you are fixing it or 

not, Admiral Blair. So far, it has been several weeks, and no one 

has been held accountable. Secretary Napolitano. 

Secretary NAPOLITANO. Well, as you know, Senator, we do not 

prepare the No Fly or terrorist list, and we do not do the screening 

at international airports. However, I am the Secretary of Homeland 

Security, and I think I share responsibility for the enterprise that 

has to happen to prevent this from happening again. 

Senator MCCAIN. I thank you, Madam Secretary. 

I understand, Director Blair, in response to Senator Collins, that 

you were not consulted as to what venue the Christmas Day bomber would be tried in. Is that correct? 

Mr. BLAIR. That is correct. Yes, sir. 

Senator MCCAIN. How about you, Mr. Leiter? 

Mr. LEITER. No, I was not. 

Senator MCCAIN. Secretary Napolitano. 

Secretary NAPOLITANO. No. 

Senator MCCAIN. So I guess I have to ask your opinion, Admiral 

Blair. Should the Christmas Day bomber be tried in civilian court, 

or should it be under military tribunal? Since they would not ask 

you, maybe I should. 

Mr. BLAIR. I am not ready to offer an opinion on that in open 

session. We can talk about it in closed session, Senator McCain. 

Senator MCCAIN. Mr. Leiter. 

24 

Mr. LEITER. Senator, I honestly do not have a position. I have 

been fully engaged in trying to fix this, and I have not focused on 

where he would be charged. 

Senator MCCAIN. Well, unclassified information indicates that 

the Christmas Day bomber was providing information that was 

necessary to try to crack this case, and when he got a lawyer, he 

immediately stopped that information. Now, that is according to 

public documents. I do not have any classified information. If that 

is the case, I think it is a terrible mistake. I think it is a terrible, 

terrible mistake, when it is pretty clear that this individual did not 

act alone. 

Admiral Blair, in your testimony before the Committee, you stated you would exercise your authorities to the fullest and withhold 

judgment on whether the Intelligence Reform Act provided the DNI 

with sufficient authority. Now, can you share with the Committee 

whether you believe the DNI has sufficient authority to manage intelligence issues that affect America’s public safety? 

Mr. BLAIR. Senator McCain, as this job continues—it has been 5 

years now since the Director of National Intelligence was established—I find that you discover new things that you have to fix as 

you go along, and this incident is exposing some of those. 

The authorities of the DNI I think heretofore were able to make 

the big pieces happen. There was lots of sharing of information in 

this case, but we are finding now some individual pieces in which 

I think more authority may be required. So the overall answer to 

the question is I do not know quite yet, but the authorities granted 

heretofore by the Congress have been adequate to make important 

improvements happen. 

Senator MCCAIN. I thank you, Mr. Chairman. I thank the witnesses. 

Mr. Chairman, I do find it interesting that apparently none of 

the three top individuals were consulted on a decision whether to 

put the Christmas Day bomber into civilian court or military tribunal, and I think whoever advised them of that—and I think this 

decision was a terrible mistake which could impact our ability to 

defend this Nation. 

I thank the witnesses. 

Chairman LIEBERMAN. Thanks, Senator McCain. Senator Ensign. 

OPENING STATEMENT OF SENATOR ENSIGN 

Senator ENSIGN. Thank you, Mr. Chairman. 

Admiral Blair, you said that this HIG was not convened. Who 

made the decision—since none of you were consulted, who made 

the decision to go ahead and Mirandize the prisoner? 

Mr. BLAIR. It was a decision made by the FBI team, the agent 

in charge on the scene consulting with his headquarters and Department of Justice. 

Senator ENSIGN. Who authorized him at the Department of Justice? How high up did this go? 

Mr. BLAIR. I do not know, sir. 

Senator ENSIGN. Do any of the rest of you know? 

Mr. LEITER. I do not know, Senator. 

Senator ENSIGN. Secretary Napolitano, you talked, in response to 

Senator Collins’ question, about you have some responsibility, you 

25 

have some authority to deal with the visas, and we understand 

that the State Department, I guess, Director Leiter, you talked 

about you did not know you had the authority—or did not have the 

authority. 

Mr. LEITER. I do not have the authority. 

Senator ENSIGN. Has there not been a case in the past where 

somebody brought to you rather, have we not rejected any visas? 

Mr. LEITER. The State Department has the authority to revoke 

the visas. 

Senator ENSIGN. I understand that. Has any one in your organization before brought you a case where you thought that there 

should be a visa rejected where you actually found out that you did 

not have that authority before the Christmas Day bomber? 

Mr. LEITER. We routinely provide intelligence to the State Department to make that decision. 

Senator ENSIGN. That is not an answer to my question. In other 

words, somebody who is within your organization, they had information, this person should be rejected, did you not then make a 

recommendation and find out you did not have the authority? Or 

has anybody brought that information to you before? 

Mr. LEITER. Senator, I think the spokesperson for the State Department was simply confused, and no one in the State Department who works these issues actually thought that I had the authority to revoke a visa, because we do not. 

Senator ENSIGN. That is not what I am saying. Try to understand my question. 

Mr. LEITER. I apologize, Senator. 

Senator ENSIGN. Has somebody in your organization before 

brought you information about somebody who should be rejected? 

Mr. LEITER. The answer is no because no one in my organization 

believes that I have the authority to reject visas. 

Senator ENSIGN. So they know that already. 

Mr. LEITER. Yes. 

Senator ENSIGN. You just did not know it, but everybody in your 

organization knows—— 

Mr. LEITER. I apologize, Senator. My attempt at humor was 

clearly lost. I joked with Secretary Clinton I did not realize that I 

had the authority, because clearly I did not ever have it. It was 

only the State Department’s spokesman that was confused about 

where that authority lay. 

Senator ENSIGN. Secretary Napolitano, getting back to my question about Senator Collins—and this has been brought up, like who 

is responsible for this colossal failure. In business, you understand 

that if there is not one person responsible for making certain decisions, like if there are several people, then no one can be held accountable, and no one makes the decision. It has to do with whether it is the visa rejection or whatever. It gets back to what Senator 

McCain was talking about, if no one really feels that they are accountable, the decisions are not made and people really do not 

know who is supposed to make the decision. 

Is that being addressed in this whole evaluation process of what 

went on? 

Secretary NAPOLITANO. Senator, yes, in a variety of ways, but I 

think Admiral Blair explained in his opening statement that one 

26 

of the things that is being addressed is who has the responsibility 

to follow up on different lines of intelligence as they come in. 

Senator ENSIGN. And so are we going to have a clear set of guidelines and know that this person is responsible for making that decision. Is everybody going to know what they are supposed to do and 

what they are not supposed to do in the future, I guess is the best 

way to ask? And when will we have all those procedures in place 

to where everybody knows what they are supposed to and not supposed to do? 

Mr. BLAIR. We have a 30-day deadline that the President established to provide authoritative proposed pieces of paper that could 

be anything from an Executive order down to an intelligence community directive, which I would sign, or similar authorities within 

Secretary Napolitano’s organization. So it will be quite clear as to 

who has responsibility for what. We agree that has been loose. 

Senator ENSIGN. As part of that, you mentioned the HIG that 

was not convened, and you said in the future that absolutely will 

be convened. 

Mr. BLAIR. Yes, sir. 

Senator ENSIGN. In any case like this, that is a guarantee from 

you. That is a guarantee from this Administration that is not going 

to happen in the future; this will be convened. 

Now, from what I understand, even with the HIG, though, you 

will only use intelligence techniques that are approved under the 

Army Field Manual. Is that correct? 

Mr. BLAIR. The type of interrogation techniques will be calculated by the purposes for which we want to make that information available, whether it be law enforcement or for intelligence. If 

it is intelligence, then, yes, the techniques that are in the Army 

Field Manual will be used by the interrogators. 

Senator ENSIGN. And the Army Field Manual is public, correct? 

Mr. BLAIR. That is correct. 

Senator ENSIGN. This Administration stopped using any kind of 

classified techniques so that terrorists basically can train to the interrogation techniques that are in the Army Field Manual since 

they are public. But if we use classified ones, in other words, keeping the terrorists kind of guessing what they were going to be going 

through, it would be harder to train. Wouldn’t you agree? 

Mr. BLAIR. The experience we have so far is that the amount of 

information that we get from somebody depends on the skill of the 

interrogators, and we will have the very best interrogators on this 

HIG unit. 

Senator ENSIGN. That does not answer my question. The terrorists are allowed to train to the techniques in the Army Field Manual, which is a public document. Correct? 

Mr. BLAIR. The terrorists know what the techniques are, but as 

I said—— 

Senator ENSIGN. Right. But if they were classified—in other 

words, what the intelligence community used to use as far as classified techniques—it is much harder to train to those. Wouldn’t you 

agree? 

Mr. BLAIR. I do not think it would make a decisive difference, no. 

Senator ENSIGN. You do not think that we get better information? Why do you think the intelligence community used classified 

27 

techniques before, then, where they thought it was better? Why do 

you think that throughout our intelligence community they used 

those kind of techniques before if they did not feel it was superior 

to the techniques used with the Army Field Manual? 

Mr. BLAIR. We have looked at that quite carefully, Senator, and 

we do not know whether that same information that was gained 

through enhanced interrogation measures could have been obtained 

without them. 

Senator ENSIGN. I guess that is something we will have to disagree on. 

I want to get to one last point, because you made this comment 

that I thought was pretty stunning, that whoever it was was more 

concerned about what folks were thinking overseas. You even used 

the word ‘‘duh’’ when you were talking about whether or not to try 

this person in civilian court and to Mirandize this person. Can you 

further explain what you were talking about, the Administration 

being more concerned with folks who were overseas and what their 

opinion of folks overseas was? 

Mr. BLAIR. That was not the context in which I made the remark, Senator? 

Senator ENSIGN. Can you further explain what you were talking 

about? 

Mr. BLAIR. It had to do with our being able to pursue both the 

threat to the United States coming out of Yemen and being able 

to pursue violent extremist activities or terrorist threats within 

Yemen itself. We needed to be able to do both at the same time. 

Senator ENSIGN. Yes, this was in response to whether or not he 

was going to be tried in civilian courts, and that is when you said 

we were more concerned about what they thought overseas. 

Mr. BLAIR. Let me think back to that, right. I said that when we 

put the HIG together, the main use for it we were thinking of was 

when terrorists were captured overseas, and we did not think 

about that case in which a terrorist was apprehended, as this one 

was, in the United States, and we should have thought of that. We 

should have automatically deployed the HIG. We will now. We will 

make a new mistake. We will not make that one. 

Senator ENSIGN. Thank you. Thanks for clarifying that. 

Chairman LIEBERMAN. Thanks, Senator Ensign. I was going to 

suggest that we could run the search engine on the transcript of 

the hearing for the word ‘‘duh.’’ [Laughter.] 

We could find that. 

Mr. BLAIR. We have a search engine that can do that. 

Chairman LIEBERMAN. Thanks, Director Blair. 

Senator Coburn is next, to be followed, if they are present, by 

Senators Carper, Akaka, and Levin. Senator Coburn. 

OPENING STATEMENT OF SENATOR COBURN 

Senator COBURN. Thank you. I thank each of you for your service. You have a tough job, and when things go wrong, it is our job 

to help you figure out how to get it right. I think all of you are 

dedicated to fixing the problems. 

I have worked with my Intelligence Committee staff to make 

sure that I stay within the bounds of what we can ask in here. I 

was going to attend the closed hearing, but I will wait until our 

28 

Thursday meeting in the Intelligence Committee. I have a couple 

of questions for both Director Blair and Director Leiter. 

The intelligence community has been largely consistent in noting 

that had all the pieces of intelligence been connected, this individual would have met the criteria for the watchlist. However, 

there have been inconsistencies in views regarding whether he 

would have been put on the No Fly or Selectee Lists. You stated 

in your testimony that it would have been determined by the 

strength of the analytic judgment, but officials in your organization 

have said he would not have met the criteria for no-fly or selectee, 

and that is what they have reported to me. 

Can you explain the criteria in whether or not the information 

would have risen to the level of no-fly or selectee? 

Mr. LEITER. Senator, it is not an easy yes-no question. 

Senator COBURN. I understand that. That is why I have asked 

you to explain it. 

Mr. LEITER. Where he would have been placed, Selectee or No 

Fly List, really would have depended on what the analytic judgment was at the time. So looking at the signals intelligence and 

looking at what the father said, you put that together. Would the 

analyst have said we have a potential al-Qaeda in the Arabian Peninsula operative, or we have a potential al-Qaeda in the Arabian 

Peninsula operative who may be boarding an airplane to use a suicide bomb, or this individual is involved in plotting around December 25, 2009, to attack the United States? 

On that first one, under the existing standards, I think he is 

likely on the Selectee List but likely not the No Fly List. On the 

later analytic judgments, it is more likely that he gets into the nofly criteria. 

It is easy after the fact to look back and say clearly he should 

have been on the no-fly, but it really would have depended on what 

the analysts said, putting all those pieces together about what kind 

of operative he was and what his intention was. 

I think from my perspective the right answer, Senator, is we 

should not try to parse it so closely in the first instance. 

Senator COBURN. I agree. 

Mr. LEITER. We ought to have standards that allow, frankly, a 

greater degree of flexibility that you do not have to be able to predict exactly when the individual is going to do. If he has certain 

associations and is involved in any sort of operational activity, it 

is a pretty clear answer, and that should be no-fly. 

Senator COBURN. Right. So we ought to err on the side of caution. 

Mr. LEITER. I think that is certainly my—— 

Senator COBURN. Is it not true that there was a lot of political 

pressure because of so many people on the No Fly List and duplicative names that we actually reassessed that in the recent past and 

made it harder to put people on that list? 

Mr. LEITER. That is absolutely correct, Senator. 

Senator COBURN. Director Leiter, in your testimony today, you 

said that Mr. Abdulmutallab was identified as a known or suspected terrorist and he was entered into the TIDE list. You went 

on to say that the derogatory information associated with him did 

29 

not meet the existing policy standards for him to be watchlisted, 

let alone be placed on the No Fly or Selectee List. 

Can you explain how someone who you have said was identified 

as a known or suspected terrorist and about whom you have required biographic data does not meet the criteria for him to be 

watchlisted? 

Mr. LEITER. Yes, Senator, and I want to make clear at the beginning, we made a mistake in not associating all that information 

with him. 

Senator COBURN. Right. 

Mr. LEITER. And, obviously, at that point he would have been in 

the Terrorist Screening Database and on the watchlist. We have a 

not insignificant number, roughly 100,000 individuals, who have 

some association with terrorist groups. They may be family members or the like, or they may have lower levels of derogatory information. That standard is simply lower than what was adopted in 

August 2008 and promulgated in 2009 for inclusion in the official 

watchlist. So it was simply a matter of the data that we associated 

with him not meeting that higher standard. 

Senator COBURN. All right. Secretary Napolitano, thank you for 

your service. I am pretty concerned with a couple of things that are 

going on at TSA, and I would refer you to an article by Mr. Litwack 

yesterday in the Wall Street Journal about body scanners. I do not 

know if you have seen it. 

Secretary NAPOLITANO. I have not. 

Senator COBURN. I would recommend it to you. 

The other thing that I wanted to raise with you which gives me 

great pause is the fact that when the inspector general (IG) looks 

at what TSA is doing in terms of screening techniques, in terms of 

the equipment, what we have is a failure to meet your own standards as we install equipment. I would caution—and I will have this 

conversation with you privately based on the information we have 

looked at and gleaned from IG reports and also experience that we 

have seen—that as we respond to the public outcry for us to do 

more, the potential to waste a ton of money on something that is 

not going to be qualified to actually change the outcomes of this 

past December 25, 2009. I would just raise with you that I am 

highly concerned about that. 

As a medical doctor, I am highly concerned about the exposure 

we are going to expose people to. I also am highly concerned that 

the technology we have today would not have stopped this even if 

we had had full-body scanners in use—in fact, we would not have. 

I would love your comments on that. 

Secretary NAPOLITANO. Right. Without commenting on a Wall 

Street Journal article that I did not read yesterday, I can say with 

respect both to a Government Accountability Office (GAO) and an 

IG report on the scanners that they were looking at a limited sample of an earlier iteration of the technology. The technology has 

clearly evolved rapidly over time, but we are continuing to push the 

technology. That is why we have asked not just our Department 

but the Department of Energy and the National Labs to get involved. 

From the objective evidence, the scanners that are being deployed now clearly give us a better chance of picking up be it metVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
30 

als, non-metals, powders, or liquids that somebody may be trying 

to get onto a plane. 

Senator COBURN. Externally? 

Secretary NAPOLITANO. We can talk in a classified setting about 

that, sir. 

Senator COBURN. What I will do then is, based on the analysis 

of my staff on the operational testing of your screening technologies, I will send you follow-up questions, if I may, and if you 

would get those back to me fairly soon, I would appreciate it. 

Secretary NAPOLITANO. We would be happy to do so. 

Senator COBURN. Thank you. And thank you again for your service. 

Chairman LIEBERMAN. Thank you very much, Senator Coburn. 

Senator Carper had to leave for a moment. Senator Akaka, you 

are next. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman, for having 

this hearing, and I want to add my welcome to the witnesses who 

are here. 

I have been concerned about privacy and civil liberties in all of 

this. As President Obama has made clear, weaknesses in our 

counterterrorism systems and human errors have created gaps in 

our Nation’s defenses. It is vitally important that we address these 

gaps, of course, quickly. However, we should not sacrifice our principles nor undermine our long-term strategic efforts against alQaeda and other terrorists. So I would like to make two points. 

First, Congress, working closely with the Administration, must 

protect privacy rights and civil liberties while trying to improve our 

Nation’s defenses. 

Second, we should be mindful that passenger screening technologies, better databases, and different procedures alone cannot 

ensure the safety of our flying public. I believe that we should enhance our international partnerships, use imagination and riskbased thinking in exploring potential threats, and give our security 

workforce the range of tools, training, and support it needs to protect the American people. 

Secretary Napolitano, you are tasked with quickly increasing the 

use of technology in air passenger screening consistent with privacy and civil liberties. How involved will DHS’ Privacy and Civil 

Liberties Offices be as new technology such as whole-body imaging 

is deployed more widely? 

Secretary NAPOLITANO. They are involved, Senator, right now 

and have been involved from the beginning in terms of how we deal 

with privacy and some of the objections raised particularly with respect to the advanced imaging technologies. I would iterate the face 

is screened, the person reading the image is not at the place where 

the screening is done, so there is a great deal of privacy in that 

regard with respect to an individual identity already built into the 

system. But even as we move forward, we have our Office of Privacy and the Office of Civil Rights and Liberties engaged in the 

process and the decisionmaking. 

Senator AKAKA. Director Blair and Director Leiter, the Corrective 

Action Statement also requires your organizations to improve techVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
31 

nology related to intelligence and to enhance watchlisting capabilities. Unfortunately, the Privacy and Civil Liberties Oversight 

Board, which was created by the Intelligence Reform Act to protect 

Americans’ privacy and civil liberties, has not been set up. 

How will your agencies ensure that corrective actions in response 

to the Christmas Day plot take privacy and civil liberties into account? 

Mr. BLAIR. Senator, let me say that I think that panel should be 

manned up and started. It would provide a very valuable service. 

We do have our civil liberties and privacy officer very much involved as we consider the changes that I described in my testimony. 

But I would take your question one other direction, and that has 

to do with families and the personal effect of what we are talking 

about. We have been pretty much about talking standards, regulations, screening, and so on. The Chairman introduced me to members of the families of some of the September 11, 2001, victims before this hearing, which reminds us there are real people involved 

in this stuff, not just big bureaucracies. 

I am also reminded that it was a father who came into the embassy in Abuja and talked about his son that he was worried about 

who had gone to Yemen and was potentially falling under radical 

influence. 

We know that last fall there were five young men from Northern 

Virginia who went to Pakistan, and it was their parents, their families who came in and told authorities about them so that they 

could be identified. 

And while we talk about all of the responsibility of government 

and everything we are doing at the bureaucratic level, I think concerned, aroused citizens, families, are an absolutely key part of 

keeping ourselves safe and, that we should not either underrate or 

neglect this, and that it is a very proper emphasis. And so when 

we are dealing with families, we need both to rely on their help 

and to make sure we are not violating their civil liberties that they 

expect as Americans. 

Senator AKAKA. Director Leiter. 

Mr. LEITER. Senator, I fully agree with the view that we have to 

have civil liberties as a central tenet in all of this. In the Director’s 

Review Panel that he set up, it includes four individuals, one of 

whom is the civil liberties protection officer. We have had the civil 

liberties protection officer review the watchlisting changes we have 

made. The one thing I would note, though, is it is very easy for me 

to recommend to Secretary Napolitano to put everyone on the 

watchlist or on the No Fly List. There are enormous and I think 

unacceptable costs to doing that. So what we need to have is an 

agreement among the Executive Branch and Members of Congress 

about what the proper balance is because there is a balance that 

was struck prior to December 25, 2009, and I think, frankly, we are 

now being told that a different balance should be struck. 

So I am very eager to engage in that discussion with this Committee and other committees to make sure we hit the right balance 

because I do not want to be here after the fact again saying, well, 

if only we could have done this. 

32 

1The document submitted by Mr. Leiter and Mr. Blair appears in the Appendix on page 215. 

Senator AKAKA. Director Blair and Director Leiter, according to 

the 2009 Information Sharing Environment Report to Congress, 

DNI and NCTC had not completed their Information Sharing Environment privacy protection policies. DHS has developed its policy. 

What is the status of DNI and NCTC developing their policies? 

Mr. BLAIR. Senator, I am not sure exactly what policy that refers 

to. I will have to check and get back to you. But we are very vigilant about getting those policies out, so let me find out where the 

shortcoming is that was referred to in that report. 

Senator AKAKA. Thank you. Director Leiter. 

Mr. LEITER. Senator, I believe it is actually one consolidated policy. We are working on that, and we will supply that for the record. 

And, clearly, especially in light of these events, that has to be completed so you understand what the rules are we are applying.1

Senator AKAKA. Thank you so much for your responses. Mr. 

Chairman, thank you. 

Chairman LIEBERMAN. Thank you, Senator Akaka. Senator 

Levin, welcome. 

OPENING STATEMENT OF SENATOR LEVIN 

Senator LEVIN. Thank you very much, Mr. Chairman, and I add 

my welcome to our witnesses. 

Apparently, somebody at DHS flagged Mr. Abdulmutallab for 

extra immigration screening while the plane was in flight. Is that 

correct? 

Secretary NAPOLITANO. Yes. 

Senator LEVIN. What triggered that? 

Secretary NAPOLITANO. Let me, if I might, Senator, explain the 

process. Customs and Border Protection, when it gets the passenger list, pushes out to the immigration group known as the Immigration Advisory Program (IAP) in a foreign airport anybody 

that appears on the terrorist watchlist or the No Fly List. The No 

Fly List is a list given to the carrier, and basically it says do not 

put this guy on a plane. The terrorist list says to a foreign airport, 

a foreign government, you should put this person into more secondary screening, whatever that happens to be. 

Now, there is other information that Customs has that involves 

whether that person should be questioned before they are admitted 

into the United States. It is the difference between whether they 

should be allowed on a plane, which is really a TSA, a national, 

a different standard than—— 

Senator LEVIN. This was an automatic process. 

Secretary NAPOLITANO. Yes. Versus is there other information 

that should be explored when they are here, before they are actually admitted into the United States. 

Senator LEVIN. I understand. This was a regular routine process 

that—— 

Secretary NAPOLITANO. It was a regular routine process, and 

based on the regular routine process at that time, the information 

on the text list that would have led to the State Department note 

was something that they would have pursued when he got to Detroit. 

33 

Senator LEVIN. Right. Now, your DHS agent in Amsterdam, did 

he have access to that same information? 

Secretary NAPOLITANO. No. He has access to the No Fly and the 

terrorist watchlist. 

Senator LEVIN. But should he not have access to the TIDE list? 

Your DHS agents in seven cities, or whatever the number is—— 

Secretary NAPOLITANO. It is nine. Yes, nine airports. 

Senator LEVIN. Should they not have access to the TIDE list? 

Secretary NAPOLITANO. Senator, let me, if I might, take that in 

two parts. 

One, with respect to that particular portion of a State Department list that listed him—it is known as the P3B—we have 

changed that in light of December 25, 2009, to push that forward 

like we do the terrorist watchlist, like we do the No Fly List. 

Senator LEVIN. So would your agent in Amsterdam—— 

Secretary NAPOLITANO. But the entire TIDE list, the entire TIDE 

list includes people who, were previously accused of bringing in the 

wrong type of ham across the U.S.-Mexican border. It is a huge list. 

And the question or the understanding we need to have with the 

Congress is, where is Customs done, where is admissibility, where 

are all those types of questions done. The staff, the resources, etc., 

for those questions is domestic. 

Senator LEVIN. The information that was pushed forward to your 

immigration folks here in this case now is being pushed forward to 

your DHS agents in other cities. Is that what you are saying? 

Secretary NAPOLITANO. Yes, sir. 

Senator LEVIN. So that this man would have been subject to 

extra inquiry in Amsterdam if the current system had been in 

place then? 

Secretary NAPOLITANO. Yes, sir. 

Senator LEVIN. OK. Now, Great Britain did not apparently allow 

this man to have a visa. Do we share information with Great Britain or other EU countries as to who is on their lists? 

Secretary NAPOLITANO. We share some, but that is one of the 

reasons that we have embarked on an international effort because 

that information sharing needs to be tighter more than it is, more 

real-time than it is, and more complete than it is in the air environment. 

Mr. LEITER. And, Senator, if I may, just to clarify, he was denied 

his visa for non-terrorist reasons, and the British did not share— 

and I have spoken with my British counterparts—did not have information that he was associated with terrorism other than that 

which we have talked about in the signals intelligence—— 

Senator LEVIN. Other than that, though, we are now working out 

arrangements with other countries to share information about people who are on or should be on watchlists. Is that correct? 

Mr. LEITER. Absolutely, Senator. 

Senator LEVIN. How many people were recommended for the 

watchlist the way he was by our embassy that were not added to 

the watchlist in 2009? 

Mr. LEITER. Senator, I will have to take that for the record. I will 

say it is quite routine that the field simply makes a blanket recommendation for an individual’s inclusion in all levels of the 

34 

watchlist, and it is the headquarters components that then apply 

those standards to figure out if that individual qualifies. 

Senator LEVIN. I understand. I just want to know approximately 

how many people were recommended to go on the watchlist by our 

own people in our embassies that were not added to the watchlist. 

Mr. LEITER. And, Senator, I will take that for the record. I honestly do not know. 

Senator LEVIN. You do not have that approximate number with 

you? 

Mr. LEITER. No, sir. 

Senator LEVIN. All right. How many that were on the watchlist 

last year, approximately, were allowed into the country? 

Mr. LEITER. A very significant number was on the watchlist. Just 

to give you a snapshot, of course, the watchlist is approximately 

400,000 names. Out of those, I believe only approximately 14,000 

were selectees and only 4,000 no-fly’s. So a very significant number, had they traveled to the United States, at most would have 

been met at the border with some sort of secondary inspection. 

Senator LEVIN. It would have been a large number that would 

not have been allowed in. 

Mr. LEITER. It would have been a very large number eligible to 

come in. Whether or not they were ultimately turned away at the 

border, I cannot give you that number. 

Senator LEVIN. That is sort of instinctively troubling, is it not? 

Mr. LEITER. Senator, I think in one way it is, and I think that 

goes right back to the standards, which are the standards. Have we 

set the standards so low that we really have too high a bar to get 

somebody onto the No Fly and Selectee Lists before they get to our 

shores. 

Senator LEVIN. I am talking about the watchlist who were allowed—we do not know exactly how many came into the country 

who were on the watchlist. 

Mr. LEITER. No. I will tell you that when people come to the 

country if they are on the watchlist, it is because we have generally 

made the choice that we want them here in the country for some 

reason or another. 

Senator LEVIN. All right. The White House report says that ultimately placement on the No Fly List would have been required to 

keep Mr. Abdulmutallab off the plane inbound from the U.S. homeland, that he would have had to have been on the No Fly List, according to the White House report. However, in the next section of 

that report on the visa issue, the report acknowledges that Mr. 

Abdulmutallab’s visa might have been revoked if he had been successfully watchlisted. 

Now, if his visa had been revoked, he would have been prevented 

from boarding the plane. So is there not an inconsistency in those 

two comments in the White House report? 

Mr. LEITER. No, sir, because, in fact, as a general matter, individuals who have had their visas revoked, this may not be known 

to the people who put them on the aircraft. So not only must the 

visa be revoked, in many instances they must also be placed on the 

No Fly List. 

Senator LEVIN. And that is not automatic. 

35 

Mr. LEITER. I would be happy to talk about it more in closed session, those processes are being modified. 

Senator LEVIN. That is a classified question as to whether someone whose visa is revoked is automatically put on the No Fly List. 

Mr. LEITER. I can tell you the processes have definitely been 

changed. 

Senator LEVIN. Not the process. I am saying that is the goal. 

Mr. LEITER. Yes. The goal is to make sure that anyone who does 

not have a visa does not get on an airplane. 

Senator LEVIN. And the process is intended to achieve that goal. 

Mr. LEITER. Correct. 

Senator LEVIN. OK. Thank you. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Levin. Senator McCaskill. 

OPENING STATEMENT OF SENATOR MCCASKILL 

Senator MCCASKILL. Thank you, Mr. Chairman. 

To some extent, if any of this has been covered I apologize, but 

I want to make sure I understand about—and maybe you guys are 

not the right witnesses for this, and this may not even be the right 

Committee for this. It may be the Armed Services Committee, but 

the decision as to where terrorists that try to do our country harm, 

where they are tried and where they are processed. And I want to 

make sure I understand what the precedent was before December 

25, 2009. 

It is my understanding that there is no precedent in this country 

that anyone has ever been apprehended on our soil for a terrorist 

act and immediately gone into the military system. Is that correct? 

Do you all know? 

Mr. BLAIR. I think the right witness is from the Department of 

Justice, Senator McCaskill. I do not know the answer to—— 

Senator MCCASKILL. It is my understanding that, obviously, a 

number of terrorists have been prosecuted in civilian courts in this 

country and that there were a couple under the Bush Administration that ultimately were taken to military court, but after they 

were initially arrested and arraigned in our civilian criminal 

courts. And I guess what I am trying to figure out is the process 

here and if we have a process. 

It is my understanding, Mr. Blair, that earlier you testified that 

you were not consulted about the decision as to whether or not this 

terrorist was going to go through a civilian court or through a military court. 

Mr. BLAIR. That is not quite right, Senator. I was not consulted 

whether the high-interest interrogation group was deployed so that 

the questioning of Abdulmutallab would be either admissible in 

Federal court or was being exploited for intelligence purposes. That 

is related to where they would be tried, but not exclusively. We 

would like to be able to do both. We would like to get the information that would help us for intelligence purposes and have evidence 

that could be used against the person in a Federal court. If we 

have to make a choice, then that ought to be made at a higher level 

with all of the considerations that you are talking about. 

Senator MCCASKILL. Well, I think my sense is what the American people want is for our military and our intelligence and our 

36 

law enforcement community to have all the tools possible to get 

both good information and justice. 

Mr. BLAIR. Exactly. That is the goal. 

Senator MCCASKILL. And I think all the tools are very important, 

but I think we are going to lose the ability to use all those tools 

if we do not reassure the American people that there is a process 

in place that these decisions are being made with the right people 

in the room. 

I do not mean to be derogatory to my friends at the Justice Department, but I have had experience in my life where FBI takes 

over and nobody can talk to them. They just take over. And what 

I am worried about is can we reassure the American public that 

at these moments of decision—now, it is my understanding also 

that this suspect was not Mirandized for a long period of time. 

Mr. BLAIR. Not for the initial interrogations, that is right. 

Senator MCCASKILL. And the reason he was not Mirandized is, 

first of all, we did not need his confession or his statements because we had plenty of witnesses in terms of prosecuting him; and, 

second, we had an opportunity to get more actionable intelligence 

information by not Mirandizing him. 

Mr. BLAIR. I do not know if the decision was made on the scene. 

The interrogation was done, and then the decision was made on the 

scene again that evidence ought to be taken for trial after consultation which was not complete. So, yes, that is basically what happened, and it should have been a wider process than was being 

made on those narrow grounds. 

Senator MCCASKILL. I am very proud of our justice system in this 

country. I am very proud of our military in this country. And I 

know if the two of them work together, we can punish these people 

the way the American people expect them to be punished, and we 

can get good information. These are not mutually exclusive goals. 

But I do think that what is happening, because we do not have 

enough information about how these decisions are being made, people are assuming the worst, that we are immediately calling a public defender and saying we want to make sure you do not say anything that could incriminate yourself and how can we coddle this 

guy who tried to blow up these people in this airplane. 

Now, I know that is not happening. I have been around too many 

interrogations to know that ‘‘coddle’’ is not the word that would 

come to mind. But I think that we are failing in explaining to the 

American people how this process is working, and I would certainly 

ask you, Secretary Napolitano, and all of you in your high-level 

meetings to discuss this process of the decisionmaking at the point 

of apprehension. If we are going to go down the path of immediately going into military custody—we have never done that before, I do not believe, in this country—then I think we need to flesh 

that out. And I think even though there are a lot of things we cannot share with the American public because it will hinder our ability to catch the bad guys, there is a process we can share with the 

American public that they will understand that all everybody 

wants is the same thing. We want to catch these guys, and we 

want to put them away where they can never hurt anyone for as 

long as we can possibly do it. And in some instances, we want the 

death penalty. 

37 

I think that we need to be very clear that we all have the same 

goal here. This goal should unite our country, not divide it. But it 

is being used to divide our country because we do not have enough 

information. 

Mr. Chairman, the remainder of my questions I have for closed 

session. 

Chairman LIEBERMAN. Thanks, Senator McCaskill. 

We are going to do a quick second round and see if we still have 

time within the generous commitment of time you have given us 

to go into closed session. 

Senator Carper, though you are aging, you remain very agile. I 

heard you were on the way and moments away. Why don’t you go 

ahead and ask your questions? 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thank you very much. 

Let me just start off by saying I know one of you pretty well; the 

other two I do not know, but I know you by reputation. You have 

excellent reputations, and nothing you have said or done here 

today serves to demean those reputations. You have handled yourselves well. I appreciate not just your service but your forthright 

responses to us. 

In my old job, the job that Secretary Napolitano and I once 

shared, one of my cardinal principles was to focus on excellence in 

everything we did. I was an old naval flight officer, too, for a number of years. There was focus on excellence in everything we did. 

I used to say to my cabinet and folks on my staff in the governor’s 

office, ‘‘If it is not perfect, make it better.’’ 

My family and I traveled outside the country over the holidays, 

once we left here, and I had a chance to see literally thousands, 

tens of thousands, maybe hundreds of thousands of people trying 

to move in and out of this country from all directions, going 

through security, checking their bags, being ticketed, having their 

identification checked again and again. And I thought to myself, 

My God, what a challenge to try to know who all these people are, 

to make sure they are who they say they are, to make sure they 

do not have on their bodies or in their luggage stuff that is going 

to harm somebody else. What a challenge. 

It has been over 8 years since September 11, 2001, and we have 

been facing these challenges literally every day since that time. 

And we have been lucky, but we have been smart. But we are not 

perfect, and we need to be as close to perfect as we can be. You 

know that and I know that. 

Our job here is to conduct oversight, to point out and help you 

point out what you have not done well, and to find out what you 

need to do differently to reduce the likelihood that we will have another guy with something in his shoes or in his underwear coming 

at us with the intent to do harm. 

What do we need to do differently to enable you to do more? We 

have spent many a day together here several years ago with the 

9/11 Commission sitting right where you are sitting giving us a 

whole bunch of recommendations and ideas. We acted on almost all 

of them. And I think we have come along and funded pretty well 

most of them. 

38 

It seems to me—and I will close with this—among the mistakes 

that occurred, one, when a distraught father, came into our embassy in Nigeria to report that his son was going the wrong way, 

whoever took that information down, as I understand it, may have 

passed along the information with the name of the person, the son, 

misspelled, and I am told that created some problems within the 

intelligence community and made it more difficult for us to connect 

the dots. 

I understand in a back and forth between one of my colleagues 

and, I think, Admiral Blair that the idea that somebody was using 

cash to pay for an airline ticket coming out of Nigeria, frankly they 

do not all have credit cards, and the idea that they are using cash 

may not be that much of a strange thing. 

The idea that this person had no luggage coming out of Africa 

with a one-way ticket, or maybe it was a round-trip ticket, I could 

understand how in Nigeria that might not raise a lot of eyebrows. 

Maybe it should have in Amsterdam, but if we had the right spelling of this guy’s name and if somebody along the line maybe in 

Amsterdam had picked up that this was a cash purchase and there 

is no luggage, that maybe should have helped us. 

The last thing I want to say is on the full-body scan, the technology side here. We have a pretty good idea how to stop guys like 

this fellow that tried to blow up the plane over Detroit. The technology is there. I know there are privacy concerns. I think they 

could be addressed, have been addressed. We need to buy them, we 

need to fund them, and we need to deploy them. We need to make 

sure that the folks that need to be trained to use them properly 

with respect to private sector, that they are in place. 

Now, what can we do to help? 

Secretary NAPOLITANO. Well, Senator, I will just say thank you 

for your comments, and I think that there will be budget implications moving forward looking at that. 

Second, my view is that—and I want to go back to a point that 

Senator Akaka asked me, the privacy versus security issue that 

gets raised in connection with the whole-body scanners. We do, as 

I said, look at privacy issues from the get-go, but ultimately the 

question is what do we need to do to protect the security of the flying public, even as we take some measures to deal with privacy. 

But security is the No. 1 concern. 

One thing that this Committee and the Congress can do, however, in addition to that is setting public expectations. We are 

doing and will continue to do everything we can to prevent this 

kind of event from ever happening again from whatever source, 

anywhere around the world, domestically. But there is no one silver bullet. 

Yes, we can push some more State Department material out to 

nine airports around the world, and we have. But even if we had, 

that is just a tool for additional screening. That does not necessarily prevent someone from getting on a plane. 

Yes, we can put more people into secondary screening, but that 

totally clogs up the travel system unless that is informed by intelligence that has been connected. 

39 

So helping the public understand that everyone is working on 

this, there are multiple layers involved, but no single one will be 

the sole answer. If there were, it would already be employed. 

Senator CARPER. Mr. Leiter. 

Mr. LEITER. Senator, I will offer a couple of comments. And as 

a former naval flight officer myself, I appreciate that if you have 

a bad day, it might be your last day. And I can tell you that the 

men and women who are doing this counterterrorism mission feel 

that way. And, frankly, the hardest thing about this entire experience for our organization has been the people saying, this is not a 

9 to 5 job. I have not met somebody who thinks it is a 9 to 5 job 

yet. 

But in terms of specific actions, I think the issue about standards 

for inclusion in the watchlist and the need to have a good conversation between the Executive and the Congress on determining what 

that balance should be between security and civil liberties is incredibly important, and this Committee plays a key role in helping 

us set that spot and that balance. 

Second, I think screening, as Secretary Napolitano knows so 

well, remains critical. It is a critical tool because, frankly, I simply 

am not going to find all the bad guys. And I do not want us to 

overlearn the lessons of this case where we did have pieces and we 

should have connected on Umar Farouk because there will be other 

instances where with a different name, a different passport, we 

might not identify them. So we need to have that multi-layered defense. 

Finally, in terms of making sure we learn lessons from several 

incidents and not just one, going back to issues of Fort Hood and 

domestic radicalization, we have to—and the Congress plays an 

enormously important role in ensuring that our American Muslim 

population understands that we need a partnership between the 

government and these communities to identify individuals like 

Nidal Hasan or Carlos Bledsoe before they actually pick up a weapon or pick up an explosive and strike. That is not a lesson directly 

out of December 25, 2009, but I think as we see a morphing 

threat—and we need the same agility you showed in jumping in 

your chair—we need to be agile, and that is going to require a partnership with these communities and not an adversarial relationship. And I believe the Congress plays a critical role there. 

Senator CARPER. Closing words, Admiral Blair. 

Mr. BLAIR. Sir, I would just add the request that you continue 

to keep the pressure on us. 

Senator CARPER. That I promise we will do. That is an easy one. 

Mr. BLAIR. Well, frankly, I think the pressure was sort of going 

the other way in the last couple years: ‘‘Things are going pretty 

well. You have too many people on the No Fly List. Why are you 

searching grandmothers? These guys are broken up.’’ 

I think we are really learning from this incident, in which, 

thankfully, nobody was killed, and we will make a tremendous leap 

forward. Of course, the tragedy of September 11, 2001, impelled us 

to do things that have made a great deal of difference. The trick, 

as you know from being an executive, is how to keep the pressure 

on when the crisis does not happen. And I think congressional 

oversight, I think leadership from our point of view have to be the 

40 

keys to doing that so that it does not take a near tragedy or a tragedy to make the improvements, but we make them as we go. 

Senator CARPER. Mr. Chairman, I think that is a good note to 

end on. Thank you very much. 

Chairman LIEBERMAN. Thank you. I agree with you, Senator 

Carper. I appreciate the statement that was made, and I agree that 

in different ways there may have been not quite a ‘‘Mission Accomplished’’ feeling around Washington, both branches of government, 

but a feeling that the war had reached a different level of intensity. 

It has not, and as the records show, we had a greater number of 

attempts to attack our homeland last year than in any year before. 

So it was a painful way to be awakened, but here we are. 

I appreciate very much the forthrightness of the witnesses today. 

Like a lot of other people, I was raised with parental wisdom that 

everybody either falls or slips in life. The question is how you get 

up, and most important of all, if you slipped and made a mistake, 

the only way you are going to deal with it effectively is to acknowledge it, acknowledge there is a problem, and then go on. I think 

that is the spirit of what your testimony has been today. 

I have a couple more questions. I know Senator Collins does as 

well. I want to come back to the watchlist because I appreciated 

again, I want to say, Admiral Blair, what you had to say. I think 

this has gone too much in the other direction, and, of course, we 

do not want Grandma being harassed, but there ought to be a pretty simple way to stop Grandma from being harassed without leaving out of pre-screening people about whom somebody has information that suggests that they may be terrorists. Again, all we are 

asking—we are not on the basis of their presence on the TIDE list 

going to arrest them or convict them. We are going to do a secondary screening to make sure they do not blow up the plane or 

come to the United States with evil intention. And I appreciate the 

remarks you have made, Director Leiter. 

What is the process now by which the Administration is reviewing the watchlist? We are going to perform oversight here continually. We want to have involvement in this with you. Director 

Leiter. 

Mr. LEITER. Senator, to begin, immediately after the event we 

took some near-term actions which were looking at categories of individuals, rescrubbing their records, and, frankly, elevating large 

numbers of people, based on certain characteristics, that I can talk 

about more in closed session, to at least the selectee level, further 

scrubs of that involving people with visas and the like, so there 

were some immediate steps taken. 

In the slightly longer term—and I really should not say ‘‘long 

term’’—this week—I expect that we will obtain interagency guidance out of this process, so within the next 30 days to more formally revise those standards so we can have routine inclusion of 

people at higher levels of that watchlisting. And certainly as we 

develop those standards, which I hope are simple for everyone to 

understand, we have to engage in real consultation with this Committee and other Members of Congress to make sure that, again, 

we are hitting the right balance. 

Chairman LIEBERMAN. OK. We want to be involved in that. If I 

may, since you are here, just suggest that it seems to me that the 

41 

watchlist system is too complicated, that having four levels—TIDE, 

watchlist, Selectee, No Fly—may be complicated—is more complicated, in my opinion, than we need. There ought to be a category 

where there is some basis for concern about contact with terrorism 

and then some higher category where there is some greater evidence where you really want to stop somebody from getting on the 

plane. 

Mr. LEITER. And, Senator, I have heard that a lot. I can tell you 

that we have, to a vast degree, eliminated one of those levels, 

which are those who are on TIDE that are not in the watchlist at 

the Terrorist Screening Center. Not completely, and I can explain 

that more fully in closed session, but fundamentally that step does 

not exist. 

I will say that one of the good things about the watchlist is this 

ability—and this did work in this case. We simply had not 

watchlisted someone at the right level. But what we do have is 

something that did not occur before September 11, 2001, which was 

a seamless connection of information flow from that top secret level 

at the National Counterterrorism Center down to the screeners. 

Now, again, we had a different problem here, which was someone 

was at the wrong level of the watchlist. But the information did 

flow so that basic structure was not, in this case, one of the flaws. 

Chairman LIEBERMAN. OK. And, Secretary Napolitano, perhaps 

I should ask you this question because it goes to TSA and maybe 

CBP. These questions of Grandma getting screened or this young 

boy, Michael Hicks—the name sticks in my mind. Apparently there 

is somebody on one of the lists with a similar name getting 

screened all the time. There has just got to be a common-sense way 

when there is a little boy coming through to not subject him to this. 

It is not a terrible price to pay, frankly, to protect the country, but 

we ought to try to avoid it if we can. 

Secretary NAPOLITANO. Indeed, Mr. Chairman, but I can talk 

about that particular case in a classified setting. 

Chairman LIEBERMAN. OK. 

Secretary NAPOLITANO. What we are going to have to build or 

have as we make the actual watchlist and No Fly List more robust 

is a greater ability to have redress and remove people who are improperly on the list from the list and a clearly understood non-bureaucratic process by which to do that. That is something we are 

looking at. 

Chairman LIEBERMAN. OK. Let me ask you a question about how 

the lists are used, and Senator Levin touched on this, and you have 

described it. This is a question of pre-screening of international air 

travel passengers to the United States. In the current system, Customs and Border Protection accesses the airline’s passenger name 

record 72 hours before a flight is set to depart. But those records 

do not typically include important identifying information like 

passport or visa numbers, which obviously makes it harder to 

match the passenger manifests with the government databases, the 

terrorism watchlists. 

Customs and Border Protection currently does not receive that 

important identifying information about passengers on a U.S.- 

bound flight until they begin the check-in process and in some 

cases not until 30 minutes before the airplane’s door closes. 

42 

Also, although we are checking the No Fly and Selectee Lists in 

real time as passengers check into a flight, we are not running, as 

we described earlier, visa revocations in real time. 

Now, once the airplane’s door closes and CBP receives that batch 

of passenger information, officials at what we call the National 

Targeting Center begin a more in-depth analysis of the people on 

the flight to determine who will require additional attention once 

the flight lands. 

On Christmas Day, as you know, it was that in-depth analysis 

that led CBP to uncover Abdulmutallab’s father’s concern about 

him and to determine that he would require a secondary inspection 

once he landed in Detroit, but, of course, that was far too late to 

stop what he intended to do. 

So I wanted to ask you whether waiting until the airplane’s 

doors are closed to begin an in-depth check of our databases is too 

late and whether we need to thoroughly screen each flight’s passenger manifest list against all of our databases, such as we have 

described, at least 24 hours, if not longer, before the airplane is set 

to depart a foreign country to the United States. 

Secretary NAPOLITANO. Mr. Chairman, I think some of that 

should be held for our classified briefing in terms of how that flow 

of information works. Obviously, where we want to get to is if we 

have derogatory information that someone is a threat to aviation, 

they never get on a plane. 

Chairman LIEBERMAN. Right. 

Secretary NAPOLITANO. The problem here is when they put all 

the dots together, that derogatory information was enough to advise the carrier not to put him on a plane. That was the problem 

here. 

In terms of the entire movement of information across the system with the millions of passengers that move every day, I would 

like to be able to talk with you about that a little more in-depth 

in the classified setting. 

Chairman LIEBERMAN. You understand my point. 

Secretary NAPOLITANO. I do. 

Chairman LIEBERMAN. That if prior to boarding the plane what 

we have is basically the passenger identifying information—that is, 

his name, or her name—but not other information like passport or 

visa numbers, it may be that we are not going to be able to effectively match them on that basis against the watchlist, and, therefore, they will get on the plane. But we will continue this conversation. Thank you. 

Secretary NAPOLITANO. Indeed. 

Chairman LIEBERMAN. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Chairman, before I ask a couple of final questions, I want 

to clarify an issue raised by the Senator from Missouri, and I told 

her as she was leaving I was going to do this. There is, in fact, 

precedent for detaining someone on American soil as an enemy 

combatant in the military system, and that is Jose Padilla. Jose 

Padilla was first arrested in 2002, and he was subsequently detained by the military for 31⁄2 years before being charged in civilian 

court. Whether that was the right way to handle the case or not, 

it is indeed a precedent. So it would not have been unprecedented 

43 

to detain Abdulmutallab, who, unlike Jose Padilla, was not an 

American citizen. So that could, in fact, have been done and would 

not have been unprecedented. 

The second point my friend from Missouri raised had to do with 

the amount of information that was given by Abdulmutallab. That 

is obviously classified and not for discussion here. But it is evident 

to me that you are going to get more information over a lengthier 

period of time than you are over just a few days, and it is clearly 

not a coincidence that Abdulmutallab stopped cooperating once he 

had his Miranda rights read to him and once he had lawyers who 

advised him to cease answering questions. So I have a very different view from my friend from Missouri on this issue, but I did 

want to establish some facts on Jose Padilla as being a precedent. 

I want to follow up with another issue with Mr. Leiter that Senator Levin raised, and this is just to clarify the record. On the terrorist watchlist that contains 400,000 names, you had an exchange, 

Mr. Leiter, with Senator Levin in which you and he talked about 

potentially significant number of those individuals would be able to 

travel to our country because they are not on the No Fly List or 

even the Selectee List. But, in fact, as I understand it—and, again, 

I realize the actual number is classified, but very few of those 

400,000 would have valid current visas. Isn’t that correct? 

Mr. LEITER. That is correct, Senator, but approximately 2 percent 

of the people who are in the Terrorist Identities Datamart Environment (TIDE) are U.S. persons, so clearly that is an issue. Also, 

there are a significant number that are from visa waiver countries 

and could enter the United States without a visa. 

Senator COLLINS. That is an excellent point, and it is a point 

that has been of great concern to the Chairman and me for some 

time, particularly when we are looking at individuals in Great Britain who may have dual citizenship with Pakistan and England and 

may be using one passport to travel to Pakistan and then the British passport to travel to our country. I realize that is an issue for 

another day, but it is of great concern. 

Mr. LEITER. Well, I actually do not consider it an issue for another day because, as I said, we have to learn the lessons of this 

case, but we cannot overlearn the lessons. And I think Secretary 

Napolitano and I have spoken previously and view the issue of visa 

waiver and using Electronic System for Travel Authorization 

(ESTA) data appropriately to detect individuals who might want to 

do harm to the United States is very much integrated in this equation. 

Senator COLLINS. Secretary Napolitano, in my remaining time let 

me ask you about a question that concerns me. When DHS was established in 2002, Congress authorized the Secretary of Homeland 

Security to assign DHS personnel to visa-issuing diplomatic posts 

overseas to review individual visa applications and to initiate investigations of visa security-related matters. Well, fast forward 8 

years. It is 8 years later, and as I understand it, DHS personnel 

are only in about 15 out of the 220 State Department posts around 

the world. And that small number is even more disturbing when 

you consider that DHS and the State Department have identified 

57 posts as being high risk. 

44 

I also understand that requests to expand to three more of these 

high-risk posts were waiting in your office for more than a year, 

waiting for approval by the Secretary—I realize part of that preceded you, but you have been in that office for about a year—and 

that you signed them just recently. 

Why the delay? Here you have a need in a high-risk area for 

DHS personnel. Why let it languish for a year? 

Secretary NAPOLITANO. It was not languishing, Senator, and let 

me talk about this in several ways. It was being evaluated in light 

of all the work being done at the Department about where our people need to be to have their highest, most effective use around the 

world, and in conjunction with the work we were doing on the 

Quadrennial Homeland Security Review (QHSR), which is due to 

the Congress this month. 

Let me, if I might, though, talk about the Visa Security Program. 

Senator Carper asked, what we could do. Well, both at the IAP 

level and at the Visa Security Program level, there is a difficulty, 

and the difficulty is that they make the Department a little bit 

pregnant. Either we run visas or we do not. Either we do the revocations or we do not. But we live in kind of a half-caste world 

right now, and I think it is important—and that is something that 

we ought to be—that is part of our review, but it also should be 

part of our ongoing dialogue with this Committee. 

Last, the Visa Security Program is a screening/investigative program where, in the embassies where we have it, with the agreement of the Department of State, they go out and do further research. But as you have mentioned, it is limited. It does not cover 

all of the embassies, nor can it by itself be more than and should 

be more than one of the many layers to be constructed here. 

So I would simply suggest to the Committee that this is one of 

the things we really need to look at, and areas of the Department 

where we kind of have authority but we kind of do not, we kind 

of have personnel, but we kind of do not. 

Senator COLLINS. But you did have the authority to deploy people to these high-risk posts. You had a request for these three, and 

I cannot publicly say what the three are, but they do not seem like 

hard calls from my perspective. 

If they did not languish for a year, are you saying that it took 

a year to evaluate the request? I mean, why the delay? 

Secretary NAPOLITANO. No. What I am saying, it was not a delay. 

It was an ongoing process within the Department, led by leadership in the Department to look at this in conjunction with everything else we were doing internationally. 

Senator COLLINS. Was the request made a year ago? 

Secretary NAPOLITANO. I do not know when the actual date of 

the request was. 

Senator COLLINS. It is my understanding that the request has 

been in your office for a year, and I will follow up with some additional questions. 

Secretary NAPOLITANO. I do not think that is accurate. We will 

be happy to have some correspondence with you and to get you the 

information. 

Senator COLLINS. Thank you. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Collins. 

45 

Senator Akaka, do you have any further questions? 

Senator AKAKA. Mr. Chairman, I do have further questions, but 

I know there is a vote. 

Chairman LIEBERMAN. There is a vote, but if you would like to 

start, go right ahead. I think there are about 13 minutes left on 

the vote. 

Senator AKAKA. Well, thank you, Mr. Chairman. This is becoming so obvious now, what has been going on with this Administration and with different agencies and departments working together. 

Director Leiter, NCTC has a Directorate of Strategic Operational 

Planning to support effective governmentwide counterterrorism 

planning, which is essential to preventing attacks. Yet Congress 

also directed the State Department’s Coordinator for Counterterrorism to conduct overall supervision and oversight of resources for 

international counterterrorism activities. NCTC’s and State’s authorities appear from our perspective to overlap. 

Are the State Department and NCTC cooperating in counterterrorism planning? And, how are you doing this? 

Mr. LEITER. Senator, I think we are cooperating well, but I would 

go back to something Director Blair said earlier. There are so many 

people involved here, and I do not think the legislation that created 

NCTC’s Strategic Operational Planning, as I have discussed with 

this Committee before, I do not think the legislation gave clear authority—in fact, it did not give us clear authority to direct action, 

so we have become a negotiator and mediator of sorts rather than 

director of action. 

I think the President’s Directive of January 7, 2010, which asked 

or directed NCTC to design a process whereby there would be follow-up of priority threat streams, will be empowering of strategic 

operational planning, not to direct operations, contrary to the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), but 

at least to empower us to demand accountability at a more tactical 

level for more, and a broader range of threats than we see. I think 

that will require a new level of cooperation from the State Department, also not just the State Department, but Homeland Security, 

FBI, Justice, and the military. I believe the events of December 25, 

2009, at least give us the impetus to do that. 

Senator AKAKA. Thank you for that. 

Secretary Napolitano, the public, of course, has been very concerned about what has been happening, and we are trying to put 

different measures in place. In your testimony, you state that, as 

an interim measure, you will deploy law enforcement officers from 

across DHS to serve as Federal Air Marshals to increase security 

aboard some international flights. 

When will these officers be deployed? And, what training do they 

receive to ensure that they are fully prepared to provide security 

inside an aircraft? 

Secretary NAPOLITANO. Senator Akaka, if I might reserve the details of the deployment for the classified briefing. 

With respect to training, there is specialized training. Indeed, we 

have a new, enlarged group that started training this week that 

will begin deployment on February 1. But it includes things, for example, about how to take down a passenger in a plane and keeping 

the other passengers safe while you are doing it, because you are 

46 

in a closed environment; how to take down a passenger in a plane 

without yourself causing damage to the structure of the plane. 

There are other things, but that gives you a flavor. There are some 

different things from a law enforcement perspective that happen in 

that airplane setting that are different than a normal setting. 

Senator AKAKA. Finally, this came to me while you were talking 

about working with other countries. You testified that TSA’s security directive requires passengers who are from or who pass 

through 14 countries to undergo additional screening at international airports prior to being allowed on flights to the United 

States. I am concerned that requiring additional screening of all 

passengers from certain countries may impact our relationships 

with those countries as well as the countries charged with providing the additional security and could divert attention from other 

possible threats. 

Have you heard concerns about this directive from other nations? 

And what is being done to address those concerns? 

Secretary NAPOLITANO. Senator, that list was developed from the 

State Department’s state sponsors of terrorists list plus add-ons to 

it in conjunction with the State Department. It is of concern to several of the countries that have been put on the list, recognizing 

that the enhanced screening is happening for over half of the passengers from all other countries who are embarking for the United 

States. 

So this is a very aggressive, very all-inclusive method. Nonetheless, we are talking with members of some of those countries and 

talking about ways or things that they could do that would alleviate concerns and allow them to be removed from the 100 percent 

list and go onto the list where we still do over half of the passengers. 

Senator AKAKA. Thank you very much for your responses. Thank 

you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Akaka. 

I would say to the witnesses that there is a vote on the floor now, 

and you have been really generous with your time. So I think it 

would be a mistake to go into the classified session now. It would 

take more of your time. We will try to reschedule it. It is even possible, in the spirit of cooperation and one of the unadopted recommendations of the 9/11 Commission Report, that we might sit in 

with another committee in a closed session with the three of you. 

I want to thank you—incidentally, just to say in public session, 

I know it is controversial. I have heard pushback from some of the 

14 countries, but stay tough on this. I am just saying that what 

is on the line here is so critical, which is the life and death of 

Americans, that, yes, it is inconvenient but, again, basically you 

are talking about just some more screening before you get onto a 

plane. It is done to achieve a public good. So I think you started 

out with the right position. I have already had people, friends of 

mine in other countries, complaining about it. But that is the world 

we live in. 

Secretary NAPOLITANO. Indeed, Mr. Chairman. And as I responded to Senator Akaka, our job is to make sure that the air environment is as safe as it can be. 

Chairman LIEBERMAN. Good. I appreciate it. 

47 

Again, I thank you. You have been forthright. We are in a world 

war with the Islamist extremist terrorists who attacked us on September 11, 2001, and have been coming at us in various ways from 

a diversity of places ever since. You had a little exchange with Senator McCain before. I think one thing we all agree about war is 

that mistakes are constantly made, and when they are made and 

when the enemy breaks through your defenses, immediately you 

are tough about it, as you said; you close the gaps. You do hold people accountable, as is appropriate, and you go on with the aim of 

securing the country that we are all here to defend and the freedom that we are all here to defend. 

So it is in that spirit that I appreciated very much your testimony. We have covered a lot of ground. We have learned a lot. I 

appreciate what you are involved in now to fix what did not work 

in these cases. And we are going to keep going with these oversight 

hearings. Next Tuesday we will have Tom Kean and Lee Hamilton 

and some other witnesses, and we are going to then go on to separate subject matter hearings in this oversight. We will issue some 

recommendations. But we want to work with you every step of the 

way. We obviously have a common goal, which is the greatest possible homeland security for the American people. 

I thank you very much. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. We are going to keep the record of the 

hearing open for 15 days for additional questions and statements 

from the Members. With that, I thank you again. The hearing is 

adjourned. 

[Whereupon, at 12:13 p.m., the Committee was adjourned.] 

(49) 

INTELLIGENCE REFORM: THE 

LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK—PART II 

TUESDAY, JANUARY 26, 2010 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

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

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Carper, Burris, Kirk, Collins, 

McCain, and Bennett. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. The hearing will come to order. 

Good morning and welcome to this second in a series of hearings 

during which our Committee will examine how the intelligence reforms passed by Congress in the wake of the attack of September 

11, 2001, are working, and examine the reforms in the light of recent terrorist attacks and the ongoing threat, and what parts of 

what we have done earlier may perhaps need further reform so 

that we can fulfill our responsibility to protect the homeland security of the American people. 

I want to just go back to last week’s first hearing in this series 

of hearings before I focus on this one and say that I very much appreciated the fact that all of our witnesses in last week’s hearing— 

Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and Department of 

Homeland Security Secretary Janet Napolitano—acknowledged 

that mistakes were made with regard to the Christmas Day attack 

on the plane over Detroit, and all three of them offered to work 

with each other and with this Committee to make our existing 

multi-layered counterterrorist defenses quicker to react and harder 

to penetrate. 

I thought Admiral Blair was especially forthright, and I thank 

him for that. My guess is his forthrightness has probably brought 

him some criticism and made him the target of some displeasure, 

but it was definitely the right thing to do because it was the way 

he felt and he spoke in what he believed to be the national interest. 

It is self-evident that our homeland security intelligence and law 

enforcement agencies did not work as we on this Committee—and 

as Governor Kean and Congressman Hamilton in their work postVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00057 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
50 

September 11, 2001—would have wanted those agencies to work. 

The point is that unless the people in charge admit that, as our 

three witnesses did last week, the problems will never be fixed. 

And when they do deal with their shortcomings forthrightly, then 

we have some hope that the problems will be fixed, and obviously 

whatever mistakes were made will not recur again. 

I do want to say that one of the most troubling revelations at our 

hearing last week was that none of the three witnesses was consulted before the Christmas Day bomber was turned over to our 

criminal courts rather than to the military where I believe he 

should have been held, since he was trained, equipped, and directed to attack America by al-Qaeda. 

Now, the fact is that since our hearing last week, Osama bin 

Laden himself has boasted of al-Qaeda’s sponsorship of the Christmas Day attack on America. And so while al-Qaeda claims credit 

for this attack, Umar Farouk Abdulmutallab, whom I think we can 

fairly describe as a soldier in al-Qaeda, and obviously not an American citizen, now enjoys the constitutional protections of an American citizen, including a lawyer who immediately counseled him to 

remain silent, even though he may have information that could 

protect the American people from another terrorist attack. To me 

this is outrageous—a kind of ‘‘Alice in Wonderland’’ situation turning the world of common sense on its head. 

And that is why yesterday Senator Collins and I wrote to Attorney General Holder and Deputy National Security Adviser Brennan, urging them to immediately turn Abdulmutallab over to the 

Department of Defense, where he can be held as an enemy combatant, as a prisoner of war, which he is, acknowledging with some 

certainty and gratitude that this also means that he will be held 

and given rights far in excess of what the Geneva Convention requires enemy combatants or prisoners of war be given. Senator Collins and I, and our Committee, are going to stay on top of this and 

other aspects of it to make sure that this mistake, the failure to 

consult with intelligence and homeland security officials before deciding how to handle Abdulmutallab and then the decision to turn 

him over to the civilian courts, is never made again. 

I do believe our homeland security intelligence gathering and 

analysis have remarkably improved since the attacks of September 

11, 2001, and that the sharing of intelligence, as we said last week, 

at all levels of government is vastly improved. This is due in no 

small measure to the work of two gentlemen who we are proud to 

have as our witnesses today: Chairs of the 9/11 Commission Governor Tom Kean and Congressman Lee Hamilton. The passage of 

the Intelligence Reform and Terrorism Prevention Act of 2004 

(IRTPA) has played a critical and extremely positive role in driving 

the changes that make the American people more secure today 

than they were on September 11, 2001. 

It is the work of these two gentlemen that leads us in part to 

refer to the Act I have just referred to as the 9/11 Commission 

Act—in part that is the reason. The other part is that it sounds a 

lot better than saying IRTPA, which is the acronym. The fact is 

that Act implemented most of the bipartisan recommendations of 

the Commission, and Governor Kean and Congressman Hamilton 

have been unique, not only in their bipartisan service in this reVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00058 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
51 

gard on the Commission, but in continuing to track the implementation of their recommendations persistently over the last 5 years. 

They are testifying before us today in their current capacity as 

co-chairs of the National Security Preparedness Group. I welcome 

both of you, and I thank you very much for your service. 

Your 9/11 Commission’s recommendations were comprehensive, 

both in terms of long-term actions we can and should take to blunt 

the terrorists’ appeal and to stop their ability to recruit, and also 

more short-term actions that we need to take to defend our Nation 

against further attacks. 

One of the challenges revealed in our hearing last week was the 

overwhelming amount of information that is collected by our intelligence and law enforcement agencies for analysis. It has been estimated, as you gentlemen know, that the National Security Agency 

alone collects on a daily basis four times more information than is 

stored in the Library of Congress. Hard to imagine, but that is how 

much is being collected. 

I know that Governor Kean and Congressman Hamilton have 

been considering this challenge, and I will be interested to hear 

their thoughts on how we can better organize our intelligence-gathering and analysis efforts so that crucial information can be mined 

more quickly from the vast mountain of data we build. I mean, 

after September 11, 2001, we were saying, correctly I believe, that 

the dots that we were collecting did not come together on the same 

board, as it were. I think now, thanks to your recommendations 

and the legislation that followed, the dots are coming together on 

the same board. But there are so many millions, billions of dots, 

the question is how do we see the patterns to help us act preemptively to stop attacks against our country. 

Another question I would like to explore in more detail with our 

witnesses relates to the authorities that we provided to the Director of National Intelligence and the National Counterterrorism 

Center in the 9/11 Commission Act. Bottom line question: Do we 

need to give the Director of National Intelligence (DNI) and the 

National Counterterrorism Center (NCTC) additional authorities, 

or do we need to push them harder to use the authorities they already have? 

And, again, I know that the two of you have done some preliminary work on this, and I look forward to the guidance that you can 

offer our Committee as we go forward with this series of hearings 

which is aimed at coming up with a status report and perhaps recommendations for legislation or further executive action. 

I cannot thank you enough for your unflagging efforts to secure 

our Nation against terrorism, particularly Islamist terrorism—a 

rootless and shadowy enemy, driven by theological extremism and 

unbound by any sense of morality or respect for life. That is the 

challenge of our time, and because of your extraordinary service, 

we are doing a lot better than we otherwise would have done in 

meeting that challenge. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. I, too, join in welcoming our two distinguished witnesses back to our Committee. 

52 

But for their efforts and the efforts of the families of the victims 

of September 11, 2001, many of whom are also here today, we 

would not have accomplished as much as we were able to. 

Nevertheless, we are hearing these words today: ‘‘Intelligence 

failures,’’ ‘‘calls for reform,’’ ‘‘lack of accountability,’’ ‘‘failure to connect the dots’’—testimony by Governor Kean and Congressman 

Hamilton. As Yogi Berra once said, ‘‘It sounds deja-vu all over 

again.’’ But, in fact, there are significant differences between now 

and then. 

When our Nation was attacked on the morning of September 11, 

2001, our intelligence community was hampered by an organizational structure that undermined unity of effort. It was led by a Director that had little authority over its various elements and little 

incentive to focus beyond the mission of the Central Intelligence 

Agency (CIA). It was burdened with a culture that promoted parochial agency interests over the intelligence needs of a Nation. 

The Intelligence Reform and Terrorism Prevention Act of 2004 

fundamentally changed our intelligence community. Working with 

the families of the victims and with our two distinguished witnesses as well as the rest of the members of the 9/11 Commission, 

this Committee was able to pass the most substantial reforms of 

our intelligence agencies in more than 50 years. In fact, my favorite 

name for the bill is the Collins-Lieberman Intelligence Reform Act. 

[Laughter.] 

In the 5 years since this Act became law, information sharing 

and collaboration among the 18 elements of the intelligence community have improved dramatically. And in 2009 alone, the intelligence community, working with Federal, State, and local law enforcement and homeland security agencies, has helped to detect 

and disrupt numerous terrorist attacks targeting our Nation. Two 

of these successes were the arrests of David Headley and 

Najibullah Zazi in two separate terrorist conspiracies. Other successes also were made possible in part by the reforms that this 

Committee spearheaded in 2004. 

But, standing alone, a law cannot accomplish transformation. At 

the end of the day, even the most powerful laws are just words on 

paper. They rely on the President and leaders within the Executive 

Branch to produce reform, to aggressively carry out the authority 

that they have been given. And to fight the war on terrorism, the 

President, the Director of National Intelligence, the Secretary of 

State, and other leaders must use the laws we pass to their fullest 

extent. 

Unfortunately, the terrorist attack at Fort Hood and the failed 

Christmas Day plot are stark reminders of what can happen when 

those authorities are not used effectively. 

Let us just look at some of the authorities given under the 2004 

law. The DNI has the clear authority to determine requirements 

and priorities for the management and tasking collection analysis 

and dissemination of national intelligence. Yet the initial analysis 

shows that the DNI failed to respond to the growing threat that alQaeda in the Arabian Peninsula posed to the United States and apparently failed to target sufficient resources at this threat. 

The Intelligence Reform Act also provides ample authority to ‘‘ensure maximum availability of and access to intelligence information 

53 

within the intelligence community.’’ Yet intelligence regarding the 

threat posed by Major Hasan apparently remained stovepiped at a 

Federal Bureau of Investigation (FBI) Joint Terrorism Task Force 

instead of being provided to officials within the Department of Defense who might have been able to act to prevent that attack. 

Similarly, we saw failure to connect the dots, the streams of intelligence reporting with regard to the Christmas Day attempted 

attack. 

The law directs the DNI to ‘‘ensure the development of information technology systems that include . . . intelligence integration 

capabilities,’’ yet here again the intelligence that may have allowed 

us to identify Abdulmutallab as a terrorist remained undiscovered 

in multiple intelligence community databases—disseminated, as 

the Chairman pointed out, those dots were out there. They were 

disseminated, but they were not connected. 

The law provides the Secretary of State with clear authority to 

revoke a visa ‘‘at any time, in [her] discretion,’’ yet Abdulmutallab’s 

visa remained valid when he boarded Flight 253. It remained valid 

despite the fact that the State Department had already decided to 

question him about his ties to extremists if he chose to renew his 

visa. I would ask: How could he have been a threat to the United 

States in the future based on these extremist ties, but not a sufficient current threat to cause his visa to be revoked? That defies 

logic and common sense. 

And, finally, despite the President’s authority to hold Abdulmutallab as an enemy belligerent and subject him to a thorough interrogation for intelligence purposes, the Department of Justice, as 

we learned at our last hearing, unilaterally decided to treat him as 

a common criminal, as an American citizen, advise him of his right 

to remain silent, and grant him a lawyer at the taxpayer’s expense. 

It is outrageous that our Nation’s top intelligence officials were 

never even consulted on this vital decision. And Senator Lieberman 

and I introduced a bill last week to try to prevent that from ever 

happening again. 

My point is that the President must empower his senior officials 

to use every authority available to them to defeat the terrorist 

threat. Doing so does not require action by Congress. That is not 

to say that further reforms are not needed, but correcting those 

problems is possible under the current law. It is just a matter of 

using the authority. They do not require a 60-day review or more 

studies. They should be implemented now. Nothing less than the 

security of our Nation hangs in the balance. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

I also want to note with gratitude the presence of members of the 

families of some of those we lost on September 11, 2001, whose persistence has not just matched those of Governor Kean, Congressman Hamilton, and Members of Congress, but really surpassed it. 

And it is just great that you are here. They are in the front row, 

various organizations, particularly Voices of September 11th. We 

thank you, and we are going to stick with it. I have often said it 

but it is true. If it was not for these folks, we never would have 

had the Commission. If it was not for the Commission, we never 

would have had the legislation. So thank you. 

54 

1The joint prepared statement of Mr. Kean and Mr. Hamilton appears in the Appendix on 

page 290. 

Do you two toss a coin as to who goes first in the spirit of bipartisanship? 

Mr. HAMILTON. I will go first. 

Chairman LIEBERMAN. Congressman Hamilton, it is great to see 

you and welcome. 

TESTIMONY OF HON. THOMAS H. KEAN, FORMER CHAIRMAN, 

AND HON. LEE H. HAMILTON,1 FORMER VICE CHAIRMAN, NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE 

UNITED STATES 

Mr. HAMILTON. Well, good morning to the Committee, and thank 

you very much for inviting Governor Kean and myself to be with 

you again. We are very cognizant, of course, of the fact that were 

it not for this Committee, many of the recommendations of the 

9/11 Commission would never have been enacted. Really, the Committee has shown extraordinary leadership on these questions over 

a period of years, and I know that the country is safer, and the 

country should be very grateful because of the work of this Committee. We thank you for it. 

Senator Lieberman, I want to say that you are exactly right 

about the families. This law would never have come into effect had 

it not been for them, and Governor Kean and I have had a marvelous relationship and support from them over a period of years. 

As you suggested, we are appearing today because of the Bipartisan Center’s National Security Preparedness Group. Our written 

testimony gives the membership of that group. I will not go over 

them. I know their names are familiar to you. But it is an extraordinary group of national security professionals that joined Governor Kean and me in this review of the 9/11 Commission recommendations. 

At the National Security Preparedness Group, we have been 

studying the implementation of the 9/11 Commission recommendations. We are still pretty early on in that review. But we do have 

at least some tentative conclusions to present to you today. 

The Christmas Day event and Fort Hood, as well, give us the opportunity to make two important points. One is an obvious one, but 

still very important, and that is that the threat from al-Qaeda and 

radical Islam remains very strong. 

One of the members of our group—you know him by name if not 

personally—Bruce Hoffman has observed that ‘‘al-Qaeda is on the 

march, not on the run.’’ And all of us agree with that. We have expressed, Governor Kean and I, over and over again our sense that 

the urgency on terrorism has been too low, and we have to reject 

complacency and recognize that we still confront a very serious 

threat. That is not a reason for panic, but it certainly is a reason 

for a comprehensive, concerted effort. 

The second observation we would make is that we see that the 

determination of the terrorist to attack the homeland remains 

unabated, but it reminds us of the need for establishing the Director of National Intelligence and the National Counterterrorism 

Center in the first place. We need to support these entities and 

55 

build them into strong and enduring institutions. It is imperative, 

in our view, that the DNI and the NCTC be successful in their vital 

missions that they have been asked to undertake for the country. 

We have been pleased that your Committee has initiated this series of hearings on how well intelligence reform has been implemented, and that is exactly the kind of congressional oversight that 

we called for in the report. 

There has been a debate within the intelligence community on 

the state of intelligence reform and the effectiveness of the DNI. 

The DNI has been hobbled by endless disputes over its size, mission, and authority. We are concerned about the criticism that is 

sometimes made about the growth and bureaucracy of the DNI, 

and we support, as I am sure this Committee does, an ongoing vigorous reevaluation of its functions to assure its leanness. But such 

a review must occur with the recognition that the Congress and the 

President gave the DNI a massive to-do list, a great deal of authority, as Senator Collins has pointed out, in the wake of the intelligence failures of September 11, 2001, and the weapons of mass 

destruction. 

It is not enough to say simply that the DNI bureaucracy should 

be reduced. We need to take a fresh look at how the DNI has performed on the essential tasks, clarify the mission, and then seek 

to adjust accordingly. 

In recent months as we have studied the effectiveness of the 

DNI, we have come to some preliminary conclusions. We have a lot 

more work to do, but we believe that the DNI has achieved a meaningful measure of success in its first years. It has been worth the 

inevitable turmoil. But it is a work in progress, closer, I think, to 

the beginning than the end of reform. 

Since September 11, 2001, the NCTC and other government 

agencies have repeatedly connected the dots and shared the information necessary to defeat terrorist attacks. Improvements have 

clearly been made on this point of sharing the information, although we continue to believe that sharing is not as prompt and 

as seamless as it should be. 

But many of the successes of the DNI have been heavily dependent on key personalities within the Executive Branch, both under 

the Bush Administration and the Obama Administration. We want 

to continue to look closely at the authorities of the DNI to make 

sure he has the authority to do his work, but it is our sense that 

the success of the DNI in the short term will not rise or fall on 

whether we make additional statutory adjustments to the Intelligence Reform and Terrorism Prevention Act. In other words, that 

was a difficult piece of legislation to get enacted. It is on the books 

now. It is going to be the governing statute for a period of time, 

probably a long period of time, and so you have to work with it. 

I think there probably are some ambiguities in the law, although 

you can argue, as I think Senator Collins was doing in her opening 

statement, that it is more a failure of exercising authority than ambiguity. But certainly, for example, Section 1018, the passage designed to ensure the chain of command in departments and agencies will not be abrogated—that is a provision in the law—raises 

some question of authority. And certainly there have been some 

problems resulting from that section. We hope those have been 

56 

cleared or at least improved by Executive Order 12333 put into effect in the final weeks of the Bush Administration. 

Now, the greatest challenge facing the DNI then relates to his 

authorities and his role. From my point of view—and I think from 

Governor Kean’s as well—the burden is clearly on the President to 

be very specific as to who is in charge of the intelligence community and where final authority lies on budget, personnel, and other 

matters. Now, obviously you need a strong DNI as a leader of the 

intelligence community. That person has to drive interagency coordination and integration, which we all know in this intelligence 

community is a massive task. 

At the same time, the DNI’s authorities must be exercised with 

discretion and consideration of the priorities and sensitivities of the 

other intelligence agencies. You really do need a diplomat in this 

job because you have 16 strong-willed agencies that are involved. 

But the President’s leadership is the key. It is crucial and must be 

continuing, or we run the risk of mission confusion and decrease 

the prospect of the long and lasting reform that was recommended 

after September 11, 2001. The DNI’s ability to lead the intelligence 

community depends on the President defining his role or her role 

and giving them the power and the authority to act. 

Chairman LIEBERMAN. Thank you very much for a very strong 

and thoughtful statement. Very helpful to the Committee. 

Governor Kean, thank you. Welcome back. 

Mr. KEAN. Thank you, Mr. Chairman, and I will just echo something Mr. Hamilton said. I remember when we were all lobbying 

to our best to get this massive bill passed, and I talked to one of 

your colleagues, and they said, ‘‘This bill is going to pass. You know 

why?’’ And I said, ‘‘Why?’’ And he said, ‘‘Because of the leadership 

that has taken control of this bill in the Senate. Because of the respect for them, this bill is going to pass.’’ And so thank you. Thank 

you very much for your leadership in that area and, of course, 

again the incredible families of September 11, 2001. They were the 

wind in our sails on the Commission. They are still with us every 

day. They are still supporting the other families. They are still here 

lobbying to make this country safer. And every time I come here 

and see them—they are here more than I am, and I just echo Mr. 

Hamilton—and the Committee in saying thank you so very much 

to Mary Fetchet and to all of you. 

Much has been said about the lessons from the Christmas Day 

attack. I would like to highlight just a couple of issues. 

First, the greatest single challenge that arises from this incident, 

in our view, is the urgent need to strengthen the analytic process. 

The President himself said there was a failure to connect the dots. 

With more rigorous analysis, we might have been able to connect 

disparate pieces of information, and that, of course, might have 

foretold that Christmas Day plot. 

We are pleased the President asked the DNI to look at this issue. 

The DNI was charged by you to ensure the highest analytical 

standards within the intelligence community. The DNI is properly 

situated within that community to assume a leadership role in applying the most rigorous standards to their analytical tradecraft. 

57 

Congress should also support these entities by giving the DNI 

and the NCTC the resources they need and, above all, the ability 

to recruit and to keep the very best people available. 

Another part of improving analysis is judging sources of potential 

attacks properly. As the President’s review has shown, we had 

what he described as ‘‘a strategic sense’’ that al-Qaeda in the Arabian Peninsula (AQAP) was becoming a threat, but, again, ‘‘we 

didn’t know they had progressed to the point of actually launching 

individuals here.’’ 

Now, we collect an enormous amount of intelligence, and we need 

the very best people not only sorting through it for tactical details, 

but in a strategic sense taking that and sort of making a decision 

as to where is the next attack liable to come from and what is happening out there. 

You talked about more information coming in, Senator, than in 

the Library of Congress. It is absolutely incredible what comes in 

every day, and the intelligence community is awash with data. So 

in this age when we are collecting more information than ever before, the real challenge is how do we understand it, how do we 

manage it, how do we integrate it. The DNI needs to develop ways 

of dealing with intelligence information overload. At the same time, 

we need to do a better job of pushing information to the right people within the intelligence community. We welcome President 

Obama’s order to distribute intelligence reports more quickly and 

more widely. We need better management of the data and to look 

to technology to help us better sort through massive amounts of information to ensure that the right people are seeing it, and seeing 

it in time to make a difference. The technology we use must be 

state of the art, must be constantly upgraded to quickly put information together, and it must be properly placed instantaneously so 

better analysis can occur. 

We heard a number of times during testimony back 5 years ago 

before the 9/11 Commission that the analysts were sometimes 

treated as second-class citizens in the intelligence community. 

Hopefully that is not happening today. But these people are probably if not the most important, among the very most important 

people in the whole community, and we should do everything we 

can to support them, to value their professionalism, and to get the 

best of them to stay in government and to attract others like them 

to the same job. 

A second lesson from the Christmas Day attacks is that it reminds of the importance of eliminating terrorist sanctuaries. When 

we found out that the attackers from September 11, 2001, benefited so much from the time, space, and command structure that 

existed at that point in Afghanistan, the 9/11 Commission placed 

great emphasis on identifying and prioritizing actual and potential 

terrorist sanctuaries. We recommended strategies employing all 

elements of national power because the more we can keep terrorists insecure and the more we can keep them on the run, the better 

off we are, the less able they are to attack us. We are very fortunate that the attack on Christmas Day emanating from Yemen did 

not succeed, but this episode reminds us again, let us look where 

are these people developing sanctuaries. 

58 

Again, Bruce Hoffman, our colleague, observed, al-Qaeda is aggressively seeking out, destabilizing, and exploiting failed states 

and any other area they can find of lawlessness, and over the past 

year has increased its activities in places such as Pakistan, Algeria, 

the Sahel, Somalia, and, of course, Yemen. The United States 

should take a fresh look at these areas and deepen our commitment to ensuring al-Qaeda cannot exploit those territories to 

launch attacks on our homeland. 

Then just a couple of matters that are left over in a sense from 

our report. We have talked a number of times, all of us, about balancing the need between civil liberties and national security, and 

we have to get that balance right. It is absolutely important. To do 

that, we recommended and you enacted a Civil Liberties Board located in the White House which would look at the implications of 

whatever laws were passed from a civil liberties point of view. That 

board was staffed and became operational in 2006. Congress further strengthened it in 2007, made it an independent agency outside the White House. 

Now, the board held at that point numerous sessions with national security and homeland security advisers, the Attorney General, and the FBI Director, among others, on terrorist surveillance 

and other issues that might arise from the collection of information. 

But that board has disappeared. It has been dormant since that 

time. We have now a massive capacity in this country to develop 

data on individuals, and the board should be the champion of seeing that collection capabilities do not intrude into privacy and civil 

liberties. We continue to believe, Mr. Hamilton and I, that the 

board is critical in the overall functioning, and we urge President 

Obama to reconstitute it, to appoint its members, and to allow 

them once they are appointed full access to the information and the 

authority to perform what we consider an essential function. 

Let me give you one more leftover recommendation from the 

9/11 Commission Report. When those of us who are citizens come 

down to Washington and we want to find out about transportation, 

environmental protection, or education, we can go and we can hear 

from the various committees, and we listen and we can participate 

as much as we can as citizens as part of our democracy. For a lot 

of the information on intelligence we cannot do so because it is secret. And yet as we know, the functioning of the intelligence agencies is absolutely essential to this fight we now have and will be 

essential in the future. So the public cannot really get involved because of the nature of the information, so we are dependent in this 

area more than any other on congressional oversight. And that is 

why we made such a point in our report of saying how important 

we thought congressional oversight was. 

In talking about it, we used the word ‘‘dysfunctional.’’ Now, that 

was not our word. That word came from members of both parties 

on the Intelligence Committees. 

Now, we made recommendations and Congress decided not to 

pursue those recommendations. But it is too important to just let 

it sit. It is too important that Congress’ oversight be as good as it 

possibly can be. 

59 

When we interviewed this Secretary of Homeland Security, she 

made exactly the same point that her predecessors have made: 

That she has to report to 60 to 70 congressional committees and 

subcommittees and, therefore, spent almost one-third of her time 

and the time of her deputies in testifying in this complex system 

rather than working to actually improve our overall security in this 

country. 

We also have suggested that perhaps the Intelligence Committees have more authority, particularly over the finances, so that 

they could do a better job and command the answers we need from 

the intelligence communities. 

We point this out because we think it is so very important that 

congressional oversight ensures the intelligence community is operating effectively, and also, by the way, to help resolve disputes 

about conflicting roles and missions. So we would urge the Congress to look at this issue again and take action to strengthen the 

oversight capabilities of the Intelligence Committees. 

Thank you very much. 

Chairman LIEBERMAN. Thanks, Governor Kean. Let me begin 

just by saying ‘‘amen’’ to what you have just said. As you look back 

at the 9/11 Commission’s recommendations and Congress’ response 

to them, Congress was really quite effective at taking on some of 

the status quo, and notwithstanding the resistance of different elements of the intelligence community, the Department of Defense, 

existing agencies, we pushed through in the national interest to 

achieve the reforms we did. The one existing institution that Congress proved itself less willing to reform was Congress itself. So 

you are absolutely right. As you remember, Senator Collins and I 

tried on the floor a couple of times to adopt the reforms, we recommend the reforms that you have gone back to this morning, and 

in an uncharacteristic experience for us, we lost miserably. 

But I want to challenge you, and I accept this challenge myself. 

Let us figure out with the families again if we can make another 

run at this, because it really is important and it does hamper the 

conduct of our homeland security and intelligence communities by 

those involved. And there is no excuse for it except turf protection, 

frankly. So I thank you for bringing that up, and let us come back 

to it. 

Let me say that last winter we noted 5 years of the post-9/11 

Commission Act, 5 years of the existence of the reforms. Senator 

Collins and I decided then actually to begin a 5-year oversight review this year, and then, unfortunately, it came after both the Fort 

Hood and the Christmas Day bombing. So we naturally begin this 

in the context of that. 

But the fact is, as we try to pull back from those two events particularly—and we should not pull back all the way just for the moment—the reforms really worked to protect us. Maybe we had some 

good fortune, obviously good luck. But the truth is that there was 

not a successful terrorist attack really since September 11, 2001. 

But then in 2009, it seemed to us that the pace of the attempted 

attacks against the United States picked up. There were at least 

12 that are publicly known. There were some others that have been 

not been discussed in public. And most troubling, of course, is that 

three attempted attacks actually successfully breached our homeVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00067 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
60 

land defenses: Carlos Bledsoe in Arkansas walked into an army recruiting office, killed an army recruiter just because he was an 

army recruiter; Major Hasan at Fort Hood; and then the attempt 

on Christmas Day. 

So I wanted to ask either of you or both of you to step back a 

little bit and give us your best judgment about what is going on 

out there, what happened in 2009 to increase the pace of attacks 

against our homeland. Is it just, as you said, Congressman Hamilton, a loss of the sense of urgency here? Is something different 

going on that we in Congress and the Executive Branch need to respond to? 

Mr. HAMILTON. Senator, I think the immediate thought I have in 

response to your question is that al-Qaeda has changed. The September 11, 2001, attack, as all of us know, was a highly sophisticated effort. 

Chairman LIEBERMAN. Right. 

Mr. HAMILTON. It took a lot of planning. It took a lot of people. 

It did not take an awful lot of money, but it really was impressive 

from the standpoint of planning and execution. And I think the attacks that you referred to in 2009 have been largely solo performances. 

Now, in some respects that probably indicates progress, and it 

means that our aggressive actions with regard to al-Qaeda have 

been successful, at least in part. And it is more difficult for alQaeda to organize the complicated attacks. But their intent remains, and perhaps their capabilities have been diminished. 

I do not have any doubt at all that they are sitting there somewhere plotting how to get at us. And they are going to do it any 

way they can, with any capability that they have. And if they cannot organize an effort to fly airplanes into the World Trade tower, 

then they can get one person to get on an airplane and try to blow 

it apart. So our guard has to stay up. 

Now, I think, second, that our defenses and our offenses with regard to the terrorist threat have improved. We are a lot better than 

we were. And that is no reason for patting ourselves on the back 

or complacency, but it is a fact. You have a lot of people in the government today who are very talented, and they are working very 

hard to block these attacks, not just the Federal Government but 

in city and State governments as well. We all know the efforts 

going forward in New York City, for example. So I think both factors are present. 

Chairman LIEBERMAN. Governor Kean, do you want to add anything? 

Mr. KEAN. Just a little bit. I think traditionally, at least, alQaeda used to talk about big things. 

Chairman LIEBERMAN. Right. 

Mr. KEAN. And after September 11, 2001, they talked even about 

doing something, if they could—Osama bin Laden himself talked 

about nuclear attach and what have you. The last big attack, I 

think, they seem to have attempted was that one in Britain where 

they were going to blow up the airliners. 

It does say something that they have not succeeded in any of 

those things or not been able to pull them off, and now they are 

obviously saying, all right, in a sense, let us try the smaller stuff. 

61 

And for bin Laden himself, if that was bin Laden in that tape, to 

take credit for a failed bomber from Yemen, that is not all bad. It 

shows he has not much else to talk about at this point. But I suspect we are going to have to be aware that while they would still 

like to plan the big one, now they are going to let loose whatever 

they can because they want to show some success, I think, in our 

homeland. 

Chairman LIEBERMAN. I appreciate that response. It gives us all 

something to think about. Let me just, in the time I have remaining, focus in a little bit on the DNI. 

When we were having the legislative battles over creating the 

DNI, I think that a lot of us would have guessed that the toughest 

battles that the DNI would have, once created, would be with the 

defense intelligence community. In fact, that seems not to have 

happened, and if there have been battles internally, it has actually 

been within the intelligence community. 

Though I think you raised reasonable questions in your testimony about whether the DNI has become too large, you also are 

very strong in saying that we gave them a lot to do. But, bottom 

line, I want to just draw from you what I assume from your statements is your position, that you have no second thoughts about creating the DNI. Am I right about that? 

Mr. KEAN. Yes, absolutely right. We believe that the DNI is exactly what we need right now. 

Chairman LIEBERMAN. And, second, that though you raised questions about the efficiency of spending money. I take it that when 

you are talking about clarifying mission, you are not talking about 

weakening the DNI. 

Mr. HAMILTON. That is exactly right. We want to strengthen the 

DNI with regard to key authorities—budget, personnel, and other 

matters. We are not talking about weakening him in any way. 

I must say, I saw an organizational chart of the DNI’s office the 

other day. Perhaps you have seen it. I was quite surprised at 

things they have taken on. It is worth a quick glance if you have 

not seen it. And to ask the question, is this really necessary to be 

done by the DNI, and I think valid questions can be raised about 

some of those efforts. 

For example, they have a university. I do not know what that is. 

I know what a university is, but in this context, I do not know 

what it is. And I am not sure that is the job of the DNI. But, anyway, I think all of that needs to be explored, but we have no second 

thoughts. 

Look, this is a great big, sprawling, aggressive, massive, hugely 

funded enterprise, the intelligence community. 

Chairman LIEBERMAN. Right. 

Mr. HAMILTON. And you have to have somebody at the top of it 

with authority, or it just is not going to work. Now, that authority 

obviously has to be accountable authority. But somebody has to 

knock heads together to get over this mind-set of ‘‘I can have the 

information, you cannot,’’ and get outside the stovepipe and to 

force—I think the word is appropriate—the integration of the intelligence community. That authority should be given in the DNI. I 

think he cannot exercise it, no matter what the statute says, without very strong presidential backing. 

62 

Chairman LIEBERMAN. Well, I agree. I do not mean to ask an 

awkward question, but I will. Is it too early to evaluate President 

Obama’s relationship with the DNI and whether that measure of 

leadership that you would like to see from the President has been 

seen thus far in this Administration? 

Mr. HAMILTON. It is my impression that the intelligence community is relatively new to the President. I think he began to receive 

intelligence somewhere along the campaign. Senator McCain can 

tell you when that happens. And my impression is that his instincts are probably good, but he is still kind of feeling his way. His 

preference may be—he said, ‘‘I have appointed good people here,’’ 

and he has done some good appointments, I think. But I do not 

think he has a firm grasp yet of the intelligence community, and, 

therefore, I am pretty strong in my thought that he has to step in 

pretty hard here, or some of these tensions which have surfaced 

will exacerbate. 

Chairman LIEBERMAN. Thank you. My time is up. Senator Collins. 

Senator COLLINS. Mr. Chairman, let me follow up on exactly the 

point that you just raised. 

The law is clear on who is in charge of the intelligence community. I remember the debates we had and how difficult they were 

in establishing the quarterback, the one person who was going to 

be accountable. And yet in spite of what appears to be a very clear 

legal mandate, the DNI and the Director of the CIA still seem to 

be engaged in significant turf battles. 

In just the past year alone, reports indicate that the White 

House has had to intervene in disputes over the CIA’s role in Afghanistan, the chain of command over covert action, and the designation of the chief U.S. intelligence officer in overseas posts. 

Those conflicts undermine the unity of effort that was the goal that 

we shared and the very reason we created the DNI. And I am concerned by reports that the President may have inadvertently undermined the DNI by siding with the CIA in these disputes. So I 

have two questions for you. 

First, does the President need to more clearly indicate to the intelligence community that the DNI is in charge and has his full 

support? 

And, second, do you believe that the relationship needs to be further clarified in law? Or is this a matter of the law being adequate 

for the most part and the President needing to lay down the law, 

if you will? Governor Kean, we will start with you. 

Mr. KEAN. Yes, I think we have always thought—and Mr. Hamilton has been very articulate in this over the years—that the success of the DNI is going to depend totally on the leadership of the 

President. He has to make it absolutely clear. 

Now, in a way, this Christmas Day bomber did us a favor. I 

think we were not paying close attention to this, and it is understandable. We were talking about health care, cap-and-trade, certainly the economy, and we should have been. But we got distracted a bit. I think everybody from the President on down got distracted, and were not paying full attention to this area, and so 

these things were allowed to develop and cracks were allowed to 

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up call, and I think the President in his statements, in his news 

conferences, in this area has been clear. And I assume that the actions are going to follow the statements and that he is going to pay 

now strict attention to this problem, and no matter what else is 

going on, his leadership is going to be called for in this area, and 

I assume he is going to exercise it. But it is not going to happen 

without that. I mean, he has to stay on top of this. He has to make 

clear what he believes the authorities are, and where there is any 

kind of dispute, he has to step in right away. He cannot allow it 

to fester. 

Senator COLLINS. Congressman Hamilton. 

Mr. HAMILTON. My answer to your first question obviously is yes. 

I have tried to make that clear. The President does need very clearly to make it crystal clear to everybody in the intelligence community that the DNI is in charge. 

As I said in my testimony, the exercise of that authority—but the 

DNI requires a lot of diplomacy and sensitivity. And that is a real 

challenge in how you exercise that leadership, but he should be in 

charge. 

Now, do you need a change in the law? That is a little tougher. 

In the short term, it does not make any difference. You are not 

going to change this law. The threat is out there now. The flaws 

have been revealed. You have to deal with those flaws right now. 

You cannot wait to change the law. So it does not make any difference in the short term. 

In the longer term, this is not the first law ever passed by the 

U.S. Congress that may have had some ambiguity in it. And it 

might very well be that you can refine it down the line. I do not 

have specific language to offer to you today, but I guess my central 

feeling is this is the law, it is going to be that way for a while, and 

you have to make it work. 

Senator COLLINS. Thank you. 

Last week I questioned the DNI, the head of the National 

Counterterrorism Center, and the Secretary of Homeland Security 

about whether they were consulted in the decision to charge 

Abdulmutallab as a criminal and give him his Miranda rights and 

give him a lawyer, which caused him to immediately stop cooperating and answering questions. 

I was shocked to hear from each of these top officials that they 

were not consulted about a decision that had such implications for 

our Nation’s ability to better understand what may be further plots 

emanating from Yemen. 

Governor Kean, what was your reaction to learning that our Nation’s top intelligence officials had not been consulted about that 

decision? 

Mr. KEAN. I was shocked and I was upset. It made no sense 

whatsoever to me that here is a man who may have trained with 

other people who are trying to get into this country in one way or 

another; who may have worked with some of the top leadership in 

Yemen and al-Qaeda generally, and we do not know the details of 

that; who may know about other plots that are pending, and we 

have not found out about them. 

This is not just about prosecuting an individual. This is protecting the American people. And decisions of this kind should 

64 

never be made without the full input of the greater intelligence 

community, particularly the DNI, but also the CIA, the FBI, and 

other members of the intelligence community. And the fact that 

this was done without that kind of consultation was to me upsetting and shocking. And, by the way, I come from the New York 

area. Regardless of how we feel about whether that trial should be 

going on in New York, again, I gather that the Attorney General 

did not consult any member of the intelligence community before 

making that decision, which also has security implications. 

So I think we have to get our act together and recognize that we 

should not make any major decision like this without first consulting the members of the intelligence community. And I just do 

not believe this individual should have been given all these rights 

or the lawyers before he was questioned fully. 

Senator COLLINS. Thank you. Congressman Hamilton. 

Mr. Hamilton. Well, I agree with Governor Kean’s comments. I 

think we have to be guided by the principle, and we need to get 

all the information we can out of these people. That is the principle. 

Now, what concerned me in the answers that you referred to and 

the questions you put was there did not seem to be a policy of the 

government as to how to handle these people, and that has to be 

clarified. I am not surprised the FBI stepped in. They are there 

when the plane lands. They go in. But there has to be a policy. It 

has to be clarified. 

Your legislation or your proposed bill, which, as I understand it, 

mandates consultation with the DNI—— 

Senator COLLINS. Yes. 

Mr. HAMILTON [continuing]. Makes all kinds of sense to me. The 

Director of National Intelligence surely should be consulted, but, 

importantly, there must be a policy. 

One of the things we learned in the 9/11 Commission Report, as 

we got into this question of interrogation, is that this is a difficult 

business, interrogating people, and you better be very sure that you 

have the right people asking the questions. 

Now, we can have differences of opinion as to what kind of pressure ought to be put on a suspect. But interrogating people takes 

patience and it takes skill, and you have to train an interrogator 

very carefully. 

I am attracted to the idea of a High-Value Interrogation Group 

(HIG). I do not think we have paid enough attention to the professionalism, if you would, of the interrogator. And I am not acquainted with the details of that, but I hope it is developing highly 

skilled people who know how to interrogate. An awful lot is at 

stake in finding out all you possibly can. 

Senator COLLINS. Thank you. 

Chairman LIEBERMAN. Thanks, Senator Collins. 

I would just say briefly that one of the surprising sort of facts 

we learned afterward is that there was a recommendation and I 

thought an announcement at the beginning of a High-Value Interrogation Group. As a matter of fact, one of the witnesses last week 

referred to it by the initials HIG. We are going to ask this question, 

but as far as I can determine now, the group was never fully operational, never set up, so it was not in a position to be called on to 

65 

do exactly what we would have wanted it to do, as you both have 

said, after Mr. Abdulmutallab was apprehended. Thank you. 

The remaining Senators will, as always, be called in order of appearance here at the hearing room, and it will be Senators Carper, 

McCain, Bennett, Kirk, Burris. Senator Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thank you, Mr. Chairman. Again, gentlemen, 

welcome. It is great to see you again. Thank you for the wonderful 

work you continue to do for our country. 

I am going to ask a question later in my allocated time that will 

draw on, I think, the great success and extraordinary leadership 

you provided for the 9/11 Commission to see what we can garner 

from that experience and as we prepare to move forward this week 

on legislation on a different commission, either a statutory commission that focuses on deficit reduction or perhaps a commission set 

up by an Executive Order. But I want to just bat some ideas 

around and just to ask for your thoughts given, I think, the extraordinary success that we realized under your leadership. 

I like to say that the road to improvement is always under construction, and that is certainly through when it comes to finding 

ways to stop the bad guys from doing bad things to our country. 

When your Commission completed its work and made your recommendations to us, I know you made a large number of recommendations, dozens of recommendations. The number 40 sticks 

in my mind, but I am probably wrong. But do you recall how many 

recommendations you made to us? And I think they were pretty 

much all bipartisan and unanimous. 

Mr. HAMILTON. About 70. 

Senator CARPER. How many, 70? 

Mr. HAMILTON. Seventy. 

Senator CARPER. Yes. Do you recall roughly how many we adopted? 

Mr. HAMILTON. We have calculated, Senator Carper, that 80 percent of the Commission recommendations have been adopted in 

whole or in part, and I think ‘‘in part’’ covers a lot of ground. But 

most of those—and about 20 percent—well, a little less than 20 

percent outright rejected. Some may still be pending in one way or 

the other. 

Senator CARPER. One of you said earlier in response, I think, to 

Senator Lieberman’s questions, you mentioned it has been 8 years 

since September 11, 2001, every day terrorists are targeting us 

here and around the world trying to create mischief, create mayhem, and they have so far not had a whole lot of luck. They have 

had some luck, bad luck for us, but they have missed opportunities 

as well. 

Something that we have done, something that you have recommended, something that we have adopted, something that has 

been implemented by the Executive Branch, is being pursued by 

our men and women all over the world, something is working. And 

that does not mean, as I think Congressman Hamilton said, that 

we sit back and rest on our laurels. 

But when you look at what we have done, including the things 

that you have recommended that really seem to be working, what 

66 

really stands out for you? When you look at what you have recommended that we have passed, that has been implemented by the 

Executive Branch, that does not meet muster, maybe that is incomplete, gets an incomplete, what might that be? Again, what do you 

think is really working well, is important to keep up? And where 

are some areas that maybe we did not follow up and recommendations were made but have not been implemented well? 

Mr. KEAN. Well, I will start. Obviously, the creation of the DNI 

under the congressional legislation with the NCTC was the heart 

of our recommendation to force information sharing because the 

lack of information sharing was one of the things we found that 

probably led to September 11, 2001, as much as anything else. And 

at least if we had shared information, there is a good possibility it 

might have been prevented. So that was key. That has been done, 

and we have talking about today how well it is functioning, and I 

am sure your Committee will continue to do that. 

I mentioned two areas before where recommendations have not 

been implemented. One is the Civil Liberties Commission, and we 

think that is very important, and basically it does not exist because 

the President has not appointed its members. And, second, congressional oversight, and we still do not believe—and we hear again 

from bipartisan people on both sides of the aisle that they are not 

satisfied in the Intelligence Committee that they have the ability 

right now to do the kind of oversight this country needs. And that 

is deeply disturbing because if they are not doing any oversight, nobody is doing the oversight. 

Senator CARPER. Right. 

Mr. KEAN. And that cannot continue to exist in this kind of problem. 

Those would be the three things I would mention. I could mention a number of others, but those would be most important, I 

think. 

Senator CARPER. Thank you, Governor Kean. Congressman Hamilton. 

Mr. HAMILTON. Well, Governor Kean is on the mark. On the plus 

side, I would think the recommendations we made with regard to 

the intelligence community, including the DNI and the NCTC and 

other aspects, I would judge them broadly successful, not completely but broadly successful. 

I think a lot of the recommendations we made in the transportation sector, the watchlists can certainly be improved, but we recommended that. Better detection equipment, we recommended 

that. We have been a little disappointed in the slowness of the 

adoption of some of the detection—improvement of some of the detection mechanisms. Cargo screening and all those kinds of things 

I think are underway, taking a little more time probably than we 

wanted to, but basically have been approved. 

We had a whole chapter in the book on the 9/11 Commission on 

foreign policy recommendations on the question of how do you deal 

with the Islamic world. That was not so much legislative recommendations as foreign policy recommendations. And I think we 

have a ways to go in implementing those because our relationship 

with the Islamic world is a huge foreign policy challenge, and will 

be for decades to come, in all likelihood. 

67 

I want to emphasize the Civil Liberties and Privacy Board. Look, 

you have the capability today of surveillance and intrusion into the 

lives of people that is incredible, what the government can learn 

about you today, and all of these fancy technological devices we 

have to intrude into private lives. And we all support it. We think 

that is necessary. But if you have an argument today in the bureaucracy between the security people and the civil liberties people, 

I will tell you who is going to win the argument. It will be the security people every time. 

We picked up the paper the other day, and we found out the FBI 

had been violating the law for 5 or 6 years. And it was not ever 

called to the attention—the inspector general finally found it out. 

This was the FBI, which is supposed to be sensitive to these matters. 

The point here is that you need somebody out here in the government that is checking everything that is done with regard to security and asking themselves, can it be done better with a little more 

respect for privacy and civil liberties? 

We all know that privacy and civil liberties are going to be invaded. We understand that. You cannot walk through an airport 

without understanding it. But we have to, I think, have a group 

with robust powers to be a counterbalance to the argument for security. And so Governor Kean and I, and I think all of our Commissioners, were very solid on that point. 

Mr. KEAN. Very strong on it in a very bipartisan sense. 

Senator CARPER. Mr. Chairman, could I take just one more 

minute and go back to the other question I wanted to ask? When 

I look at commissions that have been extraordinarily successful, I 

go back to 1982 Commission on Social Security which Congressman 

Hamilton, Senator McCain, and I voted for—I had the opportunity 

to vote for after they made the recommendations, not binding recommendations but recommendations which I think have served us 

well. 

We have before us this week the idea of a statutory commission 

that gives us recommendations that are binding unless there is 

some kind of override that exists. The proposal would say most of 

the commissioners would be sitting Members of Congress. Another 

approach would say, no, they could be folks like you who bring a 

world of experience to it. Just given the success of this commission, 

just give us a little bit of advice as we go forward this week on a 

different, equally important challenge. 

Mr. HAMILTON. Pick a chairman like Governor Kean. [Laughter.] 

Senator CARPER. But how about the vice chairman? 

Mr. HAMILTON. Let me tell you the first thing Governor Kean 

said to me—he was chairman, I was vice chairman—we knew each 

other by reputation, but we did not know each other well. Governor 

Kean walks into the room, and he says, ‘‘Lee, we are going to make 

all of these decisions jointly. We will not hire anybody, we will not 

fire anybody, we will not make any decisions unless we do it together.’’ 

Mr. KEAN. Look, Mr. Hamilton often said one of the fortunate 

things we had going for us is we were, as I think he used to put 

it, ‘‘reformed politicians’’? 

Senator CARPER. I describe myself as ‘‘a recovering governor.’’ 

68 

Mr. KEAN. There was nobody on the 9/11 Commission who had 

any interest in running for anything. Or I do not think anybody 

particularly was looking for an appointment of any kind. So our 

minds were clear in a sense. Our agenda was trying to protect the 

country. And that fact probably enabled us to get over the kind of 

partisan—we met at a terrible time. This was going into one of the 

most divisive presidential elections in our history. And we started 

off with a Republican sitting here and a Democrat sitting over 

there, and the first time I walked in, Democrats were sitting in one 

corner. He and I walked into the room, and basically said, ‘‘Break 

it up.’’ And after that I said Republicans are going to sit next to 

Democrats and Democrats are going to sit next to Republicans. We 

are never going to meet again unless we have that kind of seating 

arrangement. 

But it helps to have your mind clear of any other problems so 

you can concentrate on whatever the task is, and not to care very 

much, personally, try to do the right thing, and we figured, as a 

Commission, we would try to do the right thing, and that was our 

mantra. You know, we would argue about these things, and then 

somebody would say, ‘‘Well, what do the facts show? What is the 

right thing here?’’ And that was usually how we came out. 

Chairman LIEBERMAN. Thanks, Governor Kean. That was very 

helpful. 

Senator CARPER. It was. And thank you for being so generous 

with the time. Thank you both very much. 

Chairman LIEBERMAN. I know you will thank Senator McCain, 

too, because he is next. Senator McCain. 

OPENING STATEMENT OF SENATOR MCCAIN 

Senator MCCAIN. You are not welcome. [Laughter.] 

I want to thank our witnesses for their continued service to the 

country; especially, I would like to again welcome the September 

11, 2001, families, without whom the 9/11 Commission would never 

have come into being and these much needed reforms would never 

have been enacted. 

Congressman Hamilton, I was struck when you said 80 percent 

of the recommendations probably had been enacted into law. On 

page 419 of the 9/11 Commission Report, it says, ‘‘Strengthen congressional oversight of intelligence and homeland security. Of all 

our recommendations, strengthening congressional oversight may 

be among the most difficult and important. So long as oversight is 

governed by current congressional rules and resolutions, we believe 

the American people will not get the security they want and need.’’ 

It seems to me we have not implemented that very strong language contained in your report. Is that accurate? 

Mr. HAMILTON. Unfortunate, you are totally correct. 

Senator MCCAIN. Then it seems to me, Mr. Chairman, that we 

ought to go back at it, and we ought to keep going back at it until 

we shame our colleagues into being more concerned about national 

security than they are about turf. And so I hope at the next opportunity we will join and try to push the changes that have been recommended by the Commission. Would you say it is probably the 

most important failure of all the recommendations that you made? 

Mr. HAMILTON. Yes. 

69 

Mr. KEAN. I would, and we were told, by the way, by Members 

of the Congress who were on our Commission, four Members of 

Congress, and they all said when we proposed this, ‘‘This will be 

the most difficult recommendation to get implemented.’’ And we 

said, ‘‘Yes, but it is the right thing to do,’’ and everybody agreed 

it was the right thing to do, so we went ahead. 

Senator MCCAIN. Well, I will ask the September 11, 2001, families to go into battle again for us. [Laughter.] 

If anybody can get it done, you all can. I thank you. 

I was disturbed by the events—and some of it was revealed in 

the hearing that the Chairman and the Ranking Member held just 

a short time ago—the 50-minute interrogation, the decision to give 

the Christmas Day bomber Miranda rights and a civil trial. All accounts—and I only know press accounts; I have no classified information—were that this individual was talking, and then there was 

a pause, and when he woke up, he had a lawyer. And, understandably, the lawyer did what lawyers do. That is their job. So I am 

not blaming the lawyers. 

But how we could have made a decision the way we did brings 

me to a larger issue, and that is the whole issue of the disposition 

of detainees—Guantanamo, the trials, and under what circumstances. And it seems to me that the overall policy is so—the 

word may be ‘‘incoherent,’’ or certainly, ‘‘not coordinated,’’ I guess 

is a kinder description—that we now have an ad hoc decision making process regarding the treatment of detainees. 

We still have not resolved the issue of enemy combatants, which 

we cannot bring to trial because of insufficient evidence, but yet we 

know we cannot release them. We have learned that there is a certain percentage—it varies, 10, 15, or 20 percent—of detainees, depending on who you talk to, that are back in the fight, including 

some in leadership roles. 

So does this information make the argument for Congress and 

the Administration, or Congress alone, to develop legislation that 

addresses all these amorphous areas of trials, of detention, and 

particularly in this issue, the treatment of enemy combatants that 

you cannot bring to trial but at the same time cannot release? For 

example, an annual review of these cases. But so far, none of these 

have been translated into a policy that Members of Congress understand. 

So Senator Lieberman, Senator Graham, and I are working on 

legislation to try to address this very important issue, and we want 

to work with the Administration to prevent another situation such 

as the Christmas Day bomber. Furthermore, we also want to resolve the existing situation where enemy combatants are going to 

be tried in New York, which you have already expressed your opinions about; some are going to be tried in Guantanamo; some may 

be tried in other places. 

Does this whole Christmas Day bomber issue focus the absolute 

requirement that we address this issue in a policymaking and perhaps a legislative manner? 

Mr. HAMILTON. I very much agree with your conclusion. These 

people present a real challenge for us within our constitutional system. The problem is you have a detainee; you cannot prove a criminal charge against him, let us say. At the same time, he could kill 

70 

you. It does not fit in the American constitutional system, and we 

have not figure it out yet. 

I think the most important thing you said was that you, Senator 

Lieberman, and Senator Graham are working on it. I am delighted 

to hear that. I did not know it. 

I think we hear a lot about how government does not work very 

well today, how dysfunctional it is. This has been an area where 

the Legislative Branch and the Executive Branch have failed, flatout failed. We have had this challenge now for a good part of a decade, or maybe more. Neither President Bush nor President Obama 

has dealt with it, and the Congress has not dealt with it. I think 

it is a very tough bill to draft. 

The important characteristic that is needed in the bill, however 

the details are—and you have to look to lawyers who know a lot 

more about it than I do for the details. But the law has to be perceived as being fair, perceived by Americans as being fair, whatever that may mean; perceived by the foreign international community as being fair; and I think that is what you have to strive for. 

That does not mean you give them all the rights of an American 

citizen. I am not arguing that. 

But, Senator, I applaud that initiative. I think this has been a 

failure of the U.S. Government as a whole to deal with this very 

tough problem, and I certainly wish you well on it. 

Mr. KEAN. Senator, once again, thank you for your leadership. I 

could not agree with Mr. Hamilton more. 

Senator MCCAIN. Thank you. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator McCain. I appreciate 

your leadership on this. It has been very good to work with you 

and Senator Graham, and I think we are trying to make the point, 

and the witnesses have been very helpful, which is that the choice 

for our country in deciding how to deal with terrorism suspects we 

take into incarceration is not a choice between applying the rule of 

law and not applying the rule of law. We are a country of laws. It 

is a question of which rule of law. Is it the rule of domestic criminal law, or is it the rule of the laws of war? And, of course, I believe it is the second. That was a very important exchange. I thank 

you. 

Senator Bennett, you are next. 

OPENING STATEMENT OF SENATOR BENNETT 

Senator BENNETT. Thank you very much, Mr. Chairman, I appreciate the dialogue, and I appreciate very much the witnesses and 

the important subjects you have discussed. 

Rather than go back over some of those, because I think the 

record is now clear, Congressman Hamilton, let me pick up on a 

comment you made. It may appear to some to be a somewhat 

smaller issue, but you raised it—and I have an interest in it—when 

you talked about the necessity for better detection equipment. 

I spend a lot of time going through airports, as do we all, but I 

have personally experienced higher technology with respect to body 

imaging. We have one of those on a trial basis at the Salt Lake 

City airport. I went through it without any bodily harm or any psychological embarrassment, no displays of any embarrassing fashion 

anywhere. And I am drafting language, planning to introduce 

71 

shortly legislation that would require Transportation Security Administration (TSA) to adopt and deploy advanced technology like 

the body imaging technology at an accelerated pace. 

As you pointed out, it has been 8 years, and we are still using 

the old ‘‘mag and bag’’ technology, the magnetometer and searching 

the bags, which is not very effective, quite intrusive, and very slow. 

And I think we should get TSA to deploy technology with the capability to detect plastic explosives and liquid explosives, non-metallic 

threats and so on of this kind. 

And, by the way, I very much support what TSA has done with 

respect to privacy in these technologies, and we need to make sure 

that we go as far as we can to see to it that is balanced as well. 

We do that in the United States. Now, somebody gets on a plane 

in Yemen, transfers in Amsterdam. What kind of threat do we have 

in the world transportation network that says fine for TSA to be 

doing this, but it is not going to have any impact on the kind of 

thing that we saw in the form of the Christmas Day bomber. Give 

me your reaction to how technology can be used and how influential we can be in getting other countries to use it? 

Mr. HAMILTON. I do not know anything that has frustrated me 

personally more than the inability over a period of years to develop 

adequate detection equipment. The most serious thing in my mind 

is the inability to detect nuclear materials, and I know we have 

spent a lot of money at that, and this is a problem that goes back 

well before September 11, 2001. But we still have not come up with 

it. And so I think there has to be a crash effort, if you will, in the 

research and development in the scientific community to develop 

better technology here. 

The hijackers got on those planes on September 11, 2001, with 

4-inch blade knives. 

Senator BENNETT. Right. 

Mr. HAMILTON. They knew you could not get on with 8-inch 

blades. These folks were very sophisticated about our vulnerabilities, and whenever we make a change, they begin to adapt to 

it. So the technology has to try to keep out in front. 

I personally do not have any problem with the body images. I 

think they ought to be used. I am not dead sure they would have 

caught our December Day bomber and stopped that incident. In 

other words, people have said to me that even with body imaging, 

it might be he would have gotten through. But, in any case, they 

are clearly better than the metal detectors. Our adversaries here 

figured out a long time ago that they have to do something other 

than metal in order to cause problems. 

Now, the international problem is a very difficult one, exceedingly difficult, and I know our people have spent a lot of time talking to other countries about strengthening their procedures. I think 

we have to get to the place where we do not let people into this 

country unless they have gone through a security process that is 

rigorous, however defined. 

Senator BENNETT. Governor Kean. 

Mr. KEAN. Our biggest defense now is not in technology in that 

area. It is technology in identifying people who are bad people, 

should not get visas, and should not get into this country anyway. 

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son who is getting on a plane at that time heading for the United 

States, and little stars or whatever, if any of them are suspect in 

any way. That is probably, at the moment, the best defense we 

have. And, in fact, the Christmas Day bomber obviously should 

have been on those No Fly Lists if things had been done properly. 

Having finished with that, I think I am for upgrading any technology we can, and recognizing that the people who are enemies, 

as Mr. Hamilton said, are going to try to upgrade their methods 

of getting through the technology at the same time we upgrade our 

technology as best they can. And so I think we should do that. But 

the best defense we have is still do not let the bad people get on 

the plane to begin with, do not let them get visas, do not let them 

get to the airport, and do not let them even approach getting on 

the plane to the United States. 

Senator BENNETT. Thank you. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Bennett. 

Next we have Senator Kirk. It is possible that a vote will go off 

soon. Maybe it already has. When it does, I think I might go over 

and try to vote early and come back, but if I am not back when 

Senator Kirk finished, then, Senator Burris, why don’t you go right 

ahead, because you are next. 

OPENING STATEMENT OF SENATOR KIRK 

Senator Kirk, thank you. 

Senator KIRK. Thank you, Mr. Chairman. Thank you for your 

leadership and continuing oversight of this important matter we 

have addressed over time. 

Let me thank our witnesses for their selfless and patriotic service 

throughout your public careers. It has been inspirational, I think, 

to all who know and have followed. 

I also want to salute the families for their valor and persistence 

and recognize Carie Lemack, who worked closely with Senator Kennedy on help for the victims, and you folks deserve enormous 

praise and gratitude for your courage. 

My question basically goes to this impression of almost information overload at NCTC. We have talked about and you quite rightly 

recognize the need to recruit and retain analysts of the highest talent and caliber and to recognize their prominence in this whole dilemma. 

Do you have an impression that, given the amount of information, there are sufficient or adequate numbers of analysts of that 

caliber that are dealing with this? 

Mr. KEAN. My information, frankly, is not recent enough to make 

that conclusion. I know last time I was deeply involved in this 

there was certainly not enough analysts, and certainly not enough 

good ones. And one of the problems I said was they were not promoted or recognized the same way, and we were not attracting the 

best people. I hope that has changed. I have no information. I just 

have not been into it one way or the other since that time. 

Senator KIRK. Congressman Hamilton. 

Mr. HAMILTON. Well, I agree with that. This is one of the things 

we in the National Security Preparedness Group, need to look at. 

As Governor Kean said in his testimony, he drove home the importance of the analysts, and that is absolutely correct. I do not really 

73 

know whether we have enough. I do not know whether the ones we 

have are sufficiently trained. 

I do not think you produce an analyst quickly. I think it takes 

several years. And it is tough work. I mean, you are sitting there 

watching millions and millions of bytes of data come across the 

screen, and 99.9 percent of it is useless. And then there is the nugget in there. So you have to have not only first rate analysts, but 

you have to build into the system redundancy. I am not the least 

bit worried if you have two different agencies of the government 

doing similar work with regard to analyzing intelligence. But I 

think the question you have raised is really critical and needs to 

be followed up very carefully, and Congress needs to give full support to whatever the intelligence community needs to get top-flight 

analysts. 

Senator KIRK. Thank you. Thank you both. 

The other aspect of this analysis of our intelligence and the vast 

volume that we have is technology; this is apart from detection 

technology. This is about the technology that helps analysts synthesize, integrate, and read a pattern, if you will. Do you know or 

do you have an impression as to whether we really have the kind 

of state-of-the-art technology that allows us to do that and to share 

it with the various agencies of foreign responsibilities, the domestic 

responsibilities? Because it seems to me that the grid, if you will, 

or that state-of-the-art technology, combined with the kind of 

human resources you both talked about, is really the key to this 

whole puzzle. 

Mr. HAMILTON. Absolutely. I very much agree with that, and I 

do not know the answer to the question, do we have the state-ofthe-art technology? I have a suspicion we do not, but I may be in 

error. I hope I am. 

In any event, what I do know is that we have to find the best 

people in this country on the question of data management. I 

mean, you are handling data—it has been cited several times 

here—in massive amounts, and you have to sort through that in 

order to have the best protection. 

I do not know whether those people are in the government or in 

the private sector today, but wherever they are, we better find 

them and we better put them to use. 

Senator KIRK. Anything to add, Governor Kean? 

Mr. KEAN. That is absolutely correct. I remember when I was 

talking to President Clinton when we were doing the investigation, 

and he pointed out that our data management was so inferior in 

government compared to the data management in the private sector, and he mentioned credit card companies and he mentioned 

some other outfits that he had in Arkansas that he said could have 

identified these people right away. And we just did not have that 

technology at that point. I hope we are better at it. I just do not 

know. 

Senator KIRK. Thank you very much. Thank you, Senator Collins, for my time. 

Senator COLLINS [presiding]. Senator Burris. 

74 

OPENING STATEMENT OF SENATOR BURRIS 

Senator BURRIS. Thank you, Madam Ranking Member. Gentlemen, I echo the comments of my colleagues in reference to your 

work. I was almost in your situation as a retired public official, but 

duty called and I am back. But you all indicated that you are not 

going back in it and you were able to do great work for the country, 

which we appreciate. And to the September 11, 2001, family members, I extend my heartfelt thanks to you for your persistence. 

I have not been able to read your report. You know, as a new 

Senator, I am just going to have some general questions. I wonder, 

did you all take into consideration anything with reference to 

homegrown terrorists? I hear a lot about al-Qaeda and what will 

be coming from the foreign service. Did your Commission take into 

account homegrown actions? 

Mr. HAMILTON. The 9/11 Commission did not because it really 

was not within our mandate. But since the 9/11 Commission and 

the development of the phenomenon of terrorism, it is quite clear 

that the homegrown or the lone-wolf terrorist has become a major 

threat and concern to the country. So, yes, in the National Security 

Preparedness Group, we certainly will be looking at that threat 

and seeing how we can improve our defenses against it. Not all of 

the bad guys, unfortunately, are from abroad. We have a few here. 

Senator BURRIS. You are right, Congressman. Governor Kean, 

the same thing? 

Mr. KEAN. I would simply agree with him. 

Senator BURRIS. And, gentlemen, I just wonder, if we go back to 

the al-Qaeda situation now, what I tend to pick up there is that 

they are going to put chatter out through the various pipelines into 

all our security agencies that is misleading, misdirected, and you 

will never be able to tell what is really in fact a possible threat. 

I understand that they are going to try to spend us into oblivion 

with costs, that they are going to have us try to come up with every 

contingency to try to protect ourselves, which is naturally going to 

impinge, Congressman, on the civil liberties that will be coming. 

And so you have these actions that are taking place, the chatter 

that is misleading, and the attempts to spend us into oblivion with 

all of these various ideas. They will come up with something so it 

is tit for tat, and that tat is going to tap us out eventually financially. Are there any comments on that, gentlemen? 

Mr. HAMILTON. I think it has become quite clear that the approach that you are mentioning—in other words, trying to make us 

spend more and more by way of defense—is part of their strategy. 

And maybe even it is a successful part of their strategy. And 

maybe it is even one of the reasons they think they are winning 

in some areas. 

The really dramatic example is September 11, 2001, itself. Governor Kean, what did we figure that cost? 

Mr. KEAN. Huge. 

Mr. HAMILTON. A very modest amount of money caused it, and 

just think of all the changes that have occurred in America since 

September 11, 2001. So, yes, but what your question raises for me, 

Senator, is one that does not ordinarily come into the debate on 

terrorism, and that is the question of cost-effectiveness. The security people can come up with an endless number of ideas as to 

75 

what you should do, and you really find it very difficult to argue 

against any of them because they have truth to them. 

I think as we move along and as our costs continue to rise, the 

question you raise will become much more a part of the debate. Is 

it cost-effective? 

Now, obviously, you want to err there on the side of security, and 

we clearly have. But I do not know what this country spends to 

fight terrorism today. I am not sure anybody has made a calculation of it. If they have, I have not seen it. But it is a huge amount 

of money, and so the cost-effectiveness question comes to the front. 

Senator BURRIS. And, gentlemen, I have about 5 minutes to go 

and vote, so what we are going to do is to call a recess until Chairman Lieberman returns. Thank you. 

[Recess.] 

Chairman LIEBERMAN [presiding]. The hearing will come back to 

order. Thanks to the witnesses for putting up with this. I think 

probably my other colleagues are not going to return. If you have 

the patience, I will go one more round of questions. Then I will go 

back for a second vote. 

You have really been extraordinarily helpful. Perhaps I should 

save my flattery until after I ask this round of questions. I will 

come back to it. 

I want to talk just briefly with you about the National Counterterrorism Center, which we focused, understandably, more on the 

DNI and the general problem and some of the facts of the Christmas Day bombing. But, obviously, the 9/11 Commission Act created 

the NCTC ‘‘to serve as the primary organization in the U.S. Government for analyzing and integrating all intelligence possessed or 

acquired by the government pertaining to terrorism and counterterrorism.’’ And an intelligence community directive designated NCTC 

as the mission manager, a literal term. 

However, the report made to the President about the Christmas 

Day bombing states that there is analytic redundancy between the 

National Counterterrorism Center and the CIA. We referred to this 

a bit earlier, that responsibility was not designated to tracking 

threat streams from Yemen, and that analytical roles and responsibilities across the intelligence community need to be clarified. 

In your testimony, as I have mentioned, you reinforce these 

points and note that ‘‘we need to do a better job of ensuring that 

someone within the intelligence community is designated as in 

charge of running down all leads with a particular threat stream.’’ 

Generally, what is your assessment of why counterterrorism analytical roles or analytic roles and responsibilities are unclear 5 

years after the 9/11 Commission Act was adopted into law? Congressman Hamilton. 

Mr. HAMILTON. Now, I am not sure I understand the question, 

Senator. 

Chairman LIEBERMAN. Well, I guess it is a general question 

about looking back 5 years, because the law really put a charter 

in place. Why do you think that the analytic roles and responsibilities still seem to some extent to be unclear 5 years afterward? 

Mr. HAMILTON. I think we simply do not yet realize the importance of the analyst in the system. If terrorism is the threat and 

if you have massive amounts of information coming to you, collecVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00083 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
76 

tion is one part of intelligence; analysis is the other part. The collection side we are very good at, the analyst side less good at. And 

I think the reason for it is because we simply have not given it the 

priority it deserves. 

I am on a group that works with Director Mueller at the FBI, 

and he certainly has given great priority to counterterrorism. But 

in the FBI culture, the top man is the agent in charge, and if you 

are an FBI person, that is the job you have an ambition to achieve. 

And it is only in very recent years that they have begun to elevate 

the analyst to a comparable position as the agent in charge. 

When you really think about it, the analyst drives what the FBI 

does. If their principal function is counterterrorism, the analyst has 

to drive the activity of the FBI. I do not think you have in the Federal civil service the incentives that you need, maybe we do not 

have the pay that we need to elevate the job of the analyst. I think 

it is a very tough job, and it takes a while for the Federal bureaucracy to respond to the need. 

Chairman LIEBERMAN. Governor Kean, do you want to add anything to that? 

Mr. KEAN. Yes, just also remember in this 5 years you are talking about—with the exception of the FBI, you had rotating people 

in every one of those positions. 

Chairman LIEBERMAN. Right. 

Mr. KEAN. When you passed the Act, I envisioned a DNI that 

would stay for a while. We have not had that, and I think we need 

that. We need somebody to focus, and some of these problems I 

think are unresolved simply because of a change in leadership. 

Chairman LIEBERMAN. Yes. Is that something we should think of 

attempting to do by way of statutory amendment, to give the DNI 

a longer term? We actually argued this out during the legislative 

consideration of your Commission’s work. 

Mr. KEAN. Well, the first DNI left voluntarily. A term would not 

have kept him, I do not think. 

Chairman LIEBERMAN. Right. 

Mr. KEAN. So I think maybe the way to do it is rather through 

legislation or otherwise, have the understanding when somebody 

gets the job that, providing that you are doing the job well, we expect you to stay. 

Mr. HAMILTON. It appeals to me, Senator. You have a 10-year 

term for the FBI Director. 

Chairman LIEBERMAN. Right. 

Mr. HAMILTON. And Director of National Intelligence, it seems to 

me, is in a comparable position. Intelligence ought to be as removed from politics as possible. And so it makes sense to me. 

Chairman LIEBERMAN. I am glad to hear that. I had not really 

thought about that going in, but that might be something to do to 

strengthen the DNI. And it has worked really pretty well overall 

with the FBI Director. We see it in this case with Bob Mueller who 

made a transition quite seamlessly between administrations. 

Let me go back to the NCTC and ask if you would talk a little 

bit about what you think its role should be in relationship to other 

analysis organizations and to the so-called operators or intelligence 

collectors in the community. In other words, if I can borrow from 

what we were discussing earlier about the DNI, or should the NaVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00084 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
77 

tional Counterterrorism Center be the leader of the intelligence 

community’s counterterrorism activities or just a coordinator? 

Mr. HAMILTON. I think the analyst is the person who has to spot 

the problem and to spot the threat, and then there has to be an 

assignment of responsibility to someone to pursue vigorously that 

threat. 

I do not think that is likely to be the analyst, but somebody has 

to be in charge. In other words, the analyst says we have five 

strands of information here that point to X as a threat. You cannot 

stop there. You have to pursue it. And somebody has to be assigned 

the responsibility of saying you go after X and make sure that X 

does not cause any problem. 

I do not think that is the role of the NCTC. I am not quite sure 

where that responsibility lies, but the assignment of responsibility 

to investigate and to pursue a suspect has to be very clear. 

You mentioned a moment ago the word ‘‘redundancy.’’ I answered 

in response to Senator Kirk, I think it was, redundancy does not 

bother me particularly because if you have the CIA doing analytical 

work on the threat and the NCTC, that is OK, because the thing 

that impresses me about the analyst is the work can be boring, I 

mean really boring, sorting through massive amounts of data and 

trying to figure out what is right or what is significant. And somebody is going to be asleep at the switch now and then, so some redundancy does not bother me. 

Chairman LIEBERMAN. Yes, I agree. This is a military concept, of 

course, both for personnel and for systems, in case one system 

breaks down. It is not a bad word to say that you have a redundant 

system. It is there to protect the life of the military person. 

Governor Kean. 

Mr. KEAN. I was just thinking one thing we ought to check on— 

I do not know the answer to this—is with these various agencies, 

who is attending the NCTC? What kind of priority are these agencies giving it? Are the people who are showing up people who are 

so junior in the line that if they come back with something, is it 

not going to be paid much attention to anyway? Are they sending 

some of their top people to the NCTC? Again, I do not know the 

answer. But that was one of the problems we had that we talked 

about a little bit at the time of the legislation, that these agencies 

have to give top priority and send their top people for the NCTC 

to be effective. And I do not know whether that is happening or 

not. I do not know the answer. 

Chairman LIEBERMAN. It is a very good question. You know, we 

are going to follow up these two introductory hearings with a series 

of subject matter hearings, and we are going to do one on the 

NCTC, and that is a question we will ask. I probably said to both 

of you that when Senator Collins and I first went over to the NCTC 

after it was established in its new quarters, I remember that its 

then-Director took us around and said, ‘‘Look at this. This is where 

the CIA people sit. This is where the FBI people sit. And note there 

are no walls between them.’’ So that was a big breakthrough. 

[Laughter.] 

But now it is reasonable for us to ask exactly how they are working together, who are the people they are sending over, are they 

top-notch people. Of course, we all wanted, as you know, to make 

78 

sure that just as the military does, we would encourage jointness 

and reward it in career paths. In other words, if you are in the FBI 

and you are sent for a term over at the NCTC, it should be something good for your career, not something bad. 

The 9/11 Commission Act also gave NCTC the authority to conduct ‘‘strategic operational planning for counterterrorism activities.’’ The memories I have of the arguments over that particular 

provision and the fear could fill a book. But insofar as you know, 

I wanted to ask you—we are going to focus on this in one of our 

hearings. What is your assessment of how these authorities have 

been used by NCTC up until this time? 

Mr. HAMILTON. My assessment, Senator, is that the intelligence 

community is overwhelmed by the tactical needs. In other words, 

you have a large number of military commanders out here who 

want intelligence on the enemy. 

Chairman LIEBERMAN. Right. 

Mr. HAMILTON. We are pretty good at getting that information. 

Or you have a diplomat who wants to sit down and talk with their 

counterpart in another country on whatever. We are pretty good at 

giving that diplomat information. Where we are less good, it seems 

to me, in the intelligence community is just the question you are 

raising, longer-term thinking. 

Yemen probably is a pretty good example of it. We were behind 

the curve on Yemen. We simply did not realize how advanced they 

were in terms of striking the United States. But we need to have 

a significant element of the intelligence community thinking 5 

years, 10 years ahead as to where the threats will come from. And 

that is even a tougher job, I guess, than the imminent threat. But 

it is very important that the United States not be surprised by 

these developments to the extent that you can possibly avoid it. 

So I look upon our intelligence community as being very good, 

but if there is a weak spot, I think it tends to be in longer-term 

matters. 

Chairman LIEBERMAN. Well said. Governor Kean. 

Mr. KEAN. I would agree with that. 

Chairman LIEBERMAN. Well, that is it, and I thank you very 

much for your time. What I was going to say before, thinking while 

walking over and back, that I remember a former Secretary of 

State once aroused a lot of interest when she said America is the 

indispensable Nation in the world. I say by way of compliment and 

warning that I fear that the two of you have made yourselves indispensable. It is really quite an extraordinary act of service you have 

performed, and all the more important in this particular moment 

in our political and governmental history that you have formed 

such a collaboration in which—it is not just bipartisan. It is nonpartisan. I do not think either one of you think about your party 

label when you do the work you are doing because you know how 

important it is to the national interest. And as a result, it continues to make you very important and influential. 

Your testimony today has been very substantive. I do not want 

to make you feel too mature if I say I felt it was actually wise and 

very helpful to the Committee. So I thank you for it. 

As I said, Senator Collins and I want to go to a series of subject 

matter hearings, and I would like to invite you and your staff at 

79 

the National Security Preparedness Group, that we consult with 

you about the directions in which we are going, and we would welcome your advice. But I honestly cannot thank you enough, and 

this has been a very constructive hearing for us. 

We will keep the record of the hearing open for 15 days for any 

additional questions and statements. With that, I thank you and 

the hearing is adjourned. 

[Whereupon, at 12 noon, the Committee was adjourned.] 

(81) 

THE LESSONS AND IMPLICATIONS OF 

THE CHRISTMAS DAY ATTACK: 

WATCHLISTING AND PRE-SCREENING 

WEDNESDAY, MARCH 10, 2010 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY AND

GOVERNMENTAL AFFAIRS, 

Washington, DC. 

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

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Carper, Burris, Collins, and 

Brown. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. The hearing will come to order. Good 

morning and welcome to everyone. 

Let me first express my pleasure at welcoming to this Committee 

as a Member, and attending a hearing for the first time, our colleague from Massachusetts, Senator Scott Brown. This is a Committee that Senator Collins and I have been on for some years now. 

We are proud of what we have been able to do. It is, as you know, 

a very bipartisan Committee and I think that is part of why we 

have been able to accomplish a lot over the years. I would say with 

particular regard to this Committee, it is very hospitable to independent-minded Senators. [Laughter.] 

Senator COLLINS. From New England. 

Chairman LIEBERMAN. From New England. [Laughter.] 

Welcome. It is a pleasure. 

This is the Committee’s third hearing in a series that Senator 

Collins and I have begun to examine the extensive reforms made 

to our intelligence systems both after September 11, 2001, but particularly at the 5-year point from the enactment of the 9/11 Commission reforms. 

Our goals here are to review where we have been, and how we 

are doing, to identify weaknesses that remain in the system and 

to make recommendations for administrative reform or legislation 

that are needed to correct those weaknesses. 

Of course, these hearings have taken on added significance in the 

aftermath of the Christmas Day attempted terrorist attack in 

which Umar Farouk Abdulmutallab unfortunately exposed some 

serious weaknesses in our Nation’s homeland defenses. 

82 

The last two hearings that we have done in this series gave us 

a broad overview of the human mistakes and systemic or structural 

shortcomings that contributed to the Christmas Day attack. Today, 

we are going to look at two of the most important components of 

our government’s efforts to deny terrorists the ability to travel to 

the United States, and that is the creation and use of terrorism 

watchlists and the passenger pre-screening mechanisms that use 

these lists to identify potentially dangerous individuals and if, in 

fact, we determine they are such, to stop them from getting on airplanes coming to the United States. 

On Christmas Day, our government was unable to pull together 

all the intelligence in its possession to stop Abdulmutallab before 

he got on that plane. This was not a failure to collect information. 

And unlike the missteps leading up to September 11, 2001, it was 

not a failure to share it. We knew that Abdulmutallab’s father had 

concerns about his son’s growing extremism and presence in 

Yemen. We had separate intelligence that there was a Nigerian— 

unnamed, unidentified, but a Nigerian nonetheless—training in 

Yemen with al-Qaeda on the Arabian Peninsula (AQAP). We heard 

separately of plans for a Christmas Day, or Christmas-time, attack 

on the United States. And again, separately, we knew of a reported 

telephone intercept that identified a man named Umar Farouk, 

without his last name, as a terrorist. 

All those dots, so to speak, were on the same table, but our government was unable to connect them, in that sense, to separate 

this information out of the enormous mass of information our government collects and shares so that this terrorist could be stopped 

before he acted. We were just plain lucky, as we have said over and 

over again, that the device he had on him did not effectively explode on that plane. 

In our first hearing, the Director of the National Counterterrorism Center (NCTC), Mike Leiter, acknowledged that the Center’s information collection and sharing systems need to be smarter, as he put it, and I would add that in an era when Google, for 

instance, can aggregate information for anybody who goes on 

Google from scores of Web sites and databases throughout the 

world very quickly, it is just unacceptable that NCTC does not 

have the same ability to search and aggregate information across 

our government’s intelligence databases. 

I think we also need automated mechanisms to connect disparate 

data points 24/7, 365 days a year, and flag potential threats for analysts to examine. These systems are widely used in the private 

sector and need to be adopted by our intelligence community as 

soon as possible with our help. 

The Abdulmutallab case also exposed weaknesses, I think, in our 

watchlisting system. Our intelligence agencies obviously need to 

view some of the tips or finger pointing that is sent them, given 

to our government, with skepticism. The fact is that some informants may be motivated by spite or rivalry. But most are not, and 

it is just unacceptable, in this case, that Abdulmutallab’s father— 

not just his father, but a respected business leader in Nigeria—was 

not considered a credible enough source for his information to have 

put his son on the watchlist without corroborating evidence. So I 

hope to hear from our witnesses today how the watchlisting process 

83 

has been modified to ensure that this kind of error will not be 

made again. 

Another watchlisting problem, I think, concerns the screening of 

individuals on the watchlist who are not U.S. citizens or permanent 

residents. We are historically one of the most welcoming countries 

in the world to visitors and legal immigrants. But travel to the 

United States is a privilege, not a right. In my opinion, if the government concludes that there is any reason to believe that someone 

may have ties to terrorist activities, that person should be required 

to undergo secondary physical screening, at least, before being allowed to board a plane bound for the United States of America. 

And finally, we need to dramatically expand our ability to prescreen travelers, both internationally and domestically. Right now, 

the government only begins to receive important identifying information about international travelers when they check in for their 

flight. In fact, most of this information is conveyed to the Department of Homeland Security (DHS) only after an airplane’s doors 

close, or are about to close, which obviously makes it practically impossible for DHS to fully vet passengers before a plane takes off. 

In fact, that was the case on Christmas Day, and it argues loudly 

that we must find a way to start in-depth vetting in advance of a 

passenger’s arrival at the airport using modern information gathering technology. 

We need to ensure, I think, that the DHS has the identifying information it needs about international passengers at least 24 hours 

before departure and that it fully implements Secure Flight procedures to ensure that all passengers on all flights are systematically 

checked against the terrorism watchlist. 

So this hearing is, in our opinion, an important opportunity to 

examine the next steps we need to take to continue to strengthen 

these watchlists and pre-screening systems that have been adopted 

after September 11, 2001, and particularly after the passage of the 

9/11 Commission legislation. 

The fact is, we are doing much better at this than we did on September 11, 2001, but what the Christmas Day bombing attempt 

shows is that we have to do better yet to ensure that the next 

Abdulmutallab is not allowed to get on a plane to the United 

States. 

We have a very good group of witnesses before the Committee 

today. I want to say to you before we call on you that I think you 

have some of the toughest jobs in the U.S. Government, and therefore, you are subjected to disappointment or criticism periodically. 

I want to thank you for your commitment and service to our country. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. 

Let me start by joining you in welcoming Senator Brown to our 

Committee. We are delighted to have you, Senator, join this great 

Committee. I think you will enjoy it very much. 

I understand on the other side of the aisle we are also going to 

be gaining a member. A second Delaware Senator, I believe, is coming our way. 

84 

Chairman LIEBERMAN. This is true. I am tempted to make a joke 

about Senator Carper, but I think it will only get me in trouble. 

Senator COLLINS. I thought I was giving you a good opportunity. 

Chairman LIEBERMAN. Yes. I was going to say that one is 

enough—— [Laughter.] 

But Senator Kaufman will be a great addition to this Committee, 

and along with Senator Brown, really strengthens our membership. 

Senator COLLINS. Thank you. 

Today’s hearing focuses on two fundamental questions. Why was 

the Christmas Day bomber allowed to travel to the United States? 

And why was his name not included on the terrorist watchlist? 

We know, as the Chairman has pointed out, that Abdulmutallab’s father had informed the American Embassy in Nigeria of his 

Islamist extremist connections in Yemen more than a month before 

he boarded the flight to Detroit. We also know that his name was 

included in the broadest terrorist database known as the Terrorist 

Identities Datamart Environment (TIDE). But despite this alarming information, the system failed to bar Abdulmutallab from 

boarding Flight 253 to America. 

As I look at this case, over and over again, I see missed opportunities. From my perspective, the State Department clearly had sufficient information to revoke Abdulmutallab’s visa. State Department officials already had decided to question him about his ties 

to extremists if he chose to renew his visa. 

It is baffling to me that Abdulmutallab could have been considered a threat to the United States in the future based on his extremist ties but not a sufficient current threat to suspend his visa. 

That defies both logic and common sense. Had the State Department taken the action to revoke or suspend his visa, it would have 

prevented him from traveling to our country, a missed opportunity. 

Another missed opportunity occurred in Amsterdam. Amsterdam 

is one of those rare airports in Europe and throughout the world 

where a small number of U.S. immigration advisory officials are 

stationed. These officers can ask an airline not to board a passenger who will be prohibited from entering our country upon arrival. They receive a list of passengers of concern, including those 

whose visas have been revoked or flagged by the State Department. 

This was another missed opportunity to stop Abdulmutallab. 

Another missed opportunity to stop him apparently occurred at 

the National Counterterrorism Center. The President has stated 

that there was ample intelligence on Abdulmutallab to warrant his 

inclusion on the No Fly List, yet this did not occur even after his 

father’s warning. It did not occur because other streams of intelligence mentioned by the Chairman were not connected until it was 

too late. 

A basic question about this missed opportunity is why did the intelligence community fail to analyze all the available information 

related to Abdulmutallab? Some intelligence experts tell me that 

outmoded computer systems are a factor. Despite the vast improvements in information sharing since 2001, and particularly since the 

bill that we authored in 2004, our intelligence community continues to rely on internal systems and processes that are relics 

from the days before the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). These outdated systems apparently 

85 

do not effectively surface intelligence information so that analysts 

and security officials can identify threats in real time. 

I would like to know what the Administration’s plans are for upgrading these systems to allow for more effective searching of terrorist information, for Google-izing, if you will, information across 

the government. For starters, identifying individuals in the terrorist databases who have valid U.S. visas should not be that complicated a task. 

We must also examine how we can better identify individuals 

who should be on watchlists for additional screening at airports. 

For example, we know that Abdulmutallab was identified for additional screening, but only once he arrived in Detroit. This identification, as the Chairman has pointed out, was done while the 

flight was in the air or just after the door had closed. Why was that 

same information not used to identify him earlier, before he 

boarded his flight, for additional screening and an interview, as 

well? Another missed opportunity. 

As this case demonstrates, waiting until a suspect terrorist arrives in our country to conduct additional screening is waiting too 

long, another missed opportunity. 

We must continue to strengthen our watchlisting and screening 

systems, including evaluating the standards that are now used to 

include an individual on watchlists and look at which standards 

are used for which watchlists and whether they need to be 

strengthened, as I think is evident. 

The bottom line is, until these systems work more effectively, 

work more seamlessly, we will not be able to prevent terrorists 

from traveling to our Nation. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

Senator Brown, it is our custom just to have Senator Collins and 

me make an opening statement. If you have anything you would 

like to say here at the outset, I would be happy to give you the 

time. 

OPENING STATEMENT OF SENATOR BROWN 

Senator BROWN. Thank you very much. I would just like to thank 

you for your warm welcome. Obviously, I have worked closely with 

both of you, and obviously, Senator Burris, as well. I want to say 

that I am honored to be on this Committee, having served, and still 

serving in the military for 30 years, it is something I think about 

every single day. So I am hoping that I can add a little bit to what 

you are doing and I look forward to serving. Thank you. 

Chairman LIEBERMAN. Thank you. I am sure you will add a lot. 

Let us go to our witnesses now. We will begin with Russell 

Travers, Deputy Director for Information Sharing and Knowledge 

Development at the National Counterterrorism Center, Office of 

the Director of National Intelligence. The National Counterterrorism Center is probably one of the least known, most important 

agencies in our government. We are very proud of its establishment 

in the 9/11 Commission legislation and the work that it has done 

since then to protect our homeland security. 

Thank you, Mr. Travers. We welcome your testimony now. 

86 

1The prepared statement of Mr. Travers appears in the Appendix on page 306. 

TESTIMONY OF RUSSELL E. TRAVERS,1 DEPUTY DIRECTOR, INFORMATION SHARING AND KNOWLEDGE DEVELOPMENT, 

NATIONAL COUNTERTERRORISM CENTER, OFFICE OF THE 

DIRECTOR OF NATIONAL INTELLIGENCE 

Mr. TRAVERS. Thank you, Mr. Chairman, Senator Collins, and 

Members of the Committee. It is certainly a pleasure to be here to 

talk about NCTC’s role in the process of screening. 

I would like to first build on your opening comments and drill 

down a little bit. I want to put you in the shoes of terrorist identities analysts to give you a sense of the three main challenges that 

we confront every day. 

Challenge one, you have already alluded to. It is, in fact, the 

quantity and quality of information that comes in every day, literally terabytes, sometimes petabytes of information that come in, 

sometimes described as vastly exceeding the holdings of the Library of Congress. It is an immense amount of information. And, 

of course, we have many tools that will sort and sift and cull and 

highlight those billions of electrons that come into the community. 

In the case of NCTC, we do have 30 or so networks that come in, 

bringing in terrorist identities information, and we net that down 

every day to many thousands of individual intelligence reports 

dealing with terrorism. 

The important point with respect to watchlisting is that every 

day, approximately, plus or minus, 10,000 names are coming into 

the terrorist identities analytic community. 

Our 24-hour operations center certainly helps to net that information further down. I will just give you a sense of what they do. 

The size of my morning read book on Monday morning when I walk 

in, is 842 pages, 1,520 pieces of information. And we further will 

net that down and have daily video teleconferences with the Committee, and what we try to do is to discuss the two or three dozen 

highest-level threat scenarios that are ongoing at the time. We will 

have situation reports. We have a daily threat matrix and so forth 

and video teleconferencing across the center. And with the community, Abdulmutallab never made any of that discussion. He was literally down in the noise, and that is an issue that we need to confront. 

Related to the quantity of material is the issue of quality, and 

here I would fall back on the rather overused metaphor of dot connecting, I think. If you do envision a huge field of dots, many have 

something to do with terrorism for sure, generally fragmentary, 

often ambiguous, but a large percentage are simply wrong, some 

combination of circular reporting, poison pens, mistaken identities, 

lies, and so forth, and that can be kind of difficult for us to distinguish. So that is challenge one. 

The second major challenge you would confront—remember those 

10,000 names I talked about. If we are dealing with Sunni extremism, then they are Arabic names. And now you have to get past 

a Western convention of first, middle, and last. Instead, you are 

dealing with patronymics, ethnic and tribal affiliations, and 

honorifics. Different names will be used for different purposes. It 

is complex, even assuming that they do not want to hide their idenVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00094 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
87 

tity. The September 11, 2001, hijackers, as you remember, used 

362 name variations. 

A more recent case, Abu Musab al-Zarkawi, the former, now deceased leader of al-Qaeda in Iraq, had 60-some aliases that we 

knew of, and then each one of those names could be spelled in upwards of 100 different ways. 

Commonality of names, also a problem. Let us assume that we 

have good intelligence that one Mohammed al-Shammari is a terrorist. I asked one of my Arab linguists to take a look at a Middle 

Eastern phone book, 500,000 names. There were 480 exact matches 

for that name, and that, of course, is a big issue when it comes to 

false positives. 

And we often get partial names. Abu Mohammed from Peshawar 

is a terrorist. That is the functional equivalent of saying that the 

father of John from Boston is a terrorist. It is a huge problem for 

us. 

And that brings me to the third challenge. What exactly is a terrorist? He swears loyalty to bin Laden. He attacks U.S. interests. 

He went to a camp in the Federally Administered Tribal Areas 

(FATA). Those are easy. What if he is an associate of a terrorist 

or an affiliate? What if he just gave money to an extremist cause? 

Those are a little grayer. What if he gave money to a non-governmental organization (NGO)? That NGO supports legitimate and extremist causes. What if he owns a bookstore that sells mainly extremist literature? What if he is in a chat room or on a web forum 

espousing ‘‘extremist rhetoric’’? What if he is under the influence 

of extremists and he goes off to practice not jihad, but dawa, proselytizing? They get very gray in a hurry. 

The point is, we go from very easy cases to very hard. They are, 

in fact, gray areas, and that gets to the issue of standards that 

Senator Collins talked about and that is one of the issues that the 

community is working its way through. 

Mr. Chairman, none of this is intended as an excuse. As Mike 

Leiter said, we are endeavoring very hard to do better. The analytic and watchlisting communities are, in fact, working hard to improve on the gaps that were identified on December 25, 2009. 

At the President’s direction, NCTC is focused on improving the 

capability we have to pursue fragmentary information as well as to 

enhance TIDE records. And that builds on the business processes 

and technical enhancements that have been ongoing at NCTC for 

many years. 

I would, however, caution against the belief that there is any silver technical bullet. We utilize a lot of tools and search capabilities 

and we have looked at many, many more. Because of the challenges I alluded to before, notions of a Google-like search or a federated search are actually of relatively limited value. We have significant Google-like searches that will go across many messagehandling systems and we still would not have come across Umar 

Farouk. 

Frankly, the further you move in the direction of commingling 

foreign and domestic data in a single enclave where you can effectively apply tools, the harder the legal, policy, and privacy issues 

become, and perhaps we can talk about that in the question and 

answer rounds. 

88 

1The prepared statement of Mr. Healy appears in the Appendix on page 310. 

In closing, let me just reinforce a couple of points from my prepared statement. First, it is important to highlight what December 

25 was not. I agree with you entirely. It does not in any way call 

into question the basic watchlisting architecture that was set up by 

Homeland Security Presidential Directive 6. In NCTC’s view, the 

basic plumbing is right. We can, in fact, pass the right information 

to the right organizations. Standards and procedures, they are 

being looked at. From our perspective, there could be significant resource implications. We can talk about that. 

Nor is December 25 about information sharing. We certainly 

have some hard information sharing issues, as I suggested, but in 

this case, virtually every analyst within the intelligence community 

had access to the two pieces of key information to which you alluded. Rather, December 25 highlights a longstanding and very difficult problem, and that is how you identify and integrate fragmentary information when nothing is blinking bright red. That is 

the key challenge for us and we look forward to discussing how 

NCTC is addressing those in the question and answer rounds. 

Chairman LIEBERMAN. Thanks, Mr. Travers. You actually raise 

a number of provocative questions which we will look forward to 

discussing with you. 

Timothy Healy is the Director of the Terrorist Screening Center 

(TSC), which is located in the Federal Bureau of Investigation at 

the Department of Justice. Mr. Healy, we thank you for returning 

to the Committee and welcome your testimony now. 

TESTIMONY OF TIMOTHY J. HEALY,1 DIRECTOR, TERRORIST 

SCREENING CENTER, FEDERAL BUREAU OF INVESTIGATION, 

U.S. DEPARTMENT OF JUSTICE 

Mr. HEALY. Thank you, sir. Chairman Lieberman, Ranking Member Collins, Senator Brown, and Senator Burris, thank you for the 

opportunity to talk about the Terrorist Screening Center and our 

role in the interagency watchlisting process. 

The attempted terrorist attack of Northwest 253 on December 25 

highlights the ever-present terrorist threat to our homeland. Over 

the past 7 years, the TSC has played a vital role in a fight against 

terrorism by integrating terrorist information from law enforcement and intelligence communities into a single database known as 

the Terrorist Screening Center Database (TSDB), or the terrorist 

watchlist. This watchlist populates various screening systems used 

by the government. 

Following the Christmas Day attack, or attempted attack, intense scrutiny has been placed on the requirements to nominate individuals to the watchlist, particularly the No Fly or Selectee List, 

which are subsets of the TSDB. This requirement or standard has 

evolved over time based on the experience of the watchlisting community and the issuance of additional presidential directives. 

Throughout this process, the TSC has remained committed to protecting the American public while simultaneously protecting privacy and civil liberties. As our efforts continue to evolve in response to the new threat and intelligence, your support has been 

outstanding and it is necessary in our continued successful mission. 

89 

Let me begin by telling you about the watchlisting process, but 

before that, the watchlisting process for the TSC is about half our 

job. The other half is how we handle encounters when we do encounter the terrorist subject and that coordinated law enforcement 

or operational response. 

But for the watchlisting nomination process, it can be best described as a watchlisting enterprise because it is a constant collaboration between the intelligence community, the National Counterterrorism Center, the FBI, and the TSC. NCTC relies upon information that is provided by the intelligence and law enforcement 

communities. The TSC relies on NCTC to do the analytical work 

and provide the accurate, credible information that we forward to 

our screeners. The screening community relies upon the TSC to 

make sure that the information is efficiently disseminated to their 

systems. 

Once a known or suspected terrorist has been identified and included into TSDB, the TSC ensures the timely dissemination of 

that information to our screening partners. The utility of the 

watchlisting process is only effective when it is efficiently disseminated to those partners. The TSC has subject matter experts composed from experienced analysts from designated agencies that review the nominations to determine if they meet inclusion into the 

screening process. 

There are four major U.S. Government systems that are supported by the TSC and the TSDB: (1) The Department of State’s 

Consular Lookout and Support System (CLASS), is used for passport and visa applications. (2) Department of Homeland Security 

Traveler Enforcement Compliance System (TECS) is used for border and port entry systems. (3) The No Fly and Selectee Lists are 

used by the Transportation Security Administration for air passenger screening. (4) And the FBI’s National Crime Information 

Center is used for domestic law enforcement encounters. The criteria for inclusion into each one of these systems is tailored by the 

mission, the legal authorities, and the information technology requirements and limitations of those systems. 

Before December 25, 2009, the TSC had not received the nomination for Umar Farouk Abdulmutallab, and as a result, he was not 

watchlisted, as you have mentioned. Following the attempted terrorist attack, the President has initiated a review of why Umar Farouk Abdulmutallab was able to board on Northwest Flight 253. 

As a result, the TSC was given two instructions. The first was 

to conduct a review in the TSDB of any individual within the 

TSDB that had a visa, beginning with the No Fly List and all the 

way down. That process has been completed. 

The second was to develop recommendations on whether adjustments are needed to the watchlisting nomination guidance, including biographical or derogatory criteria, for inclusion into TIDE and 

TSDB, as well as the No Fly and Selectee Lists. To do so, the TSC 

convened its Policy Working Group, which consists of representatives from the National Counterterrorism Center, Central Intelligence Agency, National Security Agency, the Federal Bureau of 

Investigation, Department of Homeland Security, Department of 

Defense, Department of Justice, and Department of State to 

achieve this interagency consensus. That process is underway and 

90 

1The prepared statement of Ms. Rossides appears in the Appendix on page 316. 

the TSC is working with the interagency partners to develop recommendations for consideration to the President. 

At the direction of the White House and in conjunction with 

NCTC, the TSC has made some temporary and limited additions 

to the watchlist to counter the very specific threat that was observed on Christmas Day. As a result, the threat-related target 

group was identified and individuals from specific high-threat countries already residing in TIDE and TSDB were added to No Fly 

and Selectee Lists or upgraded into TSDB. 

The TSC remains focused on fulfilling the presidential and interagency mandates to share terrorist screening information with our 

domestic and foreign partners. We have a standing commitment to 

improve our operational processes, to enhance our human capital, 

to increase our technical capabilities, and to continue to protect 

Americans from terrorist threats while protecting civil liberties and 

protecting privacy issues. 

The TSC and the terrorist watchlisting has been a vital tool in 

the counterterrorism effort in the United States and will continue 

to do so. 

Chairman Lieberman, Ranking Member Collins, I look forward to 

any questions that you may have. 

Chairman LIEBERMAN. Thanks, Mr. Healy. I appreciate it. 

Next, we will go on to Gale Rossides, Acting Administrator, 

Transportation Security Administration (TSA), at the Department 

of Homeland Security. Thanks for the work you have been doing 

as the Acting Administrator. As you know, the President made a 

nomination which will come before this Committee and the Commerce Committee to be Administrator and we hope to move that 

as quickly as possible. But we appreciate your excellent work in the 

interim. 

TESTIMONY OF GALE D. ROSSIDES,1 ACTING ADMINISTRATOR, 

TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY 

Ms. ROSSIDES. Thank you, Mr. Chairman. Good morning, Chairman Lieberman, Ranking Member Collins, and distinguished Members of the Committee. I thank you for the opportunity to appear 

today to testify on behalf of the Transportation Security Administration. 

I would like to begin by saying that TSA’s core mission is one 

of counterterrorism. We continue the work we began 8 years ago 

with the establishment of TSA to close vulnerabilities with new 

technology and new processes in a complex aviation security regime. TSA operates in a high-threat environment day in and day 

out, which drives our officers and ourselves to be ever vigilant. 

The attempted attack on Northwest Flight 253 on Christmas Day 

was a stark reminder that there are still those intent to do us 

harm. As we continue to harden elements of the system, we know 

that terrorists will look for gaps or exceptions they can exploit. The 

unthinkable is an opportunity for them. 

Looking at the device used on December 25, it was very cleverly 

constructed, and it was intentionally hidden in a very sensitive 

91 

part of the individual’s body to avert detection. We know that terrorists are studying our security measures and will exploit our social norms to their advantage. The men and women of TSA live 

with that threat every day. 

The threat of an improvised explosive device (IED), getting onto 

an airplane is a significant focus for us. In 2006, we overhauled the 

training of our Transportation Security Officers to focus on finding 

IEDs. In 2007, we used proven science to train and deploy our first 

Behavior Detection Officers to identify people with hostile intent 

and refer them for additional screening. 

We also began testing advanced imaging technology in 2007 to 

detect both metallic and non-metallic threats hidden on the body. 

TSA developed the requirements for this technology with the 

Transportation Security Lab at DHS and with the private sector. 

Because of the nearly 3 years of work we have already put into 

this, we currently have 43 machines already in place at 20 airports, 

and we will field approximately 500 units systemwide by the end 

of this calendar year. 

Because IEDs can be hidden both on the body and in bags, we 

have also deployed bottled liquid scanners, advanced technology Xray, and explosives trace detection units to enhance our officers’ 

capability to find explosives. The U.S. Government is actually the 

world leader in testing and deploying these technologies. We are 

working with the national labs and the private sector to push the 

detection capabilities to even greater degrees, and we will continuously test and train our personnel. We are also sharing information 

with our international partners to assist other nations in raising 

their levels of security. 

We are giving this mission every ounce of our energy. We continue to employ our layered approach to security to deter, disrupt, 

and stop attacks. What we are facing is not one man on one plane, 

we are facing a patient enemy who is determined to attack U.S. assets and the U.S. homeland. 

Beyond the 450 U.S. airports, TSA also works with our international partners to secure the entire global aviation network. Because TSA does not conduct the actual screening overseas, we instead rely upon foreign governments, airport authorities, and carriers to conduct such screening. TSA does conduct inspection of foreign airports with the last points of departure for flights inbound 

to the United States. These inspections are to the standards set by 

the International Civil Aviation Organization (ICAO). TSA also imposes additional screening measures for all carriers flying into the 

United States. 

Both before and after the Christmas Day incident, we have enjoyed a very strong working relationship with air carriers, foreign 

and domestic, and we greatly appreciate their commitment to keeping air travel safe. It is a testament to the strength of that relationship that on December 25, 2009, within 5 hours of TSA issuing 

new security directives to increase screening of passengers coming 

to the United States, 95 percent of our foreign partners were in 

compliance. 

One of the key tools we have to keep known terrorists off of airplanes is Secure Flight. I am pleased to say that many large carVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00099 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
92 

riers are now participating, with the rest scheduled to be onboard 

by the end of this calendar year. 

Chairman LIEBERMAN. Why don’t you do us a favor and just take 

a moment and describe Secure Flight for the record and for those 

who are watching or listening. 

Ms. ROSSIDES. Yes, sir. Once Secure Flight is operational, it will 

actually vet all of the passengers booked on every flight 72 hours 

in advance of the flight. That will actually give both TSA and our 

law enforcement, airport, and air carrier officials 72 hours to determine and further inspect somebody who shows up that would be 

of interest, either somebody who shows up as a No Fly or a Selectee. 

The program is also going to help with passengers who have 

false positive matches, where they have the same name, because 

the system will actually vet using additional data elements, including the date of birth, a passport number, and a redress number if 

the passenger has filed for redress. That will ensure that passengers who are actually cleared will no longer have difficulty 

printing boarding passes. It will also provide much greater consistency, because today, the air carriers vet against the No Fly and Selectee Lists, and once Secure Flight is fully operational, TSA will 

do that vetting, which should give us a higher quality of the vetting. 

TSA is an end user of the No Fly and Selectee Lists, and we will 

continue to work very closely with our law enforcement and intelligence partners to improve the information sharing efforts. Our 

mission requires us to continuously challenge ourselves, and we are 

dependent upon the cooperation and participation of stakeholders 

and passengers in order to keep this complex aviation system secure. We are extraordinarily grateful to the support of our partners 

at all levels of government, industry representatives, our international partners, the private sector, and especially the traveling 

public. 

I would like to express my appreciation for this Committee’s support of TSA and our programs, and I am particularly honored to 

serve alongside the everyday heroes in TSA. I am happy to answer 

your questions. 

Chairman LIEBERMAN. Thanks, Ms. Rossides. I appreciate your 

testimony. 

Finally on this panel, David Aguilar. Again, we have an Acting 

Deputy Commissioner. The nominee for Commissioner awaits action in the Finance Committee of the Senate. We hope to have him 

soon. We are pressing for it to happen. But in the meantime, thank 

you for your excellent service. As you said, I usually see you in uniform. 

Mr. AGUILAR. Yes. 

Chairman LIEBERMAN. It is a pleasure to see you either way and 

we welcome your testimony now. 

93 

1The prepared statement of Mr. Aguilar appears in the Appendix on page 328. 

TESTIMONY OF DAVID V. AGUILAR,1 ACTING DEPUTY COMMISSIONER, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. AGUILAR. Thank you, sir, and good morning. Chairman 

Lieberman, Ranking Member Collins, and Senator Burris, thank 

you for the opportunity to appear here today as a part of this team 

to discuss the steps that U.S. Customs and Border Protection 

(CBP) has taken in response to the attempted terrorist attack on 

Northwest Flight 253. 

The attempted attack on December 25, 2009, was a powerful reminder to all of us that terrorists will go to great lengths to defeat 

the security measures that have been put in place since September 

11, 2001. Today, I would like to take a little bit of time to describe 

the role that CBP currently performs in aviation and national security and the enhanced security measures implemented in the aftermath of the attempted Christmas Day bomber attack. 

As part of our efforts to screen passengers bound for the United 

States, CBP is a consumer of the U.S. Government’s Consolidated 

Terrorist Watchlist, which we use to help keep potential terrorists 

off flights bound for the United States and to identify travelers 

that require additional screening. Travelers bound to the United 

States are required to either have a visa issued by the Department 

of State, or if traveling under the Visa Waiver Program, an electronic travel authorization issued through the Electronic System 

for Travel Authorization (ESTA) system. ESTA is a web-based system to which individuals must apply for travel authorization prior 

to traveling to the United States. It enables CBP to conduct enhanced screening of Visa Waiver Program Country applicants in 

advance of travel to the United States in order to assess whether 

they could pose a risk to our country. 

When a traveler purchases a ticket for travel to the United 

States, a Passenger Name Record (PNR) may be generated in the 

airline’s reservation system. PNR data contains various elements, 

including itinerary, co-travelers, changes to the reservation, and 

may include payment information and type of payment information. CBP receives PNR data from the airlines at various intervals 

beginning 72 hours prior to departure and concluding at the scheduled departure time. CBP officers utilize what we call the Automated Targeting System for Passengers to evaluate the PNR data 

against targeting rules. It is important to note that PNR data received by airlines differs and may be incomplete and is inconsistent. 

On the day of departure, when an individual checks in for their 

intended flight, the basic biographic information from the individual’s passport is collected by the air carrier and submitted to CBP’s 

Advanced Passenger Information System (APIS). APIS data is far 

more complete than PNR data. DHS then screens APIS information 

on international flights to or from the United States against the 

TSDB, the watchlist, as well as against criminal history information, records of lost or stolen passports, and prior immigration or 

customs violations. 

94 

At nine airports in seven countries, CBP officers are stationed 

under the Immigration Advisory Program (IAP) that Senator Collins mentioned. Working with CBP’s National Targeting Center, 

IAP officers are provided information on certain passengers who 

may constitute security risks to our country. These officers can 

then make no-board recommendations to carriers and host governments, but they do not have the authority to arrest, detain, or prevent passengers from boarding the planes themselves. 

While flights are en route to the United States, CBP continues 

to evaluate the APIS and PNR data submitted by the airlines. At 

this point, a further assessment on individuals’ admissibility into 

the United States is conducted and a determination is made as to 

whether an individual requires additional screening prior to admission. 

Upon arrival in the United States, travelers present themselves 

to a CBP officer for inspection. Based on the information garnered 

during the in-flight analysis as well as the onsite CBP officer’s observations, a determination is made as to whether the traveler 

should be referred for a secondary inspection or admitted to the 

United States. 

Since Christmas Day, CBP has undertaken a number of steps to 

enhance our current processes. CBP has expanded the information 

referred to our IAP officers to include any State Department 

records that contain any national security exclusion realms, something that was not done in the case of December 25. 

Chairman LIEBERMAN. Give us an explanation of that in plain 

language. In other words, what did not happen with Abdulmutallab 

which would happen now under the change? 

Mr. AGUILAR. What did not happen back then, Senator, was that 

the information provided by the visa office that had information related to what the father had provided—— 

Chairman LIEBERMAN. The father said, right. 

Mr. AGUILAR [continuing]. Was not provided to our IAP officers. 

That kind of information, which is basically called a quasi-refusal, 

is now passed on to our IAP officers as a matter of everyday business. 

Chairman LIEBERMAN. Right away. 

Mr. AGUILAR. Yes, sir. 

Chairman LIEBERMAN. What happened to it with Abdulmutallab? 

It went to the State Department? 

Mr. AGUILAR. The State Department provided it by way of their 

CLASS system—— 

Chairman LIEBERMAN. Right. 

Mr. AGUILAR [continuing]. Into our TECS system, but it never 

got to our IAP officer because he was not on the watchlist and—— 

Chairman LIEBERMAN. Tell us what IAP is. 

Mr. AGUILAR. I am sorry, sir. That is the Immigration Advisory 

Program officer that was stationed in Amsterdam—— 

Chairman LIEBERMAN. So that is a foreign-based American—— 

Mr. AGUILAR. Yes, sir. 

Chairman LIEBERMAN [continuing]. Federal Government employee. 

Mr. AGUILAR. A CBP officer stationed in Amsterdam. 

95 

Chairman LIEBERMAN. Right. So now, that information would go 

immediately to that person—— 

Mr. AGUILAR. Yes. 

Chairman LIEBERMAN [continuing]. From the embassy? 

Mr. AGUILAR. It goes from the embassy to our TECS system into 

what we refer to, our National Targeting Center, for aggregation, 

if you will, with all the other information that we have—— 

Chairman LIEBERMAN. Right. 

Mr. AGUILAR [continuing]. And then that information in total is 

passed on to our officer stationed foreign. 

Chairman LIEBERMAN. Is there a filter applied—I am going to 

give you a little extra time. I apologize. Is there a filter applied at 

that point, in other words, standards as to whether it should be included? In this case, we all agree, I think, looking back, his father 

came in, a respected man. It should have gone right on the 

watchlist. But, I mean, it is possible somebody could have come in 

who said they did not know him very well, thought he was acting 

suspicious. What would happen? 

Mr. AGUILAR. Given the same situation, any kind of derogatory 

information related to terrorism—— 

Chairman LIEBERMAN. Right. 

Mr. AGUILAR [continuing]. That is captured by the Department 

of State abroad and now put into our system. That is a quasi-refusal that is now captured and provided to our officers. Yes, sir. 

Chairman LIEBERMAN. Good. Go ahead and finish your statement. I will give you extra time. 

Mr. AGUILAR. On January 10, 2010, we also began additional 

pre-screening of passengers traveling from non-Immigration Advisory Program locations. Officers assigned to our Regional Carrier 

Liaison Groups working with our National Targeting Center now 

make recommendations to foreign carriers to deny boarding to individuals traveling to the United States who have been identified as 

being national security-related threats that are ineligible for 

inadmission or who are traveling on fraudulent or fraudulently-obtained documents. 

CBP has enhanced reviews of all incoming passenger manifests 

based on current threats and has increased pre- and post-primary 

operations. Through intelligence sharing agreements, CBP continues to work with our counterparts in the United Kingdom, Canada, and Mexico, as well as CBP attaches and representatives 

around the world, to share information as necessary and appropriate. 

While we addressed the circumstances behind the specific incident, we must also recognize the evolving threats posed by terrorists and take action to ensure that our defenses continue to evolve 

in order to defeat them. We live in a world of ever-changing risks 

and we must move as aggressively as possible both to find and fix 

security flaws and anticipate future vulnerabilities. 

Chairman Lieberman, Ranking Member Collins, and Members of 

the Committee, thank you for the opportunity and we look forward 

to any questions that you might have. 

Chairman LIEBERMAN. Thanks, Mr. Aguilar. 

We will start with 7-minute rounds of questions. 

96 

I appreciate the testimony and particularly the things that have 

been changed since December 25, 2009. One of the things that is 

in the process of review, and I will ask you in a moment what the 

deadlines are, is this question that Mr. Healy referred to directly 

and Mr. Travers referred to which is how do people get on the Terrorism Watch List and then how are the lists used? 

Let me say that as I heard you describing the kinds of information, Mr. Travers, that we might have about somebody being a terrorist or associated with terrorist activities, part of my reaction— 

you are right. The first two or three you mentioned were pretty 

clear-cut cases. When you got to the grayer areas, I would say that 

they were grayer if the question was whether you were going to arrest somebody or capture them in a war on terrorism context. But 

for me, they were not grayer if the question is whether they raise 

enough suspicion to be put on a Terrorism Watch List and subject 

that person to a secondary review, including a secondary screening 

of his or her body before letting them enter a plane. 

Do you understand what I am saying? I invite a reaction to you 

on that. 

Mr. TRAVERS. Yes, sir, certainly, and that is part of the issue 

that I am sure Director Healy will talk about with respect to our 

evaluation of standards. The question for us, I think, eventually 

comes down to one of balance. If we provide every individual and 

alternative spelling and alternative name variant, and if they are 

pushed to the airlines for eventual secondary, given the way the 

mathematics works out, you are starting to look at the potential for 

millions and millions of names. At what level does that become too 

difficult for the airlines to handle? I think that is one of the issues 

that we are struggling with in the interagency group that is looking at this particular problem. 

Chairman LIEBERMAN. Yes. My own point of view is this. I understand this can be inconvenient, at some point even burdensome 

for the airlines, but after all, we are looking at questions of national security here, of homeland security. I mean, at some level, 

frankly, I say, too bad that the airline has to do that extra work 

to stop somebody from getting on a plane who might blow up the 

plane and kill everybody on it and a lot of people on the ground, 

as would have been the case if the bomb went off on the Detroitbound plane on December 25. 

So it is not that there is not a concern, but I think, ultimately, 

in just the terms that Mr. Healy mentioned, the classic balance 

that we need are the weighing of security on the one hand and liberty or privacy, or in some sense convenience or business operations, on the other. It seems to me in these cases, that the great 

weight has to be given to security. 

Mr. TRAVERS. Yes, sir, and I would just make one last point. Certainly, I believe the entire Federal Government is leaning very far 

forward on putting people on lists, and that has been a bit of a sea 

change since December 25. I have been doing this now for several 

years and I will say I am 100 percent certain I never had anybody 

tell me that the list was too small before Christmas. 

Chairman LIEBERMAN. Yes. 

Mr. TRAVERS. It is getting bigger and it will get much bigger. 

97 

Chairman LIEBERMAN. Well, I appreciate that and I think that 

is the right way for it to go. 

Mr. Healy, one of the things that struck me after December 25, 

and unfortunately, we all learn from that, is that there were these 

four levels of lists. TIDE was the largest, and if you were on the 

TIDE list, it did not subject you to any secondary screening or closer look if you try to get on a plane, which we are focusing on that 

for a moment. If you were on the TSDB, the Terrorist Screening 

Database, it seems apparently you were not—they are either subjected to screening, but if you got onto the Selectee List, it required 

a higher level of evidence, and then the No Fly List, of course, you 

just were not allowed to get on the plane automatically if you were 

one of those people. 

Picking up in a way from the exchange I just had with Mr. 

Travers, to me it seems, based on the weighing of the consequences 

of letting a terrorist on a plane as opposed to the inconvenience of 

stopping them, if only for a secondary screening—I wonder why we 

are not consolidating those lists. I mean, obviously, if there is so 

much evidence that somebody is on a No Fly List, then that is a 

separate question and that ought to be a separate list. But to my 

way of thinking, the next list ought to be a real broad one, including the TSDB, which is that there is any evidence of a connection 

with terrorism, we ought to at least protect everybody else by subjecting that person to a secondary screening. Do you agree or disagree? 

Mr. HEALY. I would agree and respectfully disagree at the same 

time—— 

Chairman LIEBERMAN. Go ahead. 

Mr. HEALY [continuing]. And let me explain. I was under the 

same position when I first got to the Terrorist Screening Center 

several years ago as a deputy. The challenge, Senator, is with the 

list and how we screen it. Right now, the limitation that we have 

is that the airline is screening. As Ms. Rossides talked about, Secure Flight is going to come onboard, and I think that is a discussion that we need to have between TSA, DHS, and the Terrorist 

Screening Center, about the advantages that you have with Secure 

Flight. 

Unfortunately, the limitation that we have with Secure Flight, 

with the Selectee List, and the No Fly List is we rely upon the airlines to do the screening. As we all talk about, it is a balance between civil liberties and protection of the American people. The 

problem is that when we share that list, we share it not only with 

the domestic carriers, but we also share it with the foreign carriers. 

Chairman LIEBERMAN. Right. 

Mr. HEALY. If you share the entire list with the foreign carriers, 

you have the problem of the security of the list and individuals 

knowing that they are watchlisted. That is a tremendous security 

problem. So, again, it is the balancing act right now. Prior to Secure Flight, and again, I think we need the dialogue then, when 

Secure Flight is on board—and I believe that is going to be at the 

end of this year and we have been working very diligently with 

TSA on that—but right now, with the limitations that we have on 

the screening without Secure Flight, we give it to the airlines, and 

that includes foreign airlines—— 

98 

Chairman LIEBERMAN. OK. 

Mr. HEALY [continuing]. And that includes potentially giving up 

the list to foreign carriers—— 

Chairman LIEBERMAN. All right. So what you are saying is you 

worry that if somebody is on a terrorism watchlist and they get 

subjected to secondary screening, then they know they are on a terrorism watchlist. Is that what you mean? 

Mr. HEALY. No, sir. If they are on the No Fly List and a terrorist 

tries to get on a plane—— 

Chairman LIEBERMAN. Yes. 

Mr. HEALY [continuing]. And he is not allowed on the plane, he 

clearly knows he is watchlisted. 

Chairman LIEBERMAN. Right. But you were talking about the privacy of the list when they go to foreign carriers. I thought you 

meant that some of the people that were on the list might learn 

they are on the list and that would tip them off that they are being 

watched. 

Mr. HEALY. Right now, TSA and the air carriers randomly screen 

people. 

Chairman LIEBERMAN. Right. 

Mr. HEALY. The vast majority of people, like 78,000 that have applied for redress, believe they are watchlisted. The vast majority of 

them, like 99.3 percent, are not. They are randomly screened. 

Chairman LIEBERMAN. Right. 

Mr. HEALY. Just because you are subject to additional scrutiny 

does not mean that you are on the watchlist. 

Chairman LIEBERMAN. That is an important point. Right. You 

are not just screened because you are on the watchlist. 

Mr. HEALY. That is correct, Senator. 

Chairman LIEBERMAN. Actually, that is a good cover for the 

watchlist. 

Mr. HEALY. Right, and the issue is not the screening. The issue 

is that we are giving the complete list. I do not think it is prudent 

to give the complete list to the air carriers with the problem that 

it may be exposed to different countries, to foreign countries. That 

is the challenge. 

Chairman LIEBERMAN. But here is the other challenge, obviously, 

and I know we share this goal. If you do not give that list to a foreign carrier, then it is possible somebody on that list who is a suspected terrorist will get on the plane. 

Mr. HEALY. And that is the balance that you strike. That is why 

there is a particular criteria for Selectee, a particular criteria for 

No Fly, and because of the limitations with the list and who we 

have to share it with, that is the balance. 

I could give you an example of an individual who knew he was 

watchlisted, came into the country, and changed his identity because he knew he was watchlisted. 

Chairman LIEBERMAN. Right. 

Mr. HEALY. We only found out because we give the list to the National Crime Information Center (NCIC). The individual was arrested. His fingerprints were taken. It went to our Criminal Justice 

Information Services Division (CJIS), the FBI’s fingerprint department, and he was identified as one of the known or suspected terrorists. He knew he was watchlisted, actively changed his identity 

99 

because of that. And so that balance is that I would caution the 

Committee about giving away the entire list. That is going to create hazards and security issues for us, as well. 

Chairman LIEBERMAN. Yes. I hear you, but I still feel that the 

obligation we have to everybody else on the plane is to check anybody we have reason to suspect of being a terrorist because of the 

immediate threat of action on that plane. 

But my time is up. We will come back to that. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Healy, let me pick up where the Chairman left off. I understand that given how many people are listed on the TIDE list and 

the fact that the quality of information is not necessarily verified 

on this broadest of terrorist databases, that it is not practical or 

perhaps even fair to subject everyone who is on the TIDE list to 

secondary screening. However, there is a subset of the TIDE list 

that are foreign individuals who hold visas to come to the United 

States, and it seems to me that it is imminently fair to subject 

them to additional screening because as the Chairman indicates, 

traveling to our country is not a right, it is a privilege, and they 

have the means to do so because they have a visa. 

So in the wake of the December 25 attempted bombing, are you 

taking a look at that subset of the TIDE list for additional scrutiny? 

Mr. HEALY. In short, Senator Collins, yes. And in fact, that is 

part of the deliberation that this interagency group has discussed 

and is making a recommendation to the Administration about how 

to deal with now. 

Senator COLLINS. I also want to talk further about the standards 

that Mr. Travers referred to in his testimony. This is difficult, because you do want to treat people fairly and also you do not want 

to create a system that is so burdensome and so immense that if 

you are trying to watch everybody, you miss people you should be 

watching, and I understand that. 

On the other hand, when I look at the minimum standards for 

getting listed on the various watchlists, they trouble me because 

they clearly exclude Abdulmutallab. You followed the standards. 

And indeed, the information in the cable from Nigeria from our embassy did not meet the minimum standards. There is an implementing instruction that actually says that those who only associate with known or suspected terrorists but have done nothing to 

support terrorism are ineligible for the No Fly List or the Selectee 

List. So it is easy to see why he did not make the list. He was associating with known terrorists, but you could not pinpoint a specific 

action. 

That troubles me, though, that that is the standard. So I would 

like to ask you, Mr. Healy, and you, Mr. Travers, I know you are 

looking at that standard, but in your judgment, is that standard 

too high for listing someone. Does it exclude people who should be 

on the Selectee List? 

Mr. HEALY. Again, Senator Collins, some of the lessons learned 

because of the Christmas Day event, we take into consideration, 

some of the things that you have already mentioned, such as giving 

credibility to a source and allowing the individual that is interviewing that source to be able to identify credibility. We are taking 

100 

a look at the single-source reporting and adding things to it like 

if you have a respected member of the community, a father talking 

about his son, that is something that we should take into consideration. 

And so, yes, ma’am, all of those issues that we identified as 

points of learning and lessons learned from the event were taken 

into consideration and coming up with recommendations again to 

the Administration about not necessarily how to change the standard. The reasonable suspicion standard is reasonably low, and essentially if you have credible information and reportable intelligence that this individual is associated with terrorism, they are 

going to go on the watchlist. But how we implement it and some 

of the restrictions that we had specifically about single-source reporting, labels, things like that, we are looking at and making recommendations. 

And candidly, we have been working very hard at that. We have 

been meeting two, sometimes three times a week and we have very 

short deadlines and I think we are going to have a product within 

the next couple weeks, if not the end of the month, or the next 

month. 

Senator COLLINS. Mr. Travers, should an individual who is 

known to associate with known terrorists be on at least the Selectee List for additional screening? 

Mr. TRAVERS. I do not know that I have a solid answer for you. 

I would associate myself with Director Healy’s comments, that we 

are looking to add flexibility into the system so that we can deal 

with single-source reporting and individuals who might not fall 

within the black letter description you had there. 

We have asked the collectors, what does this mean? What would 

this mean for you if you were being tasked to provide into the system nominations on individuals who are just described as associating with a terrorist, and we do not have an answer to that. 

I have been an analyst in the community now for 30 years. My 

guess is that is going to be a very large number, and I would come 

back to the comment you made to open the conversation, which 

was you do not want to have so many people on this list that you 

stop looking at important ones because you are looking at those 

that are really way down in the noise. But in general, we are enhancing the level of flexibility that any individual has to put somebody on the list, and that is a good thing. 

Senator COLLINS. One of the issues that really troubles me is a 

conversation that I had with a member of the intelligence community who said, you do not understand. We get reports all the time 

from disgruntled relatives. And I am sure that is true. But in this 

case, it is a highly respected member of the community whom Nigerian officials have vouched for and referred to our embassy officials, 

and that is very different and we have to be able to weigh credibility. 

I want to quickly, Mr. Travers, ask you one more question in this 

round. You mentioned in your testimony, and I have heard this before, that thousands of analysts, everyone in the intelligence community who is an analyst, had access to those two critical data 

pieces about Abdulmutallab. But there is a big difference between 

101 

everybody having access to this huge database versus the individuals who are tasked with connecting the dots. 

So I would like to get a better sense so I can understand this. 

I do not think it is a good answer to say, well, thousands of people 

could have found this information, because that is not the job of 

thousands of people. Whose job—I do not mean specific names— 

was it to connect those data pieces? 

Mr. TRAVERS. It is a very complicated question, so you are going 

to have to indulge me for a second. My only point during my opening statement was that I do think this highlights that information 

sharing, while very important, is not sufficient. The information 

was shared and people did not connect the dots. 

Now, clearly, the function of NCTC and the Terrorist Identities 

Group and my people in particular who support the watchlisting 

function, in a perfect world, when we set up the TIDE list and the 

Homeland Security Presidential Directive (HSPD–6) implementation back several years ago, I envisioned that we would build dossiers on people and that if Russ Travers was an international terrorist, that my people would go out and they would go through all 

the databases and they will continually update that database and 

ensure that Russ Travers’s record was as complete as it possibly 

could be. 

Three years ago now, we came to the conclusion that because of 

the growth in the data coming into NCTC, indeed, the community, 

because the collectors were surging, we were getting these thousands and thousands of reports a day, that we were not even close 

to being resourced adequately to be able to research Russ Travers 

in depth, and that is the Umar Farouk problem, the personal name 

that existed out in the ether that did not get linked with the Abuja 

cable. 

So we made a decision. It was a risk decision, and as a result, 

we focused far more on populating information into TIDE that was 

being pushed to us, quality controlling it and not being able to do 

in-depth analysis. What that meant in practice was that the young 

analyst that received the Abuja cable with the nomination on November 20 did her dutiful search. She searched Umar Farouk 

Abdulmutallab and got exactly zero hits because that name did not 

exist anyplace else in the intelligence community traffic. So, what 

do we do? 

Two responses at NCTC. Conceptually, what we are trying to do 

is lower the bar. So again, you have this sea of dots. A lot of them 

are not exploited. We believe NCTC’s role is to do that. How do you 

deal with those 10,000 names that are out there, those 10,000 cables? And NCTC has taken two approaches, one within my group 

and one within our analytic element. 

Within my group, what we are doing is building, per the President’s direction, an effort that will do directed sort of enhancement 

of records, so that we are building the proposal that will have analysts that will do nothing but that. When Umar Farouk’s name 

comes in, whether or not the standard changes in any dramatic 

way, you have somebody who is below the noise level. They will be 

focused on going out and searching across all of the databases to 

see if we as a government know something more about Umar FaVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00109 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
102 

rouk Abdulmutallab that can get him pushed to Director Healy’s 

watchlists. 

The other function that we are doing with respect to ‘‘dot connecting’’ is building something called pursuit teams, and those exist 

within our analytic element, currently about 40 people drawn from 

the community as well as NCTC, and they have kind of a quasitargeting function in that they are not producers of intelligence, is 

what NCTC generally does, but instead, they are taking straws in 

the wind. This is something that is kind of interesting, Nigerians 

going to Yemen, or an interesting phone number, or something. 

And they are digging down into that noise level, that sea of data, 

and they are following through on that to completion. Completion 

may be they nominate him for a watchlist. Completion may be that 

the Bureau opens a case on them or something. This is an experiment, but it is born of the belief that there is so much information 

out there that somehow we need people that are going to go down 

and focus in on that information that is below that which is readily 

identifiable as terrorism. 

So those are the approaches that we are taking. 

Senator COLLINS. Thank you. 

Chairman LIEBERMAN. Thanks, Senator Collins. Senator Brown. 

Senator BROWN. Thank you, Mr. Chairman. 

As I mentioned earlier, and thank you once again for allowing 

me to make a brief statement, this is something I think about 

every day, and especially since we had that issue around Christmas-time. I have often wondered, is it a resourcing problem? Is it 

a tools and resources problem? Do you need more of both to expand 

the type of coverage we need to help? Is there something that we 

are missing that we can provide to the various agencies in terms 

of tools and resources? Let us start with that question, if we could, 

to anyone who feels it is appropriate to answer. I am looking at all 

the agencies. 

Mr. TRAVERS. I think it is a whole series of issues. As I mentioned to Senator Collins, there is partly a resource issue. If you 

want to start exploiting more and more of that noise level, the information that just is way below the surface, then there is a resource issue to it. 

There is a limitation of the names-based system, so all of us are 

moving towards biometrics as quickly as we can because that is 

part of the answer. 

There are some technical issues, for sure. Those technical issues 

merge with policy and privacy issues in a hurry, in that I mentioned the 30 networks that we have coming into NCTC. You can 

not just commingle that data. Why? Because you have tremendous 

amounts of U.S. persons data in some of those networks. And so 

this gets into a very difficult area for us in terms of the bleeding 

over of foreign and domestic, and those are some of the issues that 

Mike Leiter is looking particularly hard at. 

And that gets to the issue of kind of Google-like searches. As I 

mentioned, we can do Google-like searches across some of the foreign networks, but you can not do a search that goes out against 

the FBI stuff or a search that goes out against the CIA material 

and pull things back. And so those technical limitations are born 

of privacy, policy, and security issues. 

103 

Mr. HEALY. If I may add, the challenge is also, as Mr. Travers 

pointed out, trying to identify these terrorists. There is no Driver’s 

License Bureau where bin Laden goes to and says, ‘‘I need my terrorist card.’’ These individuals are identified by fragments of information. They are identified by overheard conversations. They are 

identified by a source saying, this guy is involved in it. So it is not 

a black-and-white system. It is a system that we continue to search 

and try to identify these nuggets of information so these individuals are watchlisted. It is a balancing act between civil liberties 

and the protection of the American people. 

So it is a challenge, and because of the name-based system, it is 

always going to be a challenge. In some cases, on the No Fly List, 

you need name and date of birth. The reason for that is because 

that is how we identify people. So it is a challenge just with the 

whole process and trying to identify these individuals. 

Every day, I talk to my staff and tell them, if you make one mistake, people could die, and all we have to do is make one mistake. 

We have to be right every single time, and all the terrorist has to 

do is be right one time. So it is always going to be a challenge. Resources are always a challenge—— 

Senator BROWN. I guess what I am trying to ask is, obviously, 

we are dealing in budgetary issues coming up. The safety and security of anyone traveling in the United States is one of my top priorities. It would be helpful to me to know in real numbers and in real 

needs, what do you need to do your job? Are we missing something? 

Do we need to do more in one area or less in another? Do we need 

to shift? I mean, fact versus fiction. What do you need to do the 

job the best you possibly can? 

That is one of my main concerns. So if there is anything, maybe 

offline I can meet with somebody to let me know what that is, because we are formulating those priorities and I want to make sure 

that we can keep people who are traveling in our country safe. So 

thank you for those answers. 

I just had one other question. If there is somebody who is actually on the various lists and they are—in fact, I get a lot of these 

calls, even when I was a State Senator. How do they get off of it? 

If they clearly do not have any terrorist ties, it is just by some similarities of names. Is there a process or somewhere where you can 

direct me where I can direct these people to get off that list? 

Mr. HEALY. There actually is, and we work with DHS. Did you 

want to go over that? 

Ms. ROSSIDES. Yes, sir. DHS has a redress process where persons 

who think that they are on either the No Fly or Selectee List can 

apply. It is an online process. And we work with the TSC to make 

sure that the individual is actually cleared. They then get a letter 

saying that they are cleared. They get a redress number so that 

when they book travel in the future, they can actually reference 

that redress number, and it should automatically clear them so 

they do not have a continuing problem. 

Senator BROWN. Where do I direct them? 

Ms. ROSSIDES. You could direct them to the TSA Web site where 

there is a link there for the application to apply for redress. 

Senator BROWN. Thank you. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Brown 

104 

I appreciate Senator Brown’s question. These questions do come 

up and it does seem to me, though there clearly is a problem of 

false positives, such as the case with an Arab name where there 

are a lot of similar names in the phone book, or the cases we have 

heard about here where Grandma gets stopped because she has a 

similar name, or the young boy who was stopped a few times, but 

that can not be an excuse for limiting the names on the watchlist 

because there is some reason to put somebody else with that same 

name on the watchlist and they belong there. 

And so I think the redress process you have set up is a good one. 

I do not know what latitude you can give your TSA people at the 

site, CBP at the site, or airlines at the site of entry. I guess anytime you have any latitude, it is a problem. But it just seems to 

me if you have a 7, 8, or 9-year-old boy and he has the same name 

as somebody on the list, it is pretty obvious that he is not the one 

and he ought not to be stopped from getting on the plane. 

Ms. ROSSIDES. Exactly, Senator. In fact, what will happen is— 

particularly when a child shows up at the ticket counter—there is 

an actual call made between the carrier and TSA to immediately 

rectify that problem. 

Chairman LIEBERMAN. That is very good. 

Ms. ROSSIDES. We try to do it in real time, as well, so that we 

can clear up those kind of situations. 

Chairman LIEBERMAN. So that case would not happen again. 

Ms. ROSSIDES. It does not happen that frequently, sir. 

Chairman LIEBERMAN. Yes. So it has become an urban myth. It 

keeps being cited. Thank you. 

Senator Carper, we have welcomed in absentia for the moment 

Senator Kaufman and commented on the disproportionate representation that the State of Delaware now has on this Committee. 

Senator CARPER. Our Congressman wants to be on it, too, probably. [Laughter.] 

That is a story for another day. 

Chairman LIEBERMAN. All right. Thank you. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. So does our County Executive from Northern 

Delaware. 

But we welcome Senator Kaufman. I just came from a meeting 

with him and a bunch of folks from our State. I am sure he will 

get here if he can. 

I want to certainly welcome Senator Brown. I am delighted you 

are with us and we are going to take one of those congressional delegations (CODELs) and go to Afghanistan and Pakistan next 

month. Sometimes our staffs go on staff delegations (STAFFDELs) 

and we have had a couple of them who went over from our staff, 

I think Senator Lieberman’s and Senator Voinovich’s staffs also, 

among other places they visited were Yemen and Saudi Arabia and 

they spent a little bit of time in Holland and in Germany. 

I will not get into Saudi Arabia and Yemen, but one of the things 

that they heard about in Holland, especially with respect to the 

Amsterdam airport, was the kind of behavior assessment or 

profiling that takes place at some of those airports. The Israelis 

are, I think, especially noted for these techniques. 

105 

But I am told that you have airport security officials who try to 

identify and prevent bad guys from getting on airplanes and causing trouble. They do it, in part, by observing the passengers, I 

think before they get to the gate, maybe after they leave the gate. 

I understand that the airports position well-trained personnel at 

various points before and after ticket counters to ask questions politely, to scrutinize facial expressions, to check out body language 

and speech pattern. 

I do not know if this is a good idea or not. The Israelis think it 

is and some other countries do, as well. But I would just be interested in hearing the thoughts of our witnesses today on this type 

of screening and to ask if you think there is something that we can 

learn from what some of these other countries are doing. 

Ms. ROSSIDES. Yes, Senator. Actually, TSA has worked with the 

Israelis and other countries, and we do have a Behavior Detection 

Program in TSA that we have deployed across U.S. airports. We 

have several hundred officers that are trained as Behavior Detection Officers, and they actually look for the behavior anomalies 

that you describe. 

Senator CARPER. Could you be more specific? I do not want you 

to talk out of school, but could you give us some idea of what you 

are looking for? 

Ms. ROSSIDES. Most of it is sensitive security information that I 

could not give you and—— 

Senator CARPER. I understand. 

Ms. ROSSIDES [continuing]. We would be happy to provide you a 

briefing in a closed session. 

Senator CARPER. OK. 

Ms. ROSSIDES. They do look for anomalous behaviors that should 

not be displayed by the everyday traveler. When they do that, they 

will respectfully approach the passenger, engage them in some simple conversation. Depending upon what they glean from that discussion, they may actually refer them for secondary screening in 

the checkpoints. We have several hundred of these across most of 

the largest airports here in the United States. 

I also would say that some of what we are continuing to learn 

is really sharing best practices from our counterparts like the 

Israelis. This really is a global effort, and particularly in the aftermath of December 25’s event, what we have seen is the willingness 

of our global partners to actually come to us and the Israelis to 

learn about our Behavior Detection Program and also to learn 

about the technology that we are now deploying across U.S. airports. And I am happy to say that since December 25, we have had 

at least eight, if not closer now to a dozen, countries that are going 

to be deploying this advanced technology at U.S.-bound gates and 

terminals. 

So there is quite a bit of information sharing and best practices 

that we are doing. 

Senator CARPER. Good. Do any other witnesses want to comment 

on this, please? 

Mr. AGUILAR. I would just add, Senator, that with Customs and 

Border Protection, both foreign and domestic, at locations where we 

are foreign deployed, the same type of training is given. It may 

vary a little bit, but the same type of basic training is given to the 

106 

officers in order to detect that anomalous reactions, if you will, to 

being confronted by officers. 

Senator CARPER. Thank you. 

Dr. Stephen Flynn, of the Center for National Policy, who is, I 

think, fairly well known and a respected homeland security expert, 

recently met with my staff and with me. He said something that 

hit home regarding aviation security. He said basically, and I am 

going to quote him, ‘‘In searching for that needle,’’ like a needle in 

a haystack, ‘‘we need to take some hay off the stack and ensure 

that the screeners be logical in their approach.’’ 

And this may follow up on something that Senator Brown was 

saying, but I asked him to explain what he meant. He is essentially 

saying that, for example, if you see a great-grandmother and a 6- 

year-old child, you might want to place a little less scrutiny on 

them than someone else who is maybe younger or maybe older and 

someone who might realistically pose more of a threat. 

Ms. Rossides, if you would please just comment on what Dr. 

Flynn said. 

Ms. ROSSIDES. Yes. 

Senator CARPER. And let us know if the screeners are trained to 

adapt their techniques based on the age of the passenger. 

Ms. ROSSIDES. Well, sir, the challenge that we have is balancing 

the requirement to screen all passengers and to actually focus our 

officers’ attention on the right passengers per se as you describe. 

I will tell you, based on the intelligence that I see every day, that 

I would not sit here and say that there would never be an elderly 

person that could be used to be a carrier of a bomb on an airplane. 

I have seen around the world people used for this purpose who are 

in wheelchairs. I have seen them use young people. And that is our 

challenge. 

But what we have designed here in the United States and what 

our global partners are doing with us is a multi-layered approach 

so that we really do, through our Behavior Detection Program, 

through our use of advanced technologies, through what we are 

doing randomly with Explosives Trace Detection Technology, look 

at passengers maybe a second time or give some random unpredictability to the system. We are not always predictable, and you can 

not always guarantee that somebody of an age type or certain characteristic will or will not be screened. 

But it is a challenge, and we will modify what we do, and sometimes TSA does get criticized, as to why are we focusing on toys 

or something. I will tell you, what we do is based on the intelligence that we are getting. 

Senator CARPER. Would it be appropriate to share with us and 

the broader public, just some examples of things that you have 

found? Were there toys and things that are in wheelchairs? But is 

there something you can share with us? I heard on National Public 

Radio (NPR), I do not know if it was NPR, but I was driving to 

the train station last week and they were reporting outrage. A 

young child, maybe a 2-year-old child, maybe handicapped, the father was a policeman and was scrutinized. Can you give us some 

examples of why it is actually important that we do that scrutiny? 

Ms. ROSSIDES. Yes, sir. Every day, I will tell you that we see 

things coming through checkpoints in the United States that are 

107 

amazing, that people are trying to secrete on their persons, in 

wheelchairs, and in canes. People will conceal long knives or 

swords in canes. At least a couple of times a year, particularly 

around the holidays, we find guns in teddy bears. We find component parts in children’s toys. It is amazing what we see. We actually do put out on our Web site information that will identify 

things that we are looking for and why, explaining at least why we 

have to take a closer look at some of these things. The officers get 

information on a daily basis in their shift briefings about those 

kinds of very common items that we are actually seeing people conceal things in, trying to get on board the aircraft. 

One of the things that we see as our responsibility, particularly 

this year as we are rolling out this advanced imaging technology, 

is our very significant responsibility to educate the traveling public 

about the benefits of this technology, about their options to go 

through this technology or not, and really to understand why this 

is an increased detection capability for us that will actually ensure 

their greater safety. 

We do try to inform the public when we can on things that we 

are seeing and why things are subject to the screening as they are. 

Senator CARPER. All right. That was very helpful. Thank you 

very much. 

Thanks, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Carper. 

That was helpful. I will bet the traveling public will be encouraged to hear about the behavior identification work that is being 

done without apparent knowledge. It is important. 

The other thing I do want to say, and Mr. Travers referred to 

this briefly in another regard, that the more we move to a biometric system of identification, obviously, the problem of false positives 

is reduced or eliminated totally, and that is another reason to try 

to do that as quickly as we can. 

Mr. Healy, I want to clarify. Did I hear you say that you thought 

the process of review of the standards for inclusion in the use—terrorism watchlists and the use of the watchlists that is being carried 

out pursuant to President Obama’s directive post-Christmas Day 

bomber, that you thought it would result in recommendations by 

the end of this month, or were you referring to something else 

then? 

Mr. HEALY. No, sir. I do not want to cut the group off—but we 

have been working very hard and I think we are wrapping it up 

right now. We have some very tight deadlines, much tighter than 

I would have expected, but the team is working very diligently and 

I expect to have some recommendations very soon. 

Chairman LIEBERMAN. So this is an interagency process. Are you 

chairing that as the head of the TSC? 

Mr. HEALY. Yes. I would say it is a joint between myself, Mr. 

Travers, and the White House, going through the issues that were 

raised and specific issues of the threat issues that we have. 

Chairman LIEBERMAN. Right. 

Mr. HEALY. We have representatives from everyone here that 

participates in that, as well. 

108 

Chairman LIEBERMAN. So will you make a recommendation to 

Homeland Security Advisor John Brennan or the President, or will 

you actually adopt a change yourself? 

Mr. HEALY. We are actually making a series of recommendations 

to the Deputies’ Committee that Mr. Brennan chairs—— 

Chairman LIEBERMAN. Right. 

Mr. HEALY [continuing]. That will be obviously forwarded up to 

the White House. We have had a couple of sessions with the Deputies’ meetings, just basically giving them an indication of where we 

are at, some interim issues that we have identified, and gotten 

some very specific guidance about how to proceed. So that process 

is ongoing and continue to mature. 

Chairman LIEBERMAN. Well, we look forward to the results of 

that. I appreciate your work on it. 

But Mr. Travers, I just want to clarify something in that regard. 

Director Leiter, when he was before the Committee last time, I am 

pretty sure said that the No Fly List, that is the top category, was 

expanded in the aftermath of the Christmas Day bombing attempt. 

Can you describe for us, generally speaking, what has changed? 

Mr. TRAVERS. I will actually defer to Director Healy. There have, 

indeed, been significant numbers of people added to the No Fly 

List, and since Mike Leiter was here, far more. 

Chairman LIEBERMAN. Yes. OK. Mr. Healy. 

Mr. HEALY. Right. Just so we are clear, the criteria for No FlySelectee has not changed. 

Chairman LIEBERMAN. Right. 

Mr. HEALY. What has happened that I think Mr. Leiter was referring to is based on the intelligence as a result of that, we were 

directed to move a number of people on Selectee and No Fly, very 

similar, Senator Collins, to what your concerns were. As a result 

of that—— 

Chairman LIEBERMAN. In other words, to move them from Selectee to No Fly, or from—— 

Mr. HEALY. Move them from TIDE into TSDB, TSDB into Selectee, Selectee into No Fly—— 

Chairman LIEBERMAN. So it was all up the chain of the list. 

Mr. HEALY. And it was not just ticks. It was, if you identify this 

particular—— 

Chairman LIEBERMAN. What is a tick? 

Mr. HEALY. Stages. You did not go into the TSDB and then move 

to Selectee. Based on the threat reporting, individuals were moved 

onto No Fly. Based on the reporting, individuals were moved into 

Selectee. Based on the reporting, individuals were moved from 

TIDE—— 

Chairman LIEBERMAN. So there was new reporting, or was it 

that you went back and took a second look without changing the 

standards? 

Mr. HEALY. It was a culmination of the threat that we had and 

the intelligence, and as a result of that, we were directed by the 

White House to move a number of people, and the process right 

now in that movement is a deeper dive on all those individuals that 

the agency and the FBI are participating on to determine if there 

is any additional information, and that process is ongoing. 

109 

Chairman LIEBERMAN. Right. But the other process that you are 

working on that we talked about a moment ago, that you will report to Mr. Brennan and the Deputies’ Committee at the White 

House, is standards for inclusion on the various lists—— 

Mr. HEALY. Yes, sir. 

Chairman LIEBERMAN [continuing]. And the way in which those 

lists are used. 

Mr. HEALY. Yes, and to address issues that Senator Collins 

pointed out, that if you have a single source reporting—— 

Chairman LIEBERMAN. Right. 

Mr. HEALY [continuing]. Should you allow that individual that is 

talking to that potential source to be able to judge his credibility. 

Chairman LIEBERMAN. OK. 

Mr. HEALY. Issues like that have been raised up and are being 

forwarded. 

Chairman LIEBERMAN. Let me ask, I guess primarily Mr. Healy 

or Mr. Travers, for some clarity on these technological questions, 

because I was surprised in your opening statement. I do not think 

it was an absolute statement, Mr. Travers, when you kind of indicated that the Google-like searches that Senator Collins and I referred to cannot be done by the National Counterterrorism Center. 

In other words, we are accustomed to this remarkable ability to 

search an enormous number of databases quickly and have the information come up through a search process like Google. 

My impression from Mr. Leiter when he testified here is that 

now, your analysts at the National Counterterrorism Center cannot—and let us simplify this. Let us just take the name Umar Farouk Abdulmutallab. They can not search that across all the databases like that. They have to sort of dig down into each database. 

Am I correct? 

Mr. TRAVERS. Yes, sir. As I mentioned, there are 30 or so networks that come into NCTC. We clearly cannot do a Google-like 

search across all 30 of those networks for some of the policy-privacy 

reasons I suggested. My analysts within the Terrorist Identities 

Group can do a Google-like search that will take them out to the 

terrorist message traffic that will come in from many of the organizations that will go into a data repository. They can search across 

that. And with TIDE, actually what they find is the same problem 

you have if you do a Google search at home. You may get so many 

reports back—— 

Chairman LIEBERMAN. Yes. 

Mr. TRAVERS [continuing]. That you get thousands, and that does 

not help you very much, either. There is no question that an analyst could have after-the-fact fashioned a query that would have 

been very precise and you would have gotten the limited reporting 

that exists on Umar Farouk. The challenge is knowing what you 

are searching for. 

Chairman LIEBERMAN. I understand all those problems and I accept their reality, but when you answered the question just now, 

you referred again to the privacy concerns about searching all the 

databases at once. But do we have the technological capability at 

the National Counterterrorism Center to quickly search all the 30 

networks of information you have coming in? 

110 

Mr. TRAVERS. The technological capabilities flow from the policy 

enablers and there are some unanswered questions on both the 

operational side as well as the privacy side that limit our ability 

to implement a technological solution. I think if our chief information officer (CIO) was here, she would tell you that the technical 

issues are not the long pole in the tent. 

Chairman LIEBERMAN. Well, that is sort of both encouraging and 

discouraging, I must say, because I do not want to diminish privacy 

concerns, but to me, they must be secondary to the quest—just as 

you said, one mistake and people get killed. One time a terrorist 

breaks through the networks and that is all they have to do, one 

time and they are successful. 

The reason it is encouraging, I thought it was that we did not 

have the right equipment, the right information technology, but in 

a way you are saying to me now, if I hear you correctly, that it is 

really more a question of the standards that we have that stop 

your analysts from searching all the networks at once. 

Mr. TRAVERS. Yes. Our CIO Office for a number of years now has 

been looking forward to how do you build a data layer that will 

allow you to do searches that will get you to all of the data. 

Chairman LIEBERMAN. Yes. 

Mr. TRAVERS. I mean, if you carry this to its logical extreme, people begin to think you are talking about Total Information Awareness (TIA), and Admiral Poindexter and so forth. Well, clearly, that 

is not the direction you want to go. However, you do want to get 

to the point where you can search across all data that might have 

a terrorism nexus. Some of that data may be DHS data. It may 

have asylum seekers, refugees, and U.S. persons in it. Where is the 

right balance? And those are some unanswered questions. 

Chairman LIEBERMAN. My time is up. I must say, and I think the 

whole Admiral Poindexter brouhaha ended up sending some wrong 

messages, because I thought—it may have been because of his personal background, too—he was asking reasonable questions. They 

may not have been perfect questions, but he was trying to push the 

technology to make it maximally helpful to us in our quest to stop 

people from—— 

Mr. TRAVERS. Yes, sir. 

Chairman LIEBERMAN [continuing]. Doing us damage. 

Mr. TRAVERS. We would agree that there is no question that a 

human being is not going to be able to go through all that data. 

Chairman LIEBERMAN. Yes, exactly. 

Mr. TRAVERS. You have to use technology. 

Chairman LIEBERMAN. Yes. Thank you. Senator Collins. 

Senator COLLINS. Mr. Chairman, I am going to yield to Senator 

Brown first because he has a scheduling conflict. 

Senator BROWN. Thank you, Senator, and Mr. Chairman, I appreciate it. 

I just had one quick question, probably to Mr. Healy. When you 

are making that recommendation to the President, I am not sure 

if this is the appropriate vehicle to do just that, but do you recommend how the people who are actually caught trying to hurt us, 

such as the Christmas Day bomber, should be treated in terms of 

prosecution or interrogation? Will there be that type of recommendation within what you are doing? 

111 

Mr. HEALY. No, sir. I was specifically asked to take a look at the 

watchlisting standards and No Fly, the Selectee, how that particular process worked, and that is where I am focusing it. With regard to what you just asked, no, that is beyond—— 

Senator BROWN. Who will be responsible for making those recommendations to the Administration? 

Mr. HEALY. I am not sure, sir. I would defer that question and 

I would like to get back to you, if I could. 

Senator BROWN. If you could, that would be great. 

Senator I appreciate you deferring, and thank you, Mr. Chairman. 

Senator COLLINS. Thank you. 

Ms. Rossides, I think you preformed a very important service 

today by reminding us that we cannot have profiles in our mind 

of what a terrorist looks like and that a terrorist can use a young 

child or an elderly person in a wheelchair. We should all be reminded of that by the story that broke in the news today, where 

a blonde, green-eyed woman from Pennsylvania turns out to be 

suspected of terrorist acts. So I think that is a very good reminder 

to all of us. 

I recently was returning from Zurich and had to go through a 

full pat-down and I thought, what a waste. I have shown my ID. 

It is clear who I am. Why am I having to go through this? But the 

fact is, that random quality of selecting people is important, and 

I think you have given us a good reminder of that today. 

I want to give you a chance today to respond to concerns that 

have been raised by various outside groups—I think one is the 

Electronic Privacy Information Center—about the full-body scans. 

I would like you to address not just the privacy concerns that have 

been raised, but also the health concerns. I happen to know that 

TSA looked at the health concerns and did an analysis of the exposure to the radio waves, but I do not think the public at large 

knows that. So if you could comment on both of those issues. 

Ms. ROSSIDES. Yes, Senator. First, with respect to the privacy, 

from the very beginning when we started to test this new technology, we filed a Privacy Impact Assessment, and we held a lot 

of meetings with privacy groups and various interest groups in our 

wide net of stakeholders. We have gone to the point where, today, 

where we have this technology deployed, there is a clear separation 

between the Transportation Security Officer (TSO) or the officer 

who is facilitating the passenger going through that technology and 

the actual officer who is seeing the actual image of that passenger. 

The two officers never overstep so that the officer that is with the 

passenger never sees the image of the passenger in the technology 

and the officer that is viewing that image is located in a remote 

viewing room. 

The standards for the officers who are viewing those images is 

very high. They are not permitted to bring cellphones into the 

viewing area. They are not permitted to take a picture. And most 

importantly, the technology is set up such that the operator cannot 

store that image, they cannot copy it, they cannot transmit it electronically to another work station. So we have taken a lot of measures from a privacy standpoint to protect the traveling public. 

112 

In addition, the passengers are advised that it is optional. If they 

do not want to go through this technology, they can have alternative means of screening. 

The health and safety aspects of it were also very important to 

us from two standpoints—first, from the traveling public’s standpoint for every passenger, as well as for our officers who would be 

near that equipment all day long. We had a number of Federal 

agencies, including the Food and Drug Administration, and the National Institute of Standards and Technology (NIST), look at the 

standards that the manufacturer certifies to in terms of health and 

safety. We also asked Johns Hopkins University’s Applied Physics 

Lab to take an independent look at the technology and give us 

their independent assessment of its safety. 

And in essence, for the two different types of technology, the exposure is equivalent to less than 2 minutes of air time in an airplane at full altitude or less than 10,000 times your radiation or 

your exposure when you are on your cell phone. So it is very minimal. You would have to fly, I believe the standard is, 15,000 times 

a year to be exposed to anything that would reach the very baseline of a question in terms of the health and safety standards. 

Senator COLLINS. Thank you. That is very helpful testimony for 

us to have. 

Mr. Aguilar, I want to first tell you and thank you for the extraordinary service we have had from a detailee, Matt Hanna, from 

your agency. He has really added to our knowledge of CBP and we 

appreciate it. 

I want to talk to you about the screening computer program that 

is known as the Automated Targeting System. This is intended to 

identify travelers for additional screening even if they are not on 

the terrorist watchlist. So again, it is part of this layered approach 

to security. 

Now, following the Christmas Day attempted attack, DHS started requiring passengers who are citizens of or traveling from one 

of 14 countries to undergo additional physical screening before 

boarding a flight to the United States. What worries me about that 

approach is it seems to me to not really be risk-based and to encourage terrorists to travel through other countries or use citizens 

of countries that are not on the 14-country list. 

I can understand why we would want to put Yemen, for example, 

on that list, and that may make sense. But it seems to me that we 

know that terrorists are smart. They are adapting constantly. And 

when we advertise that these 14 countries are going to be subjected 

to additional screening, we just encourage them to go around that. 

Why instead would not we make increased use of the Automated 

Targeting System to identify high-risk travelers rather than doing 

this blanket approach? 

Mr. AGUILAR. Senator, you hit on something that is absolutely 

critical to helping secure this Nation, and that is what you are referring to is addressing the unknowns. When we talk about the 

watchlisting, when we talk about the biometrics, when we talk 

about the knowns, that is, frankly, in our world, the easy part of 

finding the bad people. What you are referring to is finding the unknowns. 

113 

Taking Umar Farouk Abdulmutallab, for example, had his father 

not come in with that piece of information, he would have been 

completely unknown to us. But by utilizing the Automated Targeting System (ATS), the targeting system that we utilize, we take 

into account tidbits of intelligence that may or may not be in the 

TSDB. We take what we believe to be known or might be known 

travel routes coming into the United States, origins, things of that 

nature. 

So that is managing risk. That is what that system is specifically 

used for in order to address the unknowns that might be coming 

into our country. We use that on a constant basis. It has been very 

successful. 

Now, as to the 14 countries, and I will leave the rationale for the 

14 countries’ delineation to my partner from TSA, but after December 25, 2009, we needed to do everything possible to ensure that 

not only the knowns, the unknowns, but any other gap could have 

been closed, and that was the original reason for the 14. But again, 

you hit on something that is absolutely critical that we not forget 

about, and that is the unknowns trying to get into this country 

that we have absolutely no idea. We have just tidbits of information that we basically address by focusing our intelligence, by focusing our efforts on what we do know of modes, means, or rationale as to how they try and get into this country. 

Senator COLLINS. Thank you. Mr. Chairman, just one closing 

comment, if I may. 

Chairman LIEBERMAN. Go right ahead. I actually have a few 

more questions—— 

Senator COLLINS. Oh, you do? OK. 

Chairman LIEBERMAN [continuing]. So if you want to do another 

round, Senator Collins, fine. 

Senator COLLINS. That sounds great. 

Chairman LIEBERMAN. Good. Thank you. 

In the last round of questions, I asked about the ability to do a 

Google-like search of a similar name or subject across all the networks, but I wanted to ask you also—we talked about this last time 

with Mr. Leiter and others who were here, and this, I did not understand very well—I know that in the private sector, there are 

some computer programs that do not search for the exact same 

name but have the capacity to make connections of words or topics. 

In this case, part of the frustration was, as I mentioned in my 

opening statement, we knew from one intelligence source that 

there was a Nigerian training with al-Qaeda in the Arabian Peninsula. We had another intercept that suggested something might be 

happening around the Christmas holidays. We had another intercept that identified a man by only his first two names, Umar Farouk. And then, of course, we had the father come into the embassy. 

And then this problem we have now is this enormous amount of 

data that you said—the numbers are stunning, 10,000, essentially, 

new names suggested every day, more data collected, primarily by 

the National Security Agency (NSA), I presume, every day than is 

in the Library of Congress. So this is impossible for humans to sift 

through in a timely way. 

114 

To your knowledge, are there systems, software, programs that 

we can or should acquire that can make a stab at not the same 

name everywhere, but bits of information that a quick search may 

tie together? 

Mr. TRAVERS. Yes, sir, and as I suggested, we are utilizing many 

tools and are always looking at others. The issue of alternative 

names is a relatively simple one, I think, that probably all of us 

at this table have capabilities resident in our departments and 

agencies that will deal with cultural differences and spellings and 

so forth, and so we have that one, I think, relatively licked. It does 

present problems when you are trying to do this on a massive scale 

and correlate it with other data because now you have 100 different spellings of one name and they reach out and touch other 

data and now do you have false positives? Absolutely. 

Chairman LIEBERMAN. Yes, but what about the case that we had 

with Abdulmutallab. Is there a computer system that might conceivably have picked out those similarities that I just mentioned— 

Nigerian, Umar Farouk, then the father comes in and cites Umar 

Farouk Abdulmutallab? 

Mr. TRAVERS. If you tailor a query, absolutely. Then it is a very 

simple process. 

Chairman LIEBERMAN. Give me an example of such a—— 

Mr. TRAVERS. If you had searched on ‘‘Umar Farouk’’ and ‘‘Nigeria’’ and allow it to use alternative spellings, then it is an easy 

question. It was, just as Mr. Aguilar indicated, if you know what 

you are looking for, then the query is easy. 

Chairman LIEBERMAN. Yes. So we have the equipment to do that 

kind of search now across the databases? 

Mr. TRAVERS. That is correct. My analyst could have, in fact, 

found that linkage if she had known to make the query. 

Chairman LIEBERMAN. Right. 

Mr. TRAVERS. There are things, latent semantic indexing, that 

will allow you to generate new knowledge, you can pour in many 

cables, and they don’t necessarily find a direct linkage, but because 

they can learn, if we are smart enough to program the algorithms, 

that they can connect pieces of information. We are certainly experimenting with that, as well, and certainly there is the next generation of analyst notebook kind of things which make pretty pictures and link a lot of people together. 

Chairman LIEBERMAN. Right. 

Mr. TRAVERS. Frankly, any analyst will tell you that is just the 

beginning. Now you have a tremendous amount of information. 

Now you have to burrow down into one correlation between two individual points. 

Chairman LIEBERMAN. Well, technology has taken us very far 

very rapidly, so hopefully it can help you sift through all that information that comes on your desk every day. 

Commissioner Aguilar, let me go back to that question about 

when you get the information about passengers coming on a plane. 

A lot of times, including with Abdulmutallab, we actually did not 

have the information until he was on the plane. I wonder what you 

think about creating a rule that we thoroughly screen each flight’s 

passenger manifest against all our databases at least 24 hours, if 

not longer, before the airplane is set to depart, understanding that 

115 

not everybody will be on a database 24 hours before, but most of 

the passengers probably will be. 

Mr. AGUILAR. Right. Yes, sir. The more information we have 

available to us quickly is going to enhance our capabilities to affect 

the intent of anybody trying to board a plane coming towards us. 

Today, we use what is known as a Passenger Name Record, the 

PNR. 

Chairman LIEBERMAN. Right. 

Mr. AGUILAR. But as I stated earlier, it does not give us all of 

the elements that we need. We are working with the civil aviation 

industry to try and get them to get us the information that will get 

to us up to 72 hours before so that we can start running the passengers against our systems. 

I believe you are aware, also, that prior to actual boarding, 30 

minutes before, we do get the full biographical information of the 

passengers when they either swipe their passport or the carrier 

provides us the batch information that will give us those capabilities. But to the degree that we can get more information as quickly 

as possible, it will be a tremendous enhancement to our capabilities 

to run against all the databases. 

Chairman LIEBERMAN. I appreciate that answer. So, really, you 

are pushing it now to see if you can get that information up to 72 

hours before flight departure. 

Mr. AGUILAR. Yes, sir. The PNR data, yes. We start at 72 hours, 

at 24 hours, 8 hours, and one hour before, and then we get the 

APIS data at 30 minutes before boarding. 

Chairman LIEBERMAN. I guess it is a question of whether you can 

get the APIS data earlier than 30 minutes before, because that is 

really the more helpful data. 

Mr. AGUILAR. That is going to be the data that gives us the full 

information on the passengers that are going to be on the manifest, 

yes, sir. 

Chairman LIEBERMAN. Please let us know if there is anything we 

can do legislatively to expedite that process for you. That is really 

important. 

Mr. AGUILAR. Thank you, sir. We are working closely with the industry right now, but we will get to you if that does not work out. 

Chairman LIEBERMAN. Good. 

Administrator Rossides, I want to ask you a final question. It is 

my understanding that, and you refer to this somewhat in your 

opening statement, on Christmas Day last year, shortly after that 

Northwest Flight 253 landed in Detroit and authorities began to investigate the incident, somebody at NSA determined that a pilot 

should be alerted to what authorities knew at that time. What I 

have been told was that TSA alerted all transatlantic flights that 

someone had tried to light a combustible substance and that pilots 

should notify passengers that all carry-on items needed to be 

stowed one hour prior to arrival. The message was sent by TSA via 

the Federal Aviation Authority (FAA), by the FAA alert system in 

every cockpit of every plane, and I think two subsequent messages 

were also sent which contained some additional information. 

So I wanted to ask you two questions, both looking back but also 

looking forward. Obviously a lot of this is quite commendable. Who 

at TSA made the determination to send those particular alerts? 

116 

And then my question looking forward is, if my information is 

right, why was a decision made to send them to only the transatlantic flights? In other words, given the imperfect information we 

had at that point about what was going on and the knowledge that 

we had of sometimes these attacks being sequenced, not just one 

at a time, why didn’t TSA send those alerts to all aircraft flying 

into, across, or out of the United States? 

Ms. ROSSIDES. Yes, Senator. Actually, I made the decision. I was 

on the call in the aftermath, as we got word of the flight in Detroit. 

We had FAA on the bridge call with TSA and I made the decision 

to have FAA notify those pilots. 

We did, as the information was very rapidly coming in to us, we 

did a very quick assessment of how many flights for the next 8 

hours were inbound to the United States, and 128 of them were inbound from Europe. It was my decision to notify those, based on 

the intelligence that we had, based on the fact that this particular 

flight had come from Europe. 

As part of our process after every one of these incidents, we do 

a hot wash and look at what should we do differently, and we have 

already added it into our Critical Incident Plan, that if we were to 

face another incident like that, we would notify additional carriers 

beyond those that we had in our window in those 8 hours in that 

specific region. It is one of the lessons learned from that day. 

Chairman LIEBERMAN. Very good. So in other words, if that, God 

forbid, happens again, you would notify carriers flying in the 

United States as well? 

Ms. ROSSIDES. Right. 

Chairman LIEBERMAN. Thank you. Thanks for the initial decision 

you made and thanks for the lessons learned. 

Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Ms. Rossides, you looked as if you wanted to comment when I 

was having the exchange about the 14 nations that were listed 

versus greater use of the ATS. Would you like to comment on that 

issue? 

Ms. ROSSIDES. Yes, Senator. It was actually TSA’s decision to 

identify those 14 countries in the immediate aftermath of the 

Christmas Day event. Most of those 14 countries are listed on the 

Department of State’s Counterterrorism Report. It is the Counterterrorism Report from 2008. It is actually on their Web site, and 

those are reported and identified as state sponsors of terrorism or 

safe havens for terrorism. That was part of what we looked to do. 

We were looking to do some very immediate things to literally 

blunt what could have been another attack, and so that was one 

of many measures that we put in place in literally the days and 

hours after the Christmas Day event and in the subsequent weeks. 

It is something that we do all the time, and we are now in the 

process of reviewing that list with the Secretary as part of the initiatives that she has to look at in building more of a global information sharing capability. 

So something that we will continue to look at is those countries. 

But it was a blunt measure because we just did not know who else 

was traveling and where they were traveling from. 

Senator COLLINS. Thank you. 

117 

Ms. ROSSIDES. Thank you. 

Senator COLLINS. Mr. Travers, I just want to pose my final question today to you. I was a bit concerned in the discussion you had 

with the Chairman about the databases across government that 

you pointed to policy and privacy reasons why there could not be 

a search across these databases rather than technical reasons. And 

the reason I am concerned about that is we are trying to get away 

from the stovepiping. We want that exchange. 

Now, I recognize the concern with U.S. persons versus foreigners, 

but we tried to break down a lot of those walls when we passed 

the 2004 landmark law. What are some of the specific policy and 

privacy standards that prevent you from searching across databases? 

Mr. TRAVERS. I do not pretend to be a privacy lawyer, but I will 

tell you that we have been working for many years to get data sets 

from different departments and agencies. We have had a fair 

amount of success with getting an analyst native access. That is, 

they can go in and log onto one of those 30 networks and access 

another department or agency’s data set. 

What gets to be far more complicated is if we want to actually 

ingest a full data set so that we can apply the kinds of tools that 

we were talking about earlier. That gets harder for departments 

and agencies because now they are basically giving up control of 

that data, and generally, it is not either foreign or U.S. persons. 

Increasingly, we have data sets that are commingling data. They 

have both there. And so this provides a complicated problem set for 

the different privacy advocates and lawyers at the different departments and agencies about how far they can or should go with respect to allowing individuals like me, an intelligence community officer, to be pulsing around their data. 

And so we have been working with probably 12 or 14 different 

departments or agencies. We have had some success with some, 

lesser success with others. 

Senator COLLINS. That is an issue, Mr. Chairman, that I think 

we are going to need to proceed to pursue further. 

Chairman LIEBERMAN. No, I agree. It has been a little unsettling 

to hear some of the answers. 

And again, I appreciate everything the four of you have done. Of 

course, I am very proud of NCTC. I do not minimize the difficulty 

of these decisions, but I do think, ultimately, in these cases, security has to be given much more weight than privacy because of all 

that is involved. 

My guess is, if you ask the American people what they would 

want us to do, they would say, I want you to protect my security. 

I am willing to give up a little of my privacy for that. 

We will continue this discussion. But again, this review began on 

the 5-year anniversary of the 9/11 Commission legislation, which 

established the Director of National Intelligence (DNI) and the 

NCTC, and, of course, we have now been longer than that into the 

experience in the Department of Homeland Security. So we are 

way more protected. The American people are way more protected 

than they were on September 11, 2001. That is the good news. 

But we can do better, and that is part of our job to continue as 

the oversight committee to push on this. So the changes that you 

118 

have made in various ways across the agencies represented here 

since Christmas Day are constructive and helpful and increase security, and I look forward to the report and changes in policy on 

the watchlist, and, of course, as Secure Flight is implemented, it 

will be even a better situation. 

But anyway, I thank you for what you do every day. Please continue to do it, and we will continue to push you and question. 

The record will remain open for 15 days on this hearing for additional statements and questions. 

Senator Collins, do you want to add anything? 

Senator COLLINS. No. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much. 

The hearing is adjourned. 

[Whereupon, at 12:06 p.m., the Committee was adjourned.] 

(119) 

THE LESSONS AND IMPLICATIONS OF THE 

CHRISTMAS DAY ATTACK: INTELLIGENCE 

REFORM AND INTERAGENCY INTEGRATION 

WEDNESDAY, MARCH 17, 2010 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:32 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Carper, Kaufman, and Collins. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. Good morning. The hearing will come to 

order. Senator Collins and I apologize that two votes went off that 

we obviously had to be on the floor for, but we thank you for your 

patience. 

Today, we continue our Committee’s inquiry into the intelligence 

reforms adopted after September 11, 2001. We do so in the fresh 

context of the failed terrorist attack on Christmas Day, which exposed continuing gaps in our homeland defenses. 

Today’s hearing, our fourth in this series, will specifically examine the authorities of the Director of National Intelligence (DNI) 

and the National Counterterrorism Center (NCTC). Our purpose is 

to determine if those authorities are sufficient or in need of additional reform. Creation of the DNI and the NCTC were the most 

critical recommendations made by the 9/11 Commission to improve 

our ability to protect the American people against the threat of terrorism. 

More than 5 years have passed now since the Intelligence Reform 

and Terrorism Prevention Act, the so-called 9/11 Commission Act, 

was signed into law, and that is why last fall our Committee began 

this series of oversight hearings. The Christmas Day incident only 

added urgency to our task and underscored, I think, how much this 

is a continuing effort to strengthen our ability to detect and 

counter potential terrorist threats. 

In recent weeks, we have held hearings on issues raised by the 

Christmas Day bomber attempt, most recently examining our 

watchlist and pre-screening systems. Next month, we are going to 

hold hearings on our visa issuance procedures and intelligence 

analysis and information sharing. But today, as I said, we are 

going to focus in on DNI and NCTC. We want to consider instances 

120 

in which these two entities have had difficulty carrying out their 

intended missions as well, of course, as the many times in which 

they have done exactly what we hoped they would do. We want to 

discuss also what, if anything, Congress should do to strengthen 

the abilities of the DNI and NCTC to respond to terrorist and other 

national security threats, perhaps different threats that have 

emerged since 2004. 

The 9/11 Commission concluded that no single person or agency 

was in charge of our sprawling intelligence community and therefore recommended creation of the Director of National Intelligence 

to lead the 16 intelligence agencies of our government, including, 

of course, the Central Intelligence Agency, and to act as principal 

adviser to the President on matters of intelligence. The 9/11 Commission Act gave the DNI a range of authorities to better integrate 

the intelligence community to promote what the 9/11 Commission 

called the unity of effort that they found was absent before 9/11. 

The 9/11 Commission further concluded that no one was responsible for coordinating the critical activities of key agencies involved 

in the fight against terrorism. As the Commission memorably concluded, no one was in charge of the various efforts that had been 

ongoing to capture or kill Osama bin Laden. 

So the Intelligence Reform Act created the National Counterterrorism Center and gave it the responsibility to conduct a new but 

critically important function in our government which the statute 

called Strategic Operational Planning, that is, planning counterterrorism activities on a government-wide basis, integrating all elements of our national power to fight terrorism, and assigning roles 

and responsibilities to departments and agencies for specific activities based on that planning. 

In many instances, the DNI and NCTC have used their authorities very well and implemented critical policies and organizational 

initiatives to improve intelligence functions and better protect the 

American people. The NCTC has played a vital role in coordinating 

Federal, State, and local agencies to prevent an ongoing series of 

terrorist plots against the United States, including some recent remarkable acts of prevention, including the arrest of Najibullah Zazi 

and David Headley. 

But in other instances, such as the Christmas Day bombing, 

Umar Farouk Abdulmutallab, failures have occurred in key areas 

and the progress of fully implementing reforms has been slow, perhaps due to institutional or bureaucratic resistance from some of 

the 16 agencies that report to the DNI, or perhaps due in other 

cases simply to insufficient resources or inadequate leadership. 

Those are the questions that we want to ask today about where 

there are shortcomings, why they have occurred. 

I also want to discuss the policy and legal framework for intelligence community information systems. Last week, the Deputy Director of the NCTC testified that policy, legal, and privacy-related 

matters impede the development of advanced search and discovery 

tools that could help analysts spot potential terrorist plots in a way 

that may have prevented Abdulmutallab from ever boarding that 

Northwest Flight 253. 

This is really a question, as we have discussed after 9/11, everyone concluded that there was an inability to connect the dots, in 

121 

part because various intelligence agencies and other agencies of our 

government were not sharing information and the dots were not on 

the same table. I think our feeling now is that the dots are on the 

same table, there is a lot of sharing going on, but there are so 

many dots on the table that it is hard to many times make the connections that are necessary between them. We are focused now on 

the capacity of technology to assist us in doing that, because for 

humans, it is very hard to do it, particularly in a timely way. So 

I think some of the barriers that were cited last week are ones we 

have to find a way to overcome in the interest of the homeland security of the American people. 

I want to thank the three of you, who each bring very relevant 

and extensive experience to us, for appearing before the Committee 

and sharing your perspectives on this, on the issues I have mentioned and others, as well, and I look forward to the discussion 

after your testimony. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. 

Over the past several months, this Committee has examined the 

intelligence failures surrounding the attempted terrorist attack on 

Christmas Day. As part of our due diligence, as the Chairman has 

indicated, we are also evaluating the impact of the Intelligence Reform and Terrorism Prevention Act of 2004 on our Nation’s efforts 

to combat terrorism. 

Today, we focus anew on one of the most significant issues that 

we grappled with in the drafting of the Intelligence Reform law, 

and that is the extent of the authority granted to the Office of the 

Director of National Intelligence (ODNI). 

The DNI was established to be, in Secretary Powell’s memorable 

words, the ‘‘quarterback’’ of the intelligence community to coordinate the activities of the 16 intelligence agencies scattered across 

the Federal Government. Those 16 diverse components carry out 

an array of missions, and each component has its own view about 

how best to carry out its assignment. 

The intelligence community is resistant to change, but change is 

precisely what the Intelligence Reform Act directed the DNI to 

achieve. To that end, we provided a set of authorities that the DNI 

would use as tools to encourage, cajole, and in some cases compel 

action. These authorities included the ability to access all intelligence information collected by the Federal Government; the lead 

role in developing the annual National Intelligence Program budget 

and in ensuring its effective execution; some ability to transfer 

funds and personnel within the intelligence community—not as 

much authority in that area as I would have liked to have seen; 

the ability to manage and direct the tasking, collection, analysis, 

production, and dissemination of intelligence; and the authority to 

develop standards and guidelines to ensure maximum availability 

of intelligence information within the intelligence community. 

These authorities should be largely sufficient for the DNI to accomplish its mission, provided that they are wielded effectively and 

with the strong support of the President. As Governor Kean and 

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1The prepared statement of Mr. Powell with attachments appears in the Appendix on page 

359. 

ary, the DNI’s ability to lead the intelligence community depends 

on the President defining the role and giving him the power and 

authority to act. 

The question is, however, whether or not these authorities have 

been used as often, as effectively, and in the manner that Congress 

intended. For example, does the institutional resistance of agencies 

like the Central Intelligence Agency (CIA) make the use of these 

authorities such an onerous ordeal that the DNI is hesitant to embark upon the journey? Is the DNI concerned that exercising these 

authorities more aggressively might create ill will that will make 

it even more difficult to coordinate activities in other areas? Or are 

these authorities being undercut by insufficient support from the 

President or the National Security Council, both of which need to 

be active to ensure that the DNI works as intended? 

As the Chairman has indicated, we are also taking a close look 

at the National Counterterrorism Center. I think that is as important a reform as the creation of the DNI, and I think, as the Chairman has indicated, we have seen great successes from the Center, 

such as pooling information that led to the Zazi and Headley cases 

being brought to the attention of law enforcement and the individuals arrested. I do not think that would have happened prior to the 

creation of the NCTC. On the other hand, we have also seen the 

NCTC not work as well as intended as in the case of 

Abdulmutallab. 

So our witnesses today offer a great wealth of practical experience in the day-to-day operations of the intelligence community, 

both pre- and post-reform, and I look forward to hearing their insights on these important questions. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

Senator Collins is right that our three witnesses have been in the 

system and continue to follow it, so they speak from some experience. In other words, their judgments are informed by experience. 

One could disagree or agree with them, but they come with some 

background. 

At some point in these deliberations, we are going to speak in 

open or closed session with some of the people who are running the 

agencies now, but we thought this would be a very good way to 

start. 

Mr. Powell, we will ask you to testify first, former DNI General 

Counsel, and currently a partner in the law firm of Wilmer Hale. 

TESTIMONY OF HON. BENJAMIN A. POWELL,1 FORMER GENERAL COUNSEL OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (2006–2009) 

Mr. POWELL. Thank you, Senator Lieberman and Senator Collins. I appreciate the opportunity to appear before the Committee 

to discuss intelligence reform and interagency integration. I am 

particularly honored to appear before this Committee given the historic role in intelligence reform played by this Committee under the 

leadership of Senator Lieberman and Senator Collins. 

123 

I should also note I am honored to appear with Jeff Smith and 

Ozzie Nelson. Jeff is one of the finest national security lawyers and 

policy experts in the world on these matters. He is an example to 

all of us who have worked in this area. Ozzie Nelson is an experienced operator and the Nation is simply safer because of his long 

service in the military and his work at the National Counterterrorism Center. 

I appear before the Committee in my personal capacity and the 

views I express are my own. I have separately provided the Committee my biography and would refer you to it for my background. 

As General Counsel to the first three Directors of National Intelligence, I have seen the implementation of the Intelligence Reform 

Act at the ground level. And while the work of intelligence transformation and integration can appear quite distant from the daily 

operational activity of the intelligence community, the September 

11, 2011, attacks and subsequent events have made clear that this 

is work with real-world consequences. The Christmas Day attack 

was another vivid example of the importance of an integrated intelligence community. 

Transformation of the intelligence community is not a zero-sum 

game. The goal is not to diminish the authorities or the capabilities 

of one organization in favor of another organization, such as the 

DNI. The goal is to have an integrated intelligence community that 

is more than the sum of its parts. 

I wanted to briefly highlight three points from my written statement. First, the DNI needs senior-level support to succeed. Second, 

the DNI initiatives to date have been important, some vital to our 

security. And finally, since it has been the subject of much discussion over the years, I wanted to briefly touch on the size of the DNI 

organization. 

First, the DNI needs support to succeed. This means support 

from the senior national security team, the Executive Branch, and 

the Congress. If he does not have that support and backing, transformation will fail. The reform legislation set up a matrix management structure. 

The DNI must be part director, part coordinator, and part diplomat. The Nation has been fortunate to have excellent leaders of 

the intelligence community, in my experience, both the current 

leaders and the former leaders, and the Nation is truly blessed that 

there are brave members of the intelligence community willing to 

undertake difficult missions around the world at peril to themselves and, at times, their families and their careers. The workforce 

is talented, mission oriented, and wants to succeed. Our goal 

should be to give them the tools for success and free them from the 

ironclad rules of bureaucratic behavior that distract from the one 

shared goal of protecting our country. 

Second, the leadership of the DNI has been absolutely necessary 

for a number of fundamental initiatives. The DNI did not undertake these initiatives in a vacuum. Their success or failure is dependent on other parts of the intelligence community and the government. But make no mistake, the DNI’s Office was the necessary 

organization, even if not sufficient alone. 

Some observers have claimed that the Reform Act and the subsequent implementation merely added another layer of bureaucracy 

124 

and accomplished little. That simply does not reflect the reality of 

the past 5 years. Instead of fairly meaningless charges about another layer of bureaucracy, I would hope that questions would focus 

on substance, such as are these intelligence community initiatives 

useful? Historically, how did alternative structures perform? Did 

they produce the needed integration and transformation of the intelligence community? 

Some of the initiatives are discussed in my statement in greater 

detail. These include reform of the Foreign Intelligence Surveillance Act (FISA), stand-up of the National Counterterrorism Center, implementation of joint duty, security clearance reform, deployment of technologies in innovative ways, such as the Analytic 

Space and Intellipedia, and critical work in the cyber area that culminated in the Comprehensive National Cyber Security Initiative. 

This list, of course, omits classified areas that took up significant 

time and resources of DNI leaders. 

A few points: Without a DNI, FISA legislation would not have 

been enacted. Serious collection gaps would remain and would have 

worsened and the Nation would face greater risk. Joint duty is critical and its implementation will be a long-term project. It is an example of the investment of time and effort required to formulate 

and implement workable policies in the intelligence community 

structure of matrix management. 

Security clearance reform: This area has been a particular focus 

of this Committee’s Subcommittee on Oversight and Government 

Management, the Federal Workforce, and the District of Columbia. 

The cost and delays present in the security clearance process impose a large cost on the intelligence community and the larger Federal Government. 

In November 2005, top secret investigations took 314 days to 

complete, with only 8 percent being completed in 90 days. I understand that, currently, 90 percent are completed within an average 

of 91 days. In November 2005, secret and confidential investigations took an average of 153 days, with just 44 percent completed 

within 90 days. I understand that currently 90 percent are completed within 49 days. I also understand that the decades-old backlog of investigations, which as recently as October 2006 stood at 

100,000 cases, has been eliminated. 

Without the DNI’s Office, the Nation would not have a Comprehensive National Cybersecurity Initiative and be less prepared 

for the cyber threat that Director Blair recently discussed in his 

testimony to Congress. 

Finally, a quick note on the size of the DNI Office. Director Blair 

has talked about the DNI’s responsibilities for guiding a 200,000- 

person, $75 billion national enterprise in intelligence. Some facts 

about the size of the core DNI staff. As of January 2009, Director 

McConnell spoke in public about a core group of intelligence professionals of 650 people. Under any method of calculation, the DNI is 

a very small proportion of the entire intelligence community population. 

Second, perhaps the proper size of the staff is larger or smaller 

than the 650 persons that Director McConnell has discussed. I am 

sure, as with most organizations in government, there are many efficiencies and improvements in staffing that require examination. 

125 

1The prepared statement of Mr. Smith appears in the Appendix on page 427. 

But the debate over the right number of personnel pales in significance next to the questions concerning information sharing, collection requirements, multi-billion-dollar acquisition program oversight, analytical excellence, and a host of other issues on the DNI’s 

lengthy list of responsibilities. 

Finally, implementation of the matrix management structure created by the Intelligence Reform Act has presented numerous challenges. Many tasks remain undone, and progress on building an integrated, innovative, and more effective intelligence community is 

likely to be uneven in the coming years. But continued attention 

on these issues and support for these efforts from the President, 

the Congress, and senior national security officials is vital if the 

DNI is to successfully lead the intelligence community into the 21st 

Century. Thank you. 

Chairman LIEBERMAN. Thanks, Mr. Powell. Excellent statement 

and gets us off to a good beginning. 

Next, Jeffrey Smith. We welcome you back to the Committee, 

back to Congress. We are glad to see you again. Former General 

Counsel at the CIA and currently a partner at the law firm of Arnold and Porter. Good morning. 

TESTIMONY OF HON. JEFFREY H. SMITH,1 FORMER GENERAL 

COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY (1995– 

1996) 

Mr. SMITH. Mr. Chairman, it is an honor to be here, and Senator 

Collins, a treat, as always. I am very pleased this Committee is 

looking hard at the question of how the statute that created the 

DNI has worked, and I must be candid. It is not working as well 

as it should. 

To prepare for these hearings, I spoke to many senior intelligence community officers, including in the ODNI. What I found 

was disturbing and leads me to believe there is an urgent need for 

a serious in-depth look at the organization and functioning of the 

American intelligence community. 

Congress gave the DNI broad responsibility, but not clear authority to carry out many of these responsibilities. This confusion 

over authorities lies at the heart of the problem. Senior officials tell 

me they spend far too much time arguing about these authorities. 

This creates friction and occasionally anger that distracts from the 

accomplishment of their important missions. More disturbingly, 

some officers even speak about mistrust among agencies. That 

must be addressed. 

One of the most prescient observations I heard was that we are 

slowly replicating the problems of the old DNI. Many believe the 

dual responsibilities of providing intelligence to the President on 

the one hand and managing the intelligence community on the 

other are sufficiently distinct that they should be separated. In a 

sense, it is the reasoning of the Goldwater-Nichols Act that streamlined the chain of command and clarified that military service 

chiefs were not to exercise operational control over their services. 

That responsibility rests with the combatant commanders in the 

field. 

126 

But all is not gloom. As Mr. Powell said, a lot of good things have 

been accomplished but problems remain. 

I believe the Director’s authority should be strengthened in those 

areas that are essential to the effective management of the community. I think we should focus on two areas in particular: Information sharing and acquisition. I think the Director’s authority should 

be clarified in operational areas where there is some overlap and 

inconsistency, and that goes to what is his basic role? Is he the 

strategic adviser to the President on intelligence? Does he do the 

President’s daily brief? Or does he manage the community? Those 

are two jobs that are full-time jobs in themselves and a lot of people think one person cannot do both. 

There is talk about the DNI staff being too large. One problem, 

I think, is the frustration with the proliferation of contract employees, not government officials who task the agencies. One example 

illustrates this point. A senior agency official told me that contractors at ODNI had recently requested detailed information about an 

operation. The agency responded that they were not able to comply 

with the request because the individuals involved in that operation 

simply did not have time to set aside the mission and respond to 

the request. The response from the contractors at ODNI was to 

offer to send another contractor to the agency in order to answer 

the questions put by the contractors in the first place. The senior 

agency official expressed frustration that, to the best of the officer’s 

knowledge, there was not a single government employee in the loop 

with respect to that particular request. 

Now, I have talked to Director Blair about this. He does not seek 

to micromanage the community or make excessive demands for information. But he points out that there is a mismatch between his 

responsibilities in the statute and his authority to carry them out, 

and I agree with Senator Collins. Some of it is the manner in 

which they are exercised and the support from the President that, 

as Mr. Powell said, is key. 

On information sharing, as this Committee knows, I am privileged to serve on the Markle Task Force, which has spent a lot of 

time looking at this. I am happy to talk about this in response to 

your questions. But I think there are some things that can be done 

with technology in terms of making information more discoverable, 

adopting an authorized use standard, and permitting data to find 

data so that we can not only spot the dots that we need, but then 

we can connect them. 

Finally, I think on the issue of privacy, we need some clear privacy guidelines. What I found in my conversations is that there is 

a lot of uncertainty with respect to U.S. person data, what we can 

do with it. My privacy colleagues on the Markle Task Force think 

that the government is being overly cautious in some circumstances, that with this technology, more can be done, but this 

is a question of guidance and, frankly, leadership and support from 

the Congress. 

Given my role on the Goldwater-Nichols Act when I was on the 

Senate staff many years ago, you have asked me to think a little 

bit about how could we have a Goldwater-Nichols Act for the intelligence community. I think there are a lot of things in the Goldwater-Nichols Act that could be adopted, and one of them would be 

127 

1The prepared statement of Mr. Nelson appears in the Appendix on page 445. 

to streamline the chain of command, to think of the DNI a little 

bit as the Chairman of the Joint Chiefs and a little bit like the Secretary of Defense. I would also think of the CIA, which is one of 

the most difficult management issues here, as a combatant command for purposes of providing all-source intelligence to the President and conducting covert operations. If we think of it that way, 

it helps in my mind a little bit with some of the challenges that 

we have had with respect to management. 

I also think we should think about creating a separate National 

Intelligence Program. The Administration is taking some steps in 

that direction, but I encourage them and the Congress to go even 

further. 

Mr. Chairman, I think the time has come to take a fresh look at 

this statute and I am very pleased that this Committee is asking 

the hard questions. I think that there ought to be a systematic look 

at it. It could be done by the Congress. It could be done by the 

President, using, for example, the President’s Intelligence Advisory 

Board. Or it could be done by an outside group with the support 

of Congress and the President. I have talked to Congressman Hamilton. As you know, they are very interested in pursuing this. The 

Kean-Hamilton Commission would be a place to do it. But I think 

it is important to do it. This is a good opportunity to do it. And 

I am delighted again to be here this morning and I look forward 

to answering your questions. 

Chairman LIEBERMAN. Thanks, Mr. Smith. Some really provocative things you said, which I look forward to taking up as we discuss what you said. 

Next is Richard Nelson, who is known as Ozzie. 

How many people in the room remember Ozzie and Harriet? You 

see, we are limited now. [Laughter.] 

I should ask how many remember Ricky. Maybe that would be 

better. [Laughter.] 

Anyway, to return to the seriousness of the moment, Mr. Nelson 

is a former official in the National Counterterrorism Center’s Strategic Operational Planning Directorate. He is a retired Navy officer 

and currently is the Director of the Homeland Security and 

Counterterrorism Program at the Center for Strategic and International Studies here in Washington. Thank you for being here this 

morning. 

TESTIMONY OF RICHARD NELSON,1 SENIOR FELLOW AND DIRECTOR, HOMELAND SECURITY AND COUNTERTERRORISM 

PROGRAM, CENTER FOR STRATEGIC AND INTERNATIONAL 

STUDIES 

Mr. NELSON. Chairman Lieberman and Ranking Member Collins, 

and distinguished Members of the Committee, thank you for the 

opportunity to discuss this important topic. I am not sure if it is 

good or bad to go after the lawyers, but I appreciate the opportunity to testify with them. [Laughter.] 

I was one of the inaugural planners assigned to direct strategic 

operational planning, so today, I am going to focus my remarks on 

NCTC and its legislatively role, mandated role in that capacity. 

128 

The Intelligence Reform and Terrorist Prevention Act (IRTPA) 

addressed some serious weaknesses in our Nation’s intelligence 

community and its ability to combat terrorism. In creating the DNI 

and the NCTC, the landmark legislation sought to improve collaboration among numerous departments and agencies that deal with 

our threats to our Nation’s security. Among the Act’s most significant contributions was its recognition that our Nation’s Cold War 

national security organization was no longer sufficient to address 

the complex and myriad transnational threats we face today in the 

21st Century. 

As with any innovative idea, achieving the aims of legislation 

will come through evolution. Valuable lessons can and should be 

learned when ideas and concepts meet implementation. Those lessons should be leveraged to improve upon the original ideas and 

ensure the vision of its creators is being met. This is the case with 

NCTC and particularly with the Directorate of Strategic Operational Planning (DSOP). 

Why do we need a stronger and more effective DSOP? In short, 

while numerous departments and agencies work aggressively to 

counter threats as they emerge, the intelligence community, and 

arguably the government as a whole, still lacks a truly interactive 

process for addressing terrorism. One need look no further than the 

failure to ‘‘connect the dots’’ on December 25 to understand why coordination is so important. 

Furthermore, because so much of the effort is channeled toward 

the immediate exigencies of the day, the government has not devoted sufficient long-term thinking to how to develop a common 

and ultimately strategic framework for dealing with terrorism and 

other threats. This has become only more important as we move 

forward and coordination with State and local governments becomes more critical and the lines between the private and public 

sector continue to blur. 

Elements of DSOP must be addressed in three key areas: Mission, authorities, and personnel. DSOP’s mission must be refocused 

to ensure its role in and value to the interagency counterterrorism 

architecture is understood. DSOP was given the broad guidance to 

conduct strategic operational planning. The intent was for DSOP to 

fill the void in counterterrorism planning between strategic level 

policy making and tactical level operational activities. 

To attempt to close this gap, the term Strategic Operational 

Planning was created and tasked to DSOP. The conflating of these 

terms, strategic and operational, has hindered DSOP since its inception and remains a significant problem. These are terms of art, 

and those with background in planning understand clearly that 

they are separate and unique requirements. By merging these 

terms, DSOP is stranded in what I call a planned no man’s land 

between high-level policy and strategy development and operational and tactical-level planning. 

We have a chance to refocus DSOP’s mission before it becomes 

ingrained and irreversible and I recommend that we split it into 

two distinct branches, one that focuses on strategic and one that 

focuses on operational. The strategic part should focus on highlevel counterterrorism policy, strategy, and resource allocation. It 

should lead interagency policy and strategy making, including efVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00136 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
129 

forts that require White House approval. The element should also 

have an enhanced and a more assertive role in resource allocation 

and drive the input to the Office of Management and Budget 

(OMB) to resource counterterrorism prioritization investments. 

While this mandate currently exists, DSOP’s role should be 

strengthened and enhanced to ensure that requirements are tied to 

strategic outcomes. 

A second part of DSOP should focus on operational plans against 

terrorist groups. Such a construct provides attainable goals: Defeat 

of a group. The National Implementation Plan should be amended 

so that it can be executed geographically. Whether justifiable or 

not, the Cold War-based security infrastructure executes geographically and not functionally. 

Authorities—the IRTPA gave the DSOP the authorities to conduct its specific mission, yet no authorities were taken from any 

other department or agency in support of DSOP’s creation. Not 

only does this create overlapping authorities, but it established no 

compelling reason for departments or agencies to participate in the 

DSOP process, as they could continue their counterterrorism efforts 

under extant power. These overlapping areas of responsibility must 

be clarified. Without this, departments and agencies will continue 

to spend time fighting turf battles when they should be focused on 

the enemy at hand. 

The question of authorities is raised regularly in discussions regarding DSOP. The recent Project on National Security Reform 

Study offers a comprehensive assessment of this issue. A comparison of authorities between the Office of Drug Control Policy, DNI, 

and DSOP, three organizations chartered with similar tasks, highlights the disadvantage from which DSOP operates and notes that 

DSOP is the only entity of the three without authority over people 

or money. 

Many cite DSOP’s explicit prohibition from directing operations 

as a key reason for its struggles, while some call for empowering 

DSOP with additional authorities in this area. This should not be 

done, as DSOP lacks the capability and capacity to assume such a 

role and would fall far short of expectation. With no authority over 

personnel, resources or operations, DSOP has a limited ability to 

compel interagency participation and thus remains a relatively 

powerless organization. It also relegates DSOP to the unenviable 

role, of leading process-oriented approaches to substantive problems. Departments and agencies that actually control operations, 

personnel, and resources address substantive counterterrorism 

problems under their own authorities. 

To solve this problem, the authorities issue must be addressed 

across the entire government counterterrorism enterprise. Specific 

to DSOP, it should be given authority to influence both resources 

and personnel. 

In personnel, DSOP should be given the personnel to conduct its 

mission. The issue of personnel remains a significant factor limiting the evolution and ultimate effectiveness of DSOP. To succeed, 

NCTC must have the right talent. A clear mission with ample authority rings hollow if the appropriate personnel are not brought 

together to execute what is required. 

130 

DSOP has been hindered by a lack of planning talent since its 

inception, and unlike its analytic and knowledge management 

counterparts in NCTC, no standing cadre of interagency counterterrorism planners existed from which a terrorism-specific capability could be created. 

While the process of building a capacity has begun, it has been 

slowed by two key factors: The lack of interagency participation 

and high personnel turnover. First, the interagency must become 

fully invested in NCTC and DSOP concepts. By being fully invested, it includes not only recognizing and embracing DSOP’s mission, but also detailing the appropriate number and type of personnel and ensuring robust participating in the planning. The old 

adage that plans are nothing and planning is everything is only 

valid when those that are conducting the planning are actually involved in the execution of those plans. Since DSOP does not execute plans, it is imperative that its efforts include robust participation by the departments and agencies. 

Participation in interagency planning efforts such as DSOP must 

be made part of the government intelligence community human 

capital system. Personnel, particularly those with operational experience, must be rewarded through pay and promotion to incentivize 

service in such entities as DSOP. 

And second, personnel turnover at DSOP must be limited. This 

will occur, in part, by changing perceptions regarding the value 

and credibility of DSOP, but we also must establish a standing career pipeline for interagency counterterrorism planners. This will 

incentivize talent to pursue careers interagency. 

I have submitted more comprehensive remarks for the record, 

and again, I appreciate the opportunity to speak today and I look 

forward to your questions. 

Chairman LIEBERMAN. Thanks very much, Mr. Nelson. That was 

really interesting. 

As I listened to the testimony, particularly of yours—Senator 

Collins probably had the same reaction—I can remember the extensive debates about the various terms that we put into the 9/11 

Commission legislation. It is almost as if, but not quite as neat, 

that we were architects or a construction management operation 

deciding how best to build a building. And not as neat because 

there were more interests at the table than the design-construction 

teams, because in some sense, the people at the table wanted to 

preserve the existing parts of their building. But anyway, having 

gone through that self-analysis, I will thank you for your testimony 

and we will begin the questions with 7-minute rounds. 

Mr. Powell, let me go to the first point you made, which is the 

importance of senior-level support, government-level support, for 

the Director of National Intelligence for the position to succeed. I 

think that is a very important and strong point. This is not the 

kind of thing you put in a statute or has to happen, but we are 

creating something new. It has new supervisory authority and the 

natural inclination of agencies to resist any losses in their own autonomy. 

So from the unique perspective you have had, would you say that 

the DNI has received, since the creation of the office, the support 

131 

that it needs from the two Administrations under which it has now 

begun to function? 

Mr. POWELL. Yes. Thank you for the question, Chairman 

Lieberman. It is a critical question, as I mentioned in my statement. Although I did serve some number of months in the current 

Administration, obviously, I can speak most directly to the former 

Administration, and as I noted in my written statement, some 

myths about the founding of the DNI and former President Bush’s 

support for the DNI. Whatever happened in the summer of 2004 

and whatever different testimony was coming from the Administration, I do know where former President Bush ultimately came 

down on the issue, and where he came down in December 2004, 

and I observed most directly in discussions—— 

Chairman LIEBERMAN. And how would you describe—— 

Mr. POWELL [continuing]. His support for the DNI—— 

Chairman LIEBERMAN. He supported it, yes. 

Mr. POWELL. Well, in a number of ways. There was discussion 

about whether or not the DNI needed to be in the Oval Office as 

part of the briefing team. And I think that there was a feeling 

among the senior national security team that given some questions 

about the matrix structure that was set up, that it was important 

from an intelligence perspective, but it was important as a message 

to the Administration and to the senior leaders of the intelligence 

community that this was the person who the President was counting on to lead an integrated intelligence community. 

When you look at these initiatives, the Foreign Intelligence Surveillance Act, Executive Order 12333, the work in the cyber area, 

and any number of initiatives, those depended not just on the DNI 

making a decision, but having the backing of the President to make 

that decision. 

Executive Order 12333 is a bit obscure to people out in the public, but it is the foundational Executive Order that was signed in 

1981. It was very out of date. It was not applicable to the current 

intelligence community that we had in terms of its organization, 

particularly post the Intelligence Reform Act. Why had it not been 

updated since 1981? Endless attempts to update it failed because 

of interagency disagreement. So it is an example. In that one, the 

former President had to bring that to a close. 

Chairman LIEBERMAN. Yes. 

Mr. POWELL. There were issues that had to go to the former 

President and he had to rule on them. So it is just absolutely vital. 

I mean, it is vital for any department head—— 

Chairman LIEBERMAN. Sure. 

Mr. POWELL [continuing]. To have direct control and authority 

over everyone in their department. If they do not have the backing 

of the President, they have trouble succeeding. In a matrix management structure like the DNI, it becomes even more critical. 

My experience, although limited in the current Administration, 

seemed to be supportive of intelligence transformation, where it 

was going. But again, I can really only speak until essentially the 

beginning of March 2009, from an insider perspective. 

Chairman LIEBERMAN. Right. So your impression from outside 

has been that the current Administration has continued that support of the DNI? 

132 

Mr. POWELL. Well, I hesitate, because most of my information is 

just based on press accounts, and having been on the inside, I hesitate to rely on press accounts. 

Chairman LIEBERMAN. Yes. 

Mr. POWELL. I mean, I think it has been challenging. The Administration has had a lot on its plate. They have had a lot of other 

very important priorities, obviously things completely different— 

health care, a number of issues that are on the plate. But every 

President has a lot of issues at the same time on their plate. 

I guess I would say that I think the Christmas Day attack has 

brought it into greater focus, the importance of these issues. It is 

one thing to understand how important they are and to understand 

how the country is at threat. It is another thing when you actually 

have a situation that was, frankly, minutes away from there being 

300 empty chairs at the dinner table that evening in Americans’ 

homes. So I think that brings a greater urgency and a focus in a 

way that talking about the threat simply can not. So I think you 

have seen renewed focus on it and it is fortunate that event was 

not successful. 

Chairman LIEBERMAN. Agreed. Mr. Smith, let me ask you to pick 

up there and go to the most public, not necessarily the most important, but the most public manifestation of this question of not only 

where the White House is in backing the DNI, but how the DNI 

has merged with other agencies of our government. 

I will tell you that when we were struggling to put the DNI together in the legislative process, the greatest push and pull of the 

people around the table was from, frankly, people representing the 

Department of Defense worried about incursions that the DNI 

might make. In fact, perhaps that has not been a problem in implementation. Some of that may be because the simple twist of fate 

that Bob Gates, a former leader in the intelligence community, 

turns out to be the Secretary of Defense and it works out better. 

But there seems—not that we were naive about the potential for 

tensions within the intelligence community with a new overseer, 

but look, I am speaking about the public blowup over whether the 

DNI would have the authority—and this was last year—to appoint 

senior intelligence officials in foreign countries with the CIA, and 

the public impression is that the DNI lost that fight. I wanted you, 

to the extent that you want to get into that fight, welcome that, 

but take off from it to the larger question of whether, in your opinion, the national leadership in both Administrations has supported 

the DNI, and two, about the extent to which there remain tensions 

between components of the intelligence community and the Director of National Intelligence. 

Mr. SMITH. That gets to the heart of the issue, Mr. Chairman, 

and I am glad you raised it. With respect to the particular dispute 

over the DNI’s authority to appoint his representative overseas—— 

Chairman LIEBERMAN. Right. 

Mr. SMITH [continuing]. I think it is deeply unfortunate that it 

had to be referred to the White House. I think everybody involved 

now would have preferred that to have been worked out internally, 

but that was not the case, and I can only imagine that the people 

at the White House did not enjoy having to referee this dispute. 

Nevertheless, I think the decision by the President was to split the 

133 

issue a little bit. In some respects, the DNI won, and in some respects, the Director of the Central Intelligence Agency won. 

But in general, my impression from talking to senior people, including people in the White House, is that there is no doubt that 

this President supports a strong DNI. They also wish to deal directly with the CIA on those matters for which the CIA is responsible, and I think that is understandable. The CIA is the operational arm of much of the intelligence community. It conducts covert operations, which are very important to the President. It is the 

only agency that is still ‘‘central,’’ and is largely responsible for production of all-source intelligence. 

So I think we have to recognize that fact and find a way to give 

the DNI the authority that he or she needs to manage the agency, 

to manage the community, but without interfering with this relationship between the President and the CIA. And that is why the 

notion of a combatant command appeals to me, because the President deals directly with General Petraeus, as he should, and yet 

the Chairman of the Joint Chiefs and the Secretary of Defense are 

very much involved in that conversation, and we have been able to 

work out those relationships in the Defense Department. We ought 

to be able to do it in the intelligence community. 

One more thought, Mr. Chairman, on your point about the defense agencies. 

Chairman LIEBERMAN. Yes. 

Mr. SMITH. It has worked out for a variety of reasons, including 

the fact that we have men occupying these positions who have 

worked together in the past who have strong military backgrounds. 

Another element is that we are at war, and when that happens, a 

lot of the issues kind of fall to one side, and within the military, 

we find a way to work these problems. 

There is another concern I heard expressed, which was that the 

role of the Defense Department and the role of supporting the 

warfighters among these defense agencies is now so dominant that 

there are some, including in the military, who worry that they may 

have drifted a little bit from their national mission, that is to say, 

broader support of foreign policy. What is happening in those areas 

of the world that we care about beyond just Iraq, Afghanistan, and 

al-Qaeda? So these are issues, again, that we need to look at and 

be alert to. 

Chairman LIEBERMAN. That is very helpful. Thanks. My time is 

more than up, but I look forward to continuing in the next round. 

Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

I, too, had flashbacks as I was hearing Mr. Nelson’s testimony 

and reading your testimony, Mr. Smith, about the abrogation word, 

which I so remember in December of that year, calling Senator 

Lieberman after my Chief Counsel came up with the word ‘‘to abrogate’’ as being the way to stop the House Armed Services Committee from sinking the entire bill. So a lot of the issues that you 

have raised have a complicated history, and without some of those 

admittedly awkward compromises, we never would have gotten a 

bill through. It was an extraordinarily difficult achievement but an 

important one. 

134 

I want to talk about information sharing. Last week at our hearing, the Deputy Director of the NCTC surprised me, at least, by 

saying that there was limited ability for the intelligence community 

to search for information across the many databases maintained by 

intelligence and law enforcement communities, and those of us who 

have used Google every day and put in names that were not spelled 

right and then Goggle tells us, ‘‘Did you mean X,’’ were really surprised to learn that a misspelling flummoxed the search on 

Abdulmutallab at one point in the information systems. 

The Deputy Director, however, was very emphatic in warning us 

that there was no silver technological bullet, and that was at odds 

with a lot of presentations that our staffs have had on this issue 

and the work that you have done, Mr. Smith, on the Markle Foundation, which I think has been terrific work, that you and Zoe 

Baird and others have done. He said, ‘‘notions of a Google-like 

search or a federated search are actually of relatively limited value 

due to legal, policy, and privacy issues.’’ And I would like to get a 

better understanding of what those barriers are, because it is really 

troubling to me that we cannot design a system that respects privacy concerns—which I care deeply about—and yet does not prevent us from accessing information. 

So, Mr. Smith, I am going to start with you, and then Mr. Powell 

and Mr. Nelson, I would like to hear your views, as well. 

Mr. SMITH. Senator, you put your finger on a really critical issue. 

We were a little surprised to hear Mr. Travers’ testimony, and so 

actually Mr. Powell and I met with him on Monday afternoon to 

talk about this in a little bit of detail and we have talked about 

it within the Markle Task Force, because we, too, wanted to drill 

down and understand what he said. 

Some of it, I think, may touch on some classified information and 

some classified systems, so I want to be a little bit careful here, but 

clearly, with respect to getting access to databases outside of the 

intelligence community in some of the other departments, some of 

these lists and so on, he has felt that he has not been able to reach 

into databases, particularly in the Department of Homeland Security and other places, where he would like to be able to have his 

analysts reach in. 

In the Markle Task Force, we think that there is technology that 

would permit that and protect privacy at the same time. So we intend to spend a little bit more time on this. Mr. Travers has been 

extraordinarily generous with his time with us and we are going 

to get some of our technical people, as well, involved to see if we 

cannot craft a solution that can get at this because as a matter of 

principle and policy, we believe that privacy can indeed be enhanced by these technologies because of things like anonymization 

and authorized use. We think this is an important issue and we are 

going to continue to work on it. We look forward to working with 

this Committee. 

Senator COLLINS. Thank you. Mr. Powell. 

Mr. POWELL. It is an absolutely critical question, Senator Collins. 

Let me discuss it from the perspective of trying to lay out a little 

bit of the issues that are faced by NCTC and faced by us in the 

DNI’s Office in trying to obtain data sets for NCTC. As I talk about 

in my statement, at NCTC, since its stand-up, we have put over 

135 

30 different networks—military, law enforcement, and other types 

of networks—into NCTC with data sets that exceed that number 

being accessible to NCTC. 

I think the Committee would want to think about examining a 

couple of different areas. First, you would want to look at the 

Memorandum of Agreement between the Attorney General and the 

Director of National Intelligence on the search, use, retention, and 

dissemination of data sets containing terrorism and non-terrorism 

information, or information exclusively pertaining to domestic terrorism. Now, that is a mouthful, and what does it mean in practice? 

Those guidelines lay out three primary areas in which NCTC can 

get access to data sets that contain non-terrorism information, and 

let me be very specific about examples of what I am talking about. 

Here, I am talking about data that may be obtained by DHS or 

other agencies that is not acquired from people who are known or 

suspected or even that there is any reasonable suspicion of terrorism activity in there. So basically, you are talking about information from Americans and non-Americans that are obtained for 

travel or other reasons. They are not obtained because these people 

have no suspicion about them. 

That agreement is going to set out three ways that NCTC can 

access data. One, account-based access, so think of that as you go 

to a terminal, log in, do your search, log off, and then go back to 

your terminal. 

Two, search and retention, and what I mean by that is that I 

give a search to the data set owner, so think of it as, for a hypothetical, DHS. They do the search in a batch or some other method 

and then they give me the results. 

Finally, the third area, and that is called data set replication, 

and what we are talking about there is actually ingesting the data 

into NCTC. That is perhaps the most effective way, which allows 

that Google search capability. What you will find in those guidelines is you will only be allowed to do data set replication if, for 

some reason, account-based access or the search and retention 

areas do not work. 

So what does that mean in practice? I guess the best way to describe it is when you do a Google search on your computer, it goes 

out and searches the Internet and returns your results from the 

Internet. Depending on your settings, it probably does not search 

Committee databases or Senate databases that are internal to the 

Senate, nor does it search your individual offices’ databases. So 

Google, itself, is not a true federated search that searches all of the 

information technology systems that you are connected to. 

So there is, in my experience, Google-like search capability at 

NCTC. The problem is the number of data sets that it is allowed 

to touch. So we have this Memorandum of Agreement that lays out 

for Fourth Amendment and privacy concerns with this different criteria of access. 

Two other areas that are absolutely critical when thinking about 

this. This data was obtained under specific agreements and arrangements. Each one of those databases needs to be taken on its 

own terms, and there may be restrictions associated with them 

136 

that were the only reason we are able to get that data. So it is a 

little bit like the reform legislation. Compromise is entailed. 

There has been a lot of public discussion about European PNR 

data and what the arrangements are at the diplomatic level between the United States and Europe, and there were agreements 

made and those agreements, frankly, have consequences throughout the government for accessing that data. There has been public 

talk in the area of financial terrorism information and general financial information and agreements placed in those areas. 

Finally, the FISA Court. You cannot go out and grab unminimized FISA data. There are FISA minimization guidelines 

that require the data be minimized according to FISA guidelines 

before it is given to NCTC and be made available for anyone to 

search. 

So these are some of the practical things I think you would want 

to look at at a baseline level when you are looking at this. We 

spent a lot of time looking at the U.S. person guidelines across the 

agencies to see if we could make them more uniform. It is a slog 

to go through them. 

Senator COLLINS. Thank you. Mr. Nelson. 

Mr. NELSON. Senator Collins, thank you for that question. Regarding information sharing, we are never going to have perfect information sharing, but we need to continue to do better. In my 

operational experience, it was always a source of frustration to me: 

The amount of data, the number of systems, and people trying to 

bring it all together. It was always astronomical, and very challenging. 

And I also think we have to overcome this culture of secrecy, as 

I call it, in the intelligence community. Certainly, it is important 

and it has its place, but it continues to prohibit information sharing especially when individuals with the same clearance level will 

not share information because there is not a need to know, which 

is determined by the individual who actually knows the information. I do not know how some assessments like that can be made. 

But why the information sharing piece is even more important, 

and I cannot talk too much about the civil liberties part, not being 

a lawyer, is that the Federal part of this is the relatively easy part. 

We are going to have to come up with ways to share information 

better with our allies, which is still a huge weakness. And better 

ways to share it with State and local governments, especially as we 

deal with issues such as homegrown extremism, which has been in 

the media recently, and with the private sector. When 85 percent 

of the infrastructure is owned by the private sector, we are going 

to have to overcome information sharing obstacles. It is going to be 

so critical that we accelerate the use of technology at the Federal 

level because the problem is only going to get worse when we have 

to share with other folks. Thank you. 

Senator COLLINS. Thank you. 

Chairman LIEBERMAN. Thanks, Senator Collins. Senator Carper, 

good morning. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Good morning. Looking at this sea of green, it 

is like a puddle of green, would not you say? Maybe some folks did 

137 

not get the memo, but it is nice to be with all of you on St. Patrick’s Day. 

To our panel, welcome. Thank you for joining us. 

In my own view, the Intelligence Reform and Terrorism Prevention Act that we adopted about a half-dozen or so years ago has 

done a fairly good job of streamlining the intelligence community’s 

command and control authorities. With this Act, all of the Federal 

Government’s various intelligence entities report to the Director of 

National Intelligence, as you know. And so while the organization 

has improved, I think, I hear there remains a serious turf battle— 

we talked a little bit about that here today—between the Directorate of National Intelligence and the Central Intelligence Agency. 

One example of that is between the CIA’s Directorate of Intelligence and the National Counterterrorism Center analysts when 

presenting intelligence issues to the rest of the Federal Government. 

I would just ask if each of you could take a minute or so and just 

comment on this particular turf issue. Let me know if you agree 

with those observations and share with us any recommendations 

you might have for our Committee, how to deal with it. 

Mr. Nelson, why don’t you lead off. 

Mr. NELSON. Thank you, Senator. I appreciate the question. I am 

not an analyst by trade, so I will just keep my comments brief. I 

will say my personal assessment is the NCTC is one of the areas 

of the ODNI which I think has been extraordinarily successful, and 

I think that they have actually been producing some significant 

work and have made major improvements along those lines. 

But as far as comparing it to the agencies, I would have to defer 

to my colleagues here. Thank you. 

Senator CARPER. All right. Thank you. 

He is passing the buck to you. What do you all have to say? 

Mr. SMITH. I am a little bit like Mr. Nelson. I do not have—— 

Senator CARPER. You are going to put a lot of pressure on Mr. 

Powell. [Laughter.] 

Mr. SMITH. Well, with respect to the critical question of analytical support to counterterrorism, in preparing for these hearings, I 

talked to a lot of people and that issue did not surface, interestingly enough. It may be an issue, but it was not raised in my conversations. 

However, there were a lot of other concerns raised that I talked 

about in my prepared remarks, namely there is a lot of tension 

within the intelligence community over the issue of authorities. 

And in my judgment, senior officials spend far too much time arguing about authorities. Some of that is an inevitable result of the 

way the intelligence community worked in the past, compromises 

made in the legislation to get it adopted, and I understand the importance of that. But my suggestion has been that this is a time 

to take a look at those authorities. We have had 5 years of experience. We know what works, what does not work, and see if we cannot adjust those and enhance the ability of the DNI to manage the 

intelligence community and at the same time enhance the capacity 

of the individual agencies to function more effectively. 

So there are some problems and I am pleased this Committee is 

looking at them. 

138 

Senator CARPER. Well, good. You did not answer the question I 

asked, but that was a pretty good answer. Thank you. 

Mr. SMITH. Well, I beg your pardon. I am happy to try again, sir. 

Senator CARPER. No, that was good. Thanks. That was helpful. 

Mr. Powell. 

Mr. POWELL. Senator Carper, this is a critical issue which I dealt 

with extensively. I think it is far better than it was. When the DNI 

was initially stood up, there was considerable frustration on two 

counts, I think, at the senior levels. One, that the President himself personally remained the integrator between foreign and domestic intelligence, and I did not think that was a role for the President, for the foreign threats and the domestic threats to be landing 

in the Oval Office for everyone to have that discussion right there. 

I thought the President deserved better. 

There were still exactly what you pointed out, difficulties in 

lanes of the road of different organizations producing their own 

version and take on urgent threats to the Nation in the counterterrorism area. I believe in diverse intelligence and diverse views. I 

do not believe in giving different factual scenarios to the President. 

I think we should be able to get our facts together. 

So there was a lot of effort and lanes in the road. Who produces 

homeland threat reports? Who has the responsibility for putting 

out the alerts, for putting out the senior briefings, for kind of getting the global picture? You now have, of course, three times a day, 

the secure video-teleconferences run by NCTC. You had some initial issues on resources, both the CIA Directorate of Intelligence 

and the NCTC need to have al-Qaeda analysts and people who 

speak the language and can take a longer-term view of things. 

There were some transfers of personnel made over some not inconsiderable public and private controversy. 

Admiral Redd, the Director of NCTC at the time, came up with 

lanes in the road documents about who was going to do what. I 

mean, you could argue about the decisions made in those lanes of 

the road. I think it is a lot better than it was. I do not hear as often 

today about the problems, and it may reflect that I would not because so much of it is classified, where different agencies are duplicating the same work unnecessarily. 

So I think the lanes in the road are far better worked out than 

they once were. It may be that there is some still duplication out 

there, but we spent a lot of time, a lot of meetings, a lot of debates 

about who exactly was producing the picture for the national security team and the Congress. 

Senator CARPER. Thank you. One more question, if I could. 

Chairman LIEBERMAN. Go right ahead. 

Senator CARPER. Thank you. I believe each of our witnesses 

today are in the private sector now, is that correct? 

Mr. POWELL. Yes. 

Mr. SMITH. Yes. 

Mr. NELSON. Yes. 

Senator CARPER. All right. And in part as a result, I think you 

are maybe better able to present a unique perspective and to speak 

with candor about the current Administration’s counterterrorism 

policies. You have done this already in part in your testimonies, 

but I am going to ask you to come back to this again—I was wonVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00146 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
139 

dering if you all could take a moment to share with us how things 

have changed since your Federal Government experience, and 

based upon current events, such as the shootings at Fort Hood and 

the attempted Christmas Day bombing last year, just briefly discuss some steps that the intelligence community ought to be doing 

to close the intelligence gaps we have been talking about over the 

course of the last several months. 

Mr. POWELL. I can go first. Thank you for the question, Senator 

Carper. I have reflected a lot on this subject. I mentioned to Chairman Lieberman earlier that I think the attempted Christmas Day 

bombing of the jetliner brought the issues I talked about in the 

statement and that we are talking about today a new urgency and 

a focus. I think, for good or bad, we were very seized with the issue 

on a daily basis, and obviously the former President, having been 

through September 11, 2001, was very seized with the issue and 

made it an extremely high priority. We could discuss whether that 

was too high a priority or whether that was good or bad, but as 

a result of that, the intelligence community and the DNI, I would 

say, occupied a very central place at the table and these issues 

were very central on the Administration’s agenda. 

Obviously, this Administration, President Obama has talked 

about how critical it is, how important it is, but there is a lot going 

on and some of these issues take time and you need to work 

through them. 

What I have observed, at least through the press and talking 

with people, is a new urgency and focus as a result of the Christmas Day bombing, really bringing home—when you are discussing 

whether or not NCTC can get access to a database, when you need 

the Attorney General to change some guidelines to enable an intelligence operation or to enable some information sharing to happen. 

It is far less academic, I think, post-Christmas Day bombing than 

perhaps I noticed before. 

There are some issues that I would probably differ with some decisions that were made that I think have perhaps caused some difficulty for the intelligence community. They were made for global 

and diplomatic and reasons that I think the President and the Administration felt very strongly about. I think they have had impacts on the intelligence community, and that is just a byproduct 

of those decisions. They may have been the right ones overall for 

the country, but they have had some negative impacts on the intelligence community. 

Senator CARPER. My time has expired. Mr. Chairman, should I 

yield back? 

Chairman LIEBERMAN. I think you have no time to yield. 

Senator CARPER. That is fair enough. Mr. Smith, Mr. Nelson, 

each of you, thank you for your testimony today. 

Chairman LIEBERMAN. Thanks, Senator Carper. 

Senator CARPER. I will come back another day for that question. 

Chairman LIEBERMAN. Thank you. Mr. Smith, you said some 

things at the outset of your opening statement which are really important, which is the general statement that the DNI statute, in 

your opinion, is not working as well as it should, and that is disturbing, that is the word you used, and I agree. And the general 

statement you made was that the Office of the Director of National 

140 

Intelligence has broad responsibility, but not clear authority. You 

called on us then to strengthen the statute. 

And I know you have invited a process, either within this Committee or the Foreign Intelligence Advisory Board or perhaps some 

outside group. But talk a bit, if you can, about where you would 

begin to strengthen the authority of the DNI. 

Mr. SMITH. I think it is largely on the management side, Mr. 

Chairman. The two or three areas that I looked at in preparing for 

this were, one, information sharing, and we have talked about that 

and I think there does need to be some strengthening of authorities 

and/or clarification of those authorities, particularly with respect to 

privacy. 

A second area is the acquisition area. There is confusion over 

some areas, particularly on independent cost estimates, who is responsible for them and so on. Now, some of that is in the legislation, but what I have discovered is there is still some confusion, 

namely; is it yours, is it mine, who is responsible? 

A related area is reprogramming. Again, there is some uncertainty there. The House and Senate intelligence authorization bills 

have, as I understand it, some language to try to clarify that, but 

that is an indication, and when I talked to the staffs of the various 

agencies, they would tell me, well, there is a big fight going on 

right now about some issue or another, most of which could be 

traced to some uncertainty in these authorities. Now, these are 

men and women of goodwill. They really want to do the right job. 

We should all be proud of how hard they are working and how 

dedicated they are to doing it. 

Chairman LIEBERMAN. Agreed. 

Mr. SMITH. But the flip side of doing that is they are very proud 

of what their responsibilities are and their organization and they 

tend to think it is my responsibility, let me do it. So as a general 

matter, I think there are maybe a half-a-dozen or so areas where 

I would begin to concentrate. 

Chairman LIEBERMAN. Would you add to the budget authority? 

Mr. SMITH. Yes, I would. I think that serious consideration 

should be given to further separating the National Intelligence Program, and that includes some budgetary authority. Now, the DNI 

does have, and Mr. Powell is better able to speak to this than I am, 

some budgetary authority over the authorization of budget. 

Chairman LIEBERMAN. Right. 

Mr. SMITH. And it goes to Senator Collins’ point earlier about 

whether that authority has been used, and the risk of having authority that you either do not use or try to use is then it gets taken 

away from you through some other process. In my conversations, 

it has gotten better over the last 2 or 3 years. That is in part because of personalities and in part because of some leadership from 

the White House and DOD that says, look, we should not be having 

these fights. 

But the statutory language remains, and as long as some of that 

uncertainty is there, another set of leaders might not be quite so 

accommodating. Both, by the way, in the previous Administration 

and in this Administration, I think there has been a lot of progress. 

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141 

ent and where the authorities line up a little bit more with the responsibilities. 

Chairman LIEBERMAN. Let me ask you, continuing in this focus, 

on a particular idea you raised in your testimony, which is to separate the DNI as the manager of the intelligence community from 

the role that was also given to the DNI under the statute, which 

is as essentially the chief advisor on intelligence to the President, 

and therefore responsible for the daily briefing to the President. I 

mean, the argument then, to a certain extent, repeated by Mr. 

Powell this morning in terms of judgments that were made early 

on by President Bush, is that unless the DNI is in there every 

morning with the President, that he does not have the stature. So 

weigh the balances here and why you think it is still a better idea 

to separate those two functions. 

Mr. SMITH. This is not to say, Mr. Chairman, that the DNI 

should not be in the room with the President during the briefing. 

Perhaps not every day, but certainly be there. 

Chairman LIEBERMAN. Right. 

Mr. SMITH. The question is whether or not the DNI has the responsibility not simply to be there, but be the person who is actually directly and personally responsible for preparing it, giving it, 

following it up, and so on. And I do not know how it is presently 

working. Let me be very clear about that. But the concern I have 

heard expressed is that different DNIs have done it differently. Different Presidents want it done differently. But the fact of the matter is that the responsibility of personally briefing the President 

and, as you know, the President’s Daily Brief (PDB) is also seen 

by other senior cabinet officers—— 

Chairman LIEBERMAN. Right. 

Mr. SMITH [continuing]. That responsibility is so huge and the 

follow-up to those discussions is so huge and the participation in 

the policy-level discussions about what to do is so huge that no single individual can do that and effectively manage the community. 

And that is why what appealed to me was beginning to think of 

it a little bit as we had done in the Goldwater-Nichols Act, which 

is to separate the operational responsibilities to actually do the 

warfighting in the field from the responsibility to train, equip, and 

maintain the forces that are then assigned to the combatant commanders in the field. 

It is by no means a perfect analogy and I am not sure it lends 

itself necessarily to statute. But nevertheless, one hears that perhaps DNIs, and this may be as a result of the way the President 

wants to do it, but if that is going to take the majority of their 

time—it is a hugely important responsibility—that means that necessarily there is less time to devote to management. So that is an 

area where I think people need to give some serious thought as to 

what that balance is, what the authority should be, and what the 

law should be. 

Chairman LIEBERMAN. I understand it better. Incidentally, I 

think the Goldwater-Nichols strategy is a helpful one and one that 

we will think about. 

So as you have thought about this question—I understand what 

you are saying. The responsibility for the daily briefing of the 

President is a big one, and I presume takes the time of the DNI 

142 

to get ready and to follow up. But if the DNI did not do it, who 

would do it in the best of all worlds, as you see it? 

Mr. SMITH. In the past, the practice had been that there was a 

senior—this was before the DNI was created—— 

Chairman LIEBERMAN. Yes. 

Mr. SMITH [continuing]. There was a very senior intelligence officer from the CIA—— 

Chairman LIEBERMAN. But not the Director of the CIA. 

Mr. SMITH. Not the Director. Now, the Director would occasionally go, but it was on occasion, just to sort of be there—— 

Chairman LIEBERMAN. Right. 

Mr. SMITH [continuing]. Or where a particular subject would 

come up. But there was a whole PDB staff. There was a whole bureaucracy that had grown up. When I was at the agency, there 

were meetings where we would decide what went in the PDB. Different agencies would make presentations. 

Chairman LIEBERMAN. And the Director would have some part in 

that, I assume. 

Mr. SMITH. Very little. 

Chairman LIEBERMAN. Very little. 

Mr. SMITH. It was the senior analysts that did it. I have even 

heard some concern expressed, Mr. Chairman—I have no personal 

knowledge of this, but there is some concern that as you try to 

bring more agencies into the production of the PDB, the advice a 

President is getting begins to look a little bit like the advice that 

the President got prior to Goldwater-Nichols from the Joint Staff, 

which was the least common denominator where it is a committee 

product—— 

Chairman LIEBERMAN. Right. 

Mr. SMITH [continuing]. Which is another reason I am attracted 

to the idea of having the CIA and/or the National Intelligence 

Council (NIC), be the combatant command with a very direct responsibility to the President, like General Petraeus, to do that mission. 

Chairman LIEBERMAN. Right. 

Mr. SMITH. And they are ultimately in charge of deciding that. 

Now, the DNI has to make sure that, ultimately, he or she has a 

voice in that, but it is a huge responsibility and I understand DNIs 

are too frequently drawn into that. 

Chairman LIEBERMAN. So I am going to wind this up, but just 

by saying it sounds to me that what you might prefer here is that 

some senior person in the Office of the DNI—— 

Mr. SMITH. Yes. 

Chairman LIEBERMAN [continuing]. Handle the presidential daily 

briefing. 

Mr. SMITH. That is correct. 

Chairman LIEBERMAN. Thanks very much. Senator Collins. 

Senator COLLINS. Thank you. 

I want to make just one comment on the information sharing before leaving that issue and before going on to another question. Mr. 

Powell was going through the various restrictions, some from the 

Attorney General’s guidelines, some from memoranda of understanding that were worked out to get information, some from FISA 

Court decisions. So obviously, this is complex. But what that tells 

143 

me is some of the restrictions are the result of law, some of them 

are the result of policy choices, some of them are the result of negotiations in order to get information. Mr. Powell, just quickly, is that 

generally a fair assessment? 

Mr. POWELL. Correct, Senator Collins. 

Senator COLLINS. So I really want to work with you after this 

hearing to better identify a solution. I think both the Chairman 

and I, at the risk of speaking for the Chairman, were alarmed 

when we heard the testimony that we did from the NCTC Deputy 

Director because it certainly seems to be interfering with accessing 

information that needs to be accessed, and I think, Mr. Smith, your 

point that you can design systems that actually enhance privacy 

while allowing this access is absolutely a critical point. 

I want to move on to the relationship between the DNI and the 

CIA. We have talked previously in this hearing about the friction 

between the two, the White House having to get involved in resolving disputes. That really concerns me when it gets to that level. 

But there has also been this, I would call it an urban myth in some 

ways, that the Intelligence Reform Act did not define that relationship, and Mr. Smith, you referred to it in your written testimony. 

To me, it is just so crystal clear because, as one of the authors of 

the language, to me, when it says that the Director of the CIA shall 

report to the Director of National Intelligence regarding the activities of the CIA, it says ‘‘shall.’’ It does not say ‘‘may.’’ It says ‘‘report,’’ which to me clearly defines the relationship. 

But I am gathering that some people argue that information or 

interpretation is ambiguous, and Mr. Powell and Mr. Smith, I want 

to ask the two of you about this issue. And Mr. Powell, I will start 

with you because I would be interested to know, in practice, when 

you were at the DNI, did the CIA attempt to use that language to 

suggest that there was ambiguity in the relationship between the 

Director of the CIA and the DNI? 

Mr. POWELL. Senator Collins, there was discussion that there 

was ambiguity. I would say this: The answer to your question is, 

yes, there was at times discussion that somehow the statute was 

ambiguous. 

A couple of points about that. First, I would refer you to the confirmation hearings of Director Hayden and Director Panetta where 

they do not suggest that there is any ambiguity in the statute in 

the answers to the Congress. That said, the Intelligence Reform 

Act was a seismic shift, and still we would hear people claim that 

there was ambiguity there. 

I can say this. As the Chief Legal Counsel to the Director of National Intelligence, I did not see ambiguity. I spoke to the Department of Justice as to whether they saw ambiguity to it. I never had 

to go to the formal step of requesting a formal opinion from the Office of Legal Counsel. I did offer that option up to individuals at 

the Central Intelligence Agency if they continued to find ambiguity. 

They decided that they would rather that I did not go to the Office 

of Legal Counsel. I advised them as to what the oral advice was 

from the Department of Justice as to whether the ambiguity of the 

statute was there and whether they would like me to pursue it on 

a written basis. They said that there was no need and that we 

could work out the issue that we had. 

144 

So that was my experience with the statute. It is certainly consistent with what every Director of the CIA has testified about the 

statute. That said, there is no doubt that there are cultural and organizational issues that are going to take a decade to work out to 

make this community gel. 

Senator COLLINS. Mr. Smith. 

Mr. SMITH. Mr. Powell has said it well, but there have been instances of which I have heard, and I did not serve in government 

after the creation of the statute, so these are only things that one 

is told, that people at the CIA have pointed to the langauge and 

CIA supporters elsewhere around government have pointed to the 

language in the statute that says they report regarding activities 

of the CIA. That is different from the kind of language that ordinarily appears in a statute that creates a department that says the 

head of the department directs and controls the particular agency. 

Does that language make a difference? Not really in strict legal 

terms, but it is enough of a difference that if an agency wishes to 

not adhere to the directions of the Director, there is something they 

can point to and give them an argument. It is unseemly, in my 

view, to have these kinds of arguments, but again, I think the 

Committee could benefit from some very frank discussions—not in 

public—with former Directors, both DNI and Directors of CIA, who 

could tell you how some of these have played out and I encourage 

you to do that. 

Senator COLLINS. Thank you. 

Mr. Nelson, just one quick final question for you, and unfortunately, I am going to have to leave. I am concerned about the difficulties that you faced in the Directorate of Strategic Operational 

Planning, and as I said, I readily concede that those words were 

a compromise. They sound contradictory. You mentioned that 

counterterrorism entities that do not participate face no penalty. It 

would help them participate, or encourage them to participate if 

they saw more value, and so there is a tradeoff there. But what do 

you think we should do with that responsibility? 

Mr. NELSON. Well, with the strategic operational planning, as I 

suggested, I would split it into two. On the strategic part, you have 

to give them control over some lever. There is operations, there is 

the resources, there is the personnel. On the strategic level, you 

give them an opportunity to drive high-level policy and you give 

them levers over resources. And it is not only advising perhaps 

OMB, but it is perhaps giving them something like some sort of 

1206 or 1207 type of ability to actually allocate funds in support 

of their operational plans. And they should be the ones writing the 

national strategy to combat terrorism or the national strategy 

against al-Qaeda. The White House should serve as the approval 

process and kind of massaging it, but it should come from NCTC. 

And then from the operational perspective, we still in the U.S. 

Government lack a coordinated planning effort against terrorist 

groups. We have the National Implementation Plan, which you are 

very familiar with, that has these broad, sweeping concepts, but 

they are very difficult to implement in a government that executes 

geographically. So we look at the homegrown extremists, for example, they came from or were recruited by various entities— 

Lashkar-e-Taiba, al-Shabaab, al-Qaeda in the Arabian Peninsula 

145 

(AQAP). Who in the U.S. Government is saying this is the group 

that we need to go after first, and this is the holistic approach 

against it? Who is assessing that we are succeeding and what is 

working and what is not working? And then who is moving funds 

around once certain checkpoints have been reached saying, OK, 

now that we have neutralized this group or this threat, we need 

to move to the next group? That is not happening, primarily due 

to interagency infighting and, again, questions about authorities. 

Those overseas in the embassy teams will say they have the priority over there and folks back in D.C. do not. 

Senator COLLINS. Thank you. That is very helpful. Thank you, 

Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Collins. I know you have 

another commitment you have to go on to. I appreciate your presence here, and I am going to hold the witnesses a while longer for 

questioning, promising the best I can not to violate in any way the 

Geneva Convention. I will try not to torture you. [Laughter.] 

I want to pick up with Senator Collins’s questioning of you, Mr. 

Nelson, because the picture that you painted of NCTC’s authorities 

and capabilities in this area of strategic operational planning is 

troubling, but it is very important for us to hear. 

You had an interesting sentence, and I am going to look for it. 

NCTC ‘‘is stranded in a planning no man’s land between high-level 

policy and strategic development and operational and tactical planning.’’ So as I guess Senator Collins has suggested or said, we identified that there was, in fact, a no man’s land as we were trying 

to do the legislative reform and that it was one that the government needed to inhabit in some way, that there was not sufficient 

connectivity between the strategic level planning and the tactical 

and operational planning, and that is why we created what we did. 

So I wanted to ask you a couple of questions about that. You 

know, at that time, because we were still so close, really, to September 11, 2001, we kept coming back to this question of who is 

in charge of the hunt for Osama bin Laden. I know that that is not 

typical, and yet it is instructive in some way because we saw a lot 

of different activities going on, not a plan. So I want to ask you, 

from your experience, and you have had widespread experience at 

the National Security Council, the NCTC, and the Joint Special 

Operations Command, would you say—let us take bin Laden—who 

is in charge of the search? 

Mr. NELSON. I think it is a great question, and again, taking it 

back to more theoretical and not commenting on, obviously, the 

operational aspects—— 

Chairman LIEBERMAN. Yes. Go ahead. 

Mr. NELSON [continuing]. But more generally speaking, this is a 

problem that continues to plague the government and the counterterrorism community. There is conflict. There is no one who is actually leading these efforts or who is prioritizing these efforts. 

I use the example of Osama bin Laden, we can talk about him 

today, but let us talk about the next al-Qaeda. What is the government entity that is going to do that? It is not being done. If it is 

a threat that emanates from a particular country, say for AQAP, 

it would be the embassy there that will say they are responsible 

for it. If it is happening under Title X authorities in Iraq or AfVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00153 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
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ghanistan, the Department of Defense would claim that they have 

authority. 

I would just reference the Special Operations Command 

(SOCOM), example, where they were given authority as the supported commander in the war on terrorism. Recall how much difficulty they had in trying to get the combatant commanders, the 

geographic ones, to actually coordinate with them. 

So this remains a significant problem. I think that until we get 

some sort of planning process in place that is attached to the execution and the assessment of those plans, and funds can be moved 

once you determine how well you are doing against a group or individual, we are going to continue to struggle—— 

Chairman LIEBERMAN. OK, but as I have heard you, you recommend splitting strategic from operational and having NCTC do 

both kinds of planning separately, is that correct? 

Mr. NELSON. Well, that is right. When we tried to implement the 

legislation, we got beat back from the interagency on multiple occasions. Every time we trended towards the operational, there was 

resistance. Every time we trended towards the strategic, there was 

resistance from a multitude of organizations—the State Department, CIA—— 

Chairman LIEBERMAN. Yes. 

Mr. NELSON [continuing]. Even at times, the Department of Defense, and even DHS. 

Chairman LIEBERMAN. Because your statutory authority was not 

clear enough? 

Mr. NELSON. Not clear, because what is a strategic operational 

plan? 

Chairman LIEBERMAN. Yes. 

Mr. NELSON. And because of that ambiguity, it gave them the 

tool to minimize or marginalize what DSOP’s effect could be and 

impact how they actually operated. If you started doing an operational plan, they would say that is too operational, that is too tactical. You are supposed to be focused more on the strategic. If we 

trended towards the strategic, they would say, no, you should be 

focused more on the operational. So simply adding a conjunction in 

there clears up a multitude of issues. 

Chairman LIEBERMAN. At one point, you recommend that NCTC 

have some authority to control and allocate funds to the departments. Is that one way to establish its primacy here? 

Mr. NELSON. Well, we do. We have to give them some sort of 

lever to compel the interagency to participate, and if we are not 

going to give them operational authority, then we need—to look at 

resources and personnel. Giving them some input, a direct input 

over resources, hopefully would encourage interagency participation in these plans. 

Chairman LIEBERMAN. Let me give you an example which is obviously not so far from reality, leaving aside bin Laden. But let us 

say that in Somalia, there is an American who has become a radical Islamist cleric. He runs Web sites which are in English and he 

is communicating a lot with people in America and people in America are communicating with him. He is helping to radicalize them. 

Sometimes, he brings them over. They come to see him. He has beVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00154 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
147 

come dangerous to the United States and, in fact, has been implicated in some terrorist attacks on our country. 

So let us just sort of clear the deck of what exists now. It would 

certainly seem to me that it would be in the interest of our government to have a plan to capture or kill that person, and so how 

would you organize that if you were redrawing the structure now? 

Mr. NELSON. I think NCTC has the authority to do this under 

the current structure. I just think that they are having a difficult 

time getting agencies to participate. 

Chairman LIEBERMAN. Right, because, obviously, NCTC does not 

have the resources itself to carry out an operation. 

Mr. NELSON. Absolutely. They have no authority. 

Chairman LIEBERMAN. Yes. 

Mr. NELSON. And as I said, planning is everything, but those 

planners have to be the ones that are executing. In NCTC, a role 

I think, that is underutilized, is that of arbiter. We have discussions on many issues for example, the Web site issue—do you take 

the Web sites down? Do you keep the Web sites up? How does that 

work? Some of those decisions go to the very highest levels of government, and as my colleagues mentioned, some should not. Somebody should be arbitrating those decisions at a much lower level 

and that is a role that NCTC could undertake, but it cannot do because it does not have the credibility and the authority currently 

to do that. 

Chairman LIEBERMAN. Let me ask Mr. Smith and Mr. Powell if 

you have an opinion on this question. There is a problem, which 

is how do we coordinate the various branches of our government 

in planning and carrying out coordinated operations. 

Mr. SMITH. Mr. Chairman, that is one of the reasons I am attracted to the Goldwater-Nichols model. 

Chairman LIEBERMAN. Yes. 

Mr. SMITH. In Goldwater-Nichols, a combatant command is given 

the responsibility for a geographic area to go do something, to carry 

out a mission. The only one that does not have that is SOCOM, 

which has a global mission. And by the way, we just saw in Afghanistan General Stanley McChrystal decide that he needed 

greater authority over forces under SOCOM for the very reasons 

that we are talking about—— 

Chairman LIEBERMAN. Right. 

Mr. SMITH [continuing]. One of the first things you learn in military life is unity of command and that has to be, and it seems to 

me it has to be here, as well. 

I am not remotely able to talk with the kind of expertise that Mr. 

Nelson has spoken with respect to planning. However, instinctively, I would think that a mission such as the one you described 

should be given to an operating entity and that operating entity 

should have the responsibility to develop the plan and then run it 

by NCTC, much as a combatant command consults with the Joint 

Staff about any plans they develop. 

Chairman LIEBERMAN. So how do we do that in this case? Let us 

take the radical cleric that I described, and I put him in Somalia 

for the sake of it being hypothetical. Who would be the combatant 

commander in that case? 

148 

Mr. SMITH. I think, in my view, it should be Africa Command 

(AFRICOM). 

Chairman LIEBERMAN. AFRICOM? Fascinating. So to go to the 

military command and then have that person coordinate with all 

the resources—intelligence, State Department, all the rest? 

Mr. SMITH. That is correct, because I think at the moment, the 

Defense Department has the greatest reach, the greatest capacity. 

Chairman LIEBERMAN. Right. 

Mr. SMITH. But they cannot over-militarize it, if I could use that 

expression. 

Chairman LIEBERMAN. Yes. 

Mr. SMITH. And that is where the role of the NCTC has to come 

in, much as the role of the Joint Staff has to come in, to say, your 

plan does not take adequate account of this or that and that then 

has to represent other—and the advantage of NCTC stepping in is 

they represent—and there are representatives on there—of other 

departments and agencies of government that would bring a perspective to it, that would bring information to it to refine that plan, 

but that it would ultimately have to be executed by AFRICOM. 

Chairman LIEBERMAN. Mr. Powell, that was very interesting. 

Your reaction? 

Mr. POWELL. I think that on the specific operational tasking and 

coordination of them, there are operational deconfliction agreements in place between agencies that I think work fairly well in 

the field. It may just reflect the lack of knowledge on my part, but 

I did not see in the field—I saw the agencies working together. The 

closer you are to the mission, the more some of these debates go 

away. 

I would be very concerned and want to think heavily about bringing a tactical operational type of planning function away from 

those agreements that I, frankly, think in my experience have 

worked well in specific operational tasks of the kind of hypothetical 

that you are talking about, Mr. Chairman. I think the NCTC has 

a lot of value to add on the broader issue of not just an operation 

about a specific person or more at the tactical level, but more what 

are we doing as a government to counter the fact that there are 

people here in America who are going to visit this cleric in your hypothetical—— 

Chairman LIEBERMAN. Right. 

Mr. POWELL [continuing]. And becoming radicalized or becoming 

self-radicalized or accessing Web sites. And, of course, these are by 

far what we have seen recently some of the most dangerous threats 

and the most hardest to detect are people self-radicalized, not necessarily connected to al-Qaeda, AQAP, or some of the other organizations we can talk about, and obviously the attention that those 

organizations draw from the U.S. Government. But there is a large 

value in thinking about at the level that NCTC can about what do 

we do about that phenomena and problem. Obviously, there has 

been talk about problems in prisons. Here in the United States, we 

can talk about any number of these things. 

I think at the tactical hunt level, and obviously Mr. Nelson has 

far more experience in this than I do, but just going back to my 

military experience and other ways, and I certainly was very concerned from the Director of National Intelligence standpoint, any 

149 

time that we seemed to veer into tactical operational issues or had 

to become involved with them, I did not think that we had the 

rules, the guidelines, the capabilities present to get involved. Now, 

some major national issues at times may draw in some of the senior staff, but that was very unusual and rare. 

Chairman LIEBERMAN. That is a very helpful answer. 

Let me ask you just one or two more questions. I will start, Mr. 

Smith, in your prepared statement, you discussed complaints by officials in various agencies that the DNI staff often acts as micromanagers and issues time-consuming requests and data calls to 

agencies for information for reasons that are often not very well 

understood. You also note that this information request process 

quite often appears to be driven by contractors at the DNI. 

Well, first I will ask you, Mr. Smith, because you say that from 

your perspective, the current Director, Admiral Blair, is not interested in micromanaging intelligence agencies. I wonder if you 

would speak a little about that and whether you know whether he 

has taken steps to address the issue you raise of what you might 

call over-tasking. 

Mr. SMITH. The answer is, I believe, yes to all your questions, 

Mr. Chairman. 

Chairman LIEBERMAN. [Laughter.] 

Mr. SMITH. Director Blair does not intend to micromanage. He 

understands he cannot do that. On the other hand, he has a great 

many responsibilities under the statute and he has inherited a 

structure where there are already a lot of contractors in place. I 

cannot begin to speak for him, but he is aware of this issue. There 

are ways that one could try to get a handle on the tasking that 

ODNI does so that it is coordinated and that only tasks are issued 

are those that senior leadership truly believes are necessary. I cannot speak, because I simply do not know what the Director might 

be doing to address that issue, but I do know he knows it is an 

issue. 

Chairman LIEBERMAN. Mr. Powell, was this a problem, to the 

best of your recollection, when you were at the ODNI? 

Mr. POWELL. It was continually at the front of issues that were 

raised with former Director Negroponte, former Director McConnell, and now—— 

Chairman LIEBERMAN. Yes. 

Mr. POWELL [continuing]. Director Blair. It was an issue of continual discussion every week, about the issue of tasking, about the 

complaints we would read in the newspapers about this, about 

issues we would hear in the Congress about these issues. 

My first response to those would often be, please give me the specific example that you are speaking about. 

Chairman LIEBERMAN. Right. 

Mr. POWELL. I often had a very difficult time of finding what the 

specific example was. 

Second, the issue was, if the DNI’s Office sends out something 

that is inappropriate, well, you should call the Deputy Director of 

National Intelligence, one of them, and tell them that something 

inappropriate is going on and it needs to be put to a stop—— 

150 

Chairman LIEBERMAN. I am sorry. Do you think it was real, or 

do you think this was just bristling by the agencies that were getting used to dealing with the new Office of the ODNI? 

Mr. POWELL. There is no doubt that there were, I am sure, requests that were sent out that I did not think were appropriate to 

be sent out. 

Chairman LIEBERMAN. Right. 

Mr. POWELL. That said, for the first time, we did a contractor inventory of the entire intelligence community and could tell you the 

functions of what these contractors are doing. 

Chairman LIEBERMAN. Yes. 

Mr. POWELL. The Congress found that very interesting. 

Chairman LIEBERMAN. Yes. 

Mr. POWELL. The intelligence community found that very interesting from a budget perspective. 

Chairman LIEBERMAN. Too many? 

Mr. POWELL. I will just say that we did the contractor inventory, 

Chairman Lieberman, by the function, and I do not want to make 

any broad generalizations about it, but it gave you an idea and you 

could then look to see by function what are people doing in the 

community, and that gave you data points then to make budget decisions. That, in my experience, is the very first time you got a picture of what the workforce looked like, who speaks what languages 

across the intelligence community. 

So all these things did require data calls. The law on joint duty 

is a perfect example. There are a number of things in there by law 

about promotion rates, that people who participate in joint duty 

cannot be promoted at a rate lesser than their peers who do not 

participate in joint duty. 

So it is a fine balance. I am sure that there are examples where 

the DNI’s Office overtasked or did something that they should not 

have. There were rules put in place. At one point, I think any data 

request of this type had to go through a three-star general on the 

DNI staff to do this. So this was not something that did not have 

the Director’s attention. 

Chairman LIEBERMAN. Right. 

Mr. POWELL. I think if you look at the Secretary of Defense’s Office, the Secretary of State’s Office, or the Attorney General’s Office, I suspect at times perhaps they send out tasking requests that 

are not needed. 

Chairman LIEBERMAN. I am sure that is right. 

Let me ask you a final question. When Governor Kean and Congressman Hamilton testified before us in late January, they raised 

the idea, kind of floated it, of whether the DNI should have a fixed 

term of service similar to that of the FBI Director on the theory 

that would improve continuity and to a certain extent remove the 

DNI, to whatever extent he is involved in the political process now, 

from that process, or at least from the transition of government. I 

am interested in just getting a quick reaction from the three of you. 

Mr. Smith. 

Mr. SMITH. It is a good idea, very worthy of consideration. I 

think it has worked at the Director of the FBI and I think it is a 

good idea. Some of the downsides, however, are it is hard to find 

somebody willing to commit to an extended period. 

151 

Chairman LIEBERMAN. Right. 

Mr. SMITH. You want somebody who is close to the President, 

who can pick up the phone and say, Mr. President, you have a 

problem here, and not be intimidated because he or she does not 

have a relationship with the President. 

So it is a serious question that should be examined. If I were to 

vote today, I am a little like the Supreme Court. I am five-to-four 

against it—— 

Chairman LIEBERMAN. OK. 

Mr. SMITH [continuing]. But I could be persuaded. 

Chairman LIEBERMAN. Mr. Nelson, how does your Supreme 

Court rule? 

Mr. NELSON. I actually think it is a very intriguing decision. I 

would be in support of it. To finish the kind of change that you put 

forward in the legislation, the IRTPA, it is going to require some 

china to be broken and that individual needs some political topcover to make that happen. I was very disturbed and disappointed 

in the decision that was made regarding the appointment authority 

of the DNI representive overseas. I think that was the wrong call. 

I think maybe something like this would have been able to address 

that. 

Chairman LIEBERMAN. Mr. Powell. 

Mr. POWELL. I am probably seven-to-two or eight-to-one against 

it. [Laughter.] 

I should note, I clerked for a Justice who was often on that one 

side, so—— 

Chairman LIEBERMAN. The only time I got to argue a case before 

the Supreme Court when I was Attorney General of Connecticut, 

we lost eight-to-one, so I am sympathetic to that Justice. [Laughter.] 

Mr. POWELL. I think the Director of the FBI is a very special 

case. There is a history there. I worked at the FBI. There is a history behind that. The FBI Director has access to information on the 

law enforcement side in terms of investigating senior officials of the 

government and other things that are very distinct from the DNI. 

My concerns would be: One, you do have a statute that does require the President’s backing. I would be very concerned if you had, 

for whatever reason, a place where the DNI was kept out of the 

national security circle—— 

Chairman LIEBERMAN. Yes. 

Mr. POWELL [continuing]. And seen as really apart from it. I 

think the information is so critical, the operational issues, the 

issues we are dealing with on intelligence, whether it is Iran, 

North Korea, Afghanistan, Iraq, cyber threats coming over the horizon, issues in Africa, all those things. 

I worry about having a lengthy term could really impact that and 

have a problem. I think it would raise the bar to the extent that 

you had somebody who was not performing up to perhaps the full 

capabilities that they needed to be. It would be a very difficult 

thing to remove them. It would then be seen as a very political 

move. There would be all kinds of allegations. 

Chairman LIEBERMAN. Right. 

Mr. POWELL. So I would be very concerned about any type of 

lengthy term for a DNI. In my experience, having served the three 

152 

Directors of National Intelligence, I just have not seen this evidence of politicization or changing the intelligence or trying to rework it. I think, frankly, given the diversity of who produces that 

intelligence, that is a very difficult thing to do with the National 

Intelligence Board and the other analysts who are involved in the 

process. 

Chairman LIEBERMAN. Thank you. Thoughtful responses. Thanks 

very much for your testimony. This has been very helpful. 

Do you want to add something? 

Mr. SMITH. Just as a matter of personal privilege, Mr. Chairman—— 

Chairman LIEBERMAN. Yes, please. 

Mr. SMITH. At the outset of his remarks, Mr. Powell said some 

extraordinarily kind things about me. 

Chairman LIEBERMAN. Yes. 

Mr. SMITH. I am not sure they were justified—— 

Chairman LIEBERMAN. Do you want to deny them? [Laughter.] 

Mr. SMITH. I would like to correct them for the record, but I do 

appreciate them greatly, especially coming from Mr. Powell, who 

has had himself an extraordinary career of contributions to this 

country. 

Chairman LIEBERMAN. Well, that is nice of you to say, very gracious. Really, it could be said of all three of you. We appreciate it 

very much. 

You have been very helpful today. Senator Collins and I are 

quite serious about this review, and we are not intent on legislating unless there is a reason to legislate, but if there is, we are 

not going to hesitate if we think it can improve and strengthen 

what was begun with the 2004 Intelligence Reform and Terrorism 

Prevention Act. 

I appreciate also that the three of you did some work in preparing for this testimony today, which matters a lot to us, and obviously the full text of your statements will be entered into the 

record. But Senator Collins and I and our staffs really would like 

to continue to be in touch with you as we go forward with this oversight. We are now going to talk to some of the people who are at 

the agencies now and probably best start that in closed sessions so 

that we can get maximum information. 

I am going to leave the record of this hearing open for an additional 15 days for any statements or questions that others may 

have. 

And with that, I thank you for your continuing service to our 

country. The hearing is adjourned. 

[Whereupon, at 12:20 p.m., the Committee was adjourned.] 

(153) 

THE LESSONS AND IMPLICATIONS OF 

THE CHRISTMAS DAY ATTACK: 

SECURING THE VISA PROCESS 

WEDNESDAY, APRIL 21, 2010 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

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

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Carper, Collins, McCain, and 

Voinovich. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. The hearing will come to order. I apologize for keeping everyone waiting for a moment or two. 

This is the fifth in a series of hearings our Committee has held 

to examine our intelligence and security systems that, despite all 

we have done to strengthen them, allowed Umar Farouk Abdulmutallab to board a U.S.-bound airliner and attempt to blow it out 

of the sky over Detroit last Christmas Day. 

I want to welcome our witnesses here today, each of whom has 

a critical role to play in helping ensure that this type of failure 

does not happen again, and I would also say each of whom has become quite familiar to our Committee. 

The purpose of this hearing is to review the enhancements to our 

visa security system that have been made over the last few years, 

the last 5 years particularly, but specifically to get a progress report on enhancements that have been put in place post-Christmas 

Day, including changes to how the State Department processes and 

disseminates information it receives about terrorism in its consulates abroad and also to have a good discussion about what additional changes may be needed. 

The failures that allowed Abdulmutallab to board Northwest 

Flight 253 are by now familiar to us all: Warnings from the father 

which went unheeded, threats from Yemen which were not run to 

ground, and information in different databases that was still not 

connected. 

However, one of the most frustrating failures was one that would 

seem to have been easiest to avoid, which is the misspelling of 

Abdulmutallab’s name during a check of the State Department’s 

154 

visa database, which led the government to believe that he did not 

have a visa and so did not pose an immediate threat. 

I think we all need to understand that while America has been 

and remains probably an open country that welcomes visitors, 

international travel is a privilege in our time and not an absolute, 

unlimited right. 

My concerns about the security of the visa process were one of 

the reasons that we advocated giving the Department of Homeland 

Security (DHS) more authority over the visa-issuing process during 

the debate and legislative action during which we actually created 

the DHS. The events of Christmas Day, I must say, have brought 

me back to some of those ideas. 

Nine years after September 11, 2001, we still do not have an 

automated system in place to check for revoked visas as individuals 

board airplanes. I understand that the State Department and DHS 

are working to accomplish this in an expeditious manner, and I 

hope to hear reports on that today. 

When the Department of Homeland Security was created, as another example of the overlap of the two Departments and what we 

can do to deepen it and expedite it, Congress included a provision 

establishing the Visa Security Program (VSP) and giving DHS the 

authority to set visa policy and to deploy law enforcement officers 

to consulates in order to oversee the visa-issuing process because 

of the post-September 11, 2001, added security dimension. 

The idea was to ensure that security considerations were given 

the weight they deserve in visa issuance. Eight years later, I am 

sorry to come to the conclusion that the program has not been a 

priority for either Department, and I would like the witnesses to 

comment on that. 

Here is why I reach that conclusion. DHS and the State Department have identified 57 high-risk consular posts around the world. 

That is out of a total of more than 200 posts that issue visas. But 

only 14 of those ports have received, or had stood up in them, Visa 

Security Program Offices. 

The President’s fiscal year 2011 budget submission does not include any new money for continuing to expand this vital program. 

I understand that one of the main impediments to expanding the 

program, aside from funding, has been reluctance by some of our 

Ambassadors to allow the Visa Security Program Offices to be established at their posts, and I would like to hear about that if that 

is true. 

I gather that on at least seven separate occasions, ambassadors 

have told the Department of Homeland Security that they would 

not support expansion of the VSP at their embassy. And some of 

those posts are ones that are really key in fighting against terror, 

such as the United Kingdom, Turkey, and Indonesia. It was not our 

intention when we put this provision into the Homeland Security 

Act to give Ambassadors veto power over this important program. 

So I look forward to hearing from the witnesses and to working 

with DHS, the Department of State, and our colleagues on Foreign 

Relations to ensure that the VSP program does move forward. 

Finally, I am heartened that for travelers from visa waiver countries, the Department of Homeland Security has now fully implemented the Electronic System for Travel Authorization (ESTA), 

155 

and is making progress in signing the international informationsharing agreements that are required by law. That is a significant 

accomplishment. 

The Christmas Day attempted attack has underlined for us all 

the importance of effectively sharing information. I believe that expanding this information sharing to include our allies should be 

one of the Department of Homeland Security’s main priorities moving forward, and so I hope the State Department will expedite implementation of the agreements to ensure that information is being 

shared in real time. 

Securing our homeland is now really a global enterprise. It begins well before people come to the United States, and that is why 

it is so important that the Departments of State and Homeland Security are working closely and effectively together. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. 

Today’s hearing will examine the fundamental question of why 

the Christmas Day bomber, Abdulmutallab, was allowed to retain 

his visa, even after his father had informed the American embassy 

in Nigeria of his Islamist extremist connections. 

From my perspective, the State Department had sufficient information to revoke Abdulmutallab’s visa. State Department officials 

already had decided to question him about his ties to extremists if 

he chose to renew his visa. That he could have been deemed a 

threat to the United States in the future based on his extremist 

ties but not a sufficient current threat defies both logic and common sense. Had the State Department taken this action, it would 

have prevented him from traveling to the United States. This was 

a missed opportunity to stop the terrorist more than a month before his flight. 

At the very least, Abdulmutallab should have been required to 

come to an American embassy and explain his activities before he 

was allowed to travel to our country. The State Department has 

this authority, and, in fact, the Intelligence Reform Act protects the 

State Department from lawsuits when its officials revoke a visa for 

a visa holder overseas. But the State Department failed to act. 

Visa holders with possible connections to terrorism should shoulder the burden of proving that they do not intend to harm this Nation or its citizens. I agree with the Chairman’s statement that 

traveling to our country is a privilege. If they cannot meet that 

burden, then we cannot take the risk of permitting them the privilege of traveling to our country. 

Following the attempted attack on Christmas Day, the intelligence community has reviewed the visas of all persons listed in 

the broadest terrorist database, known as the Terrorist Identities 

Datamart Environment (TIDE), to determine whether or not they 

should be permitted to retain their visas. In my judgment, they 

should keep their visas only in exceptional circumstances that are 

carefully considered by the State Department, intelligence community, the Department of Justice, and the Department of Homeland 

Security. 

156 

There are essential policy issues that we will explore today. 

First, is there now an ongoing policy to check the TIDE list for individuals who hold U.S. visas? Second, what is the Administration’s current policy on the revocation of the visas held by individuals listed on the Terrorist Identities Datamart Environment TIDE 

list? Third, what is the policy on visa revocation for individuals 

that are on the terrorist watchlist? 

I was surprised to learn recently from the Government Accountability Office (GAO) that more than 1,000 individuals on the narrower terrorist watchlist had U.S. visas. 

Revoking the visas of suspected terrorists is, however, only the 

first step. The Department of Homeland Security also should confirm the validity of the visa of every foreign passenger who attempts to board an airplane to this country rather than waiting 

until his arrival in our country. There does not appear to be a technological barrier since DHS already confirms whether a passenger 

is on the No Fly or the Selectee List before the passenger boards 

the plane. 

Like the Chairman, I also want to know how the State Department will ensure that minor misspellings do not prevent its officers 

from discovering immediately that a suspected terrorist has a valid 

visa, as initially happened with Abdulmutallab. Computer algorithms have been around for a long time that can find close name 

matches to uncover a misspelling, and the State Department 

should expeditiously adopt such tools. 

In general, I believe that the Department of Homeland Security 

must provide greater oversight of visa issuance and revocation, as 

it was authorized to do in the Homeland Security Act of 2002. That 

Act requires DHS to deploy trained visa security officers to overseas posts, but DHS has only reached 14 of the 57 high-priority foreign posts—with plans to reach another four. Why has the joint effort of DHS and the State Department to expand this program 

been so slow? 

One important way that DHS is enhancing the security of the 

visa process is through the implementation of a requirement that 

Visa Waiver Program travelers receive an electronic travel authorization, as the Chairman mentioned in his opening remarks. This 

additional step should add an important security layer for travelers 

from countries that are currently not required to obtain a visa. 

It is clear that terrorists will continue to seek to exploit any 

vulnerabilities in our visa system. We must, therefore, continue to 

work to strengthen our visa process. Since this is the primary 

means of preventing terrorists from traveling to our country, it 

must work effectively, and it must be a priority. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Senator Collins. 

Let us begin the testimony, Mr. Heyman, with you, I think by 

consent of the witnesses. David Heyman is the Assistant Secretary 

of Homeland Security for Policy. Please proceed. 

157 

1The prepared statement of Mr. Heyman appears in the Appendix on page 458. 

TESTIMONY OF HON. DAVID F. HEYMAN,1 ASSISTANT SECRETARY, OFFICE OF POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. HEYMAN. Thank you, Chairman Lieberman, Senator Collins, 

Senator Voinovich, and other Members of the Committee. I appreciate the opportunity to appear before the Committee. 

The work in the area of promoting and overseeing secure travel 

to the United States is very important, and specifically securing 

the visa process and related lessons and implications of the Christmas Day attack, which is the focus of this hearing. 

Targeting terrorist travel is one of the most powerful weapons we 

have to counter the ability of terrorists to operate. Travel security 

involves a series of tools or layers to help identify and disrupt terrorist travel. It begins with international travelers obtaining legitimate identity documents from national authorities—a passport— 

and should a visa be needed, the international traveler then applies for one at a U.S. embassy or consulate and undergoes a personal interview and checks against law enforcement, terrorism, and 

immigration databases. Travel security also includes passenger and 

baggage screening prior to travel and during travel flight security 

through air marshals. We have also put in place hardened cockpit 

doors and other measures. Finally, it includes passport control and 

customs and immigration inspection upon arrival—or in some locations, prior to departure. Every step along this pathway presents 

a vulnerability to would-be attackers who must come out of the 

shadows and interact with security personnel at ports of entry and 

abroad. 

In terms of visas and visa security, foreign travelers to the 

United States come to the attention of U.S. officials either by applying for a visa at a U.S. embassy or consulate or by traveling to 

the United States under a visa-free program, one of which, the Visa 

Waiver Program, requires advance authorization, as the Senator 

has noted. 

The Department of State is responsible for the day-to-day operations of visa issuance. DHS’ role in visa policy and guidance is 

outlined in Section 428 of the Homeland Security Act, which gives 

the Secretary the authority to issue regulations with respect to the 

granting of or refusing visas. 

As demonstrated by the attempted attack by Umar Farouk 

Abdulmutallab on December 25, 2009, visa policy and proactive 

visa screening procedures must be addressed in a counterterrorism 

context. To that end, they must include functionally related measures such as document verification and enhanced international information sharing. Taken as a whole, these procedures help to ensure not only the integrity of our borders and our immigration system, but also the security of the traveling public and the global 

aviation system as well. 

The first part of travel security is the authorization step, which 

is the focus of this hearing. My colleague, John Morton, from Immigration and Customs Enforcement, will testify on DHS’ Visa Security Program. Ambassador Janice Jacobs, Assistant Secretary for 

Consular Affairs, will discuss the visa issuance process. For my 

158 

part, I will limit my testimony to the Visa Waiver Program (VWP), 

which was first authorized by Congress as a pilot in 1986. The purpose was to facilitate low-risk travel to the United States and boost 

international trade, cultural links, and promote more efficient use 

of consular resources. It has evolved into an important tool for increasing security standards, advancing information sharing, 

strengthening international partnerships, and promoting legitimate 

trade and travel to the United States. 

Since the program’s inception, Congress and the Executive 

Branch have worked together to implement a number of security 

enhancements, including, immediately after September 11, 2001, 

new requirements to tighten security of passport standards and increase the frequency in which visa waiver countries are formally 

reviewed for their designation status. 

Today VWP allows citizens from 36 countries to travel to the 

United States without a visa and, if admitted, to remain in the 

United States for a period of a maximum of 90 days for tourist or 

business purposes. 

There are a number of security benefits that the Visa Waiver 

Program produces. They are, in fact, mutually reinforcing. VWP requires bilateral information-sharing arrangements regarding 

known or suspected terrorists, possible perpetrators, and other serious crimes, as well as multi-lateral sharing of lost and stolen passport information. Moreover, there are higher standards for transportation security, aviation security, and border security as well as 

document integrity than for countries that do not participate in the 

program. DHS, with the support of the Departments of State, Justice, and the intelligence community, audits these standards and 

capabilities on a regular basis as a condition for continuing designation in the program. No other mechanism provides DHS with 

the opportunity to regularly conduct as broad and consequential inspections of foreign security standards as the VWP. 

We are also strengthening that program currently by entering 

into agreements to share information that the Chairman mentioned. This is particular important in the context of the failed terrorist attempt to bring down Northwest Flight 253. We must absolutely bolster the tools we have to screen passengers prior to departure and exchanging information regarding potential threats 

known to our partner countries but perhaps not to us as a vital element of that. 

We have three key mechanisms that support this effort: First, a 

bilateral arrangement to exchange information on known and suspected terrorists; second, a bilateral agreement to exchange information of possible perpetrators of serious crimes; and, third, an exchange of diplomatic notes memorializing the commitment to report 

lost and stolen passports according to Interpol standards. 

As Senator Lieberman mentioned, our current priority and primary focus of DHS, as it relates to Visa Waiver, is bringing the 27 

pre-2008 VWP countries into compliance with the 9/11 Commission 

Act information-sharing requirements by 2012. To date, the Department, in cooperation with its partner agencies, has made substantial progress in this endeavor, the details of which are included 

in my full testimony. 

159 

1The prepared statement of Ms. Jacobs appears in the Appendix on page 465. 

Let me conclude by looking into the future. Given the security 

benefits of the VWP to the United States and to the program’s important role in strengthening international partnerships and to 

travel security standards, the Department would support a carefully managed expansion of the VWP to select countries willing and 

able to enter into a close security relationship with the U.S. Government, particularly DHS. 

At present, most of the countries that have expressed an interest 

in VWP designation have visa refusal rates higher than 3 percent 

or they have other concerns that would have to be mitigated prior 

to designation. DHS and the Department of State continue to consult with trusted international partners to determine whether VWP 

designation is possible in the future. We are also pursuing, as resources allow, VWP-style information-sharing agreements with 

countries that are currently ineligible for the VWP but have reasonable expectations of qualifying for the program within the next 

5 years or so. 

We must also be able to review and account for overstays. Because DHS has not yet notified Congress that a biometric air exit 

system to help in this is in place, any significant expansion of the 

VWP is unlikely at the present. 

So, in summary, we know that no single entity and no single solution on its own will completely address the challenge of preventing those with bad intentions from traveling to the United 

States. Travel security systems of mutually reinforcing layers—involving such features as rigorous visa issuance standards, the use 

of visa security units, the screening of passengers through automated targeting systems, and forward-deployed border and immigration security officers—all of these are critical in our efforts to 

thwart the travel of terrorists and other dangerous people. The 

VWP is, of course, a vital part of a robust travel security system 

for many reasons: The ESTA requirement, as Senator Collins mentions; the mandatory bilateral information-sharing arrangements 

regarding potential terrorists and criminals; sharing of data for lost 

and stolen passports; inspections; security standards; and the monitoring of ongoing conditions in countries. It is one of a number of 

tools and layers we deploy to protect the United States at home, 

in the air, and abroad. 

Chairman Lieberman, Senator Collins, and other distinguished 

Members, thank you for the opportunity to appear before you 

today. I look forward to your questions. 

Chairman LIEBERMAN. Thank you, Mr. Heyman, for your statement. We will go next to Hon. Janice Jacobs, Assistant Secretary 

of State for Consular Affairs. Welcome back. 

TESTIMONY OF HON. JANICE L. JACOBS,1 ASSISTANT SECRETARY, BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE 

Ms. JACOBS. Thank you. Chairman Lieberman, Ranking Member 

Collins, Senator Voinovich, and distinguished Members of the Committee, it is an honor to appear before you again and to explain the 

160 

Bureau of Consular Affairs’ efforts to strengthen the security of 

U.S. borders through the vigilant adjudication of visas. 

I want to assure you that the five pillars of visa security—technological advances, biometric innovations, personal interviews, data 

sharing, and training—about which I testified previously—are still 

very relevant today. And each pillar to an appropriate extent informs every action we have taken following the attempted terrorist 

attack of Christmas Day 2009. 

Over the past 4 months, we have strengthened our Visas Viper 

reporting requirements, as well as visa issuance and revocation criteria, and introduced technological and procedural enhancements 

to facilitate and strengthen visa-related business processes. Our internal and interagency reviews are ongoing. Here are the steps 

that we have taken already. 

The Department of State misspelled Umar Farouk Abdulmutallab’s name in a database search for existing visas and in the 

text of a Visas Viper report. As a result, we did not add the information about his current U.S. visa in that report. 

To prevent this from occurring again, we promulgated new Visas 

Viper procedures to ensure that in preparing a Visas Viper report 

we ascertain whether a subject has a visa and include comprehensive visa information in all Visas Viper reporting. I can confirm 

that these new procedures have been followed in all Visas Viper cables since December. 

We also are re-evaluating the procedures and criteria used in the 

field to refuse and revoke visas, and we are issuing new instructions to our officers. Revocation recommendations will be added as 

an element of reporting through the Visas Viper channel. In a recent cable to the field, we reiterated our guidance on use of the 

broad discretionary authority visa officers have to deny visas under 

Section 214(b) of the Immigration and Nationality Act with specific 

reference to cases that raise security or other concerns. Instruction 

in appropriate use of this authority has been a fundamental part 

of officer training for several years. 

The State Department has broad and flexible authority to revoke 

visas. Since 2001, we have revoked 57,000 visas for a variety of 

reasons, including over 2,800 for suspected links to terrorism. New 

watchlisting information is continuously checked against the database of previously issued visas. We can and do revoke visas in circumstances where an immediate threat is recognized. We can and 

do revoke visas at the point people are seeking to board an aircraft, 

preventing their boarding. In coordination with the National Targeting Center, we revoke visas under these circumstances almost 

daily. 

At the same time, the benefit of expeditious coordination with 

our national security partners is not to be underestimated. There 

have been numerous cases where our unilateral and uncoordinated 

revocation would have disrupted important investigations that 

were underway by one of our national security partners. We will 

continue to closely coordinate visa revocation processes while also 

constantly making enhancements to the security and integrity of 

the visa process. Information sharing and coordination action are 

foundations of the border security systems put in place since September 11, 2001, and they remain sound principles. 

161 

Had our post-December 25 Visas Viper and revocation procedures 

been in place in Abuja, Nigeria, in November 2009, the consular officer would have used our robust search engine to uncover Abdulmutallab’s visa record and include that name in the Visas Viper 

cable. The consular officer would have entered a P3B—a possible 

terrorist—entry into the Consular Lookout and Support System 

(CLASS), our automated repository of watchlist information—as 

was done in the actual case. 

The Department would have reviewed the Visas Viper cable upon 

receipt and, following expedited consultation with our interagency 

partners, revoked Mr. Abdulmutallab’s visa, consistent with our 

post-December 25 policy that no one with a P3B entry can hold a 

valid visa. This revocation would have occurred on the day the 

Visas Viper cable was transmitted. 

The Department has close and productive relationships with our 

interagency partners, especially with the Department of Homeland 

Security. We are working closely with Immigration and Customs 

Enforcement visa security units (VSUs). VSUs currently operate at 

14 visa-adjudicating posts in 12 countries. Since January of this 

year, we have received requests to open four additional VSUs and 

to augment staff at two existing VSUs. The chiefs of mission at 

those respective posts approved the four new VSUs and one request 

for expansion, with one request for expansion still pending. Later 

this year, a team representing both departments will visit several 

posts under consideration for additional VSUs. 

The State Department brings our own unique assets and capabilities to this partnership. Our global presence, international expertise, and highly trained personnel provide us singular advantages in supporting the visa function throughout the world. We developed and implemented an intensive screening process requiring 

personal interviews and supported by a sophisticated global information network. Our front line of border security has visa offices 

in virtually every country of the world, and they are staffed by 

highly trained, multi-lingual, culturally aware personnel of the Department of State. We support them with the latest technology and 

access to advanced screening tools and information systems. We 

are pioneers in the use of biometrics and a leader in the use of facial recognition as well as modern rapid fingerprint scanning technology. 

Our online visa applications, introduced in 2009 and on track for 

worldwide deployment before the end of this fiscal year, expand our 

data collection capacity tenfold and provide new information readily available for analysis by the State Department and other agencies. 

We remain fully committed to correcting mistakes and any deficiencies that inhibit the full and timely sharing of information. We 

fully recognize that we were not perfect in our reporting in connection with this case. However, we are working and will continue to 

work not only to address shortcomings but to continually enhance 

our border security screening capabilities and the contributions we 

make to the interagency effort. 

We believe that a layered approach to border security screening 

in which each agency applies its particular strengths and expertise 

best serves our border security agenda while furthering traditional 

162 

U.S. interests in legitimate travel, trade promotion, and exchange 

of ideas. In fact, the United States must strive to meet both goals 

to guarantee our long-term security. 

Thank you, and I am ready to answer your questions. 

Chairman LIEBERMAN. Thanks, Secretary Jacobs. I think Senator 

Collins and I would like to break the normal and just ask you a 

few questions to make sure that we have clear the changes that the 

Department has made. 

First, just set out kind of what we used to call a plain-language 

definition of what Visas Viper cable is. 

Ms. JACOBS. A Visas Viper cable is a reporting telegram that 

comes in from our posts overseas, reporting on names of known or 

suspected terrorists. The process behind it includes a Visas Viper 

group, interagency group, at an embassy or consulate overseas that 

sits down at least once a month to go through to see whether each 

of the agencies involved might have names that need to be submitted to Washington. These names will result in the creation of 

a TIDE file by NCTC. 

So it really is, if you will, an interagency data-sharing program 

at the post level where they are bringing names back to Washington. 

Chairman LIEBERMAN. OK, good. That is helpful. 

Now, in Abdulmutallab’s case, as we know, when the State Department personnel in Nigeria put his name into the database, it 

did not show he had a visa because his name was misspelled. Correct? 

Ms. JACOBS. That is correct. 

Chairman LIEBERMAN. And so what I think we are both interested in is—it is our understanding that there is a software program that can correct for those misspellings. Do I understand that 

has now been put into place in the State Department? 

Ms. JACOBS. Yes, sir. We actually had a search tool that uses 

what we call ‘‘fuzzy logic’’ that will catch misspelled names. It was 

not available to all of our consular officers in the field. The change 

that we have made now is that we are requiring all officers, whenever they are drafting a Visas Viper telegram, to use that search 

tool in order to look in the database of issued visas to make sure 

that a misspelled name will not make a difference. 

Senator COLLINS. Just to clarify the Chairman’s question, that 

technology was already in place, but it was not automatically used? 

Ms. JACOBS. It was not used for searches in the Consolidated 

Consuler Database (CCD) where we store all of the information 

about visas. We have very sophisticated search capabilities in our 

Lookout System, but that same tool was not used on a routine 

basis in our CCD. So it was there. It was used primarily by our 

fraud prevention officers, but now we have made it a requirement 

that everyone use that tool. 

Senator COLLINS. It seems to me you would want to just build 

it into the system so that it is not a choice. It is the way, when 

we go online with Google and if you misspell something, it says, 

‘‘Did you mean X?’’ and will give you the proper spelling of it. 

Should that be automatically built in? 

Ms. JACOBS. Absolutely, and we are working on that systems 

change to make that automatic within the CCD. 

163 

Senator COLLINS. And when do you anticipate that will be an 

automatic feature of the search? 

Ms. JACOBS. I will get back to you with an exact date. I am hoping that will happen within the next few months. But in the meantime, all officers have been instructed to use this tool whenever 

they are preparing Visas Viper cable. 

Senator COLLINS. I understand that, but I guess what I am troubled by is it is still discretionary in a way. Even though they have 

been instructed, it is not built into the system, and it seems as if 

it would be very easy from a technological standpoint to build it 

into the system. So rather than chancing that some consular officer 

who is overwhelmed with work might forget to use it or might fail 

to use it, why not build it into the system? 

Ms. JACOBS. We will do that, and I will get back to you with a 

date certain when we will have that completed. 

Senator COLLINS. Thank you for letting us clarify that. 

INFORMATION SUBMITTED FOR THE RECORD 

When visa applications are entered into consular databases, names are automatically run through ‘‘fuzzy logic’’ algorithms that check against the Consolidated Consular Database (CCD) and the Consular Lookout and Support System (CLASS). 

When names are added to the CLASS database independent of visa applications, officers are instructed to check the name against the CCD for possible matches with 

visa records using the ‘‘Person-Finder’’ tool, which uses the same ‘‘fuzzy logic.’’ This 

is currently a manual process, but we will have the automation in place by July 

31, 2010. 

Chairman LIEBERMAN. Thanks. Let me go the next step. Let us 

assume now that we have the system and it checks for the spelling, 

and a Visas Viper cable is sent back on an individual with the suggestion or evidence that he or she may be associated with terrorism. And the next step, as you described it in your testimony, 

I was concerned you had some conditional words. Will that automatically lead at least to the suspension of the visa, if not the revocation, but at least to the suspension? In other words, it does not 

require any more than that Visas Viper cable that person now does 

not have an effective visa anymore? 

Ms. JACOBS. Right. In this particular case, the new search tool 

would have caught the misspelled name. In addition, officers are 

required now to put the fact that a person has a visa right in the 

Visas Viper cable, so that information would be there. And then the 

fact that the officer put an entry, a ‘‘presumed ineligible for terrorist-related reasons’’ entry, into our Lookout database, that information would have been in the Visas Viper cable as well. 

Our new policy is anyone who goes in as a P3B who has a visa, 

the visa will be revoked. We do that still in consultation with our 

other agency partners to make sure that there is no operational interest in the individual. That happens very quickly now—— 

Chairman LIEBERMAN. An ‘‘operational interest’’ in the sense 

that we actually may want the person to have the visa because we 

are following him or her. 

Ms. JACOBS. Exactly right. 

Chairman LIEBERMAN. OK. Understood. 

Ms. JACOBS. And, anyways, that would happen very quickly. We 

have expedited the whole revocation process while we still have the 

system where names go into NCTC and are reviewed and then cerVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00171 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
164 

1The prepared statement of Mr. Morton appears in the Appendix on page 475. 

tain names are exported over to the Terrorist Screening Center. In 

addition to that, we have a new expedited procedure in place 

whereby consular officers can make a recommendation about a revocation, or if they put someone in as a P3B, we will revoke after 

consultation. 

Chairman LIEBERMAN. OK. Am I right that also is a change since 

Christmas Day? 

Ms. JACOBS. Yes, sir. 

Chairman LIEBERMAN. That it was not automatic that the visa 

be revoked? 

Ms. JACOBS. Right. No, before Christmas Day it was not. 

Chairman LIEBERMAN. OK. Those are two big steps forward, and 

I appreciate them. 

Let me just poke a little more into the operations. I was troubled—and maybe you did not intend this literally—when you said 

that the Visas Viper group at the embassies only meet about once 

a month. I presume that if, somebody walks into an embassy and 

has significant information about an individual, a concern of being 

a terrorist, that the consular officer will not wait for the next 

monthly meeting. Right? 

Ms. JACOBS. That is exactly right. Officers will send in individual 

cables if something comes to their attention before the monthly 

meeting. 

Chairman LIEBERMAN. Thank you. That is very encouraging. I 

appreciate it. 

The last witness on this panel is Secretary Morton, who is, as we 

well know, head of Immigration and Customs Enforcement (ICE). 

Let me just tell you before you begin, Secretary Morton, that yesterday we had a hearing here on the violence in Mexican and crossborder violence and its impact on our homeland security. And I 

want to thank you and congratulate you for the indictments that 

were issued, I guess last week, through the work of your people in 

ICE and the U.S. Attorney in Arizona and the work of, I gather, 

law enforcement around the country to bring to justice dozens of 

people involved in smuggling of people from Mexico into the United 

States. So I appreciate that work. Thank you. 

TESTIMONY OF HON. JOHN T. MORTON,1 ASSISTANT SECRETARY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 

U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. MORTON. Well, thank you, Mr. Chairman and Senator Collins. That was an extraordinary case. It was in the making for well 

over a year. On the day of the arrests, we had over 800 Federal, 

State, and local law enforcement officers engaged in the searches 

and the arrests, and I am quite happy to say that we had the full 

and coordinated cooperation of the Federal police in Mexico, the 

Secretariat of Public Safety, which was extraordinary. They actually arrested one of our three main smuggling targets, so it was a 

good day for law enforcement. 

Chairman LIEBERMAN. Good work. Thank you. 

Mr. MORTON. Thank you very much for inviting me to address 

ICE’s role in securing the visa process. Let me start by noting that 

165 

good visa security is a multi-agency process that begins obviously 

before issuance and continues all the way through compliance by 

the visa holder with the terms of admission. 

Done properly visa security facilitates lawful trade and travel— 

which I completely agree is a privilege, not a right—and while prohibiting the travel and entry of terrorists and others who would do 

harm to our Nation. 

ICE plays many important roles in promoting the integrity of the 

visa process both before and after issuance. For example, we investigate and prosecute a wide range of visa fraud, and we use our administrative powers to remove visa overstays. I would like to obviously focus my remarks here today on our efforts to promote the 

security of the visa issuance process itself. 

In that context, as the Committee well knows, our primary role 

is to run the Visa Security Program at U.S. embassies and consulates overseas. As you may know, we are the second largest 

criminal investigative agency in the Federal Government, and we 

have a very significant international presence overseas because so 

much of our mission is focused on investigating transnational 

crime—crimes such as money laundering, counterfeiting, and piracy of U.S. goods, international child exploitation, and the smuggling of drugs, arms, and people. 

Under the Visa Security Program, ICE agents posted overseas 

add a very important layer to the integrity of the existing visa 

issuance process. In particular, experienced—and I place an emphasis on that—ICE investigators provide expert advice and training to consular staff. We review and scrutinize individual visa applications, and we conduct in-depth investigations when warranted. 

An important point to keep in mind is that the VSP is not just 

a screening program; rather, it is an additional review process that 

complements the consular adjudication conducted by the Department of State and permits in-depth, on-site analysis and investigation of individual visa applications. This is not something that can 

be done remotely. To conduct a thorough investigation of a suspect 

application, an ICE agent needs to be able to interview the visa applicant in person, locate and research local records, and coordinate 

with foreign officials. In short, hard analysis and investigation require an on-site presence. 

Indeed, depending on the concerns behind a given visa application, an ICE agent’s investigation might prove quite complex and 

take literally a matter of months. Given our focus on national security, we do not send new recruits to VSUs. On the contrary, we assign experienced agents who have spent years developing interview, interrogation, and other skills while investigating crimes in 

the United States and overseas. 

To date, the Visa Security Program has worked very well in the 

14 posts where it has been implemented. Indeed, in our experience 

the consular staff at VSU posts have rapidly recognized the value 

of having ICE agents assist them and have not viewed the program 

as wasteful or distracting. This past fiscal year, our VSP units, 

working with our consular colleagues, screened over 900,000 applications and determined that 300,000 needed further review. Following investigation, and, again, in close consultation with the Department of State, we ultimately recommended to consular officials 

166 

to refuse over 1,000 of these applications. I am happy to report that 

in every single instance the Department of State followed our recommendation. 

It is important to note that we do not view ourselves as overlords 

or competitors to consular officials. Our mission is to work with the 

consular team to identify questionable applications and to augment 

the State Department’s ability to investigate and resolve issues of 

concern. ICE and the Department of State have jointly identified, 

as the Chairman has noted, 57 diplomatic and consular posts that 

warrant a Visa Security Unit. We are presently in 14 of these 

posts, and I anticipate expanding to four more in the remainder of 

this fiscal year and one in early 2011. 

I am also working with Assistant Secretary Jacobs to address 

some of the implementation challenges both Departments face with 

regard to VSU so that we can improve the expansion process. And 

I want to just make a personal note here to say that I have found 

Assistant Secretary Jacobs to be quite willing to work with us and 

quite professional in her dealings, and I am confident that some of 

the implementation challenges that we may talk about here in a 

bit can be and will be resolved in a way that is good for both Departments and the country. 

Please know that I am a strong supporter of the Visa Security 

Program and ICE’s international investigative efforts generally. I 

am committed to ensuring that the program works well, as intended by Congress, as part of the Department of Homeland Security’s broader security efforts, and to work with the State Department to expand the program in a thoughtful, efficient way. 

Again, I thank you for the opportunity to appear before you once 

again, and, of course, I am happy to answer any questions the 

Committee may have, Senator Voinovich as well. 

Chairman LIEBERMAN. Secretary Morton, thank you. We will do 

7-minute rounds of questions. 

Let me begin with the Visa Security Program. At an earlier hearing I raised the question about whether the entire Visa Issuance 

Program should go over to the Department of Homeland Security. 

That is probably not feasible or a good idea in the end, but I think 

the Visa Security Program creates a partnership here where the 

kind of concerns we have about the security implications of visa 

issuance and, frankly, the heightened security implications of visa 

issuance since September 11, 2001, can be taken care of. But, obviously, the program has not been sufficiently implemented, and that 

is what concerns us on the Committee. 

Secretary Jacobs, I take it—well, let me ask you: What value 

does the State Department believe the Visa Security Program has? 

Ms. JACOBS. Thank you, Senator. I think that at the posts where 

we have Visa Security Units, there has been a very good partnership between the consular officers doing visas and the visa security 

officers. They are able to look at applications. They have access to 

law enforcement sensitive information that sometimes it takes us 

a little bit longer to access. They bring a special expertise to the 

process where maybe answers do not make sense or certain things 

about the application raise questions. And so the consular officers 

have learned to work very closely with the visa security officers, to 

167 

listen to them. They know that they bring this expertise to the 

table, and I think it has been a very good relationship. 

There have been cases the VSU officers have identified. You 

heard that there have been recommendations to refuse visas that 

have been followed. 

Chairman LIEBERMAN. Every one. 

Ms. JACOBS. So I think it is a very good partnership. 

Chairman LIEBERMAN. So let me ask if my staff and I are right 

in citing at least seven cases where the chiefs of mission have objected to having people in the Visa Security Program in the consular office. Is that correct? 

Ms. JACOBS. I am not sure of the exact number, but I do know 

that, yes, there have been instances where a chief of mission has 

denied a National Security Decision Directive 30 request. 

Chairman LIEBERMAN. Why? What are the reasons why they 

would do that? 

Ms. JACOBS. Well, actually, it is not really specific to the VSUs. 

Chiefs of mission have to look at a variety of issues for any agency, 

including the State Department, when we want to add new people 

to a mission. They have to look at the mission, why they are there. 

They have to look at the security situation in a given country. Is 

this a place where we are trying to keep the U.S. presence at a 

minimum? They actually have to think about things such as actual 

space limitations. Many of the VSUs are co-located in our consular 

sections, which in many countries are very tight right now. And so 

they have to look at all of these things. 

They also look at the other agencies at post, and they look at 

what the VSU’s goals and objectives are, and they make a determination about whether they think they already have that kind of 

expertise at the mission. 

So there is any number of considerations given to these requests, 

and I must say that the initial answer sometimes is no, even for 

the State Department when we are trying to add consular officers 

to an embassy. But that is not the final answer. There is negotiation that normally takes place. Sometimes it is just a matter of 

clarifying exactly what it is that the new people will do at the embassy. 

So it is a process that is worked through, but, again, it is not any 

chief of mission sort of singling out a Visa Security Unit to say, ‘‘I 

do not want you here.’’ It is all of those things that are taken into 

consideration. 

Chairman LIEBERMAN. Yes. Well, let me say that since, as I understand it, both the Department of State and the Department of 

Homeland Security through ICE have jointly agreed on the 57 

posts where there should be a Visa Security Program, I really want 

to urge you to not find any excuse acceptable by the chiefs of mission for not having a Visa Security Program because this is so central to our homeland security. Will you take that back? I mean, 

there is certainly nothing in the law as we created it that gave the 

Ambassadors veto over location of a Visa Security Program that 

the two Departments have determined is in our national security 

interest. 

Ms. JACOBS. Yes, sir. I am happy to take that back. Please know, 

though, that I am fully committed to try to make this program 

168 

work. I think from a very early stage the Bureau of Consular Affairs has supported the Visa Security Program. We had a senior officer at the Ambassador level who used to travel with the teams 

as they went abroad to try to make their case. It is something that, 

we encourage chiefs of mission to approve. There will always be, 

I think, at certain posts reasons that they cannot say yes, and 

sometimes it really is simply that they just do not have room. But 

you can count on Consular Affairs to really be supportive in this 

effort, and also as Assistant Secretary Morton said, the two of us 

are working together very closely to figure out ways to make this 

happen. 

Chairman LIEBERMAN. Yes. Look, I accept your good will here 

and intentions. I am saying please take back both to the Department and then to any individual case where a chief of mission says, 

‘‘No, I do not want the Visa Security Program,’’ even for a reason 

that is not, personal but just ‘‘I do not have room,’’ that they have 

to find room. This is that important. 

Secretary Morton, my time is running out, but do you want to 

get into this generally from the DHS point of view? 

Mr. MORTON. Yes. The challenges that we face in implementation 

are pretty much as Assistant Secretary Jacobs outlined them. Obviously, we have had some difficulties, and they have largely centered around concerns or objections from the Ambassador. Space 

and the overall size of the embassy is a common theme. There have 

been at times concerns that the Visa Security Unit is either not 

necessary or might duplicate something that the Ambassador feels 

his own staff or her staff could do. 

What we have been able to do, however, is to go back—and obviously my view is quite similar to yours—and explain this is a statutory obligation, this is a statutory program, and we do have a 

joint list where both Departments have identified there are 57 

posts that we need. 

Chairman LIEBERMAN. Right. 

Mr. MORTON. And things are much better. Assistant Secretary 

Jacobs has truly been working quite hard, and a lot of it is just an 

education process. But I think both Departments recognize we need 

to move with a little more dispatch on the implementation, and 

from the two of us you have that commitment. I personally went 

to London myself to make sure that the approval would be given 

to us by the embassy, and fortunately, the embassy did give it to 

me when I went myself. 

Chairman LIEBERMAN. Good for you. I appreciate it. Look, what 

I am saying is—and I know Senator Collins shares this view—we 

are prepared to be the bad cops here. This is really important, and 

we are counting on you to make sure it happens. 

Senator Collins, I have to go to the anteroom to take a call. I am 

going to leave you with power of the gavel with full confidence 

while I am gone. 

Senator COLLINS. Thank you. You know I love that. 

Chairman LIEBERMAN. Yes. [Laughter.] 

Senator COLLINS [presiding]. Thank you, Mr. Chairman. 

Let me follow up on the point that the Chairman just made. 

First, let me associate myself with his concerns about the resistance that you sometimes meet in trying to establish these security 

169 

units. I know London has been a particular problem. I salute you 

for solving that one. But the idea that there is resistance on this 

is really troubling to me. 

There is another issue, however, and that is, the President’s 

budget request for the Visa Security Program for fiscal year 2011 

is the same as for this year. It is flat. So how can the Department 

intend to expand to more overseas consular posts with a flat budget? 

Mr. MORTON. Well, let me start by saying that, as you know, at 

the time of the formulation of the 2011 budget, I was not the Assistant Secretary because I was preparing for the confirmation 

hearings before you and Senator Lieberman at that exact time. 

What I can say is this: We are going to expand to the four. We 

are going to expand to at least one more in 2011. You can rest assured that there is not going to be a penny appropriated to us for 

visa security that will not be spent, and my foot is in the path. I 

will expand the program, working with Ms. Jacobs, as much as I 

can within the resources that I have, both specifically appropriated 

for Visa Security Units and our general international affairs budget. I do not want there to be any doubt about whether I support 

the program as enacted by Congress and the appropriations that 

we have been given. They are in many instances, fortunately, og 

us being given 2-year money, so I have some flexibility both this 

year and next, and I am going to spend every penny of it. 

Senator COLLINS. I think it is important to note that Yemen is 

one of the countries where we do not now have a unit. Clearly, 

there needs to be one in Yemen. I know that is on your list for expansion. I would also note that Nigeria is another that is on the 

list and where we do not have a VSU. 

It seems to me you need to be better resourced in order to establish these units, that it is not just a matter of the resistance that 

you inexplicably encounter at times from the Ambassador. There is 

a resource problem, and I know the Chairman and I will work with 

you to try to solve that problem. 

Secretary Jacobs, I want to go back to you and ask you a series 

of questions to make sure that I understand what the Administration’s policies are on revoking the visas of individuals who are on 

the various terrorist watchlists. And let us start with the TIDE list, 

which is the broadest, biggest terrorist database. Is there now an 

ongoing policy whereby the government continually checks the 

names that are on the TIDE list to see if they hold visas? 

Ms. JACOBS. In the aftermath of the attempted bombing on 

Christmas Day, there was a complete scrub of TIDE files to see if 

any individuals in that database held visas. As a result of that, yes, 

we did discover people who had visas—— 

Senator COLLINS. Excuse me for interrupting, but my question is 

different. I acknowledged in my opening statement that scrub was 

done after the Christmas Day bomber. Is there now an ongoing 

check of those names? Because new names are going on that list 

every single day, literally hundreds. So is there an ongoing check? 

Ms. JACOBS. There is an ongoing check of the TIDE files. There 

is still a review underway, if you will, of what exact procedures are 

going to be standard procedures will be for those constant reviews 

of the TIDE files. 

170 

I can tell you for the small percentage of TIDE files that come 

from Visas Viper information or cables, the procedure I explained 

to you earlier where we will be looking at those and revoking visas 

of people who have visas. But the TIDE files are very extensive, 

if you will, with regard to the type of information on any given individual. It can range from sometimes a poison pen letter to something that is very serious. And so when we send names in to NCTC 

to create a TIDE file for the part that we play a role in, we certainly have new procedures in place. For the more extensive files, 

I know that they are looking at the standards for watchlisting people, so all of those files would be looked at to see if names should 

be promoted over to the Terrorist Screening Center. But, again, it 

is such a variety of information, it is hard to say that, everyone in 

TIDE should automatically have the visa revoked. 

Senator COLLINS. Well, it seems to me that everybody in TIDE 

ought to be identified and then brought in for an interview and a 

determination made. But let me switch to the terrorist watchlist. 

I know with the TIDE list there may be unverified information; 

there may be derogatory information that is not true. But the terrorist watchlist is a subset of the TIDE list where there has been 

some additional verification done. So it is a smaller, more reliable, 

if you will, list. 

I was shocked to learn from the GAO that 1,150 people on the 

terrorist watchlist as of Christmas Day had valid U.S. visas. Of 

these individuals, how many have had their visas revoked? 

Ms. JACOBS. These are the people on the terrorist watchlist? 

Senator COLLINS. Correct. 

Ms. JACOBS. I believe that all of the visas have been revoked except in cases where it was determined that it was somehow in the 

U.S. national interest to have someone keep a visa—in other 

words, someone who would have a waiver. That would sometimes 

be a head of State, oftentimes diplomats. Sometimes there are people who had been invited by a U.S. Government entity to come to 

the United States. And in those instances, we have waivers, and 

it is well documented and known why the person is allowed to 

come. But in other cases, the visas have been revoked. 

Senator COLLINS. So absent those extraordinary circumstances, 

you are assuring our Committee that those 1,150 people have had 

their visas revoked? 

Ms. JACOBS. Yes, ma’am. 

Senator COLLINS. Thank you. Senator Voinovich. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. Thank you. I want to hit the Christmas Day 

situation real quickly. One, it has to do with having the right people with the right knowledge and skills at the right place at the 

right time. Two, it was a communications screw-up—we have had 

two hearings on this. Three, someone has said that they did not 

have enough information to stop the individual from coming into 

the country. 

What I would like to know is: What information did they have? 

Who made the decision? And in this whole process was anyone 

fired, suspended, or reprimanded? You do not have to answer that 

today, but I would like the answer to those questions I just asked. 

171 

But the main thing I want to concentrate on is this: In 2007, this 

Committee enacted legislation that improved the security of the 

Visa Waiver Program and allowed new countries to join the program. We improved the program security by requiring participating 

countries to maintain a low visa refusal rate, issue secure electronic passports, report all lost and stolen passports to the United 

States, submit to periodic security reviews by the United States, 

accept repatriation of nationals, and share information on travelers 

who may pose a terrorist or criminal threat to the United States. 

All 36 of these countries are issuing machine-readable biometric 

passports today, and we are getting lost and stolen passport data 

from all the countries. 

I do not believe that we would have had what we are getting 

today without this visa waiver legislation that enhanced what was 

being required from some of the countries. As a matter of fact, 

many of the countries that are in the program today have not complied yet with some of the new requirements that we have required 

in this legislation. 

It is interesting to note that the last country that went in is 

Greece. I thought Greece would be one of the first countries to go 

in. In fact, they were qualified but for the fact that they refused 

to sign and ratify required information-sharing agreements. Finally 

they did it, and they were just recently admitted. 

But one of the things that this Committee ought to know is that 

Greece was holding up a Mutual Legal Assistance Treaty, a critical 

law enforcement tool for the United States, between the United 

States and the European Union because they were holding out. 

And I honestly believe that had it not been for this Visa Waiver 

Program, that agreement would not be signed today. 

In terms of public diplomacy, Ms. Jacobs, when I was in Latvia, 

President Zatlers told me that when it was announced that the 

Visa Waiver Program was coming to Latvia—Admiral Mullen was 

in town—it said it blew Mullen off the front page and it was just 

the Visa Waiver Program that was talked about. From a public diplomacy point of view, this has been a big hit. 

I met recently with ambassadors from the Western Balkans. All 

of them are really interested in this program. But the problem is 

the program has come to a screeching halt, period, end of it. We 

go back to the 3-percent requirement. And the reason for it, 

Madam Ranking Member, is the fact that there was a provision put 

in the law that said that we had to come up with a biometric air 

exit system. The fact of the matter is that the Department of 

Homeland Security—and I am on the Appropriations Committee— 

has not requested any more money for this program. The little 

money they have, they have not spent. I met with the person that 

was heading up Customs and Border Protection. He said the program is not needed. 

What I am trying to do is to find out from you: Is the air exit 

system fundamental to making this program the program we want 

it to be? Or, in the alternative, is there something else there that 

is getting the job done? And I am not getting an answer from you 

on it, because if you come out and tell us it is not needed and you 

do not want to spend, I think it is, millions and millions on putting 

this air exit program in place, then it is not necessary, and we 

172 

ought to know that. And if we do know it, I would ask Madam 

Ranking Member and others to maybe look at this and amend the 

statute so we can go back to what we had before and we can keep 

moving with this program that I think is enhancing the security of 

the United States of America and also something that is extremely 

important to this country’s public diplomacy relationships with 

many countries who are our friends, who have people in Afghanistan and are helping us all over the world. 

Mr. HEYMAN. Senator Voinovich, I would like to first agree with 

you. I thank you for your leadership on the Visa Waiver Program. 

In my full statement, we acknowledge the exceptional work that 

Congress has done to put in the provisions that you mentioned, to 

improve security, to enhance our information sharing, and to provide a basis by which not only do we benefit from enhanced immigration and customs security, aviation security, but also public diplomacy, as you mentioned. 

In terms of the challenges we face, we are pursuing aggressively 

concluding the information-sharing agreements that Congress has 

requested. Those agreements are important, particularly in light of 

December 25, where those who may be unknown to us, may be 

known to our partners, and the information that they have may 

benefit our ability to do security here and in the aviation system. 

As it pertains to a biometric exit, you are correct. The requirement for—the ability for the Secretary to waive the requirement of 

a 3-percent minimum for visa refusal for countries that are interested in the Visa Waiver Program was not met in June of this past 

year, and, therefore, we are unable to allow those who have over 

3 percent designated into the program. 

Senator VOINOVICH. The law provided—it was up to 10 percent. 

Mr. HEYMAN. I believe that the 3-percent minimum up to 10 percent was the waiver ability unless we put in place a biometric air 

exit. Because we have not put in place biometric air exit, it is now 

back to the 3 percent. 

That being said, we have now done a number of pilots to look at 

air exit, and we are looking at right now, as you said, the substantial costs that it would require to put this in place, the law enforcement interests that we have, particularly for those who we may 

capture leaving the country who are perpetrators of serious crimes, 

and the implications to questions of overstays. 

I am pleased to tell you today that until recently we have had 

a very difficult time looking at the visa overstay data. We have just 

implemented a manual process that has allowed us to get greater 

fidelity into the overstay records, and I can confidently say that all 

of the countries that we have reviewed so far are far under the 2- 

percent overstay that we have looked at. We are going to complete 

that, but I think looking at the overstay data in a much more comprehensive way will provide us additional means for looking at 

Visa Waiver Program—— 

Senator VOINOVICH. Well, the main thing is this—I am leaving 

at the end of this year. If it is needed, let us appropriate the money 

for it. I put $50 million in the Homeland Security appropriations 

bill last year. You did not even ask for it this year, so somebody 

over there must think it is not needed. If it is not needed, let us 

know that it is not needed and what you have in place that you 

173 

think takes care of it without spending this enormous sum of 

money. And if you do that, then we can take it into consideration 

as to whether or not it is required or not required, and we can 

move on with it. 

Mr. HEYMAN. Well, Senator, I would be happy to follow up with 

you. We are, I think, very close to finding a path forward, and we 

will be happy to follow up with you on that. 

Senator VOINOVICH. Thank you. 

Chairman LIEBERMAN [presiding]. Thank you, Senator Voinovich. 

Senator McCain, good morning. 

OPENING STATEMENT OF SENATOR MCCAIN 

Senator MCCAIN. Thank you, Mr. Chairman, and I thank the 

witnesses for being here. 

Mr. Morton, I would like to talk immigration with you and the 

role that ICE has in this effort. I am sure you are aware that 45 

percent of all apprehensions of illegal immigrants in this country 

occur in Arizona. 

Mr. MORTON. I am indeed. 

Senator MCCAIN. Sheriff Dever, who was here yesterday, said 

that law enforcement estimates that they catch about one out of 

every three to five illegal border crossers. Is that in keeping with 

your assumptions? 

Mr. MORTON. Not those exact figures, but there is no question 

that, we estimate that roughly one out of every two people that 

comes to the United States unlawfully comes through Arizona. 

That is the single busiest corridor in terms of illegal immigration. 

Senator MCCAIN. So lets say that this low estimate is right and 

one out of every three are apprehended, that would give you somewhere around 700,000, 800,000 people coming across our border illegally every year. Is that pretty much in keeping with the information that you have? 

Mr. MORTON. I hesitate only because obviously the Border Patrol 

and not ICE is responsible for the apprehensions along the border, 

so I just do not want to steer you wrong on statistics. I deal with 

it more from the macro level. We have an estimate of anywhere between 10.8 and 12 million or more people who are here unlawfully, 

and that Arizona is obviously one of the major corridors for that. 

The number does fluctuate. Obviously one of the questions is how 

much of that is due to enforcement and how much of that is due 

to economic difficulties. But there is no question that Arizona is a 

very busy corridor of illegal immigration. 

Senator MCCAIN. Well, the President’s budget requests $53 million less than 2010 for the identification and removal of criminal 

aliens. Can you explain the Administration’s reasoning for this decrease? 

Mr. MORTON. I am not aware of that reduction. I can only speak 

to that in terms of ICE’s budget. Our budget, we have a very modest increase, and the areas of increase are largely for our Border 

Enforcement Security Teams—we hope to add three—and some additional resources for our detention system. It is largely keeping 

the present enforcement operation we have in place fully funded. 

I will say, Senator McCain, again, from ICE’s perspective, a 

quarter of all of our agents and officers are along the Southwest 

174 

Border. There has never been a time in our history when there 

were more ICE agents or officers, and the same is true for the Border Patrol along the four States. 

Senator MCCAIN. Well, I think you just made a case for an increase in Arizona and across the Southwest Border, because if half 

the illegal immigrants are coming across in Arizona and only onefourth of your agents are deployed there, it would argue for an increase in agents. 

Mr. MORTON. The one-fourth figure is for all four Southwest Border States, and for Immigration and Customs Enforcement, it is 

particularly striking in that we have pronounced responsibilities 

both at the border and in the interior of the United States and in 

44 countries overseas. 

But let me assure you, there is no question that we are focused 

on this issue. We are, as we speak, the primary Federal agency assisting Cochise County with the murder of Mr. Krentz, the rancher. 

I came back from Arizona on Thursday where we announced the 

single largest alien-smuggling operation we have ever conducted in 

our agency’s history, arresting roughly 50 defendants for organized 

alien smuggling on a grand scale through Arizona. 

Senator MCCAIN. I am aware of that, and I wanted to congratulate you, and not only ICE but also the coordination between all 

levels of law enforcement in that operation. And I want to thank 

you for your leadership. 

Can we talk about Operation Streamline for a minute with you? 

The law enforcement people tell me down on the border that the 

incarceration of 15 days, 30 days, 60 days, whatever it is, has had 

a significant effect on reducing the, I guess, maybe recidivism or 

the re-apprehension of individuals crossing the border. Has that 

been your experience? 

Mr. MORTON. Yes, but let me caveat that Operation Streamline 

is a Border Patrol and U.S. Attorney operation. ICE is not directly 

involved in Streamline. I do understand from the Department of 

Justice and the Border Patrol that the rates of apprehension in 

those districts where Streamline is carried out are—— 

Senator MCCAIN. You do the detention, right? 

Mr. MORTON. We do the detention, and we do all the criminal investigation. So the Border Patrol is the inspection and interdiction 

function; we are the Department’s criminal investigators, and we 

carry out the detention function. 

Senator MCCAIN. And do you think it has been an effective program from your observations? 

Mr. MORTON. Again, it is an observation from afar, but I understand that the Border Patrol and the U.S. Attorney view it as having been effective in those areas where it is carried out and that 

the rates of apprehension are reduced in those particular districts. 

Senator MCCAIN. Tell me a little bit about the operation that was 

just conducted in a very effective fashion. Does that also alert you 

to the fact that this human trafficking is really well organized. We 

used to kind of have the vision of a citizen of a country south of 

our border, usually Mexico, wanting to go to the United States and 

work and make their way across the border. Yet it seems to me 

that this is one of the changes, along with the dramatic increase 

in violence—which, I would be very interested in hearing your 

175 

thoughts on. The L.A. Times reported that 22,000 Mexican citizens 

have been killed during President Calderon’s presidency in the last 

3 years. I believe that is what they quote. But, also, maybe you 

could comment on how well organized and how coordinated the 

drug cartels and the human traffickers are and the sophistication 

of their operations. I would be very interested in hearing about 

your view on that. 

Mr. MORTON. You are absolutely correct, Senator. There is a vision of alien smuggling either as a Mom-and-Pop effort or as just 

somebody deciding I am going to make my way to the United 

States and I am going to walk, and I might get some guidance 

along the way, but it is going to be an individual effort. Those images do not match up with today’s human smugglers, and that is 

what our operation in Arizona was all about. 

This is extremely sophisticated. There are loose confederations of 

alien smugglers. It is not just a question of organized criminals 

working in Mexico and the United States. Some of these chains 

stretch all the way to China, and in this particular case, we apprehended a number of Chinese who had come through a many-month 

journey, going through various drop houses and all sorts of different countries, making their way ultimately up to Mexico and 

through. 

What we see is that obviously many of the cartels control the 

routes of passage across the border, and alien smugglers will have 

to coordinate with them for rights of passage. It is organized crime 

in very simple terms. That is how we approach it at ICE. Human 

trafficking is very serious, and we approach it as organized crime, 

and we are going to investigate it and try to root it out wherever 

we can. 

Senator MCCAIN. I know that my time has expired, but could I 

just ask again, how closely intertwined and coordinated are the 

drug cartels and the human smuggling people? It seems to me that 

if they are using the same routes, if they are using the same techniques, they are intertwined and not really separate challenges in 

a way. 

Mr. MORTON. Well, good border enforcement requires aggressive 

investigation of the smuggling of people, money, arms, and drugs. 

And all of those things are quite related; particularly the arms, 

money, and drugs piece really go hand in hand. 

The alien-smuggling chains in our experience are distinct, but 

because they are using many of the same routes and methods, and 

because the drug cartels often control many of the corridors, there 

is a relationship. We often will see movements of aliens being sacrificed for purposes of, avoiding Border Patrol enforcement for a 

larger aim of the drug traffickers getting drugs across the border. 

So there is a relationship. I do not want to say that they are the 

same organizations, but there is a correlation, and that is very 

much the way we treat this. This is fighting organized crime along 

the border, whether it is in the form of alien smuggling, drug trafficking, arms, or money. 

Senator MCCAIN. I thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator McCain. Senator Carper. 

176 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thank you. Welcome, one and all. It is nice to 

see you. Thanks for joining us today, and thanks for your presence 

and responses to our questions. 

The bombing that was attempted on last Christmas Day, was another wake-up call for our law enforcement officials. For our intelligence agencies, it also served as a reminder that we still have 

gaps in the aviation security apparatus and that the enemy around 

the world continues at its efforts to attack us from a lot of different 

directions. 

Without question, we have come a long way since securing our 

homeland since September 11, 2001, but I think we all know we 

have to continue to remain vigilant and to work together at all levels of government. 

I have two questions to ask of you today. The first of those questions revolves around the Visa Waiver Program, which we have discussed at some length here this morning. This program has been 

expanded over the last 5 years, I believe, to include nine additional 

countries, and that means I think people in as many as 35 or 36 

countries can now travel to the United States without a visa. I 

think they can stay here for up to, I am told, as many as 90 days 

for business or for tourism. I believe this program has provided a 

great benefit to our country and to those who visit our country. 

Having said that, we all know that it could also pose a security 

threat by the second and third generation nationals who have been 

radicalized in too many instances and may end up wanting to do 

harm to this country and the people who live here. 

How real is this threat? If it is real, what steps have been taken 

within the program that we are discussing here today to prevent 

the threat from being realized? 

Mr. HEYMAN. Well, thank you, Senator. I believe that first we 

have 36 countries now, and we are very much appreciative of the 

congressional support to this program. 

The security benefits that accrue as a result of some of the 

changes that we have put in place over the last several years, and 

particularly in light of December 25, are ones that I think will 

allow us in the long term to address the kinds of threats that you 

have discussed. 

What we saw on December 25, was an individual who was in 

some sense not known to us, though should have been known to 

us, who traveled through the aviation system and had used effective concealment to deliver his device over Detroit. And the programs that we now have put in place since December 25—beyond 

the Visa Waiver Program to include the Visa Security Programs, 

the Visas Viper recurrent vetting, the watchlisting reviews, and 

within the Department of Homeland Security—the checks that we 

do against watchlists and other databases prior to departure have 

in a real sense improved the security that we have for the traveling 

public in aviation security. 

Beyond that, we are also working internationally with our partners. The Secretary has traveled to four regional conferences to encourage and work with our international partners to improve the 

standards across the globe in terms of screening, in terms of inforVerDate Nov 24 2008 09:31 Oct 05, 2011 Jkt 056838 PO 00000 Frm 00184 Fmt 6601 Sfmt 6601 P:\DOCS\56838.TXT SAFFAIRS PsN: PAT
177 

mation sharing, in terms of capacity building. And we are continuing to work that international effort. 

But in the Visa Waiver Program, the information-sharing arrangements that we are now negotiating with our partners in the 

long term will help us to build the kind of understanding that we 

have prior to departure to assess, as we do right now with 

watchlists and other databases, the security risks of individuals 

traveling to this country. 

Senator CARPER. Thank you. Anyone else want to add a comment 

on that? 

[No response.] 

One other question, if I could. I am a firm believer—I suspect 

that you are, too—in using a layered approach of people and technologies to protect our homeland from our enemies. I believe that 

relying too closely or too narrowly on just one layer over another 

has the potential for opening the doors to future intelligence failures. We are actually seeing some of that already. 

One of the areas that I believe we could do a lot better is with 

respect to training of our screening and consular workforces. I am 

referring to the screeners at our airports and the Foreign Service 

officers who issue American visas at our embassies and consulates 

abroad. 

While investing in high-tech scanning equipment is important, 

these devices have a shelf life, as you know, and will eventually become obsolete. Investing in people to detect fraudulent immigrant 

documents or spotting suspicious passengers is vital to safeguarding our country. 

Could each of you take just a moment to address those concerns 

and, if possible, to offer up to our Committee some steps that your 

agency is taking to improve screening processes? Ms. Jacobs, would 

you like to go first? 

Ms. JACOBS. Yes, sir. Thank you for that question. I think you 

are absolutely right that proper training is crucial. In Consular Affairs, consular officers out doing visas really are the first line of defense in protecting our borders, and it is very important for those 

officers to be properly trained. 

We put all of our new officers through a basic consular training 

program that includes 80 hours of security-related training, fraud 

detection, interviewing techniques, ability to look at documents to 

recognize things that sort of jump out as problems. We even train 

officers in how to detect deception, reading facial expressions. 

We also have other agencies that come over to our Foreign Service Institute to talk to people. Our national security partner agencies’ representatives come over to talk about threats, things to look 

at, red flags. 

So it is there. It has been a very important part of our training 

always, but certainly after September 11, 2001, we are always looking for ways to improve that training. When an officer gets to a 

post, they undergo further training, and for the officers who are 

consular combed, who will stay doing consular work for most of 

their careers, there is an ongoing training program at every stage 

of their career to reinforce what we are doing. 

In fraud prevention, we have come very far. We are using new 

technology. We are using off-the-shelf databases, like LexisNexis, 

178 

and other tools to check information. And now that we are going 

to an online visa process, we will actually get all of the data on our 

applicants in advance of an interview, and it is going to give us a 

chance to actually start data mining, looking at common addresses, 

common phone numbers, other things that should raise red flags 

for us. So that will also be, I think, another very important tool in 

our kit for having officers well trained to recognize fraud and other 

security-related issues. 

Senator CARPER. Thanks very much for that response. Mr. 

Heyman. 

Mr. HEYMAN. Thank you, Senator. I could not agree more. It is 

a principle of Homeland Security that we have to have defense in 

depth, to have layers of defense and not rely on any single solution 

to secure whether it is aviation or other important entities in our 

homeland. 

In terms of aviation security, the layers begin with the travel 

document and the standards that are required to ensure that they 

are not fraudulently obtained or created. An individual must obtain 

that document. Then they may go through a visa process or an authorization process. There are visa security agents, as we have testified to today, as well as Consular Affairs and database checks for 

that layer. 

Once an individual has that permission to travel to the United 

States, the next layer is the pre-departure checks that the Department of Homeland Security can do against passenger name records 

up to 72 hours in advance of a departure to see if there are any 

matches to the No Fly List, the watchlist, or other lists. 

And then when they come to the airport, we have two different 

models. There is the domestic model in the United States which 

the Transportation Security Administration (TSA) of the Department of Homeland Security runs, and then there are the models 

abroad where the Department of Homeland Security does not have 

a role to play per se; security is managed abroad by the local entities there. But at home, we have behavioral detection officers. We 

have the screening, both advanced imaging technologies. We have 

other types of technologies to look at concealment. And then, finally, in-flight security to include air marshals, hardened doors, 

and things of that nature. All of these layers come together to perform aviation security. 

In terms of training, each of the individuals who are on the front 

line there, whether it is a transportation security officer of TSA, 

whether it is a Customs and Border Protection official who is stationed abroad or working here in the United States, or visa securities officers, as Secretary Morton has testified, have not only extensive training but extensive in-field work as part of their training 

procedures. 

One of the things we are looking to do as we look at improving 

international aviation security is the international standards to include training for capacity building, and that is one of the things 

we are seeking to work with the International Civil Aviation Organization (ICAO), through the United Nations, as we work with our 

partners abroad to improve standards around the world. 

179 

Senator CARPER. Thank you. My time has expired. Mr. Chairman, could Mr. Morton have just 30 seconds, just briefly to respond? 

Chairman LIEBERMAN. Yes, of course. Go right ahead. 

Senator CARPER. Very briefly, sir. Thank you. 

Mr. MORTON. Well, I will beat a dead horse a little bit more and 

say that I completely agree with the idea, obviously, of a layered 

defense. 

Very quickly, training is critical. The Act directly requires it of 

ICE in its role through the Visa Security Program. It is one of the 

things that I want to work with the State Department more on, 

and we are very cognizant of—we do not send, as I noted in my 

initial remarks, new recruits overseas to do this. We recognize that 

we are the largest investigator of visa frauds in the country, and 

so we have a great deal of experience with, figuring out if somebody is telling the truth or not to the government. We want to 

bring that experience, not just have training for consular officers, 

but to share what it is we do every day. And, we are in many respects the policer of that system, and we have a lot of expertise and 

thoughts on it. 

Obviously, also in our role of policer of the system, we deal a lot 

with visa overstays. We see what kind of misrepresentations people 

make, patterns. We do this on a fairly large and grand scale. And 

so I am a big believer in not just having the Visa Security Program 

there to identify individual applications, but to help with the training of consular officers and to view this as a team effort. 

Senator CARPER. Good. Thank you all very much for those responses, and thank you, Mr. Chairman, for your generosity. 

Chairman LIEBERMAN. Not at all. Thank you, Senator Carper. It 

was an important question. 

We will do another quick round. I would not call it a lightning 

round, but it will be a short round of 5 minutes each. 

Let me come back just to ask a few more questions about the 

Visa Security Program. First, what is different about the review 

that you do before issuing visas in those 57 high-risk posts that 

you have identified as high risk as opposed to the others? What 

more do you do? 

Ms. JACOBS. Well, where we have VSUs, basically all of the applicants are initially screened by a consular officer. They are run 

through a series of checks to include a check of our Lookout System. We also check their fingerprints against Automated Biometric 

Identification System (IDENT) and Integrated Automated Fingerprint Identification System (IAFIS). If there was any kind of Lookout entry that requires what we call a security advisory opinion, 

sending the case back, that will happen. And so all of those sort 

of initial screenings take place. 

Where we have VSUs, the value-added is that a visa security officer then looks at the application, and if there is, for example, a 

law enforcement entry in the Lookout System, a National Crime 

Information Center (NCIC) hit, they can easily access the information behind that hit. They can also tell sometimes just by where 

people are going or just certain answers to questions because of 

their experience with what happens when people actually come to 

180 

the United States, they are able to go back to the consular officer 

and say, ‘‘You should be asking these additional questions.’’ 

So it is a give-and-take process. It is, if you will, another layer 

to the process during the visa stage. 

Chairman LIEBERMAN. Mr. Morton, why don’t you answer the 

question and I guess in a way focus it from your point of view. 

What is it that a visa security officer working as part of ICE brings 

to that review that the consular officer might not or does not do? 

Mr. MORTON. I think in sort of common parlance, ‘‘what do we 

get from this,’’ we get an ability to kick the tires and in a profound 

way, down to a level of an individual application. And we bring to 

bear an investigator, somebody who has spent their life—and as I 

said, we do not send new recruits, we send experienced people over 

there, typically from our international program. Already they have 

had experience living overseas, speaking the foreign language. And 

you get somebody whose job it is to uncover fraud and misrepresentation, who brings a gut sense as an investigator when something 

is not right, has much quicker access to the databases and to classified information, knows what to do when, there is a little smoke 

here or something does not add up, well, what do you do? Well, you 

are an investigator. That is what you are trained to do. And you 

know, we are going to go down to the courthouse and see whether 

or not you are really married to this person or that person or 

whether you got divorced. We are going to call our colleague in 

New York and say, ‘‘Does it seem odd to you that we would have 

50 visas with the same address on this block being used?’’ 

It is that kind of in-depth analysis and investigation that can be 

brought to bear with people who know what they are doing in that 

area, and it is in no way to suggest that consular officers are not 

quite competent with what they do. It is just recognizing that the 

adjudication process is different than the investigative process. And 

when you can mirror those powers, a lot of the screening can be 

done by the consular officers, but often it is their first or second 

tour, so they are relativley new in the scale of their work, and we 

are bringing some seasoned hands to, again, help kick the tires. 

Chairman LIEBERMAN. Yes, well, that is a very good answer, 

what I thought was the case. The State Department personnel are 

Foreign Service officers, usually junior, very able, as I have met 

them, but not specifically trained—although they are carrying out 

some of these responsibilities in investigation with a focus in this 

case on counterterrorism and homeland security. 

When we remember, in response to the Christmas Day bombing, 

one of the first things to be done was the subjecting of extra measures to those 14 countries. And now that is altered in a much more 

direct and intelligence-driven way. But I am in some sense both interested and encouraged that the list of countries which these two 

Departments, have designated as higher risk is way beyond 14. It 

is 57. I am encouraged by that because obviously we know that the 

Islamist extremist terrorist movement is operating, and others who 

want to threaten our security, operating globally. 

So how did you make the judgment—and just a quick answer— 

about where to extend beyond that list of 14, which in a sense is 

the obvious first place to look? Secretary Morton. 

181 

Mr. MORTON. A lot goes into deciding those posts. Some of it I 

would prefer to give you a straight briefing on, but not in a public 

setting. 

Chairman LIEBERMAN. That is fine. Sure. 

Mr. MORTON. But London is a perfect example. You ordinarily do 

not think of the British being at the top of our list for having to 

worry about whether they are going to fly planes into buildings. On 

the other hand, when you understand the visa-issuing process and 

you realize that London is a place where many people other than 

British nationals are getting visas. Then suddenly you realize that 

it is very important from a national security perspective and needs 

to be on the list of 57, which it is. And so it is those kinds of things, 

looking at the opportunities for even if the nationals of a given 

country have a good record of compliance, is it a vulnerability with 

regard to nationals from countries next door? Are there corruption 

issues? There is a lot that goes into it, and that is how we come 

to 57. 

Chairman LIEBERMAN. Good enough. Thank you. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

In the aftermath of the Abdulmutallab case, there was some confusion over which agency considered itself ultimately responsible 

for revoking of a visa on terrorism grounds. And I remember the 

National Counterterrorism Center Director testifying before us and 

expressing his bafflement at some of the comments that were made 

by the State Department personnel. 

The State Department spokesman, shortly after the Christmas 

Day bombing attempt, said the following: ‘‘It would be up to the 

National Counterterrorism Center to make the determination 

whether to revoke a person’s visa or take other action.’’ 

When asked later by a reporter why the State Department did 

not revoke Abdulmutallab’s visa, the State Department spokesperson said, ‘‘Because it is not our responsibility.’’ 

Secretary Jacobs, what is your reaction to those comments? 

Ms. JACOBS. I believe that the response by the spokesman was 

probably a bit of a shortcut, if you will. I think what he was trying 

to say is that the way the process worked at that time prior to 

Christmas was that names would go into the NCTC, and if the 

NCTC felt that the name or the information met the standards at 

the time for promoting the name over to the Terrorist Screening 

Center watchlist, that needed to happen before we would have revoked the visa. 

I think that is probably what he was trying to say. It did not 

come out exactly that way, I realize. The State Department has the 

authority and responsibility for revoking visas, and we take that 

very seriously, and as I have explained to you, we have new procedures in place now for more expeditious revocation after Christmas 

Day. 

Senator COLLINS. Thank you. 

Mr. Heyman, the Department of Homeland Security also has 

some authority in this area. Section 428 of the Homeland Security 

Act of 2002 provides DHS with broad authority to set visa policy. 

Specifically, it vests in the Secretary the exclusive authority to 

‘‘issue regulations with respect to administer and enforce the provisions of law relating to the functions of consular officers of the 

182 

United States in connection with the granting or refusal of visas.’’ 

It also says that the Secretary has the authority to refuse visas in 

accordance with the law. 

Do you think there is confusion over the role of DHS in this 

area? 

Mr. HEYMAN. In our partnership with the State Department, 

there does not appear to be confusion. As we have testified today, 

there are numerous instances, over 1,000 perhaps, where the Department has made recommendations to refuse or revoke a visa 

that have been readily adapted and responded to by the State Department. Those are recommendations. The Secretary has the authority to make those determinations on her own, though has not 

needed to—— 

Senator COLLINS. It has not been exercised. 

Mr. HEYMAN. Not been exercised, and largely there is a good 

working relationship with the State Department, and we have not 

had a need to do so. And the Abdulmutallab case, had he arrived 

in Detroit, it is likely that we would have noted the derogatory information, gone to secondary, and perhaps made a recommendation 

to the State Department to revoke the visa. 

Senator COLLINS. Do you believe that the Department has the 

authority to establish a visa policy that would require the suspension of all visas held by the individuals in the TIDE database pending further investigation? 

Mr. HEYMAN. The Department has the broad authority to make 

policy on visa refusals or revocations. In the particular example 

that you give, through an interagency process, the government has 

already made a determination that individuals in TIDE are not eligible for terrorist watchlist and individuals—and beyond that, they 

are not on the No Fly and Selectee Lists since they are not even 

a resident in the terrorist watchlist. 

As such, it would be questionable, I think, as to whether their 

visas required revocation. Some reasons that people are in the 

TIDE database, as was noted earlier, is because of poison pen letters or investigations have concluded fragmentary information, I 

am just speculating now. I would not necessarily jump to the conclusion that visas would need to be revoked just because somebody 

was there. 

Senator COLLINS. But my question is not the desirability of the 

policy. It is trying to establish authority. Do you believe under current law that the Secretary would have the legal authority to issue 

regulations requiring such a policy? 

Mr. HEYMAN. I would have to look at it more carefully. She has 

broad authority as stipulated in the Act, and so let me perhaps do 

a little bit more thinking on that and get back to you. 

Senator COLLINS. Thank you. The final comment that I want to 

make concerns an issue that was brought up both by Senator Carper and Senator Voinovich, and that concerns the Visa Waiver Program. I think that it is unacceptable that fewer than half of the 

36 countries currently participating in the Visa Security Program 

are now sharing all the information on dangerous individuals that 

is supposedly required to take advantage of that program. And I 

really think we are going to need to take a harder line on this. 

183 

It was supposed to be a condition of participation, and if countries are not willing to share that information with us, then I do 

not see how we can allow participation in a program that might result in one of their citizens coming to our country without having 

to get a visa and possibly do us harm. 

So my final comment is to urge you to take a far harder line on 

the information-sharing agreements, and if countries are not willing to abide by that and share information with us, then we should 

kick them out of the Visa Waiver Program. 

Mr. HEYMAN. Well, thank you, Senator. I share your interest, 

and these are important agreements that need to be concluded. We 

are, as I had mentioned earlier, focused on concluding these agreements. It is our top priority in the Visa Waiver Program right now. 

We have a number of ongoing negotiations to move forward as we 

speak, and we have a path to conclude all of these no later than 

2012. 

Some of the challenges we face in these arrangements are different legal systems, the ratification systems, perhaps the need for 

assurances on privacy, and we are working carefully through that 

with all of the countries, with, I think, good effect, and I think we 

are on a path hopefully, as you said, to move as fast as we can on 

this and no later than 2012. 

Senator COLLINS. Thank you. It is still troubling to me that we 

are not even halfway there, and so a lot of work remains to be 

done. I know it is very difficult, but we are extending a benefit to 

the citizens of those countries. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Collins. Just to say 

for the record that I agree with you totally. I know this can be diplomatically sensitive because we are dealing in many cases, probably all cases, with countries that are allies and that are supportive of us in other ways. But, the refusal or slow walking in 

sharing information with us is really not acceptable because of the 

higher priority that we have to give to homeland security. So, 

again, we are happy to be cited as breathing down your neck next 

time you—— 

Mr. HEYMAN. So cited, sir. 

Chairman LIEBERMAN. Thank you for this hearing. I appreciate 

very much some of the things that have been done since December 

25. I say, Secretary Jacobs, particularly that you have this, I call 

it, software in place to avoid the problem with the misspelling of 

the name, and that the judgment by a consular officer that somebody may be a terrorist immediately will lead to revocation of a 

visa unless there is some other national security reason for not 

doing that. 

I do want to emphasize that we are very concerned about the 

slowness and incompleteness of the placement of the visa security 

officers in those 57 high-risk posts, and I just want to urge you to 

do it, as we talked about before—and, Senator Collins and I have 

talked, and we are going to take it on ourselves to try to convince 

the Administration. Of course, we could use your help in that budget office, and our colleagues who are appropriators to give you the 

money you need to do that. That probably has as good a return on 

investment as a lot of other things we could do with the money. 

184 

But thanks for what you are doing every day. Thanks for your 

testimony today. We will keep the record of the hearing open for 

15 days for additional statements or questions. 

The hearing is adjourned. 

[Whereupon, at 12 Noon, the Committee was adjourned.] 

(185) 

A P P E N D I X 


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Æ 


56838.376