1

HEARING OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE 

UNITED STATES 

SUBJECT: SIXTH PUBLIC HEARING 

CHAIRED BY: THOMAS H. KEAN 

WITNESSES PANEL I: INTELLIGENCE COLLECTIONS WITHIN THE UNITED 

STATES; 

LARRY D. THOMPSON, SENIOR FELLOW, THE BROOKINGS INSTITUTION, AND 

FORMER DEPUTY ATTORNEY GENERAL OF THE UNITED STATES; 

STEPHEN J. SCHULHOFER, PROFESSOR OF LAW, NEW YORK UNIVERSITY; 

PANEL II: PROTECTING PRIVACY, PREVENTING TERRORISM; 

JUDITH A. MILLER, PARTNER, WILLIAMS & CONNOLLY, AND FORMER 

GENERAL COUNSEL, DEPARTMENT OF DEFENSE; 

STEWARD A. BAKER, PARTNER, STEPTOE & JOHNSON, AND FORMER GENERAL 

COUNSEL, NATIONAL SECURITY AGENCY; 

MARC ROTENBERG, EXECUTIVE DIRECTOR, ELECTRONIC PRIVACY 

INFORMATION CENTER; 

PANEL III: PREVENTIVE DETENTION: USE OF IMMIGRATION LAWS AND 

ENEMY COMBATANT DESIGNATIONS TO COMBAT TERRORISM; 

JAN TING, PROFESSOR OF LAW, TEMPLE UNIVERSITY BEASLEY SCHOOL OF 

LAW, AND FORMER ASSISTANT COMMISSIONER FOR REFUGEES, ASYLUM AND 

PAROLE, IMMIGRATION AND NATURALIZATION SERVICE; 

KHALED MEDHAT ABOU EL FADL, VISITING PROFESSOR, YALE LAW SCHOOL, 

AND PROFESSOR, DISTINGUISHED FELLOW IN ISLAMIC LAW, UCLA SCHOOL 

OF LAW; 

DAVID MARTIN, WARNER-BOOKER DISTINGUISHED PROFESSOR OF 

INTERNATIONAL LAW, UNIVERSITY OF VIRGINIA LAW SCHOOL, AND FORMER 

GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE; 

PANEL IV: GOVERNMENT ORGANIZATION AND DOMESTIC INTELLIGENCE; 

WILLIAM P. BARR, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, 

VERIZON COMMUNICATIONS, AND FORMER ATTORNEY GENERAL OF THE UNITED 

STATES; 

JOHN J. HAMRE, PRESIDENT AND CHIEF EXECUTIVE OFFICER, CENTER FOR 

STRATEGIC AND INTERNATIONAL STUDIES, AND FORMER DEPUTY SECRETARY 

OF DEFENSE; 

JOHN MACGAFFIN, DIRECTOR, AKE LLC, AND FORMER ASSOCIATE DEPUTY 

DIRECTOR FOR OPERATIONS, CENTRAL INTELLIGENCE AGENCY 
2

LOCATION: 253 RUSSELL SENATE OFFICE BUILDING, WASHINGTON, D.C. 

TIME: 9:00 A.M. EST 

DATE: MONDAY, DECEMBER 8, 2003 

 THOMAS H. KEAN: As Chairman of the National Commission on 

Terrorist Attacks Upon the United States, I'd like to convene our 

sixth public hearing. We've taken as the topic of today's 

hearing, "Security and Liberty." I guess its very title suggests 

the myriad of issues we'll be examining today. In one or more 

respects, all deal with civil liberties, how they can be 

preserved while our nation seeks to enhance the security of its 

people in the aftermath of the most heinous attacks ever launched 

against our country by a band of international terrorists. 

 In some respects, a debate that continues to surround the 

PATRIOT Act, use of immigration laws and other measures is not 

terribly surprising. Historians that are either with us in the 

audience today or watching us on television would remind us that 

questions not unlike those we'll be hearing today have come up 

each time our nation has gone to war. Legal scholars can cite an 

impressive stack of case law that grew out of them. They can 

also cite some obvious infractions of civil liberties, the 

suspension of habeas corpus, the interment of Japanese citizens. 

These are things our society as a whole grew to regret. 

 At the same time, as my colleague Lee Hamilton, Vice Chair, 

has reminded us, the unprecedented nature of the attacks on 

September 11th produced a strong response. We want to know more 

about that response, how well current policies are working, and 

what steps are needed to protect our cherished liberties as well 

as to protect our nation. We've assembled four distinguished 

panels to help us do that. 

 The focus of the first will be intelligence collection 

within the United States. The theme of the second panel will be 

privacy protection and how this can be achieved while 

discouraging and preventing terrorism. These need not be 

incompatible goals. Our commissioners are particularly eager to 

hear what our guests have to say as to how we as a nation can 

achieve both goals simultaneously. 

 Our third panel will examine what is going under the heading 

of preventive detention. In particular, witnesses will assess 

how immigration laws and enemy combatant designations have been 

used in this war against terrorism. In addition to making 

recommendations on all of these important issues, the Commission 

has been charged to consider whether the domestic intelligence 

function should remain within the FBI. As we proceed with our 

investigation, we'll be asking ourselves whether the FBI should 
3

perform this role or whether a new entity should be established 

to perform collection, analysis and dissemination of intelligence 

within the United States, primarily to prevent, curtail and 

combat terrorism. 

 As you know, opinions differ widely on this. In our recent 

hearing, we heard some of these different views from three 

universally acknowledged experts in this field and we'll do so 

again today with our final panel. 

 Before we begin, just to do a small amount of housekeeping, 

we are operating today under a very, very tight schedule. We'll 

be hearing from a dozen witnesses. In order to be fair to each 

of them, I'm going to give appropriate attention to the concerns 

they raise and allow for free-flowing discussion. I ask each of 

our panelists to abide by the five minute timeframe that we've 

imposed. I request also that they reserve additional comments 

they care to make hopefully for the question period. They may 

also submit additional materials to the record, which we'll hold 

open for an additional 10 days. 

 In exchange for our panelists' advance cooperation, I hope 

we can ask our commissioners to keep our questions short and to 

the point and to keep their eyes on the clock as well. Upon the 

conclusion of today's hearing, Congressman Hamilton and I will be 

available, as always, for questions. 

 We will now hear from our first panel, offering their views 

on intelligence collection within the United States, Larry 

Thompson, senior follow, the Brookings Institute, and former 

deputy attorney general of the United States, and Steven J. 

Schulhofer, professor of law, New York University. If we could 

begin with Mr. Thompson. 

 LARRY D. THOMPSON: Thank you. Good morning. Thank you for 

asking me to appear before the Commission this morning. As the 

Chairman has said, I'll try to abide by the five minute 

limitation. I have prepared written testimony but this morning 

what I would like to do is briefly highlight three points that I 

made in my written testimony and then expand a bit with respect 

to one of the points. 

 The subject of this morning's panel is intelligence 

collection. Intelligence collection is, however, as I point out 

in my written testimony, only the first step that we need to be 

concerned about in combating terrorism. Once you collect 

information, Mr. Chairman, you need to share it and disseminate 

it. Those are very important steps that we need to take. Now, 

even before the horrific events of September 11, I witnessed 

first hand, as the deputy attorney general, some of the problems 

that we in the department had with sharing information, even in 

the department, sharing information with intelligence officials 

on one hand of the FBI and with our prosecutors on the other hand 
4

in the Criminal Division and in at least the Southern District of 

New York U.S. Attorney's Office. 

 And these problems caused me on August the 6th of 2001 to 

write a memo to the head of the FBI, to the head of the Criminal 

Division and the head of our Office of Intelligence and Policy 

Review, OIPR. And I reminded these gentlemen of the need for the 

FBI intelligence officials to notify the Department's prosecutors 

as soon as possible of the existence of the possibility of 

federal criminal law violations during the course of an 

intelligence or counterterrorism investigation. And, Mr. 

Chairman, we still had problems with that issue up to the 

horrific events of 9/11. 

 Now, with the help of Congress, we in this country have made 

great strides toward getting more tools and resources in our 

efforts to combat terrorism. Many of the new resources or tools 

are embodied in laws, especially, as the Chairman mentioned, the 

PATRIOT Act. I'd like to just mention one provision of the 

PATRIOT Act this morning, highlight one provision that I think is 

extremely important, and that is section 218. Section 218 of the 

PATRIOT Act has allowed the FBI and the Department of Justice 

prosecutors to expand the nature of the investigation of 

terrorist activity, especially as it relates to electronic 

surveillance activities and search activities. 

 As you know, section 218 provides that FISA investigations, 

investigations under the Foreign Intelligence Surveillance Act, 

can be utilized when foreign intelligence is a significant 

purpose of the investigation, as opposed to the old primary 

purpose of the investigation. This is a very important 

distinction and this is a very important provision. 

 I would like to point out to the Commission this morning 

that section 218 of the PATRIOT Act, as well as 15 other 

provisions of the PATRIOT Act will sunset, cease to be in effect, 

as of December, I believe, 31, 2005. December 2005 at least. We 

cannot afford to let these important provisions of the PATRIOT 

Act sunset without, I think, further reasonable, dispassionate 

and informed discussion as a country as to how important these 

provisions are to our anti-terrorism efforts. 

 I mentioned in my written testimony three ideas that I 

believe we can focus on that can help us in our fight against 

terrorism, but this morning briefly I would like to focus and 

highlight one of them. We need to clarify the scope of some of 

the court opinions as it relates to the statute dealing with the 

material support of terrorism. This statute has been an 

invaluable tool in our war against terrorism and it works. 

 Let me quote to you, members of the Commission, a 

conversation that was unsealed in court recently that was between 

Mr. Jeffrey Battle, an individual in Portland, Oregon who was 

accused of participating in terrorist activity and an FBI 
5

informant. And Mr. Battle explained why his terrorism activities 

were not working as well as he thought he could be, and let me 

quote to you what he said. "Because we don't have support. 

Everybody's scared to give up money to help us. You know what 

I'm saying? Because that law that Bush wrote about, you know, 

supporting terrorism, whatever, the whole thing. Everybody's 

scared. He made a law that says, for instance, if I left out of 

the country and I fought, right, but I wasn't able to afford a 

ticket but you bought my plane ticket, you gave me the money to 

do it. By me going and me fighting and doing that they can, by 

this new law, they can come and take you and put you in jail." 

 So the terrorists are getting the message. This is a very 

important statute, it needs to be clarified. Representative Mark 

Green of Wisconsin has introduced legislation to do this and I 

would hope that the Commission would review this and study it and 

support that proposed legislation. 

 I hope -- I've tried to -- I hope I've had fidelity to my 

promise to stick to five minutes, and after the professor's 

testimony I would be pleased to try to answer any questions that 

the members of the Commission might have. 

 MR. KEAN: Thank you very much. 

 Dr. Schulhofer. 

 STEPHEN J. SCHULHOFER: Mr. Chairman, thank you very much. 

Commissioners, thank you for this opportunity to contribute to 

your work. I want to stress first that the legal issues are far 

less important than the public generally thinks. 

 After 9/11, legal experts quickly concluded that we needed 

to strengthen the government's intelligence gathering authority, 

that we needed to shift the balance, as the saying goes, shift 

the balance between liberty and security. But legal rules are 

largely irrelevant at the stages where our intelligence problems 

have been the greatest, and that includes sharing information, as 

Larry Thompson just said, coordination, translation, analysis and 

delivery. Even at the initial stage of gathering the 

intelligence, our capabilities are largely determined by agency 

culture, by technical and human resources. Again, all areas 

where our deficits have been enormous. 

 So under these circumstances, the preoccupation with 

questions with legal authority can be misleading and dangerous. 

Obviously the legal problems should be corrected. My point isn't 

to question their relevance, but we have to keep our priorities 

straight. The really grave weaknesses of our intelligence 

process can't be fixed by passing more laws. But if we focus so 

much on legal issues, as we have repeatedly since 9/11, we're 

inevitably going to be diverted from problems that matter much, 

much more. 
6

 Now, looking specifically to the situation pre-9/11, the 

government's legal authority was strong. There were 

imperfections, but the record is clear that the legal 

imperfections were not to blame for the failure to prevent the 

attacks. We had severe human budgetary and organizational 

deficits that prevented our law enforcement and intelligence 

communities from using their legal powers effectively. The 

Moussaoui fiasco in August of '01 was a particularly clear 

example of that. And there's no reason to believe that 

additional legal authority would have been used to any greater 

advantage. 

 For example, DOJ documents make clear that at least by April 

of 2000, April of 2000, department officials were aware of a 

pattern of FBI legal mistakes, and specifically FISA mistakes by 

the UBL Unit. It's not clear what efforts were made to correct 

those deficiencies, either in the last half of 2000 or in the 

first half of 2001, but whatever the explanation, it's clear that 

by the summer of '01, we had many bright red warning lights 

flashing, clear, at least in retrospect. And it's our 

deficiencies in organization, in resources and in priorities that 

cost us whatever chances we might have had to abort the plot. 

 Now, turning to the future, I've developed several ideas in 

my written testimony but I'd like to focus quickly on five 

conclusions. First, overall, the government currently has 

sufficient legal tools but it remains sorely lacking in the nonlegal capabilities needed to deploy these tools effectively. 

Second, more than a dozen legal initiatives since 9/11 are 

demonstrably not justified as a response to September 11. They 

impair privacy and they impair freedom, but they are completely 

irrelevant to fighting terrorism. Examples include parts of the 

new sneak and peak search powers and major parts of the new FISA 

powers, because these parts are available for use in 

investigations that are completely unrelated to terrorism. 

 Now, thirdly, many of the new powers are relevant to 

fighting terrorism, but they are so over-broad that they actually 

undermine our security. Steps have been taken to restrict public 

information, to restrict access to the courts, and to reduce 

judicial oversight of searches and surveillance. The common 

thread that runs through these measures is the erosion, and in 

many instances, the complete obliteration of traditional checks 

and balances, reducing accountability to the courts, to the 

public, to the press and even to Congress. 

 Now, when I've just said that, that might sound a bit 

critical, so I want to be clear that this is simply a 

description, and I think an uncontroversial description of what 

has gone on. The Justice Department acknowledges this and the 

Justice Department has publicly defended these steps as 

appropriate and necessary in our present circumstances. But the 

absence of effective systems of accountability is a recipe for 
7

wasted effort, misdirected resources and bad mistakes. Does not 

help our security. 

 Fourthly, our security depends on building confidence around 

the world that America exercises its power with restraint and 

with respect for the rule of law, but our present policies of 

secrecy and unchecked law enforcement power are fueling 

alienation and mistrust. So we're purchasing short-term gains 

and usually slender gains at best. We're purchasing them at the 

price of fostering lasting animosity among the very people here 

and abroad whose help we need most if we are to break the cycle 

of terrorist violence. 

 An example is the so-called enemy combatants’ power, and I 

gather that you have a section to focus on that. But this is 

particularly central to the idea of accountability. The 

Administration's claim of power to seize a U.S. citizen here in 

the United States and hold the person indefinitely with no access 

to the courts or even to his own family, no other democratic 

country, including Israel, who has at least as serious problems 

as our own -- no other country would detain an alleged enemy 

combatant for as long as 18 days, much less for the 18 months 

that Jose Padilla has been held incommunicado. 

 Finally, to maximize our security and to preserve 

fundamental freedoms, we have to act quickly in two areas that I 

would urge you to focus on. First, we must restore effective 

checks and balances. Secondly, we have to make the commitment to 

provide a substantial infusion of resources. We need resources 

to support the intelligence process, we need resources to 

facilitate accountability, and we need resources to protect soft 

targets on the ground. Without protective measures, too many of 

our high priority targets will be vulnerable, no matter how good 

our intelligence may be. 

 One lesson of the two most recent attacks in Saudi Arabia is 

that even with unlimited government powers of surveillance and 

interrogation, those powers aren't much help if important targets 

are not well-protected. On both of those occasions, intelligence 

officials warned that an attack was imminent, but without 

adequate defense on the ground, the plot succeeded anyway. So 

here at home we are nowhere near what's needed to protect key 

targets like ports, chemical plants and our major weapons 

facilities. 

 Now, doing what's needed in those areas will be expensive, 

but if we're willing to pay that price, we can be reasonably safe 

and reasonably free. If we're not willing to pay that price, we 

cannot be safe, no matter how much of our liberty we're willing 

to surrender. Thank you. 

 MR. KEAN: Thank you very much, Doctor. 

 Commissioner Fielding. 
8

 FRED F. FIELDING: Thank you. How's that? Thank you all 

very much for your testimony. The purpose of this hearing today 

and the theme of it, if you will, is security and liberty. And I 

would first like to thank you for your contribution to that 

debate. This is obviously something that's one of the most 

important deliberations that we're going to have to deal with. 

And also while I'm at the thanking, thank you both for your years 

of public service and for your contributions to not only the 

profession of the law but also for the administration of justice. 

We're all very grateful that you're here, we're sorry that 

Professor Heymann can't be here. I had a series of questions I 

was curious to hear him in the debate on his book, but we'll 

perhaps have that for another day. 

 It's the juxtaposition of the concepts of security and 

liberty that are the major focus today and while we ponder which 

recommendations for future actions we have to take and what we 

want to recommend to the leaders of the nation and to the 

citizens of this country. And I hope it goes without saying that 

when we focus on the horrible acts of 9/11 that we must be 

careful that our anger doesn't lead us to overreaction and that 

our fear of future plots doesn't cloud our judgment as to the 

measures that are really necessary to protect and prevent any 

such future acts of terrorism. We must be aware and we have to 

all collectively, both witnesses and us, be sure that our 

recommendations to provide security are consistent with the need 

to balance and preserve the elements of liberty, which are really 

the bulwark of our governmental system. It would be horrible if 

we don't do that, and then the terrorists would have a second 

victory that would be far beyond their wildest notions of 

success. 

 So with that in mind, I've got a few questions I'd like to 

ask you. You know, at the end of the day our job is to make 

recommendations, and in trying to formulate this, it's why we are 

so grateful that you're all here. I've got a few areas of 

questioning that I'd like to pursue, and then in deference to 

time, I will turn it over to my colleague, Tim Roemer, and I must 

tell you that also my other colleagues all have questions they'd 

like to ask you. So I'll proceed with just a few. 

 I'd like to start with you, Larry Thompson, just because you 

had just discussed changing the law and maybe refining or -- the 

value of redefinition of the law under the PATRIOT Act. I think, 

as I recall, there's a recent Ninth Circuit decision on this, but 

there had been some concern about the application of material 

support law, especially to individuals who contribute to 

organizations and are unaware that the money may be used or has 

been used for terrorist activities. And I would really 

appreciate any guidance you can give us to as to whether you 

think this is a significant problem, and if so, how we might be 

able to rectify it. And, Professor, I'd like you to also comment 

on that as well. 
9

 MR. THOMPSON: Yes, Mr. Fielding, you referenced the Ninth 

Circuit case, and if I can recall that case held that certain 

parts of the material support statute were unconstitutionally 

vague, especially as it related to providing one's own services, 

one's own persona, if you will, to participating in, for example, 

a terrorist training camp. And the legislation that I referenced 

in my written testimony, my written statement, and what I 

mentioned briefly this morning would clarify that to make it 

clear that if you go and participate in a terrorist training camp 

and an activity that clearly provides material support to 

terrorism -- to your point about the need to make certain that we 

do not change the fundamental character of this country as we 

deal with terrorism, as we -- as Congress has passed more laws to 

give the government better tools to fight terrorism, I agree with 

that. 

 And with respect to the PATRIOT Act, I recall reading just 

recently some comments by Senator Dianne Feinstein in which she 

said there's been a great deal of concern and angst and 

misinformation about the PATRIOT Act. She said that she called 

the ACLU's office and asked the ACLU to provide her of any 

instance of an abuse by the Department of Justice of the PATRIOT 

Act as it has been recently passed and implemented by the 

Department of Justice. And the ACLU told her they were not aware 

of any abuse, any instance of the law being misapplied. And the 

point I'm making here is that the important electronic 

surveillance and search provisions of the PATRIOT Act are subject 

to judicial review, they're subject to judicial scrutiny. And no 

lawyer will sacrifice or jeopardize his or her career by making 

false statements and affidavits in support of search warrants, in 

support of applications for electronic review. I think that's 

very important and I think it's needed. But the point is, that 

with respect to the PATRIOT Act, I believe that there has been a 

great deal of misinformation. 

The Act has not been discussed in the dispassionate and 

reasonable and informed manner that I think it's needed to be 

discussed. But most importantly is that some very important 

provisions of that act, especially section 218 which has allowed 

the government to expand its coverage of suspected terrorist 

activity, subject to judicial approval. That provision is going 

to sunset and I think it would be a terrible mistake to allow 

that provision to sunset. 

 MR. FIELDING: Thank you. 

 Professor? 

 MR. SCHULHOFER: Thank you. First of all, specifically on 

the material support statute, I think that no one questions the 

importance of cutting off material support to terrorist 

organizations. The problem arises when people who may have 

inadvertently given material support find themselves at the 
10

bottom of a ton of bricks because, having given material support, 

they're treated like the first assistant to Osama bin Laden and 

facing a sentence of life imprisonment. 

 So what we need to do with the material support statute is 

to be sure that these very, very severe penalties are targeted 

and limited by law to people who have knowingly given material 

support and that people who have inadvertently given material 

support are either subject to very modest penalties or, I believe 

in the case of protected First Amendment activities, should not 

be subject to any penalties at all. 

 The flow of the money can be cut off by the government 

itself in targeting those charities which have a mixture of 

terrorist and legitimate activity. The government can target 

that without treating the inadvertent contributors as the worst 

criminals that are out there. That would be number one. Now, I 

do have a number of disagreements with my good colleague here, 

and it may be that I disagree with the ACLU because I do think 

there are some significant problems with the PATRIOT Act. 

 Number one, I think it's true that we're not aware of much 

because so much secrecy surrounds the way that PATRIOT Act 

provisions have been applied. So I would have to say as well 

that many of the things concern me. I can't give you specific 

example because the Justice Department has not told us and has 

not told the congressional oversight committees either how many 

of these provisions are being applied. An example -- something 

that was an example was section 215 which gives the Justice 

Department access to business records and non-business records, 

including records, membership records of religious organizations 

-- library borrowing records has been the one that's been most 

controversial. There's been a big hullabaloo about that and the 

Justice Department for many months refused to say how often it 

was being used. Finally they revealed that it had not been used 

at all. 

 Well, so I guess one could say that it's not an abuse, but I 

think the fact that it hasn't been used for more than two years 

suggests that it's not so necessary and that the chilling effect 

a provision like that inevitably has probably outweighs the 

benefits. More broadly, and I may be going beyond your question 

and reflecting the comments of my good friend here, more broadly 

I believe that there are -- number one, there are instances where 

we have to balance. I think it's quite true that there are 

instances where there is a trade off, where we may, at least from 

one perspective, be sacrificing enormously important liberties 

for the very long term. This is a war likely to last for much 

longer than any other. Sacrificing very central liberties for a 

very tangential, speculative game. That is balancing. 

 More often it seems to me the choice is simply a false 

choice. That we don't necessarily need to give up liberty to get 

security. And in fact I think the assumption itself is very 
11

misleading, because I think the public tends to assume that if we 

are giving up liberty, then we're getting security. People take 

that for granted and because that so often that isn't the case, 

it's an assumption that's actually quite dangerous. I think it's 

understandable that people have these intuitions, and I think 

it's understandable they have the preference to be secure at any 

price. I myself live and work in lower Manhattan, and I feel 

that intuition, I believe, as strongly as anyone. But most often 

it's a false choice. 

 I think an example, just to give one, accountability 

measures have been a source of great frustration to the Justice 

Department because they take time, they take paperwork, they're a 

distraction, or they appear to be a distraction. And the Justice 

Department has often said we need to simplify and short circuit 

these checks and balances so that our agents can devote 

themselves to investigative work on the ground. But the solution 

to that is not to sacrifice the rule of law so that we can free 

our personnel for field work -- that's the seeming dilemma 

between liberty and security. But the simple solution is simply 

to provide sufficient resources so that we have enough agents and 

enough time to allow for accountability. 

 Israel, for example, faces at least as serious threats and 

at least as severe resource constraints as we do. But very 

recently their supreme court confronted exactly this issue and 

they said that a shortage of personnel doesn't justify curtailing 

checks and balances. What they said was when there are emergency 

conditions that demand a large scale deployment of security 

forces, then by the same token, the government has to devote 

comparable effort and resources to preserving accountability. 

 So that would be one of, I believe, many examples where this 

choice becomes a false choice. And I think protecting soft 

targets would be another example of where we can be both free and 

secure if we're willing to devote resources. 

 MR. FIELDING: Thank you very much. I trust that the 

headline tomorrow will not be that you disagree with the ACLU. 

But in regard to the PATRIOT Act, this is obviously something 

that we're going to have to deal with in some way in our report. 

And it's also very clear that this is a very volatile issue and 

one that's subject to extreme debate. I would really appreciate 

your comments, both of your comments, as to how we should address 

this. I know that Mr. Thompson -- I believe about a month ago 

you made a suggestion in a speech that maybe there should be a 

commission appointed to review this. I guess we all have our 

views on commissions these days, but that certainly would be one 

alternative. But as we address this, we would appreciate your 

guidance as to how we should address it. 

 We obviously can't be in a position where the Commission 

votes six to four to repeal 218 and seven to three to do 
12

something. So we need a mechanism. So could I draw upon your 

experiences and your judgment on that, please? 

 MR. THOMPSON: That's a very important question and it's one 

that I'm struggling with as I am now a private citizen and am out 

of government and have to interact with fellow citizens about 

what the country is doing in responding to the terrorist attacks 

and talking about the PATRIOT Act. And the one thing that is 

frustrating, and the professor mentioned accountability. I don't 

know how more accountable the Department of Justice lawyers and 

FBI agents can be other than under oath signing affidavits that 

there is probable cause to conduct a search, that there is 

probable cause to believe that an individual's engaged in an 

international terrorist activity and therefore obtaining an 

application for electronic surveillance under the FISA statute. 

 I don't know what additional accountability you can have. 

That's the traditional way to be accountable in our criminal 

justice system. That's the way prosecutors and agents have been 

accountable to society for years. But the point is, we have a 

great deal of suspicion out there about the PATRIOT Act, we have 

a great deal of, I think, misinformation. And, Mr. Fielding, 

what I think is critically important, and what I hope this 

commission would give us advice and counsel on, is that we cannot 

as a country allow at least some of the very important provisions 

of the PATRIOT Act to sunset without a greater, more reasoned, 

less political and more informed discussion as to why we need 

them in our war against terrorism. 

 And I agree with the professor, I do think that we have to 

have a national consensus, if you will, as to what the government 

is doing, and people need to be comfortable that we're going to 

pursue -- the government is going to pursue its important public 

safety and national security measures in a fair and impartial 

way. That's important. But what is happening with respect to 

the PATRIOT Act and the debate that we're having I'm very 

frustrated about because it's a debate that's permeated with a 

lot of misinformation, sometimes false information. And I did 

suggest that we have a commission of legal scholars, 

practitioners in the national security and criminal enforcement 

area to study the provisions of the PATRIOT Act that are going to 

sunset. And if we're going to have something like that, it 

probably would be better not to have it in 2004 or it would be 

subject to some of the political considerations that are obvious. 

But it needs to be ready to go after the election so that 

Congress can get the benefit of a dispassionate, reasoned and 

informed advice as to the efficacy of some of the provisions of 

the PATRIOT Act. 

 Again, I personally would support all of the provisions that 

are scheduled to be sunsetted to continue, but I think that's 

something that we need to look at very carefully. And certainly 

provisions like 218 that are so important to our anti-terrorism 
13

efforts, cannot afford to be allowed to sunset without the kind 

of discussion that I'm talking about. 

 MR. FIELDING: Thank you. 

 Professor? 

 MR. SCHULHOFER: Yes. I think on this subject there's 

probably far more agreement than disagreement between the two of 

us. Number one, I think it would be wonderful if we could take 

that debate out of politics or at least to a lesser -- turn down 

the political temperature on that debate. And if a commission or 

a panel, perhaps delegated by the judiciary committees of the 

Congress, to develop a report would be a way of perhaps lowering 

the political temperature a little bit, I think it would be very 

constructive. 

 On this I agree completely. There's an enormous amount of 

misinformation. I think the issue has been overly politicized on 

both sides. The ACLU, I think, has exaggerated some of the 

problems. I think on the other side the Justice Department has, 

to some extent, exaggerated the benefits. I'm surprised when, 

for example, the changes -- proposed legislation to -- under the 

national security letters. There is an important need there to 

expand the definition of what is a financial institution for 

purposes of national security letters, and bring that up to date, 

that's fine. But that proposal was announced by the President of 

the United States in a major address. That seems to me, 

surprising. I don't understand why something of that technical 

nature should be elevated to the level of a politically salient 

kind of issue. This is where I think we could all benefit by 

lowering the tone a bit. 

 There is misinformation, but I would highlight on the 

substance. First of all, there are many provisions of the 

PATRIOT Act that give the Justice Department powers to be used in 

investigations that are entirely unrelated to terrorism. And the 

Justice Department's report on the PATRIOT Act actually 

acknowledges this and brags about it. I guess you could say 

identifies a number of investigations including an extortion 

inquiry, a gambling, a narcotics inquiry, where new PATRIOT Act 

powers were used in a conventional criminal investigation. Now, 

maybe there's a case to be made for that, but if there is we 

should take it out of the debate about terrorism and make the 

case a free-standing case on its own terms why the sneak-and-peek 

search powers and several of these other powers should be used 

for conventional law enforcement. 

 With respect to section 218, I agree that some change in the 

wall and some change in the significant purpose requirement is 

appropriate for terrorism investigations. I do not agree that 

those changes are appropriate for conventional criminal law 

enforcement, and the fact is that the PATRIOT Act expansion of 

FISA powers is now available to the Justice Department for any 
14

criminal investigation. In fact, when the primary purpose is to 

investigate prostitution in New Orleans, or gambling in Montana, 

the FISA provisions can be used as long as the very broad 

conception of foreign intelligence -- which as I believe the 

commission knows, covers a very large waterfront unrelated to 

terrorism and even unrelated to hostile foreign powers, those are 

there. So that's an example. 

 Larry Thompson, I think appropriately, suggested that we 

should try to be specific about where more accountability would 

be appropriate. Without extending my answer I would just give a 

couple of examples because I think it's fair to want to be 

concrete about that. The National Security Letters of course 

involve affidavits but they bypass the courts. A number of the 

administrative subpoena provisions bypass the courts, the demands 

for documentary evidence under FISA have much more limited 

judicial oversight than we would conventionally require outside 

of the foreign intelligence area. 

 So anything that's FISA is much less accountability. 

There's some accountability, but it's much less than we would 

traditionally require. FISA is exceptional. It's an exception 

to our normal regime, and we should do it where it's appropriate 

but not -- but we should be careful about whether it is 

appropriate or not, because that's a dilution. And the last one 

I would mention that's not a PATRIOT Act example, but the enemy 

combatants again, there is no accountability there. None, 

absolutely none. 

 The concept of the rule of law disappears completely if you 

accept the Administration's position that they can seize a U.S. 

citizen right here in the United States, and that by the 

President's determination that the person is an enemy combatant 

cuts off all access to the courts, to the press, to counsel, to 

anything whatsoever. That is a substitution of the judgment of 

one person -- to be sure it's our commander and chief, but it is 

nonetheless, it's the judgment of one person without any outside 

accountability. That's one I think that sorely needs to be 

rectified. 

 MR. FIELDING: Okay, thank you. Let me just ask one final 

question of both of you, and I'm going to switch gears and you 

can put your prepared text down, because you have expertise in 

this area. One of the major problems that we're going to have to 

decide at the end of the day is whether we should recommend a 

change in our domestic intelligence gathering. Some of the 

concepts have been to have an MI5 type of an entity or something 

like that. If you could each give us your views on that 

succinctly, I'd appreciate it. 

 Mr. Thompson? 

 MR. THOMPSON: Yes, Mr. Fielding, I think it would be a 

terrible mistake to create a separate domestic intelligence 
15

agency, if you will, if I understood your question, to indicate 

that that's what you proposed to do? 

 MR. FIELDING: That's correct, thank you. 

 MR. THOMPSON: And I explained more reasons more fully in 

the written statement that I prepared, but what we have here in 

terms of how we are going to deal with terrorist activity in this 

country, and this is a response too to something that the 

professor said, is that you need to have an integration of your 

intelligence investigative activity, your counterterrorism 

investigative activity with your prosecutors. They need to be 

talking to each other. You cannot have FBI counterterrorism 

agents pursuing an investigation, not talking to the prosecutors 

and not knowing what available criminal statutes, and they do not 

have to be the material support statute, it may be some other 

kind of statute. 

 But what kind of available criminal statutes are out there 

that when the decision is made that this person has gone too far 

and that we've exhausted our intelligence capabilities, we need 

to take him off the streets? And what we were having before is 

that because of lots of reasons, and because of lots of walls, 

there was no integration or there was not enough integration in 

our efforts. And so our counterterrorism agents were not talking 

to our prosecutors sometimes because they were trying to hide 

information improperly, sometimes because they were afraid to do 

so, and you need to have this integration. 

 We need to have section 218 help bring the walls down. I 

would respectfully submit that the creation of a new agency would 

bring the walls back up. I visited the United Kingdom and I've 

talked to officials at MI5. They have a much different legal 

system and what has developed over there is appropriate for their 

system. There are only 40 some-odd different law enforcement 

agencies for the MI5 to deal with here. We have thousands of 

different agencies. The FBI is undertaking a restructuring that 

I think is going a long way toward emphasizing intelligence, 

emphasizing greater analytical support, so I would say it would 

be a big mistake to do that. 

 MR. FIELDING: Thank you. 

 Professor? 

 MR. SCHULHOFER: Yes. On this subject, I'm afraid, I have 

more questions than answers. I find it a very, very difficult 

and troubling issue. I agree that we have to be very careful not 

to create more walls and more barriers. Most of the barriers are 

cultural and organizational rather than legal. And nonetheless, 

if you create a different agency, you run the risk of exactly 

what Larry Thompson just described. The problem, I think, with 

the FBI is that because it has had a traditional law enforcement 
16

focus, its orientation and training and perspective on problems 

is different from the intelligence gathering function. 

 FBI agents are excellent at building a provable case and 

sensitivity to evidence that will be admissible in court. It's a 

different perspective and I'm not sure whether we can turn that 

ship around and create a new culture within the FBI. There are 

also, I think, bureaucratic imperatives here in Washington that, 

even if we knew what the ideal solution was, I'm not sure that we 

could get the sufficient political momentum to get people on 

board for it. One of the proposals that I've seen which I think 

has some attractiveness is to create within the FBI an 

intelligence function whose director would report more or less 

directly to -- either to the DCI or to some individual that would 

have a more proactive role in integrating intelligence. 

 But in other words, you could have housed within the FBI -- 

thereby addressing some of the bureaucratic momentum -- but 

housed within the FBI an organization that would have a different 

culture training recruitment and perspective that would have more 

of the quick, creative, imaginative, proactive kind of culture 

that I think you need for an intelligence agency. But with that 

said, I'm I think as puzzled about this problem as anyone else. 

 MR. FIELDING: Thank you both, gentlemen. 

 Mr. Chairman. 

 MR. KEAN: Congressman Roemer? 

 REP. TIMOTHY J. ROEMER (D-IN): Thank you, Mr. Chairman. 

 Thank you, Mr. Commissioner Fielding, for warming up our two 

distinguished guests today on this cold, frigid day in 

Washington. I know Professor Heymann couldn't make it because 

of, they say, two or three feet of snow we hear from our friends 

up in Boston and New England. It might have been four feet of 

snow. It gets bigger and bigger all the time, but we certainly 

appreciate both of you being here today. I want to follow up 

right away on one of Fred's questions and push Mr. Thompson a 

little bit harder here. 

 Mr. Thompson, it might be said by critics of the FBI's 

performance prior to 9/11 that to sustain an intelligence 

gathering system that was devised back in 1947 with the 

separation of domestic and foreign gathering resources and this 

bright line, that that is no longer sustainable in a 9/11 world 

with the terrorism we have. Professor Schulhofer has just 

indicated that he might -- well, he's got a lot of questions, 

like we all do. He might be open to something being put into the 

Department of -- to the FBI. 

 Let me throw three things, options out at you and you tell 

me what you'd be more in favor of, but give me a couple more 
17

specific reasons why. The current status quo, creating something 

within the Department of FBI to help us gather this domestic 

intelligence information and create this better handoff without 

the stovepipes or something within the Department of Justice. 

Again, trying to bring down the wall, trying to expand our 

capabilities to keep up with technology, trying to make sure that 

the PATRIOT Act reflects some of these challenges and 

opportunities but certainly not going back to the status quo that 

we've had for the last 56 years. 

 MR. THOMPSON: Congressman, I agree that we shouldn't stay 

at the status quo. That's unacceptable. Thinking about what you 

said, I believe based on my experience in dealing with these 

issues that we should proceed along the second alternative and I 

know before I left that's what Director Mueller was doing with a 

sense of great urgency. I know that there was created within the 

FBI an Office of Intelligence that reported to the assistant head 

of the FBI for Counterterrorism and that person now is an 

individual who has an intelligence background which I think is 

terrific. 

 There has been more effort being put in to recruiting and 

training analysts, and that's something that we need to do. We 

need to continue to consider how we can create a career track for 

people within the FBI who are going to specialize in intelligence 

collection, who are going to specialize in analytical studies. 

So those are all the things that we need to be doing better. I 

think we're on the track to doing that. But on the other hand, I 

think we need to continue to make certain that the FBI and other 

organizations are working very closely together. We have stood 

up the TTIC, the Terrorist Threat Integration Center. I think 

that goes a long way toward doing some of the things that are so 

important, that are needed with respect to how we deal with 

terrorism. 

 I have 30 years of law practice, and almost all that 30 

years has been either as a prosecutor or as a defense lawyer, and 

as a defense lawyer I know how important it is to maintain the 

balance that Mr. Fielding was talking about with respect to our 

important civil liberties. And while the FBI has made some 

mistakes in that area over the years, by and large the thousands 

of men and women who are their special agents are trained to deal 

within the four corners of the Fourth Amendment, for example. 

They're trained to deal with legal issues. Many of our 

intelligence officials do not have that kind of training, and 

maybe they shouldn't have that kind of training with respect to 

what's required in intelligence. 

 You need to be creative. But I think in terms of dealing 

with the domestic issues that the professor pointed out, dealing 

with the domestic issues as it relates to our counterterrorism 

efforts, it's very important to have an organization like the FBI 

that's been trained to deal within the confines of a wall. In 

addition, it's very important to have an organization like the 
18

FBI that has this network of informants throughout the country 

who are bad guys and who know a lot about what's going on in 

their respective communities, and that in itself is a valuable 

repository for intelligence information, and just one other final 

point. 

 We need to have this integration because there's a lot that 

can be done in the prevention area when you can leverage the 

possibility of a long prison sentence because someone has 

violated the wall with cooperation, and with that cooperation 

you're going to get the kind of intelligence if the person was 

engaged in terrorism activities that we need. 

 REP. ROEMER: Thank you. 

 Dr. Schulhofer, did you have anything you wanted to add 

subsequent to Mr. Thompson's answer there to your first one? 

 MR. SCHULHOFER: Well, let me just try to be brief because I 

think I agree very largely with what he said. I think 

integration of this function is crucial. We have an enormous 

problem in this country because we have, I believe I saw a 

figure, 38,000 law enforcement agencies in this country. It's 

not like Britain or France or any other country, so even at the 

federal level we're just scratching the surface of the necessary 

integration that you need with the NYPD and thousands of other 

police departments. 

 I think the Terrorist Threat Integration Center -- TTIC, is 

it? I'd wondered how that one was pronounced -- is a beginning, 

but my understanding is that the way TTIC is structured, there is 

not a government official who has budgetary authority and agenda 

setting authority over that. It's a working group among a number 

of big heavy hitters with nobody in charge, so I think it's a 

step in the right direction but it doesn't really integrate as 

much. It doesn't integrate, and we need something of that nature 

which really is integrated and that you maybe need to have 

someone like -- above the director of central intelligence who's 

in charge of the counterterrorism function. 

 Lastly, I would just say that I'm delighted we're talking 

about this, and part of my concern was that all the debate about 

the PATRIOT Act, as important as it is, has been diverting 

attention from things like this which are so much more difficult 

and so much more important. They don't get the public attention 

of library borrowing and things like that, but this is really 

where the action is, and it's part of the reason why I kind of 

bristle when I hear talk about the PATRIOT Act because yes or no, 

whether the issues are right or wrong, they're really not the 

ones that we should be most concerned to talk about. 

 

 REP. ROEMER: Let me now follow up on a question that goes 

directly to the heart and soul of our mandate on this 9/11 

Commission, and that is what happened prior to 9/11? We're 
19

supposed to write the definitive accounting of the terrorist 

action and the government's activities leading up to September 

11th as well, and I think from your book, professor, The Enemy 

Within, a Century Foundation report, you bring up this resources 

question over and over again that you believe that the need for 

additional resources might even be greater than the need for 

additional legal authorities and battling terrorism, and we have 

Mr. Thompson here from the Justice Department. 

 I want to put out a quote from your book and have you both 

respond to it if you would. Quote, "Yet on September 10th, in a 

political environment that gave high priority to shrinking the 

government, Attorney General Ashcroft rejected an FBI request for 

an additional $58 million to fund a strengthening of its 

counterterrorism effort." Unquote. We have a Department of 

Justice, former Department of Justice official here that might be 

able to shed some light on that accusation from Professor 

Schulhofer. 

 Mr. Thompson, do you have any recollection of that request 

for a $58 million increase in the counterterrorism budget? And 

then we'll have Professor Schulhofer tell us a little bit more 

about his perspective on that. 

 MR. THOMPSON: My recollection, Congressman, is that that 

took place in the give and take of developing a budget, and 

there's a process, and Commissioner Gorelick is well aware of 

this process of a component coming in with a certain request for 

funds, and leadership in the Department of Justice for 

negotiating with that component for the right level of funding 

but as I recall, and this is just my present recollection, is I 

recall that September 10th situation evolved in the context in 

the developing of the Department's budget. 

 I think what's more important, though, is that following the 

attacks of September 11th, the Department's budget for 

counterterrorism efforts increased dramatically as well as the 

FBI's budget for counterterrorism, so I think you should look -- 

we should focus more on what happened in terms of what happened 

to the budget after 9/11 and when the budget was finalized. But 

one other point and that is this: Those of us who've been 

involved in federal law enforcement for a number of years have 

been concerned about the fact that federal law enforcement 

resources have traditionally been stretched thin and have been 

stretched thin as we ebb and flow in terms of the various social 

and law enforcement priorities we've had in this country. 

 In the '80s, when I was in the Department of Justice, there 

was a great desire to push the FBI into drug enforcement. There 

have been other times where the FBI's been pushed into more 

violent crime areas, there have been times that it's been pushed 

into public corruption. And we're going to continue to have to 

deal with the fact that not only the FBI but all of federal law 

enforcement has limited resources and we have to be very smart 
20

with respect to how we're going to deploy those. And I think 

right now we've deployed them in a way that focuses on the fact 

that terrorism is our number one law enforcement priority. I 

think that Director Mueller has done a great job in deploying 

those resources to deal with terrorism. And I agree with the 

professor that we will need to continue to look at resources and 

to make certain that our law enforcement officials have adequate 

resources to do the job. 

 REP. ROEMER: Thank you, Mr. Thompson. As a supporter when 

I was in Congress of the Balanced Budget Act, I fully support the 

proposition that we don't have unlimited resources and we have to 

make tough decisions and not go into deficit spending. 

 Professor, you say that the FBI could have used this for 

analytical capabilities, more available personnel, better 

computer quality, translation capabilities, $58 million prior to 

September 10th. Would that have been helpful, and in your 

response, why was that proposal rejected? 

 MR. SCHULHOFER: Well, first of all, I'd like to be clear 

just in case there is anyone listening who might misunderstand my 

point. I certainly do not think the result would have been 

different the following morning if the attorney general had made 

the other decision. That particular decision by the attorney 

general did not contribute in any way. What I do think is that 

the decision was symptomatic of an attitude that pervaded the 

Justice Department during the first nine months of the Bush 

administration and I believe it also pervaded the Justice 

Department in the previous administration. An attitude that was 

both -- consisted of very limited, very thin, very widely 

stretched resources and the wrong set -- what we can see in 

retrospect at least, a tragically inaccurate set of priorities. 

 Now the second one has been fixed. It was fixed within 

hours after September 11. We don't have to worry any more about 

people not paying attention. But the problem of inadequate 

resources, in my judgment, has not been fixed. I would say, by 

the way, that I would want to acknowledge, as Larry Thompson 

said, that immediately after September 11 there was a dramatic 

increase in Justice Department resources. In fact, I was looking 

for this and I found it, I thank you for referring to my book and 

I thought I'd hold it up for you again -- 

 (Laughter.) 

 (Cross talk.) 

 MR. SCHULHOFER: It is not for profit and not for royalties, 

but it is out there. On page one of my book I mentioned the 

dramatic increase in resources that has occurred since September 

11, that was on page one. But I still -- I do believe that we 

need to do a great deal more. And I hear mixed messages. In 

part I was glad to hear Larry Thompson say that we need to keep 
21

looking at it but I also heard, I believe, a sense that we have 

to accept the fact that resources are going to be limited and 

that we have to make choices. I don't accept it. 

 Of course to some degree they're always going to be limited, 

but I don't accept the fact that we're at the right baseline now. 

I don't think we are either in terms of the Justice Department 

itself or in terms of the Department of Homeland Security, which 

has the main mission of trying to address the soft targets. And 

if you read the DHS strategy document for protection of critical 

infrastructure, and it's something I would -- I realize it's not 

part of our panel, but in my mind, you can't separate the civil 

liberties issues from the alternative ways of buying security. 

And if the Commission takes a good look at that strategy 

document, as I would encourage you to do, I believe you'll see 

that there are no real priorities, there are no real choices 

made. 

 REP. ROEMER: Absolutely, Professor. Let me stop you there 

because I do want to get a couple more questions in. We did look 

at this critical infrastructure report last month, prior to the 

set of hearings. And there is a drastic paucity of the 

Administration, both the previous Administration, the current 

Administration and the legislative branch's inability to make 

these priorities, whether they be toward border issues, container 

issues, nuclear power plants, chemical plants and assess what has 

been made safer since 2001. We don't have that kind of 

qualitative measurement right now in place. 

 Let me go back to something that Fred brought up a couple of 

minutes ago but I don't think we got to the bottom of. And 

that's this issue of administrative subpoenas. The President has 

said to Congress that they need to pass a statute that would give 

the FBI this administrative subpoena power in anti-terrorism 

investigations. The FBI, as you both know, already has this 

power of issuing the National Security Letters. 

 I think most Americans don't know much about these national 

security letters. They know a lot about the ability under 

section 215 to possibly go and get library records, but they 

don't know in a FBI field office, in any city in the country, 

that the FBI can write internally in that field office, in 

Indianapolis, Indiana, my home state, a National Security Letter. 

It doesn't need approval from anybody other than the special 

agent in charge in that office in Indianapolis. I don't think 

that there is judicial review of that procedure. That can entail 

telephone records of an individual -- maybe more Americans are 

concerned about their telephone records and the security and 

sensitivity of those than they are about what they're reading at 

the library, I don't know. That might be a case for debate. 

 Let me ask the question to you, do you believe that the 

existing National Security Letter authority is inadequate? And 
22

that the FBI does need this additional administrative subpoena 

power and why? Mr. Thompson? 

 MR. THOMPSON: Yes, Congressman. There have been instances 

in which the national security letters have proven inadequate to 

get the requested information, to obtain the requested 

information in a timely manner. And that's what's important 

here, getting information in a timely manner. And that's why -- 

 REP. ROEMER: Mr. Thompson, just be specific to me. In 

terms of timely manner, I outlined how quickly a National 

Security Letter can go through a field office. The agent writes 

it, he only has to go to the supervised special agent in charge, 

can happen in my understanding, pretty quickly. Why is timing 

something that would be important to you in this instance? 

 MR. THOMPSON: The resistance of the person who is, excuse 

me -- because of the objection, if you will, of the person who is 

to provide the information and -- 

 REP. ROEMER: The objection of the -- 

 MR. THOMPSON: The recipient. 

 REP. ROEMER: The recipient, and in this case, the telephone 

company? Or whoever. 

 MR. THOMPSON: Whoever, correct. 

 REP. ROEMER: My understanding is the telephone company 

hands this over pretty quickly. 

 MR. THOMPSON: I'm just giving you my recollection as to why 

the administrative subpoenas are needed. And it makes no sense 

why the FBI cannot have an administrative subpoena for a -- to 

conduct investigations as it relates to terrorism when it does 

have that authority in any number of other areas. For example, 

it has that authority to use administrative subpoenas in 

healthcare fraud investigations. 

 And again, getting back to what you and the professor 

mentioned with respect to safeguards and accountability, as you 

know, an administrative subpoena, while it is believed that that 

administrative subpoena in certain situations would enable the 

FBI to get information in a more rapid manner, important 

information quicker, these subpoenas are not self-executing and 

if the recipient objects, they are subject to challenge in court. 

It makes -- it just seems to me, as someone who looked at this in 

my previous position that it makes no sense for the FBI and law 

enforcement not to have that arrow in its quiver with respect to 

the tools that are available to conduct terrorism investigations 

when it has that authority in a whole variety of areas. I don't 

recall the number but there were multiple areas in which federal 

law enforcement agencies have the ability to utilize 
23

administrative subpoenas, and it simply makes no sense not to 

have that available to conduct terrorism investigations. 

 REP. ROEMER: So who would approve the issuance of this, Mr. 

Thompson, the administrative subpoena? And how do we prevent 

against -- how do we make sure there are safeguards so that these 

are not abused? 

 MR. THOMPSON: Well, typically the way they are dealt with 

in non-terrorism matters is that the FBI works hand-in-hand with 

an assistant United States attorney and the administrative 

subpoenas are issued. 

 REP. ROEMER: Professor, you argue again in your book -- I 

won't mention the name since you've already got plenty of 

publicity on it. On page 30 you talk about, and I quote, "There 

has been an expansion of the government access to private 

information with little intelligence value and enlarge its powers 

to investigate offenses entirely unrelated to terrorism." 

Unquote. You talk about financial records, educational records, 

personnel files, e-mail. Can you be a little bit more specific 

about how you would approach this issue of National Security 

Letters in the administrative subpoenas, checks and balances here 

and whether or not we need those? 

 MR. SCHULHOFER: Right. I think that national security 

letters, as your question implied, have far fewer safeguards. 

They don't have zero because there does have to be a certain 

amount of paperwork, but they have far fewer safeguards than we 

normally require for the subpoena of personal records held by a 

third party. Normally, the person who's concerned, the owner of 

the records or the person to whom the records relate, would have 

the opportunity to object to the subpoena and to question its 

relevance, and the national security letter short-circuits that 

process and, in fact, it typically prohibits the holder of the 

records from notifying the person concerned that the records have 

been subpoenaed and turned over to the government. There are 

circumstances -- 

 REP. ROEMER: And, Professor, can you be clear on that then? 

Can you emphasize -- so in a -- state that again. In an instance 

where you're trying to get this information under the National 

Security Letter and you go specifically to the telephone company 

to request an individual's telephone records, the telephone 

company does not have to inform that individual, that American 

citizen, that they have cooperated with the FBI and released 

those personal records. Is that correct? 

 MR. SCHULHOFER: That's correct. I believe that even -- 

 REP. ROEMER: And any other case they do have to inform the 

individual. Is that correct? 
24

 MR. SCHULHOFER: I believe it's even worse than that. It's 

not simply that they don't have to inform the person, they're 

prohibited by law from informing them. 

 REP. ROEMER: And what's the penalty in these different 

cases? Is there a penalty on the telephone company? 

 MR. SCHULHOFER: Yes. I don't believe I could tell you 

accurately exactly what the penalty is, but I think the telephone 

companies and banks and so on understand that they're under 

severe penalties for violating that requirement. And there are 

cases when urgency is a factor and it should be respected, just 

as any exigent circumstances in many other law enforcement 

contexts. The problem here is that we take the possibility of 

exigent circumstances as a justification for greatly reducing 

accountability checks, even when there is no urgency. So that's 

something that could be addressed. 

 I do think that FISA, the FISA structure poses a problem, 

because there are a limited number of FISA judges. The number 

has been expanded since 9/11 but it's still a relatively limited 

number, compared to the district judges that sit around the 

country. And it's my belief, although this is -- I believe this 

may be classified information, I don't know, I don't have access 

to it, but my impression is that the FISA court is centralized, 

sits in Washington. And if that's true, then there is a problem 

for an agent in Indianapolis to proceed in a timely fashion with 

a request if it has to go through the FISA court and it has to 

get bumped up to Washington. That is a problem. But it seems to 

me that's a problem in cases of exigent circumstances, and it 

doesn't justify obliterating checks and balances for those cases 

that don't require it. 

 Now, having -- 

 REP. ROEMER: Let me stop you for a second because I'm 

running out of time. Do you have any idea of how many times the 

FBI has used the National Security Letter since 9/11 -- 

 MR. SCHULHOFER: I don't -- 

 REP. ROEMER: -- across the country? 

 MR. SCHULHOFER: I don't. I -- 

 REP. ROEMER: Do they tell -- does the FBI or Justice 

Department tell us how many times they've used it? Mr. Thompson, 

would you know that or -- 

 MR. THOMPSON: I don't know what information has been 

provided to the Commission but I'm almost certain, Congressman, 

that that information has been provided to the intelligence 

committees, part of the oversight function. 
25

 MR. SCHULHOFER: If I could just add one detail here. First 

of all, I believe that the expanded National Security Letter 

authority was enacted within the last month or so by Congress. 

And part of that enactment appears in the congressional record as 

a complaint by the intelligence committees that they were not 

provided information by the Justice Department, and they 

expressed their understanding that with this -- or their hope 

that with this expanded authority, that the Justice Department 

would be more forthcoming. 

 I do agree that the definition of financial institution 

needs to be updated, but nonetheless, part of what's been lumped 

in there, for example, is access to credit card information, 

which in my judgment, is much broader than the situation really 

calls for. 

 REP. ROEMER: Final question, Mr. Thompson, Professor 

Schulhofer. Again, I very much appreciate your insights. I wish 

you could spend a lot more time with us. You might not want to 

but we certainly have benefited from all your advice and counsel 

here. A national identification card, would you support it, not 

support it, have a great deal of concern about it, caveat about 

it? Mr. Thompson? 

 MR. THOMPSON: I haven't thought a great deal about that, 

Congressman, so I may want to punt. 

 REP. ROEMER: Well, I'll try to catch your punt if you will 

respond in writing at some point and let me know your thoughts on 

it. 

 MR. THOMPSON: I would like to just elaborate a little bit 

about your last question, and that is, under the guidelines -- 

 REP. ROEMER: Can I still get your written response -- 

 MR. THOMPSON: You can still get my written response. 

 REP. ROEMER: Thank you very much. 

 MR. THOMPSON: But I think it's important to point this out 

is that under the guidelines that we develop for FBI agents in 

this area, it's very important to note that these kinds of 

investigations and these kinds of inquiries that you're talking 

about with respect to the national security letters cannot be 

undertaken except for a legitimate counterterrorism investigation 

for the purpose of detecting terrorist activity. Now, can an FBI 

agent or can an office short-circuit that? Human nature says 

that sometimes rules are going to be broken. But if they are 

broken, there are severe professional consequences for that kind 

of thing. 

 So we have guidelines and we have to rely on the 

professionalism of the overwhelming majority of our law 
26

enforcement officials, and they do not undertake these kinds of 

inquiries lightly and they do not undertake them to get 

information about activity that's otherwise protected by the 

Constitution or by other laws. 

 REP. ROEMER: Mr. Thompson, very well stated. I wouldn’t 

disagree with anything. My questions have just been targeted at 

when they've done it, and let's say they'd done it in 

Indianapolis a dozen times, how do we have any kind of judicial 

review over making sure they don't abuse it, and outside that 

local office in Indianapolis, is there any kind of review of it, 

not just judicial review but any kind of administrative review in 

the FBI office? I don't know that we have good answers to either 

one of those questions. 

 A national identification card, once again? 

 MR. SCHULHOFER: I too have not thought through all of the 

dimensions of that. My intuition has been that the aversion to 

national security -- I'm sorry, national identity cards has been 

a little bit overdrawn. I don't fully understand why there is 

such an instinctive -- a relatively widely held public aversion 

to that idea. I think what we need to be careful about is the 

information that goes with the national identity card -- 

 REP. ROEMER: So what would it be? 

 MR. SCHULHOFER: That's the area where I think whether it 

includes health information, biometric information, Social 

Security number. In the world that we're living in now, that 

kind of information plugs into -- what I see over there maybe 

from another hearing -- the total information awareness. And 

what we need -- 

 REP. ROEMER: Do you want me to ask you that question 

next? Report that, modify it, throw it out? 

 MR. SCHULHOFER: That's easy, I don't. But what we need 

to be very clear about if we do have a national identity card is 

clear structures of accountability and restriction on the use of 

information. There's a lot of legitimately acquired information 

that can be used for illegitimate purposes, and we all know that 

the identity of a covert CIA agent was recently revealed by 

someone for political purposes. That's the kind of thing that's 

just the tip of a huge iceberg. So even when the government 

acquires information legitimately, it's crucial that we have very 

careful procedures in place that limit the use of that. 

 That's where accountability comes in, and this is where it 

makes me a little bit sad to hear Larry Thompson, who I respect 

so much, translate a concern about accountability into questions 

about the -- into a sense that there are doubts about the 

professionalism or honesty of our law enforcement officers. To 

me, that's not what accountability is about. We've had -- the 
27

Fourth Amendment has had for over 200 years the idea that a law 

enforcement officer's good faith affidavit of need and relevancy 

is not enough unless an independent judicial mind passes on his 

belief and on the basis for his belief. 

 That's certainly something that applies in ordinary law 

enforcement, and it's not because we think the officer is 

dishonest, it's not because we think he's not professional, it's 

because we've learned for hundreds of years the importance of 

having an independent check, and as I mentioned in my testimony 

this goes back to George Washington who is by far the most widely 

trusted executive in our entire history and from the very 

beginning, Washington himself accepted that what he did in the 

area of executive action would be and should be subject to review 

by the courts. He didn't take it personally and I would hope 

that our people in the Executive Branch today would be proud of 

our system that subjects everything that's done to that kind of a 

check. 

 REP. ROEMER: Well, I knew I'd get the two of you 

disagreeing on something. After 20 or 25 minutes there, you were 

very cordial to each other the whole time. I just want to end on 

your note about General Washington, certainly paraphrasing the 

widely noted quote about him, "First in war, first in peace," but 

certainly first to establish an intelligence capability for us in 

this country which we've read a lot of about as members of the 

intelligence committee for several years in that capability even 

back 220 years ago, so I want to thank you both again. I know I 

have lots of colleagues that want to ask both of you questions, 

and thank you very much for your time once again. 

 MR. KEAN: A number of the Commissioners want to ask 

questions, so if we can keep it as brief as possible, make sure 

they all get in. 

 Commissioner Ben-Veniste. 

 RICHARD BEN-VENISTE: Thank you, Mr. Chairman, and I'd like 

to join my colleagues in thanking you for your appearance today 

and your insights, and the amount of preparation that's gone into 

your presentations this morning. I start my analysis of the 

balance between the need for greater intrusiveness into the 

privacy of United States citizens with the observation that our 

intelligence with respect to the 9/11 hijackers was pretty good 

prior to the catastrophe that took place on 9/11. 

 Where our law enforcement and intelligence community failed 

was in utilizing the information that was available in a way that 

could have interrupted the plot. I would note that nothing that 

I have seen so far in the course of our investigation on this 

commission has caused me to change that assessment. The changes 

that have been put in place since 9/11 have on the other hand 

created an atmosphere of concern over government intrusiveness 
28

with respect to the privacy and free speech rights of our 

citizens. 

 There has been anecdotal information put forward and so I 

caveat it at that point that individuals who have been involved 

in protests regarding the Iraq war have wound up on no fly lists 

and have been treated in a way that makes them suspect that 

perhaps their names have been added by reason of their political 

action. With that preamble, I would like to put two questions. 

First, what assurances are there, if any, that expanded powers 

given to law enforcement to combat terrorism have been or are 

likely to be used for ordinary law enforcement not related to 

terrorism? 

 And historically, I would put forward the example of the 

RICO statute, which was designed to combat organized crime but 

has since been utilized in every conceivable way having nothing 

to do with organized crime. And secondly, given the concern that 

legitimate free speech and privacy rights may be infringed and 

given the enormous effort now underway to accumulate and 

disseminate databases with respect to United States citizens, 

something we're going to deal with a little bit later in these 

hearings today, I want to call your attention to a recent FBI 

intelligence bulletin and get your comments. 

 This bulletin came out on October 15th, 2003 and I'll just 

quote very briefly from it and get your comments about this 

bleed-over effect. The intelligence bulletin, which has 

circulated to federal, state and local law enforcement agencies 

throughout the country says, "On October 25, 2003, mass marches 

and rallies against the occupation in Iraq are scheduled to occur 

in Washington DC," and then it talks about potential violent or 

terrorist activities associated with the protest. It goes on to 

say, "Even the more peaceful techniques can create a climate of 

disorder," and they use as examples obstructing traffic, possibly 

intimidating people from attending the events protested. 

 It goes on, "Extremists may be prepared to defend themselves 

against law enforcement during the course of such a 

demonstration," and some of the indicia of extremists protecting 

themselves are the wearing of sunglasses and layered clothing. 

Activists may also use intimidation techniques such as 

videotaping. And then it concludes that law enforcement agencies 

are encouraged to report any potential illegal acts to the 

nearest FBI and Joint Terrorism Task Force. 

 By this, I think you can see that the definition of 

terrorism and terrorist acts or violent acts is particularly 

squishy with regard to this bulletin, and it of course created 

something of an uproar, and so my question with respect to that 

is are we overreacting, or is there the potential for creating a 

climate in this country that is so counterproductive to our 

ideals that we ought to look at it midcourse and make some 
29

suggestions regarding correcting it? Professor, why don't you 

take a first crack at the -- 

 MR. SCHULHOFER: I've had the consistent opportunity to get 

in the last word. 

 (Laughter.) 

 So it's only fair. First of all, first question was what 

assurances do we have that the expanded powers won't be used for 

unrelated purposes? We have no assurances, and quite to the 

contrary, the Justice Department acknowledges that it has used 

these powers for unrelated purposes, particularly the Justice 

Department document, "USA PATRIOT Act: Myth versus Reality," 

which I believe is September '03. In the course of debunking 

myths such as the fact that the powers might be used for 

unrelated purposes, the report itself documents, and separately 

for each section, the instances in which they've been used, and 

it documents specifically instances when they were used to 

investigate the theft of trade secrets, investigate extortion, 

investigate what they called narco-terrorism which I believe is 

drug trafficking, and so on. It's all made very explicit so we 

know that this is being done and it's inexcusable because it's 

very simple as a matter of draftsmanship to do what the PATRIOT 

Act does in most of its section, which is to say that these are 

for purposes of a terrorism investigation. 

 Secondly, about the ability of this to bleed, I believe your 

question enters particularly sensitive areas of political 

protest. I think your question indicates itself how quickly 

we've moved in that direction. And we thought we had learned 

this lesson in the '70s, with the FBI guidelines that were 

adopted by Attorney General Levi and President Ford, which laid 

down rules intended to prevent the overly wide sweep of 

information that could intimidate the expression of First 

Amendment activity and it could be misused for inappropriate 

purposes. 

 Among other things, and I don't want to disparage the 

importance of First Amendment rights, it's extremely important, 

but I think it's also important for the public to understand that 

we don't get more security this way. What we get is an 

incredible misuse of FBI counterterrorism investigative 

resources, which as we have heard, are stretched very thin. And 

they're to be used to prevent the obstruction of traffic in 

cities. 

 So it was with this in mind that the FBI guidelines adopted 

in 1976 structured this to try to prevent this type of abuse. 

And one thing that happened on May 30th of '02 was that the 

attorney general announced very substantial changes to those 

guidelines that, in effect, relaxed and obliterated, unloaded 

most of the -- many, I should say, many of the significant 

restrictions that had been in place since 1976. And again, I try 
30

to make this answer brief, so I would just say again, this is 

another instance of a change that's totally unrelated to 

terrorism, because the guidelines that were changed, the FBI 

guidelines that were changed, were not the guidelines that 

governed international terrorism investigations. They were the 

guidelines that governed the investigation of general crimes. 

And I have yet to hear and explanation of why that was necessary. 

 So are we overreacting? I think it's demonstrable and not 

debatable that we have overreacted in ways that not only damage 

our liberty unnecessarily but they are counterproductive and they 

foster mistrust in a sense of oppressive surveillance and they 

foster alienation in the very communities whose help we need if 

we're going to win this fight. Thank you. 

 MR. BEN-VENISTE: Larry? 

 MR. THOMPSON: Commissioner, the professor and I have been 

on another panel and he did a great job, but I'll try to give you 

an explanation as to why we made some of the changes in the 

guidelines because we carefully reviewed those guidelines with 

respect to making changes that we thought were appropriate. And, 

Commissioner, you pointed out the fact that there was 

intelligence with respect to the individuals that were involved 

in the 9/11 attacks and there was information in the system about 

those men. But one of the problems I think we had prior to 9/11 

is that we had a paradigm, certainly in the law enforcement 

community and perhaps throughout government, which was a reactive 

philosophy. 

 In other words, we were going to wait until something 

happened, then react to it, then investigate the heck out of it 

and prosecute the individuals who were responsible for the 

events. And it was crystal clear after 9/11 that we had to do a 

different -- we had to undertake a different approach and we had 

to focus on prevention. And we had to be proactive, and we had 

to undertake measures that were designed to detect and prevent 

terrorism at the very beginning. 

 Now, that does create the tension that the professor talks 

about and we certainly cannot overreact but we do need to develop 

a situation in which our law enforcement officials can undertake 

activities, especially activities that are open to the public 

that are designed to detect instances of terrorist activity. I 

do not know what the underlying intelligence was as it related to 

why the FBI offered that memo, I have not reviewed it. But we 

have to be careful, I agree with you, we have to be careful. But 

on the other hand, we have to be ever vigilant in terms of doing 

what we can to be proactive. 

 The one thing that the attorney general and I though were 

very concerned about when we reviewed the guidelines was to make 

crystal clear that while you could undertake activities of a 

public nature that were designed to detect terrorist activity, 
31

you could not undertake activities that were designed to 

interfere with our citizens' constitutional rights, rights that 

are protected by the Constitution or other laws. And that's a 

fine line and it's a judgment, but law enforcement officials make 

judgments every day. 

 So I would just respond to the memo, and that is I think 

it's important that we have to continue this new paradigm of 

prevention and disruption. And we have to be proactive with 

respect of what we're doing. But we cannot interfere with 

activities that are protected by -- 

 MR. BEN-VENISTE: What are you protecting against and what 

are the disruptions? In that memo it doesn't appear to me to be 

related to the kind of terrorism that we're concerned with. 

 MR. THOMPSON: Sir, I would agree with your comment, except 

that I don't know the underlying intelligence that led to that 

memo and perhaps some of the unfortunate words that were used in 

that memo. 

 MR. BEN-VENISTE: Just one follow up to your answer, Mr. 

Thompson, and that is with respect to the changes that have been 

put in place post 9/11, which is after all, the central focus of 

what we're involved with in this commission. Other than 

clarifying gripes under FISA, which the FISA court, incidentally, 

said was unnecessary, but other than that, can you point to any 

particular aspect of what has been changed since 9/11 in our laws 

that would have directly impacted on the interruption of the 9/11 

plot? 

 MR. THOMPSON: Other than -- 

 MR. BEN-VENISTE: The clarification of FISA, which the FISA 

court said was simply a misreading by those who were applying 

FISA -- of the terms of FISA. 

 MR. THOMPSON: But, Commissioner, that misreading had been 

in place when I got to the Department of Justice, and it was 

certainly the way we were doing business in the Department of 

Justice. 

 MR. BEN-VENISTE: That's why I say, putting that aside, is 

there anything else that has been enacted since 9/11 that in your 

view would have likely resulted in the interruption of a plot? 

 MR. THOMPSON: Enacted is a narrow word, but I would say 

this: That if we had in place system-wide, government-wide, a 

paradigm that we were going to do everything that we can to 

prevent and disrupt terrorist activity, that we were going to 

share information, perhaps that paradigm, given what we now know 

that we knew about the hijackers' activity, perhaps, I don't 

know, but perhaps we would have been able to do a better job with 

respect to investigating, you know, those activities. 
32

 MR. BEN-VENISTE: That's a question of focus rather than 

law, isn't that right? 

 MR. THOMPSON: Correct. May I respond to your point, 

Commissioner, about the other PATRIOT Act provisions. Many of 

those provisions are general criminal law provisions and I think 

it would be difficult, but more importantly I think it would be 

inappropriate for the Department of Justice and federal 

prosecutors to limit those provisions, provisions that are in 

title 18 that are designed to go after crime, to any particular 

kind of criminal activity. And if the statute applies to general 

criminal activity that may be terrorism, but it may be bank 

fraud, it may be money laundering, I think you should use that 

statute to its fullest extent to go after that particular -- 

 MR. BEN-VENISTE: Thank you. And I'll leave with the 

observation that some who are skeptical about how the PATRIOT Act 

was passed and the time that it took to pass it and what was 

included in it, have suggested that many of the provisions were 

essentially on the shelf on the wish list of law enforcement -- I 

see you smiling -- prior to the catastrophe of 9/11 and, as you 

have said, have not been restricted to use only to combat 

terrorism. Thank you, Mr. Chairman. 

 MR. KEAN: We've got two commissioners who have something to 

say and about three minutes to get the questions and answers in 

if we keep on schedule. 

 Commissioner Gorelick. 

 JAMIE GORELICK: Thank you, Mr. Chairman, I'll try to be 

brief. 

 Mr. Thompson, as you know I sat in your shoes at one point 

when you were deputy and I was deputy before that. 

 MR. THOMPSON: I tried to follow in your shoes. 

 MS. GORELICK: Oh, thank you, flattery will get you nowhere. 

I would like to ask you a philosophical question about the role 

of the Department of Justice. As you know, it has two basic 

roles, one is investigative prosecution in this context, and the 

other is the protection of rights. And post 9/11 it seems to me 

that there has been enormous pressure on the institution to favor 

the first role just because of how terrible an event 9/11 was. 

And so my question to you is who speaks for civil rights and 

civil liberties in that perspective within the councils of 

government? 

 And this question to bought to mind when I appeared on a 

panel and I know you were on the same program but on the Third 

Circuit, where the former head of the Office of Legal Policy and 

the former head of the Criminal Division essentially said that 
33

the government's position with regard to taking American citizens 

and holding them incommunicado without lawyers and with no 

opportunity to challenge whether they were properly being held as 

enemy combatants was unsustainable. 

 One of the gentlemen, Viet Dinh, said it was unsustainable, 

the other, Mike Chertoff, said we need a new system to make sure 

there are checks and balances. So I have a two part question. 

The first is were you so advised when you were deputy, and who 

spoke when we were -- we as a government, were creating the 

architecture that put people incommunicado without counsel, 

without ability to challenge the circumstances under which they 

were being held. Who spoke for our rights when that system was 

being set up and do we need a new structure to have that voice be 

heard? 

 MR. THOMPSON: Commissioner, at that conference, the Third 

Circuit conference, I quoted from a decision of the Supreme Court 

of Israel that I kept on my desk for the past two and half years. 

Shortly after the events of 9/11 I was visited by Justice Barak 

from the Supreme Court of Israel, he tried to -- wanted to see 

the attorney general, but the attorney general was traveling and 

he saw me. And he left with me a decision of the Supreme Court 

of Israel, that dealt with the interrogation of terrorist 

suspects and the use of what was called their moderate physical 

pressure in the interrogation of terrorist suspects. And I don't 

really know technically what moderate physical pressure is but 

it's -- 

 MS. GORELICK: One can imagine. 

 MR. THOMPSON: -- one beyond questioning, just simple 

questioning. 

 (Laughter.) 

 And the Supreme Court of Israel prohibited that activity and 

in some very eloquent words and I think my old speeches are 

online at the Department of Justice, but I quoted from that 

speech throughout my tenure as deputy attorney general, and I 

refer to that speech in not only the Department of Justice 

internal deliberations but in interagency deliberations. And the 

gist of that is that we're a democracy, we have to abide by the 

rule of law, and that not all means that are available to protect 

a democracy sometimes can be utilized. And sometimes a 

democracy, while it looks like we have to fight with one hand 

tied behind our back, we have to do so if we're going to preserve 

our basic values. 

 So, to answer your question, I tried to and I know other 

officials always thought about these very important civil liberty 

concerns. We would be making a terrible mistake as a country and 

certainly as a Department of Justice if we allowed what happened 

on 9/11 to change the essential character of our country. I 
34

don't believe that has happened. We certainly have differences 

of opinion as to how we are, how we should have reacted, some of 

the ways that we are trying to proceed in combating terrorism, 

but I don't believe that we have retracted from those. 

 For example, when we undertook the revisions of the Attorney 

General Investigative Guidelines, it was always of paramount 

concern to myself, and I know it was of concern to the attorney 

general, that nothing in there give rise to any belief, and 

that's why we specifically stated it in black and white that the 

agents that undertake any kind of investigation of activities 

that are designed -- that are protected by the First Amendment or 

other laws. 

 Enemy combatant situation -- I'm really not punting but that 

was a matter that I was involved in as a lawyer. I don't believe 

-- and it's still in litigation so, Commissioner, I don't believe 

it would be appropriate for me to make any kind of extensive 

comments on a matter that's in litigation and a matter that I was 

deeply involved in as a lawyer. 

 MS. GORELICK: Well, we will, with all due respect to that 

position, I think we will need to return to it as a factual 

matter -- 

 MR. THOMPSON: I understand. 

 MS. GORELICK: -- to determine how those decisions got 

made. One of the things that's been striking across the panels 

that we've had on every subject is that you get an amazing amount 

of candor once they take their respective uniforms off. And to 

hear two former Justice Department officials say that a position 

that was taken by the Department essentially was unsustainable, 

is unsustainable and to hear that now is disturbing and leads me 

to wonder whether we have the right checks and balances in place 

or whether we have put so much pressure on the Department of 

Justice to be the investigator that we perhaps need a 

countervailing voice, a counterpoint, some independent body to be 

the voice of civil rights and civil liberties. 

 And I'd be happy to give you the last word here. Had I had 

time I would have returned to that theme with respect to the 

Foreign Intelligence Surveillance Act because I believe when I 

was at Justice that I had enormous power that was essentially 

unchecked. And of course with the changes in the PATRIOT Act 

there's even greater power in the Department of Justice and I 

really do wonder whether there are sufficient checks. But I know 

-- I should give you the last word and then I know there are 

other commissioners who would like to have an opportunity to give 

a question or two. 

 MR. THOMPSON: I believe Judge Chertoff's comments will 

speak for themselves, but as I understood what he said was that a 

lot of decisions were made in the context of a crisis and people 
35

were making the very best calls that they could and that with 

respect to procedures in terms of granting access to counsel, 

that perhaps we should review and revisit some of the thinking 

with respect to those procedures. I think that's what he said, 

which is a little narrower than -- 

 MS. GORELICK: Well, it's a matter of public record and we 

don't have time to pursue it now. 

 MR. THOMPSON: I hope you understand my comment on it. 

 MS. GORELICK: But I do appreciate that there were 

urgencies of the moment, and that's one of the purposes of this 

commission is to step back from those urgent moments and take a 

look at whether we have the right structures in place going 

forward. Thank you very much for your testimony, both of you. 

 MR. KEAN: Last question from Senator Gorton. 

 SLADE GORTON: Professor, your critique of the use of the 

phrase of the status, enemy combatant. Was it limited to the 

apprehension of citizens of the United States in the United 

States? Does it extend to the apprehension of non-citizens in 

the United States, to United States citizens apprehended in say, 

Afghanistan or in Germany, or non-citizens apprehended outside of 

the United States, say as a guerilla out of uniform in Samara? 

 MR. SCHULHOFER: Thank you, it's a very important question. 

First of all my position, my critique, certainly encompasses the 

seizure within the borders of the United States of both citizens 

and foreign nationals. These are people who are seized far from 

any zone of combat in an area where the courts are open and 

functioning and they should have all the rights provided by the 

Constitution. 

 When you deal with the seizure of individuals overseas in a 

zone of combat, and there I would include both U.S. citizens and 

foreign nationals again, when they're seized in a zone of combat, 

there is a need for -- what I think an obvious need for, 

discretion on the part of military commanders and different rules 

apply. In addition, our courts are not open and functioning in 

those areas. So certainly different rules apply. I believe that 

in this zone of combat situation there still should be a 

conception of due process that enables people seized in that 

circumstance to have the opportunity for some kind of hearing in 

some kind of tribunal to raise the question: Were they a war 

correspondent, were they a reporter, were they just a civilian 

caught up in trouble? 

 We held hundreds -- we held hundreds of those hearings 

during the Vietnam War and we held hundreds of those hearings 

during the first Gulf War. We have not held any of those 

hearings, as you know, with respect to people that are being held 
36

at Guantanamo at this point, more than a year after their 

capture. You referred I believe to Samaria? Is that -- 

 MR. GORTON: Well, a city in Iraq where people are shooting 

at us. 

 MR. SCHULHOFER: Right. The Israeli Supreme Court uses that 

term to refer to occupied territories on the West Bank -- 

 MR. GORTON: I spelled it differently. 

 MR. SCHULHOFER: But I think it's pertinent here because 

with respect to people seized in a zone of active combat, there's 

another Israeli Supreme Court decision more recent than the one 

Larry Thompson mentioned, a decision from February of this year, 

in which the Court said that alleged enemy combatants seized in a 

zone of combat on the West Bank have no right to a hearing until 

they can be removed from the zone of combat, which is a matter of 

days. But once they are removed they have the right to a 

hearing. I've cited that and quoted from that decision in my 

comments. So certainly we're in a completely different regime. 

 But we should not allow and we should not accept what I 

believe is the Justice Department's position and that has been 

that since you have these rules that apply to the battlefield and 

since after 9/11 the whole country is part of the battlefield, 

then the Justice Department has argued that the same rules should 

apply right here in the United States that would have applied in 

Samaria or Kandahar or anything else and that's a conception that 

if we accept it, the entire Bill of Rights -- 

 MR. GORTON: Just one narrow follow up on perhaps the most 

difficult of yours -- let's presume the arrest of a non-citizen 

of the United States, a non-citizen who is not here, not legally 

-- Mohammed Atta himself before 9/11 or for that matter, the 

German saboteurs who landed here in 1942. Do they have the same 

rights as citizens? 

 MR. SCHULHOFER: Foreign nationals certainly don't have the 

same rights, they have no right to remain here. They can be 

deported and under certain circumstances I myself am very 

comfortable with the idea of preventive detention subject to some 

kind of independent judicial review of the need for it and the 

basis for it. That's a constant and I'm probably belaboring the 

point, but that has been my constant theme. I don't object to 

the substance of powers like these if they are appropriately 

reviewed by independent Article III judges. So certainly, 

foreign nationals have different rights. 

 The German saboteurs admitted that they were enemy 

combatants. They admitted that they were members of the German 

Navy. They admitted that they had buried their uniforms when 

they landed here. The question that's posed by the Padilla case 

is whether the rules that apply to someone who acknowledges their 
37

role should be the same as the rules that apply to someone who is 

being accused. And if we want to make -- if we think that being 

an accused enemy is the same thing as being a proven enemy then 

the Justice Department's position is sound. 

 MR. GORTON: Thank you, Mr. Chairman. 

 MR. KEAN: Thank you very much, Professor Schulhofer and 

Mr. Thompson, thank you very much for enlightening and 

interesting and we appreciate you taking the time. 

 MR. THOMPSON: Thank you. 

 MR. KEAN: If I could ask our next panel please, to 

assemble? 

 (Recess.) 

 MR. KEAN: Okay, if we could call the hearing back to order? 

Our second panel has assembled. They are Judith A. Miller, 

partner in Williams and Connolly, and former general counsel of 

the United States Department of Defense. Stewart A. Baker, 

partner Steptoe and Johnson, former general counsel National 

Security Agency, and Marc Rotenberg, executive director of the 

Electronic Privacy Information Center. 

 Mrs. Miller? 

 JUDITH A. MILLER: Should I start? 

 MR. KEAN: Go ahead, yes. 

 MS. MILLER: Mr. Chairman, Mr. Vice Chairman, members of the 

Commission, I am delighted to be here this morning. The topic of 

protecting privacy, preventing terrorism is central I believe to 

our ability to reduce the possibility of other catastrophic 

attacks. Better intelligence supported by technology is not all 

that is needed to defeat possible terrorist attacks here and 

abroad, but it is in my judgment a crucial element of any 

strategy to do so. 

 I know that time is short this morning, so I would like to 

make three basic points in this opening statement before our 

broader discussion begins. First, I believe the reaction to the 

Total Information Awareness Initiative at DARPA, the Jet Blue 

Initiative undertaken by the Army and the various efforts at 

watch list at DHS all demonstrate that privacy, civil liberty and 

fairness concerns must be built into any information sharing 

technology from the beginning in order to earn the trust and be 

consistent with the values of the American public. 

 The work of the Markle Task Force that Stewart and I have 

both participated in, as well as Commissioner Gorton, provides 

building blocks for what is necessary, I think. First, adopting 
38

guidelines on the use of technology that address relevance, 

retention, dissemination and reliability issues. Second, 

improving oversight, including audit and review procedures. 

Third, reviewing risk and benefits before the adoption of any of 

these powerful tools and using technology to enable both 

imaginative cooperation and privacy. To analyze data, control 

access to databases and facilitate audits of the use of those 

databases. 

 Second, and building on these principles, our task force 

recommended a System-wide Homeland Analysis Resource Exchange or 

SHARE network. A visualization of how this might work, 

permitting collaborative analysis of emerging threats in 

basically real time and using both stored and current information 

from around the world conveys the power of this approach far 

better than I can and I would commend that demonstration to this 

commission. But notionally, seeing state, FBI, CIA and trusted 

experts all collaborating in such an environment, a shared 

information environment, brings me to my third point. 

 None of this technology-enabled sharing will work if we 

can't find a way to incentivize the cultures of those agencies 

charged with implementing it to use it effectively. Although 

efforts are ongoing at the FBI and elsewhere, my own view is that 

this is the hardest problem by far. The task force makes some 

modest recommendations in this area as well. A simple but 

dramatic step, also urged by others, is to revise the “tear 

sheet” culture of intelligence reporting so that you write an 

unclassified version of the report first, not last. But if the 

intel community one year or five years from now still focuses its 

best efforts on making it into the PTTR every day, you will have 

a litmus demonstration that the new culture of collaborative 

sharing has not taken hold. 

 Thank you, and I'll await your questions. 

 MR. KEAN: Thank you, Mrs. Miller. 

 Mr. Baker? 

 STEWART A. BAKER: Thank you, Mr. Chairman, Vice Chairman 

and members of the Commission. I'd like to focus on a question 

that actually Commissioner Ben-Veniste asked or observed. That 

we actually had pretty good intelligence about the terrorists in 

the lead up to September 11. And I think that's right and what 

I'd like to focus on is not September, but August. Because in 

August the FBI learned that there were two terrorists whose names 

we had, who were in the country who were clearly here to kill 

Americans. 

 We had two and a half weeks to find them. They were living 

openly in San Diego, they were getting California IDs, they were 

buying stuff, engaging in financial transactions, signing rental 

agreements all in their own name, making reservations on the 
39

plane that they would ultimately fly into the Pentagon. We 

couldn't find them. That's a terrible failure. And I'd like to 

explore a little, from what I can gather, I'm not cleared to 

review any of this material anymore, but I have reviewed pretty 

carefully the public discussions of what happened to try to 

explore what went wrong there. 

 And I think when you look at it closely, it's really a 

failure of tools and a failure of rules. The tools problem is 

the problem we're here to talk about today. The FBI agent who 

discovered this and made it his mission to try to find these guys 

had some electronic tools, he was able to look in some databases 

for arrests, for certain automobile registrations. They hadn't 

been arrested and they hadn't been registered in any vehicles. 

He did not have access to a lot of government information, so 

that it took him about a week and a half to figure out what 

address one of the terrorists had put on his visa as he entered 

and then to check with the hotel that he put down to see if the 

guy ever stayed there. 

 He didn't have a computerized access once he got legal 

authority to go into either of those databases. So we lost weeks 

there. Once more, he didn't have computerized access to any of 

the records that these guys were generating -- not the financial 

records, not the travel reservation or even some of the 

California records. So there's clearly a failure of tools. If 

he could have been able to find those two guys and then check the 

links that they had to many of the other terrorists -- there were 

direct shared addresses as I remember, links to the people who 

flew into the south tower and the north tower. We had a chance 

to stop this. The one chance that I can see in all of the errors 

that were made where we really could have prevented this if we 

had the tools to find these guys, and it is a scandal that we 

don't have them. 

 So we need that. We need at a minimum an ability to do 

those searches quickly and efficiently, not just by shoe leather 

and by calling people which is the method that the FBI has used 

for a generation. That's just to fight the last war. Obviously 

the next set of terrorists is not going to be so accommodating as 

to use their real names. We're going to need other mechanisms 

and I've listed in my testimony which I've provided about a dozen 

IT capabilities that our investigators need in order to find 

these folks and to respond appropriately to crises. 

 So clearly we need more tools. But I think when you read 

the story of what went wrong in those two weeks with an eye that 

is informed by bureaucratic realities and political realities 

you'll see that there's a problem with the rules as well. It's 

really -- it's heartbreaking to read what this agent said when he 

asked for the authority to get the assistance of law enforcement 

-- there are a million law enforcement agents in the country, 

there were three times as many FBI law enforcement agents as 

intelligence agents, he wanted to get help on that side of the 
40

FBI and he was told by FBI headquarters, not on your life. You 

cannot capitalize, cannot do that because there's a wall between 

law enforcement and intelligence. 

 And his response was to say, the American people will not 

understand this, someone is going to die because of this. Osama 

bin Laden is the principal beneficiary of the wall that we have 

built. How can we possibly maintain this? The answer was, we 

don't like it either, but that's the rule. 

 Now, I feel strongly about this, obviously, because I was 

part of building the wall. I was at NSA. I thought the wall 

responded to an appropriate, reasonable worry -- theoretical but 

real -- about civil liberties and privacy and that we could have 

a wall and still have an effective response to the national 

security problems that we have. We wrote rules and we thought we 

had done a fine job of carefully balancing all of those equities. 

We obviously failed. We failed terribly. 

 And that failure I think reflects both a desire to 

constantly add to the protections even against theoretical risks 

to privacy that we have built into our system, and at the same 

time, not to spend as much time worrying about whether people 

will actually be able to do their jobs to protect Americans. 

Because what finally happened in this case was the rules might 

just barely have been workable if it were not for the fact that 

there was a privacy scandal in the FISA Court in 2000 and 2001, 

in which the court believed it had not been properly informed 

about contacts across the wall when it was given FISA orders to 

sign. It ordered a massive review. It threw out one of the 

principal FBI investigators who appeared before it and I'm 

guessing, though I don't know, that disciplinary action and maybe 

even a perjury indictment was considered for that fellow. 

 This was so bad that we dropped coverage on terrorism 

suspects in the United States in early 2001. So al Qaeda is 

preparing to kill thousands of Americans, we can't even keep up 

the wire taps that we have authorized in the past. It's a 

disaster. And it's a disaster because there was such an intent 

focus on preventing even the most theoretical privacy abuse. 

That's the lesson that I would draw from September 11. 

 I just would say one more thing. I'm very worried that 

we're going back there, that what we have seen -- I gave a speech 

once, I said, you know, we had two and a half years of serious 

failures. We had a major failure on September 11. We've had two 

and a half years to figure out what went wrong, who should be 

disciplined, and one person has been forced out of government, 

Admiral Poindexter. And the lesson that you can draw from that 

is, well, you can screw up pretty badly in protecting the 

American people, but if you get crossed wires with privacy lobby, 

you're gone. That is exactly the wrong message to be sending to 

our FBI and CIA agents. 
41

 And finally, I would guess I'd say if you look at what's 

happening in the Administration today, efforts to develop new and 

innovative tools are stalling and even the wall is coming back. 

My understanding is that within TTIC there are actually limits on 

what intelligence agents can look at by way of law enforcement 

information, despite our major effort to get rid of that wall and 

the terrible consequences that we saw from having it. So my fear 

is that we are re-establishing August of 2001 and that the real 

risk here is that just like last time, that August will lead us 

to September. Thank you. 

 MR. KEAN: Thank you. 

 Mr. Rotenberg. 

 MARC ROTENBERG: Thank you, Mr. Chairman, members of the 

committee. I think my purpose at this point in the hearing is to 

provide the cornerstones for the privacy interests. When we talk 

about privacy and liberty after September 11th, people tend to 

talk about it in the abstract, and they say we should not trade 

our country's precious freedoms and constitutional liberties for 

some sense of short-term security. 

 I believe it's extremely important for this commission to 

actually understand what the framework of privacy protection is 

in this country, because that is precisely what is being altered 

by the many proposals that have been put forward since September 

11th, both to give the government new investigative authority and 

also to give the government new tools of surveillance, not only 

of people who may pose a threat to the United States but of 

citizens in the United States, people who participate in the 

political process, people coming to open public spaces to express 

their views. These are also the people who become subject to the 

new systems of surveillance we are establishing after September 

11th. 

 But to understand this problem, I think we need to go back 

in time. I think we need to go back to the late '60s and early 

'70s, when the Congress undertook an extensive investigation of 

the surveillance implications of government-based data systems. 

And after almost eight years of hearings, Congress passed the 

Federal Privacy Act of 1974. And what that act did was to 

establish comprehensive safeguards for people in the United 

States against the misuse of their personal information held by 

federal agencies. 

 There was no dispute that the technology would play a 

critical role in advancing government programs, including law 

enforcement, nor was there any dispute about the need to 

establish appropriate safeguards that would ensure that the 

technology could be used for the benefit of the American public 

and the American government and still safeguard essential 

liberties. The Privacy Act of 1974 is the basic framework of 

privacy protection for the use of personal data in the United 
42

States, and it imposes very significant obligations on federal 

agencies that collect and use personal data. It does this not to 

frustrate an agency purpose or to add additional burden but 

rather to ensure that when personal information is collected by 

federal government agencies, it is used for an appropriate 

purpose. 

 Now, the other key cornerstone to think about in assessing 

privacy protection in the United States is the Federal Wiretap 

Act. The wiretap statute was passed in 1968, following perhaps 

two of the most important privacy cases decided by the United 

States Supreme Court. One concerned the use of a tape recorder 

in a public payphone in the streets of Los Angeles and whether 

that new investigative method would require the use of a warrant, 

which is to say judicial approval, or whether law enforcement 

could be free to use any new form of technology without judicial 

oversight to gather evidence that could be used in the criminal 

prosecution. 

 And the court said quite clearly in Katz v. United States 

that this new type of technology needs to be subject to Fourth 

Amendment standards; not that it could not be used or that a 

prohibition should be established but rather that the traditional 

Fourth Amendment standards would be required for electronic 

surveillance. And the following year, in 1968, when the Congress 

passed the federal wiretap statute, based on Katz and the Berger 

v. New York opinion, it constructed an elaborate regulatory 

framework imposing significant oversight responsibilities on 

federal agencies that were using electronic surveillance 

authority. 

 Now, given the focus that the Commission has understandably 

undertaken over the last several months, of the mood of the 

country post-September 11th, I think it's reasonable to consider 

also the challenges that the United States faced in 1968, when 

both the Supreme Court and the U.S. Congress enacted such 

sweeping privacy safeguards. We faced powerful adversaries in 

China and the Soviet Union. Nineteen sixty-eight was the year of 

a presidential assassination and the slaying of a civil rights 

leader. There were widespread public protests across this 

country, unlike anything we've seen in over two decades. And yet 

at that point in our nation's history, the court and the Congress 

recognized the need to establish important privacy safeguards for 

our citizens. 

 Now, I'd be very pleased to speak with you about a number of 

the developments that have happened post-September 11th, to look 

at the Jet Blue matter, to look at CAPPS, and to look at total 

information awareness. But I would urge you at the outset to 

consider the important work that has been done prior to 9/11 to 

establish privacy rights for people in the United States, even 

during periods of significant turmoil. 

 MR. KEAN: Thank you very much. 
43

 Senator Gorton. 

 MR. GORTON: Mr. Rotenberg, since you've finished, I'll 

start with a couple of questions for you. As I read your written 

testimony here, on the last page you have four recommendations 

which seem to me more to be cautions about the way in which we 

make recommendations than substantive recommendations themselves. 

But on the assumption that one agrees with every one of those 

four cautions, does that mean that in your view, no additional 

legislation was needed after 9/11, either to strengthen the 

investigative and law enforcement powers of agencies in the 

United States or changes in the 1974 privacy law to which you 

refer? 

 MR. ROTENBERG: Well, let me say, Senator, first of all that 

I felt strongly that changes were necessary prior to 9/11 to make 

air travel safer, and there were a lot of weaknesses in the U.S. 

air travel system that were fairly well known, particularly by 

comparison to European carriers, and that had not been addressed. 

I think part of the problem that you face is understanding that 

preventing 9/11 may be more about preventing the exploitation of 

security flaws than it is about dramatically expanding 

surveillance capabilities. 

 Now, our panel discussion today focuses on expanding those 

surveillance capabilities, but I do need to say at the outset, I 

think even before we get to that issue, we have to focus on how 

we reduce the security flaws that any person who might consider 

harm against the United States is able to exploit. The question 

you ask, of course, is what changes might we make to the Privacy 

Act, or to the federal wiretap statute after 9/11. Those changes 

that were made in the USA PATRIOT Act, I do not believe have 

significantly contributed to the greater safety of the United 

States. Now, Stewart Baker and I may actually disagree about 

what was happening at the FISA court in 2002 at the time that a 

seven judge panel unanimously concluded that there had been 

mistakes in the applications for those FISA warrants. And it 

came as a surprise to many of us when the appellate panel 

reversed that determination and said that, in effect, this 

procedure that had been established to ensure that the lower 

standard used for intelligence investigations not become a back 

door way to bootstrap criminal investigations, which is now the 

concern of many in the civil liberties community. 

 I don't think significant changes in those two laws are 

required, but I do believe that a lot more can be done to ensure 

security. 

 MR. GORTON: Okay. So from your view, there was not a need, 

post 9/11 for any statutory changes in either direction, but 

simply a more efficient and more effective use of the statutes 

that were already on the books. 
44

 MR. ROTENBERG: Yes. And I think the way this could have 

played out is when the government was proposing to establish new 

systems of surveillance, and of course many have been proposed, 

and some put into place as I described on my testimony. It 

should have been the case that an effort was undertaken at the 

outset to assess how our current privacy rules would apply to 

these new systems of surveillance. I think that would have gone 

a long way to addressing some of the public concerns in the CAPPS 

system for example, which is the passenger profiling system. The 

TSA is proposing to go forward, but the required -- required by 

OMB, required by federal law, privacy impact assessment for that 

project, has not been completed. And so when civil libertarians 

and others, raise concerns about passenger profiling, they are 

saying in part, there are privacy obligations that that agency is 

obligated to fulfill, that it has not yet fulfilled. 

 MR. GORTON: With respect to CAPPS and airline security, do 

you have any critique or differences with a proposition for a 

voluntary system, under which if citizens who travel by air are 

perfectly happy to give up whatever is considered appropriate to 

get a form of identification which will allow them to avoid some 

of the security lines and go more directly to their gates, 

assuming that it's voluntary and not mandatory. 

 MR. ROTENBERG: Well, Senator, if that could be made to 

work, I mean it would seem a sensible solution, but I would be 

surprised, frankly, if those who are charged with protecting the 

security of the country would be satisfied by that solution. Now 

I remember a similar debate Stewart Baker and I had almost 10 

years ago over the key encryption standard, the Escrowed Standard 

for encryption, and it was proposed at that time when there was 

strong public resistance. Well, maybe we should just make it 

voluntary at the outset so that those vendors that want to 

implement this standard that enables surveillance will be able to 

do so. Of course we realize, as law enforcement, that such an 

approach really wouldn't fulfill the mission that was underlying 

the effort. And I think you would face a similar dilemma here. 

The people who are likely to follow the voluntary path for 

passenger profiling are probably those that you're least 

concerned about. 

 MR. GORTON: Ms. Miller, in a sense, the same question to 

you as to Mr. Rotenberg. In your view, was the statutory regime 

prior to 9/11 adequate and sufficient both with respect to 

national security and privacy? 

 MS. MILLER: A couple of points, I guess, on that, Senator. 

First, I've said previously that I thought that the FISA Act 

could have been properly clarified. Whether you did it precisely 

as the PATRIOT Act did it or not, the observation I had while I 

was at DOD is that there was a myth built up over many, many, 

many years, through a number of administrations. There was a 

particular sort of ossified view of what that statute meant that 

occasionally got in the way of people just understanding and 
45

being on the same page and being able to go forward to the court 

effectively. I didn't see, personally, any situation where we 

weren't able to get what we needed under the old statute, but I 

recognized that there was enough lack of clarity, perhaps, or 

confusion sometimes, in the minds of individuals trying to get 

authority under that statute that some clarification could be of 

benefit. 

 The bigger problem that I see right now is one that hasn't 

really been addressed by whether the PATRIOT Act or any other 

sort of proposed legislation or oversight that I've heard being 

discussed, and that is that, to the extent you wanted -- you were 

going back to the point of this panel -- to the extent you want 

to actually enable people to share information usefully in a 

proactive and hopefully preventive way, in a variety of contexts, 

beyond what we faced on 9/11. 

 I think, and I differ strongly with Stewart on this point, I 

think you have to put in mechanisms in advance to make the 

American public trust that technology. And it is not an undoable 

task, it just requires -- just is perhaps to light, but it does 

require oversight from the Executive Branch, oversight from 

Congress, a whole set of guidelines and discussions that can be 

done in public for the most part instead of behind the scenes, 

that will give the American public confidence that what we are 

doing as we use these powerful tools is designed to protect us, 

not to undermine our liberties. And I think that's something 

that can be done. 

 MR. GORTON: Mr. Baker, the pre 9/11 adequacy of both our 

security statutes and our privacy statutes. And your critique of 

the PATRIOT Act, too much, too little? What should be done? 

 MR. BAKER: One of the things that the PATRIOT Act did was 

try to knock down all of the most obvious legal bases for the law 

between law enforcement and intelligence, and since I think that 

was a major contributor to the disaster of September 11, I think 

that was a good idea. That mean getting rid of the restriction 

on sharing of wiretap information with intelligence, getting rid 

of the restrictions on sharing grand jury information with 

intelligence and getting rid of the principle purpose rule that 

had emerged from practice in the FISA court. 

 MR. GORTON: And we need the PATRIOT Act in each of those 

cases? 

 MR. BAKER: There's a kind of revisionist view that we got 

from the FISA court of review that said, gee, you really didn't 

need to do that, if people who had properly understood the law 

would realize that what the FISA court had been doing for 20 

years was wrong. Well, they'd been doing it for 20 years, no one 

had appealed it, it was, as Judy says, ossified into the practice 

of everyone who touched the FISA court and that was not going to 

change, I suspect, without congressional intervention. 
46

 MR. GORTON: Go ahead, I interrupted you. 

 MR. BAKER: As far as security issues, I actually think 

there are some problems that we were sort of engaged in national 

security deficit funding on -- we have yet to recognize that once 

you have gotten rid of the wall between law enforcement and 

national security, you're going to run the risk that if you try 

defendants for terrorism in U.S. courts, as so many people seem 

to now want, they're going to start making Brady motions to 

examine the entire take of U.S. intelligence agencies to see if 

they can find something that might be exculpatory. And unless 

you can find a way to find a way to deal with the problem of 

whether Brady really extends that far, you're going to run the 

risk that at least the lawyers for, and maybe the defendants 

themselves, will get to see exactly what our methods and sources 

are with respect to the terrorism problem. That's a big problem. 

 I think we also, the court of review said go ahead and get 

this FISA orders against people, and we think it's constitutional 

to do it, even in a criminal context, but of course if we 

actually try them, they're going to be making suppression motions 

in courts that are not going to end up reporting to the FISA 

court of review. And if we don't actually struggle with the 

question of how we're going to handle that, we could end up 

finding we have a crisis about the FISA wiretap system within 

five years. 

 MR. GORTON: Would the solution to those problems require 

additional legislation? 

 MR. BAKER: Probably. I don't think the courts are likely 

to address that, although it's certainly possible to restrict 

Brady in particular, and perhaps even to understand the question 

of the -- well, the FISA quarterly review clearly came to the 

view that it was constitutional to use FISA in this context. I 

am not as confident that the Ninth Circuit will come out that 

way. 

 MR. GORTON: And in light of 9/11 and the particular 

challenges we face today, is there any appropriate review of the 

1974 Privacy Act? 

 MR. BAKER: Actually, I don't think the 1974 Privacy Act as 

it's been understood and administered has proven to be a 

significant barrier, and I suspect it won't prove to be a 

significant barrier in the future to carrying out appropriate 

national security measures. 

 MR. KEAN: Richard? 

 MR. BEN-VENISTE: Good morning, and I'd like to thank you on 

behalf of my colleagues for your appearance here today. Let me 

start with a personal observation, and that is that those who are 
47

vigilant in protecting our constitutional rights and civil 

liberties against overreaching in times of national crisis are 

every bit as patriotic as those who favor more extensive 

incursions in the name of national security, perhaps even more so 

because they are courageous in the face of what's seen to be a 

popular demand. Something terrible happens, the cry is we've got 

to do something different. 

 I would suggest that we did in fact have the tools available 

prior to 9/11 given the information we had, had there been a 

greater focus on the threat of terrorism within the United 

States. On the one hand, we know that we had within our 

intelligence community a communication to suggest that al Qaeda 

was going to strike within the United States and was going to use 

commercial airlines. On the other hand, we had intelligence that 

involved the identification of two members of al Qaeda we knew 

were within the continental United States, and I would suggest 

that had this information been pursued, we certainly could have 

found the two individuals. 

 The FBI had no restriction, even if they did not have the 

means themselves, from using private organizations which 

conducted data mining at the time, and there are a number of 

individual companies to which the FBI would have had access had 

they focused specifically on this. Of course, we're dealing with 

20/20 hindsight, and we're all mindful of that, but when we 

discuss making wholesale changes in our civil liberties and 

protections of privacy, we have to keep in mind the effects of 

that on the body politic, on the public, where there's a 

tremendous apprehension now about individuals' civil rights and 

civil liberties being subject to more and more increasing 

government intrusion, and particularly in connection with the 

enormous amount of effort that is now going into data collection, 

data mining by various agencies of the government. 

 And although we have heard this morning some quotes from the 

Israeli Supreme Court and I think properly so from our other 

panel since the Israelis face in their democracy an enormous 

challenge, one that we could not begin to comprehend in this 

country even with the 9/11 tragedy, on a daily basis in that 

country and yet the supreme court's reaffirmation of the 

separation of power and the rights of individuals has been and 

presumably will continue to be of major concern and protection. 

 Going to our own supreme court, let me quote from two 

members, one a present and one a former member. In 1995, Justice 

Sandra Day O'Connor warned, "It can never be too often stated 

that the greatest threats to our constitutional freedoms come in 

times of crisis," and Thurgood Marshall, who in 1989 warned, 

"History teaches us that grave threats to liberty often comes in 

times of urgency when constitutional rights seem too extravagant 

to endure." The World War II relocation camp cases, the Red 

Scare of the McCarthy era, internal subversion cases are only the 

most extreme reminders that when we allow fundamental freedoms to 
48

be sacrificed in the name of real or perceived exigency, we 

invariably come to regret it. Let me ask about the issues of 

data mining. 

 Mr. Baker, you've mentioned the TIA which was at first 

called Total Information Awareness and when the great furor arose 

about the name of that project, they changed it to Terrorism 

Information Awareness. But notwithstanding that, and 

notwithstanding Admiral Poindexter's dismissal from that 

position, which I think on balance was not all that controversial 

given what was going on, the Department of Defense has 

nevertheless continued to examine and expend significant 

resources on data mining. 

 I'd like to ask the question of this panel as to how many 

different agencies in the United States government are now in the 

process of amassing extensive, exhaustive data collection 

databases for utilization under different scenarios? Clearly we 

have the Department of Homeland Security, which through its 

various agencies including the Coast Guard and Naval 

Investigative Service have indicated that perhaps contrary to the 

initial conception of the Department of Homeland Security's 

function, it is not a passive consumer of intelligence, but is in 

the business now of actively collecting data. There is ICE, the 

Immigration and Customs Enforcement Agency, there is of course 

the FBI, there is TTIC, there are various state agencies that are 

combining to have regional data mining through various private 

companies accessible. My question is how many different agencies 

are now collecting this information, and is that the right way to 

go about business? 

 First, Ms. Miller. 

 MS. MILLER: I don't know how many agencies are collecting 

this kind of information right now, Mr. Ben-Veniste. This 

commission may have a better take on that than we do actually, 

but the point of my earlier comments and the testimony I 

submitted is that there probably is a better way. And without 

trying to repeat what the Markle Foundation Task Force report 

most recently said, I think we agree that it made some sense to 

have DHS be in the lead. I think that there's some confusion 

that's developed between the missions put forward under the 

executive order for TTIC versus DHS as an example. 

 But more important than anything is that, you know -- is a 

view that I share, which is that what you want to do if you're 

going to use this information is not have it focus just in the 

federal government and sort of driven by traditional views of how 

you gather data, which is I think what has been going on with the 

FBI and even TTIC. And instead you should take a step back and 

try to figure out how you want to have an enabled distributed 

network that can support decision-making and analysis across this 

country in an effective way with privacy guidelines in place. 
49

 And that matters because if you are -- you know, as you've 

said, data mining or data analysis is going on in the private 

sector right now. It goes on, I presume, in some instances in 

the federal government right now. It can be very both powerful 

and can lead sometimes to wrong results. And that's why you need 

to have guidelines about how you use it. I mean, the sort of two 

kind of -- two categories of data analysis that people typically 

talk about are subject-driven and pattern-driven. 

 In subject-driven, you just look to a person often and then 

say, all right, let's find out everything that person does. It's 

very much like law enforcement but driven by more powerful tools. 

And if you've got the right person, it at least allows you to 

focus in on that person more effectively than we have been able 

to do in the past. Pattern analysis is very different. We're 

not all that good at it yet. We don't have the technology, as I 

understand it, really to do it well. But if we do have it in 

place, as technology matures, to do it well, you can still end up 

with horrific results, not just -- in terms of coming to the 

wrong result occasionally as opposed to the right result. And I 

think you need to build a technology that takes those issues into 

account and has executive branch oversight so that you do not go 

through a kind of an ad hoc -- every agency that feels like it 

wants to do this just goes out and tries to do it. That is not a 

good idea. 

 MR. BEN-VENISTE: What restrictions are there on various 

agencies creating their own stovepipe data mining and collection? 

 MS. MILLER: Well, there's some restrictions that came about 

as a result of TIA with respect to Defense Department funding, as 

I understand it. And I suppose that that is an example, frankly, 

that would be out there at least to some other agencies to give 

them pause if they do think about -- thinking about an integrated 

approach to this that I've been trying to describe. But I -- you 

know, absent either -- I mean, I would not urge legislation, at 

least at the first step, because I think that's a somewhat blunt 

instrument for dealing with these issues. But it does require 

effective, active, thoughtful thinking and actual rulemaking 

within the Executive Branch. And if that's going on, it's not 

visible to the outside world. 

 MR. BEN-VENISTE: Well, let me follow up on your observation 

with respect to TIA and the Department of Defense. I think it 

has been little publicized but nonetheless important that we 

learn that NORTHCOM, the Department of Defense domestic 

protection agency, if you will, of the Department of Defense, 

which now has a domestic -- a definite domestic mission, is in 

the process of creating through its command at Peterson Air Force 

Base in Colorado Springs, Colorado a combined intelligence and 

fusion center where it has let out contracts for the creation of 

what they call actionable intelligence about a domestic terrorist 

threat, collecting and analyzing data from 50 different federal, 

state and local agencies. 
50

 Supposedly NORTHCOM does not collect data on its own but 

rather it analyzes and then disseminates data. What is the 

proper role of the United States military in this exercise as 

another of these entities creating, analyzing, disseminating data 

on United States citizens? 

 MS. MILLER: Well, that's a big question. Let me just maybe 

take one or two bites at it. Northern Command is not necessarily 

a structure that I would have put in place if I were sitting at 

the Department of Defense, but I understand why Secretary 

Rumsfeld and the President decided to do that, because there 

needs, I think they felt, to be more structure and focus within 

the U.S. military on domestic -- sort of protecting us largely 

from catastrophic consequences of a successful attack, as opposed 

to necessarily going out there and stopping the attack before it 

happens. 

 I think that if you -- in any military command you have an 

intelligence fusion center. They don't know how to do it any 

other way. I think, at least as I understand it, Northern 

Command has been set up, as you said, so that they are not 

collecting intelligence actively but simply getting the products 

of other -- 

 MR. BEN-VENISTE: Buying it, as it were. 

 MS. MILLER: Getting it from other federal agencies from the 

most part. And I think it's a work in progress. I think that in 

the -- although it's a different subject than the one we sort of 

started out with today, I think that there has been a -- need to 

be a lot of hard thinking and guidelines put in place with 

respect to that entity, not that I expect it to do something that 

would not make us proud, but I think it's a new area for the 

military in today's world. And some of the same concerns that 

came up in law enforcement with the wall, so-called wall, will 

come up with Northern Command. They're going to get feeds from 

all the Joint Combatant Commands all over the world and they're 

going to mush it together with a lot of domestic intelligence, I 

would expect, and they need guidelines for what they do with that 

information. 

 And I think they're in the process right now of working it 

out, but oversight on that front is appropriate too because my 

own view is that the last thing we want is to have a U.S. 

military, which I think is so respected in this country, lose 

some of that respect if it's perceived as doing -- sort of 

crossing the line into law enforcement and sort of surveillance 

of Americans, which I don't expect them to do, but I think we 

need some sort of guidelines in place to make sure that people 

are reassured that that's the case. 

 MR. BEN-VENISTE: I agree with you. 
51

 Mr. Baker, do you have some additional agencies which you 

know about who are also in the data mining business? 

 MR. BAKER: No, I don't. I'm assuming that most of them 

have been brought to light in the intense coverage looking for 

precisely that in the last six to eight months. My sense, in 

fact, is that as that coverage has intensified and as the climate 

in the country has changed, that many people who had considered 

that, many agencies who considered that, are slowing or stopping 

their efforts to use information in ways that might help us to 

find terrorists, responding mainly, I think, to theoretical 

concerns about ways in which privacy abuses could occur, not to 

actual privacy abuses. 

 I think after September 11, the lessons from the wall and 

the well-meaning basis for creating that is that you better be 

pretty cautious before you say, in order to avoid some 

theoretical risk, I'm going to put in place real limits on what 

people can do to protect us. I am, however, very big on some of 

the technologies that would allow us to audit access to 

databases. There's very powerful technology that can impose a 

lot of accountability on people who do that. If we find actual 

abuses, we ought to take action then. I think a process of 

trying to write the rules in advance, as the wall has 

demonstrated, is bound sooner or later to create a disaster. 

 MR. BEN-VENISTE: Let me follow up on your observations with 

respect to pre-9/11, which I think differ from mine. What was 

there about the information that we had in our possession that 

would have precluded the FBI working with the FAA to put the two 

individuals whom they were looking for on a no-fly list, given 

the fact that we know that they were using their correct names 

and identification, and given the fact that we at least had some 

warning that some terrorist act involving commercial airliners 

was being planned? 

 MR. BAKER: I think the -- that is a possibility that could 

have been done. There was bad coordination and stovepipes 

throughout government. Part of that, however, was reflected in 

an inability for information technology systems to interoperate. 

That agent -- 

 MR. BEN-VENISTE: Well, I'm not talking about -- 

 MR. BAKER: That agent did what he thought was the right 

thing, which was to try and locate these folks using the tools he 

had ready access to. It didn't work. 

 MR. BEN-VENISTE: Well, we're talking about what was 

available and I'm not talking about interactive anything, I'm 

talking about somebody picking up the telephone, calling the FAA, 

saying there's two people who ought to be on the no-fly list. 
52

 MR. BAKER: He was trying to find them. We weren't actually 

focused, obviously, on exactly what happened on September 11. He 

was trying to find them, not keep them off of planes. If they'd 

been turned away on a plane, I wouldn't be surprised if he 

thought to himself, if we turn them away they'll know we're onto 

them and we'll never catch them. I don't know what was going 

through his head, but that's certainly a possibility. 

 MR. BEN-VENISTE: Well, being identified in an airport and 

being released and, quote, turned away, are two different things. 

Mr. Rotenberg, could you address the first question in terms of 

the number of agencies, to your knowledge, that are in the data 

mining business? 

 MR. ROTENBERG: Well, Mr. Ben-Veniste, again, I think some 

history is relevant here because you know for more than 30 years 

we've had a large, decentralized, computerized criminal history 

system in the United States called the National Crime Information 

Center, and that database is available, I think, to over 800,000 

individuals in the law enforcement community. The information 

that's in that database has continued to expand over time, 

including material witnesses and others. It is already a 

powerful tool for when a person is detained to determine if 

there's an outstanding warrant. 

 Now, data mining, as I suggest in my testimony, raises a 

different set of problems because it is an attempt to integrate 

information from different data sets that aren't naturally 

related. I mean, to use sort of a trivial example, in the 

commercial realm, if you have purchased a sweater around 

Christmas time for the last two years, the merchant is probably 

making a wise move and suggesting to you this year around 

Christmas time perhaps you'd like to purchase a sweater. But you 

can make that extrapolation because you are dealing with similar 

data to produce a conclusion. 

 A lot of the data mining projects that were pursued under 

TIA are now still being proposed for CAPPS, attempt to suggest 

that you can take information from financial institutions and 

information from travel agencies and information from 

communication carriers and extract and infer conclusions. And I 

think that is a much more difficult problem. I think it would be 

a mistake to assume a correlation between the level of data 

mining that occurs and the level of useful information that is 

produced. 

 MR. BEN-VENISTE: Let me ask you whether, in connection with 

the military's involvement in analyzing the information to which 

it is gaining access throughout the world and -- with respect to 

United States citizens, whether you see a tension between the 

Posse Comitatus Act and the new involvement of the military in 

collecting this information. 
53

 MR. ROTENBERG: I haven't thought so much about that 

problem, but I will tell you that your question just a moment ago 

made me think of a famous Supreme Court case prior to the passage 

of the Privacy Act which was Laird v. Tatum. And the issue in 

that case concerned the collection of information on war 

protestors by the Department of Defense. And they alleged a 

Fourth Amendment violation, saying that this information was 

being collected without any judicial oversight. The court 

ultimately found against them because they couldn't find an 

actual harm. 

 But it was suggested by the court at that point in time that 

you could imagine a more elaborate system of surveillance that 

would raise significant Fourth Amendment concerns. And, you 

know, I have to say, as someone who responds to some of the 

comments that Mr. Baker has made this morning, I don't think 

adherence to Fourth Amendment standards is a theoretical concern. 

I think it is an underlying goal and obligation of the federal 

government. And many of these systems that are being discussed, 

raise significant Fourth Amendment issues as to their 

application. 

 MR. BEN-VENISTE: Thank you. 

 Mr. Chairman, while I have other questions I'd like to ask 

this panel, in deference to my colleagues who no doubt have other 

questions, I will suspend my questioning at this point with my 

thanks to the members of this panel. 

 MR. KEAN: Thank you. I've got one myself actually. 

 As far as private data sources, I've been given to 

understand that there are private data sources involved with 

credit card companies, magazine subscriptions and so on that are 

much more extensive probably than anything the government had and 

maybe has. And that had we wanted to look up Mohammed Atta, or a 

number of the other hijackers, we could have found them probably 

in an hour or two using some of those private sources. First of 

all, is this correct? And if it is, should there be -- why are 

we less worried about private sources having all our personal 

information than we are about government having our personal 

information? Anybody. 

 MS. MILLER: I could take one brief try at that, which is -- 

I mean, I do think that there is an obvious difference between 

privately held information as opposed to government access to 

that privately held information because government does bring 

with it -- and I mean, it's the 900 pound gorilla to put it 

mildly, and it does bring with it a lot of power over its 

citizens that private entities cannot typically exercise. So I do 

think there's an obvious difference that's driven by -- you know, 

we recognize that in Fourth Amendment jurisprudence and 

everything else. But I do think having access to private data -- 

I don't know if it would have helped, you know, I don't know the 
54

details enough, the precise details before 9/11 -- of what you 

all know about the information that was available leading up to 

9/11. But I do think that having access to private data can be 

useful and would be useful going forward. 

 I think again, it needs to be done in a responsible way, and 

by that I mean you don't necessarily have to import all that data 

into the federal government's network. You can leave it out 

there, you can touch it, you can use it in anonymous ways 

sometimes, before you actually get enough information to really 

focus in on an individual or individuals. So I think there are a 

number of steps that can be taken to leverage that data without 

making it seem that the government has got too much information 

with respect to every American citizen sitting in its files ready 

to be misused. 

 MR. BAKER: Let me add to that. They definitely had 

frequent flyer information, rental agreements, as I said, a 

California DMV ID, much of that was available to the private 

sector. The private sector had a better way of finding 

connections between the hijackers than the United States 

government did, and it's shocking. In part, one of the problems 

was that we wrote rules in advance to prevent theoretical risks 

like Laird v. Tatum. The FBI adopted rules that said, well, you 

can't gather files on individual American citizens without some 

very strong reason. The result of that anybody in al Qaeda could 

type in the name of anybody in the FBI into Google, print off the 

result and have a good intelligence file on that person. The FBI 

was prohibited from doing that. 

 This effort to kind of stop the direction of technology 

which is clearly toward more data and more coordination of data 

among databases and to say well, we won't let the government go 

there, simply means that private sector will go there and we 

won't have the advantage of it. 

 LEE H. HAMILTON: Thank you very much for your testimony. 

You folks all work on the, as I understand it, kind of the 

cutting edge of law and privacy and technology. And I'm just 

wondering what you think we should say as a commission to the 

American people about their privacy in the future. To go back a 

few years, when the electronic devices were first put in place in 

airports, I don't know just when it was, but it was a long time 

ago, there was an outcry among civil libertarians that this was 

an outrageous intrusion into the privacy of the airline 

passenger. And I suppose there were a lot of court cases, I 

don't know. Now we've come to just accept that, all of us accept 

it, grumble a little bit perhaps at the inconvenience, but we 

accept it. 

 What do we say to the American people about what's going to 

happen to them here with all of this fancy new technology coming 

along. Should we say to them, look, you better prepare 

yourselves for all kinds of invasions of your privacy because 
55

that's going to be necessary in the world ahead with our concern 

for terrorism? Or do we need to say anything to the American 

people about the invasion of technology and of their privacy? 

 MR. ROTENBERG: Let me say, I think if you were to reach 

that conclusion it would be a very unfortunate outcome. It would 

seem to me -- 

 MR. HAMILTON: What conclusion? 

 MR. ROTENBERG: Reach the conclusion that the American 

people should anticipate a significant loss of their privacy 

after 9/11. It seems to me that the challenge we face, both you 

as commissioners and as this country is how we respond to these 

new threats without sacrificing our basic freedoms, and my view 

is not a theoretical concern about the importance of liberty, 

it's also the belief that the government, the country is more 

robust. It is better able to withstand threat if the government 

is accountable, if the citizen's rights are protected. We can 

consider how effectively our governments respond that have 

adopted enormous secrecy, and in such worlds there's very little 

ability to assess which programs are working, where the threats 

are arising, what the new challenges might be. 

 MR. HAMILTON: Mr. Rotenberg, the question is, do you 

anticipate that the technology that is in the mail, coming 

forward, is going to represent a much further invasion of privacy 

in the American people? 

 MR. ROTENBERG: I don't think it necessarily has to, and 

that's why it's very important to distinguish technologies that 

promote security from technologies that enable surveillance. We 

have already done a lot since September 11th to put in place 

better technologies of security for monitoring containers and 

cargo entering the United States, for determining the materials 

that are aboard an aircraft. All of those decisions represent 

the incorporation of technology that helps safeguard the country. 

But what you're talking about today is a narrow set of 

technologies, the technology of surveillance and the attempt to 

try to determine a person's intent prior to when they act. 

 MR. HAMILTON: Well, I've been reading, and you have too, 

about this new technology that they're going to have at the 

airports that will strip you, in effect? Now that's a rather 

considerable invasion of privacy. Are you -- 

 MR. ROTENBERG: I don't think it should be in place. I 

mean, this is the Orlando Airport, of course. 

 MR. HAMILTON: Mr. Baker, Ms. Miller, how do you feel about 

this possible invasion of technology and privacy? 

 MS. MILLER: Well, I think it's too easy to assume that we 

need to go back to maybe a theme at the outset here. I think 
56

it's too easy to assume that we have to give up privacy in order 

to be safe. I think usually, if you look at it carefully it 

turns out that we don't need a given -- there are some 

technologies that we actually don't need, we have other ways of 

doing the same thing, or you can implement the technology in a 

way that's respectful of the privacy and civil liberties, and 

sort of the vim and vigor of our national character, which I 

wouldn't want to see lost because we have to give up all of our 

rights in order to stay safe. Often -- you can look at what we've 

done at the airports so far. People have raging debates right 

now about whether what we've done is in fact effective, and 

should we fine tune it in a different way. What I don't like to 

see a the sort of assumption that it's either or and that to be 

safe we've got to give up privacy when that's really not the 

case, and no one's made that case. 

 MR. HAMILTON: I recognize that, but do you see the 

development of technology progressing to the point where it will 

be a much greater threat to the privacy of the American people? 

 MS. MILLER: If it's not utilized properly, of course. 

There's a lot of stuff going on even right now that has nothing 

to do with security, like taking pictures on public streets all 

the time, whether it's for traffic monitoring or for looking at 

public gatherings. There's a lot of stuff going on that in the 

past I think people would have been skeptical of. My own 

personal belief is that we're going to get to the tipping point 

where people are just going to say enough, we're not comfortable 

with this. 

 I could be wrong about this, obviously, but we're not 

comfortable with this anymore, and we'll end up -- the point is 

to deploy these technologies smartly, so if you're going to -- 

think about it in advance. Is this really getting us anything, 

and how much are we giving up to get it? And can we use it in a 

way that minimizes the effect on individuals? And if you can't 

answer those questions and then also say there's going to be a 

payoff, if you can't answer all those questions in the 

affirmative, don't deploy it. 

 MR. HAMILTON : Mr. Baker? 

 MR. BAKER: I'd like to separate two points, which is, is 

technology going to take away our privacy, and what should the 

government's use of technology be? On the whole, yes. 

Technology is going to take away our privacy. You only have to 

look at Google. We would have been shocked at the idea that 

anybody who wanted to have a dossier on us and everything we've 

ever done or that's ever been in the paper or we've ever said 

publicly would be assembled for anybody who chose it 20 years 

ago? 

 Now it's a fact of life. Data is getting cheaper and the 

ability to process that data is getting cheaper as well, and the 
57

consequence is going to be that we will no longer have the kind 

of anonymity that we've been used to for the last century. I 

regret that, I think that's an unfortunate thing. I don't think 

that the answer to that is to say well, the only party that can't 

take advantage of that technology is the U.S. government when 

it's pursuing terrorists. On the contrary, we ought to be able 

to use that technology and we ought to build in safeguards. 

 That's appropriate, and I've identified some safeguards in 

my testimony, but we need actually, I think, to have the courage 

-- I have a different definition of courage than Commissioner 

Ben-Veniste -- I don't think it takes any courage in this town to 

agree with the New York Times. I would suggest that you disagree 

with them and say that we need to use this technology. We need 

to build in the safeguards, but we need to use the technology 

because not using it has turned out so badly. 

 MR. HAMILTON: Thank you very much. 

 MR. KEAN: Congressman Roemer? 

 REP. ROEMER: Thank you, Mr. Chairman. 

 Mr. Baker, your testimony is very interesting and compelling 

and I happen to agree with most of it. I just want to be very 

clear as to your points and if you could just briefly answer 

these as yes or no and maybe a sentence to precisely clarify what 

you mean by it, but I don't want hopefully long answers to these 

questions. You say in your opening paragraph of your testimony 

before the 9/11 commission that the government knew the names of 

the two hijackers, not the private sector, the government knew 

the names of the two hijackers. The government knew that these 

were al Qaeda killers. 

 MR. BAKER: Yes. 

 REP. ROEMER: And the government knew that they had entered 

the United States of America? 

 MR. BAKER: Yes. I get that from the Joint Intelligence 

Committee inquiry. 

 REP. ROEMER: You also go on to state that these two people, 

Khalid al-Mihdhar and Nawaf al-Hazmi, were openly living in the 

country and using credit cards and other sources of information 

that would have made them readily accessible to the government 

apprehending them whether they were in California or Virginia or 

Ohio or some other part of the country, is that correct? 

 MR. BAKER: That's right. 

 REP. ROEMER: And do you also contend that two and a half 

weeks would have been ample time for this FBI agent to have said 

to somebody, listen, I'm not going to pay attention to this wall, 
58

I'm going to try to break through this wall and share this 

information, you contend then that at least the flight number 77 

that went into the Pentagon by Mihdhar and Hazmi if not the 

flight by Atta could have been forwarded or prevented? 

 MR. BAKER: I don't think that by himself he could have 

broken those rules. The FBI obeys rules and he couldn't have 

gotten cooperation. 

 REP. ROEMER: Hypothetically -- 

 MR. BAKER: Without the wall, I believe not only could we 

have found those folks, but if we had just been able to check 

some basic data which they shared with the people, phone numbers, 

addresses and the like who we could have apprehended, we probably 

could have found most of the hijackers before September 11. 

 REP. ROEMER: Including Atta, who flew into the -- flew 

American Airlines Flight 11 into the north tower? 

 MR. BAKER: Yeah, and the fellow who took the plane into the 

south tower as well. I don't know whether we could have found 

the people in Pennsylvania. 

 REP. ROEMER: You also say that you believe that we did not 

have the proper accountability after 9/11, and only one person 

was held accountable in that. I'm not sure if you were being 

cute about Poindexter. Who else should have been held 

accountable? 

 MR. BAKER: I'm not looking for scalps or heads on the wall. 

I think it's an observation that the only people we felt we -- 

the only person we thought had to leave was someone who was 

trying to solve this problem, not somebody who was responsible 

for it. 

 REP. ROEMER: So you're not recommending to the -- 

 MR. BAKER: I'm not. 

 REP. ROEMER: -- 9-11 Commission anybody that should be 

accountable? 

 MR. BAKER: I feel a certain personal accountability here. 

I was part of building this wall. I thought I was doing the 

right thing, that it was the best thing for the country. It 

turned out to be a disaster and I'll always regret it. 

 REP. ROEMER: Do you believe we know all the lessons of 

9/11? 

 MR. BAKER: No. 
59

 REP. ROEMER: What might be the single most important one, 

looking back? 

 MR. BAKER: I think the failure to focus on what was 

happening on the FISA court, in the FISA offices, with the wall, 

where the actual administration of those policies is something 

that's really been overlooked, and we need to do more of that. 

 REP. ROEMER: And you say in the end of your testimony that 

you believe we have gone backwards since 9/11 to August of 2001, 

rather than forward to trying to mitigate future terrorist 

attacks. Can you explain that? 

 MR. BAKER: You know, Commissioner Ben-Veniste read some 

very moving and accurate and proper quotes about the importance 

of being alert to the risk to civil liberties in times of crisis. 

I think that's been the message from the beginning, not that we 

need to sacrifice civil liberties. That is what elite opinion 

has been saying all along, and the result of the progression of 

that from warning against risk to trying to find them in the USA 

PATRIOT Act has significantly deterred imaginative, creative, 

aggressive action on the part of the government to respond to the 

crisis that we're in. 

 REP. ROEMER: And my last question is -- we asked this to 

the first panel, about this 56-year-old National Security Act 

that separates our domestic and our foreign intelligence bodies 

from doing some of this cooperation. Do you think that we should 

have a seamless entity out there collecting intelligence at this 

point, one single entity to take us into this new era? What is 

your feeling on this? 

 MR. BAKER: I'm agnostic on that. In theory, if we could 

bring MI5 over here and plop it down, functioning properly, it 

might be the best solution. But the fact is the choice for that 

is either we're going to leave the FBI to try to change it's 

culture or we're going to ask DHS to take on that major 

responsibility in the middle of desperately trying to organize 

itself. I started the Education Department, and I tell you, it 

is not easy. And so given the choice between those real world 

examples, I think I'd give the FBI some time to get its culture 

in order, but I don't underestimate how hard that is. 

 REP. ROEMER: I don't know how much time you continue to 

give the FBI after that. Thank you, Mr. Baker. 

 MR. KEAN: Our final questioner, Secretary Lehman. 

 JOHN LEHMAN: Thank you. I would like to ask each of you to 

address perhaps the obverse of what we've been talking about, and 

that is the constitutional or the civic rights of the government 

employees that we have working on these issues. Historically, 

there's been a doctrine of sovereign immunity that has protected 

-- or state immunity that has protected government employees from 
60

personal liability, except in the case of clear criminal 

activity. And where there has been abuse of people's rights, the 

government pays, and the government has always been -- except in 

the unique situation of military, the government has been liable 

to civil action for recovery. 

 All this changed during the '70s and '80s when a series of 

new pieces of legislation and some subsequent court cases greatly 

reduced the principle of immunity of officials. And as a result, 

there were some fairly high-profile cases of officials being sued 

privately where they were not defended by the government and 

subjected to financial ruin, in effect. That, we have been told 

and have a witness this afternoon who is going to tell us yet 

again, has had a very significant dampening effect on the 

willingness of government employees to pursue any issue that 

might infringe on privacy issues or civil liberties because of 

their own personal exposure. 

 I know when I was at the Pentagon, as a result of those 

court cases, an individual who was being sued had to go to the 

General Counsel and petition the General Counsel to defend them. 

And in the case of one naval officer who was in command of a 

weapons station, the federal government declined to do that. So 

my question is, do you see this as a problem? Is it a problem we 

should address? Because the people we depend on to try to 

enforce this new effort against our enemies have rights too. 

 MR. ROTENBERG: Secretary, let me just say, because we are 

involved currently in a case before the court concerning damages 

for Privacy Act violations, we do believe that the federal 

government should be held responsible when violation is proven. 

But certainly sympathetic to your concerns about employees of the 

federal agencies. And I'm frankly not aware of many cases, 

certainly not in the realm of the types of privacy issues we work 

on, where specific employees have been held liable. I think 

there was maybe a high-profile case a few years ago at the IRS 

concerning taxpayer records. But beyond that, typically fines, 

when they are assessed, and it doesn't happen very often, but 

they're typically assessed against the agency. 

 MS. MILLER: I think I would turn that little question a 

little bit. I haven't -- you know, Biven's actions, for example, 

have a constitutional basis, and so there's some things you 

couldn't change very easily unless the Supreme Court revisited 

some of this, its prior jurisprudence. But at least while I was 

at DOD, I did not find people being inhibited in their actions 

particularly with respect to civil liberties issues because they 

thought they were going to be sued personally. 

 Or I heard that expressed much more commonly in the context 

of environmental disputes. That's where, you know, base 

commanders would come in and be very worried that they were going 

to be held criminally liable if something didn't work out exactly 

right on the base. So I don't -- at least personally I didn't 
61

find that to be a real problem. I haven't seen the testimony 

you're referring to for this afternoon. I do think, though, that 

individual employees, both currently and former employees can and 

do deserve representation from the Justice Department in specific 

instances where they are asserted to have misbehaved in one way 

or another and it's not clear that they have done so. 

 The other point I would make is that I think -- and this is 

perhaps a little bit where maybe Stewart and I agree sort of. I 

think that having -- one of the problems for employees in this 

world now is, you know, they look at TIA, they look at some of 

the other controversies, and there are no rules, you know. And 

when there are no rules, what you do is kind of go back into your 

corner. I mean, that's just self-preservation. And it's not 

unexpected and it's the way people are. And, you know, to the 

extent this commission could do anything, trying to provide -- at 

least urging people to sort of make some -- you know, grapple 

with some of these hard issues and come up with some rules that 

they then put out so the people know what they can and can't do I 

think will go a long way to making us safer and making the 

individual employee feel like he or she can be an effective 

government employee. 

 MR. BAKER: I do agree and I don't have anything to add. 

 MR. LEHMAN: Thank you. 

 MR. KEAN: Okay. Thank you all very, very much. It's a 

very interesting discussion. Ms. Miller, Mr. Baker, Mr. 

Rotenberg, thank you for all your help and we will reconvene 

again at 1:00. 

 (Recess.) 

 

 MR. KEAN: Okay. We'll call the hearing to order. Gathered 

to walk us through the myriad of issues associated with 

preventive detention and the use of immigration laws and enemy 

combatant designations to combat terrorism are Jan Ting, 

professor of law, Temple University, and former assistant 

commissioner of Refugees, Asylum and Parole, Immigration and 

Naturalization Service; Khaled Medhat Abou El Fadl, visiting 

professor, Yale University Law School, and professor and 

distinguished fellow in Islamic law, UCLA School of Law -- I'm 

sorry, UCLA School of Law; and David Martin, Warner-Booker 

distinguished professor of international law at the University of 

Virginia and former general counsel, Immigration and 

Naturalization Service. 

 Professor Ting, if you would start us off. 

 JAN TING: Thank you, Mr. Chairman and members of the 

Commission. I'm grateful for the invitation to speak today and 

discuss these issues with you and with my distinguished 

colleagues on this panel. 
62

 As the Supreme Court has stated, over no conceivable subject 

is the legislative power of Congress more complete than it is 

over the admission of aliens. Our cases have long recognized the 

power to expel or exclude aliens as a fundamental sovereign 

attribute exercised by the government's political departments, 

largely immune from judicial control. In the exercise of its 

broad power over naturalization and immigration, Congress 

regularly makes rules that would be unacceptable if applied to 

citizens. The exclusion of aliens and the reservation of the 

power to deport have no permissible counterpart in the federal 

government's power to regulate the conduct of its own citizenry. 

 In the exercise of its plenary power over immigration, 

Congress has enacted the most generous immigration policy in the 

world. By direction of Congress, we admit each year to the 

United States more legal immigrants than all the rest of the 

nations of the world combined. But the number is limited through 

complex preferences that I describe as a pick and choose system. 

Those not chosen but who come anyway or who overstay their 

temporary visas are subject to removal. 

 Congress has delegated administration and enforcement of its 

immigration laws to the Executive Branch of government. Removal 

of illegal aliens is exercised administratively, with only 

limited appeal to the federal courts. Prior to 1983, designated 

officers of the Immigration and Naturalization Service itself 

ruled on the immigration charges brought by the INS and issued 

the removal orders. Only in 1983 were those officers transferred 

from the INS to a separate branch of the Department of Justice, 

where they remain today. 

 These immigration judges are not members of the judiciary. 

They work for the Department of Justice and for the attorney 

general. Removal of illegal aliens from the United States is not 

criminal punishment. Procedural rights of criminal defendants do 

not apply. Aliens in removal proceedings are not, for example, 

entitled to a jury trial. They're not entitled to lawyers paid 

for by the taxpayers. They cannot invoke the exclusionary rule 

against their removal. 

 Detention is a common part of the removal process and 

perhaps should be more common than it is now. Americans are no 

longer surprised to hear that there may be as many as 10 million 

illegal aliens in the United States. They are astonished, 

however, to hear that more than 300,000 of those illegal aliens 

have actually been caught by the INS, taken before immigration 

judges, who have ordered their removal, exhausted all their 

appeal rights and then simply absconded and remain in the U.S. 

despite the outstanding removal order. The explanation is that 

these aliens were not detained but were released on bond, pending 

the final resolution of their cases. 
63

 We're all aware of the June 2nd report of the DOJ inspector 

general on the treatment of aliens held on immigration charges in 

connection with the investigation of the September 11th attacks. 

The I.G. expressed concerns about delays in the issuing of 

charging documents, the FBI clearance process, actual removal 

from the U.S., the INS's no bond policy and conditions of 

confinement of the 762 detainees studied. The I.G.'s concerns 

have been accepted in principle by the Departments of Justice and 

Homeland Security, and negotiations seem to be continuing on the 

best ways to address those concerns. 

 As Professor Martin notes in his written testimony today, 

the Immigration Service's bond determinations have always been 

subject to review, and the government's ability to stay an 

immigration judge's bond determination has always been 

provisional, pending outcome of appeal to the BIA, the Board of 

Immigration Appeals. Professor Martin found the DOJ's initial 

response to the I.G.'s concerns to be dismissive, but I thought 

it properly noted the absence of any finding by the I.G. after 

careful investigation of any violations of law by the Immigration 

Service in the unprecedented and extraordinary circumstances 

following the 9/11 terrorist attacks. 

 It also clearly articulated the DOJ's legal positions: that 

the government can use the full statutory 90-day period to remove 

an illegal alien, that it can take more than 90 days if the delay 

is to investigate ties to terrorism, that release of an illegal 

alien on bond is discretionary and not a right, that experience 

demonstrates that illegal aliens who are not detained usually 

flee and avoid deportation. 

 One concern I had about the I.G.'s report was regarding the 

allegations of physical and verbal abuse at the Metropolitan 

Detention Center in Brooklyn, New York. If these allegations 

have substance, the dismissal and prosecution of the offending 

employees ought to be forthcoming. Exemplary punishments, if 

warranted, would serve to protect the rights of future detainees. 

The I.G. has promised a further report on these allegations. 

 The I.G. did not express concern about the DOJ's decision to 

conduct closed immigration removal hearings for special interest 

aliens charged with immigration law violations without disclosure 

of the information to the public. We have had conflicting 

decisions from the Sixth and Third Circuit Courts of Appeal on 

First Amendment challenges to this policy. I much prefer the 

decision of the Third Circuit, sustaining the DOJ policy, which 

found a basic tenet of administrative law is that agencies should 

be free to fashion their own rules of procedure and required 

consideration of the extent to which openness impairs the public 

good. 

 In the interest of time, I've tried to limit this statement 

to the use of immigration law to detain and remove illegal aliens 

after 9/11, but I can't let this opportunity go by without asking 
64

the Commission, in pursuit of its mandate to make recommendations 

to prevent further terrorist attacks to also consider other 

national security issues related to immigration. 

 First of all, the need for more foreign language capability 

is well known now. Why isn't there a program in place to remedy 

the foreign language gap? In the 1960s and '70s we had the 

National Defense Foreign Language Act to encourage young 

Americans to study what were then critical languages, and I was 

one of those beneficiaries. 

 Why are our borders still as open as they are? Every night 

since 9/11, hundreds of illegal aliens succeed in surreptitiously 

entering the United States and we have no idea who they are. We 

read only about those who are caught or who die in the effort to 

enter. Why has enforcement of the law against employment of 

illegal aliens dropped precipitously? And I cite some statistics 

in my statement. 

 Besides considering what changes in law and policy to 

recommend, please also consider the extent to which simply 

enforcing the laws on the books can enhance nationals security 

and protect us from further terrorist attacks. Thank you. 

 MR. KEAN: Thank you very much. 

 Professor Khaled El Fadl. Or whichever one of you would 

like to. 

 KHALED MEDHAT ABOU EL FADL: Thank you very much for hosting 

me today. My comments are going to try to focus on specifically 

on American Muslims and some of the issues that 9/11 raised. It 

is well known that some American Muslims come to the United 

States in pursuit of economic dreams. They aspire to fulfill a 

sense of dignity that comes from a higher standard of living. 

However, as with all immigrant groups, many American Muslims 

bring with them dreams of liberty and justice as well. Many 

immigrant Muslims come to the United States with elevated 

expectations of liberty, justice, and for them, our country, this 

country, is a symbolic beacon of freedom in the world. 

 We must recognize that other than immigrant Muslims, there 

is also an ever-increasing population of native-born American 

Muslim citizens. For these Americans, the United States, with 

its values of liberty and justice, is the only country they know, 

and for this sizeable portion of the population, the moral and 

political values of the United States are not a matter of 

elective choice, they are an absolute imperative. 

 Muslims have succeeded in becoming a significant part of the 

fabric of the United States and contribute to progress and 

development in this country at every level of social and industry 

-- of society and industry. Despite popular perceptions, 

terrorists and fanatics are a small minority of Muslims in the 
65

United States, and these extremists rarely emerge from the native 

American Muslim context. In most cases, they do not grow out of 

the natural processes of native American Muslim communities. 

Rather, in most cases, they are outsiders that exist on the 

margins of American Muslim society. 

 They cling in the margins of American Muslim society until 

they create the opportunity for terrorism. And terrorism, 

however, endangers the life and well-being of every American 

Muslim, as well as the population at large. Terrorism and its 

aftermath have the effect of dismantling and gradually 

obliterating American Muslim and Arab dreams of financial and 

political security, leave alone dreams of finding dignity and 

liberty in the United States. The primary effect of the 

frustration of these expectations and dreams is the 

sociopolitical alienation of our Muslim and Arab citizens. 

 That is why an important part of winning the war against 

terrorism is actively resisting and guarding against the 

alienation of any part of our citizenry, and we are the stronger 

for it. It is elementary that the more united our stand against 

terrorism, the more effective we will be. When it comes to the 

protracted war against terrorism, we can ill afford even the 

appearance that the United States has turned against a segment of 

its own citizenry. 

 It is worth emphasizing that the Muslim and Arab citizens of 

the United States are an extremely valuable assets in this war 

against terrorism, and while terrorists desperately seek to 

exploit the most alienated elements of this population in 

furtherance of their criminal conduct, we, on the other hand, 

must make every effort to draft and mobilize this whole 

population by consistently communicating to the segment of 

American society that they are an integral part of what defines 

us as a nation and as a people. 

 At a broader level, it is of crucial significance that we 

remind ourselves that our practice of democracy in the United 

States often has a defining impact upon the fate of democracy 

around the world. What we do here in the United States in terms 

of our democratic practices goes to the credibility of democracy 

at the international level. It is empirically observable that 

our own domestic laws and policies do promote or hurt the cause 

of democracy by demonstrating the willingness of the world's 

largest democracy to live by democratic principle even when 

seriously challenged. 

 If our conduct appears to betray the principles of 

democracy, dictatorships jump on this to impeach the credibility 

of democratic systems at large, and justify despotism. I have 

observed this unfold in international media venues. Typically, 

apologists for dictatorships produce a list of alleged civil 

rights abuses that take place in the United States and then use 

this list to argue that American demands for democracy around the 
66

world and especially the Middle East are just hypocritical and 

politically motivated posturing. 

 That is why, in assessing the aftermath of 9/11, in the 

interest of time I will highlight -- and I elaborate in my report 

on this -- several areas of concern. One is the practice of 

summary detentions. I think it is fair to say that American 

Muslims understand that the immigration laws of the United States 

need to be implemented and implemented faithfully. In fact, the 

general feeling is that American Muslims are assured and rendered 

more secure by a faithful implementation of the immigration laws 

of the United States. 

 However, there is a perception in the American Muslim 

community that summary detentions are, at times, practiced 

against a category of so-called material witnesses, sometimes on 

unclear grounds, sort of motivated by an attitude of when in 

doubt, detain first and figure out the grounds later. I think 

this -- and I elaborate on this in the report -- is something 

that needs our careful attention. Second major area of concern 

is the use of secret evidence. As I talk about in the report, in 

several cases the use of secret evidence turns out to be badly in 

need of extra judicial scrutiny. 

 Sometimes the difficulty damages the credibility of the 

legal system by feeding into conspiracy theories and fears about 

religiously or ethnically-based persecution. At times, the 

mistakes in use of secret evidence are technical. In fact, 

sometimes silly. Like using -- for instance, relying on a wrong 

name of an organization like Jamaah Islamiyah instead of Jamaat 

al-Islamiyya. I'm out of time so I'm going to quickly summarize 

a couple of other areas of concern. One that emerges from 

practice, and that is the concern of moving detainees around 

without an apparent logic for this constant moving around of 

detainees. A practice like this has trouble with the American 

Muslim community because it cuts off these detainees from their 

support group, their family and also, we consider, ability to 

receive effective assistance of counsel, and adds to the image, 

to the perception that the government is mostly concerned about 

winning rather than achieving justice. Another area of serious 

concern that has left a huge impression upon the American Muslim 

community is the so-called practice of proxy torture or the 

refoulement of detainees to countries in which they would be 

tortured. This, of course, is in violation of our own 

obligations under treaty law, under both the Torture Convention 

and the Refugee Conventions. 

 However, as a well-publicized recent case that I worked 

involving a Canadian citizen who was sent to Syria and tortured 

for about a year before deported from the United States 

emphasized that practice has been devastating under credibility 

of the legal and political system, and is something that I think 

needs to be addressed. In conclusion, and there are several 

other points that I talk about in more detail, I fully recognize 
67

that 9/11 and its aftermath challenged our society, and in fact 

the whole world in profound and fundamental ways. 

 There is emphasis, however, that the war with terrorism is a 

war of propaganda. Terrorists seek to contaminate the world with 

a sense of cynicism about all moral and democratic values. 

Terrorists, through acts of violence and provocation, seek to 

convince the world that democracies are not morally superior 

totalitarian and despotic systems that terrorists believe in and 

espouse. In the war against terrorism, we need to preserve the 

moral integrity and credibility of democracies, and we also need 

to ensure the loyalty and trust of all the segments that 

constitute the rich fabric of our pluralist society. Addressing 

the concerns raised in my report go a long way towards 

maintaining unity and liberty for all, and towards winning the 

war against terrorism itself. And thank you. 

 MR. KEAN: Professor Martin. 

 DAVID MARTIN: Thank you very much, Mr. Chairman. My 

prepared testimony addresses several questions concerning the use 

of immigration powers. In the interest of time, I will not 

address those here in my oral statement, but I will focus on the 

final topic addressed there, and that is this. The 

Administration has asserted broad authority to detain persons 

indefinitely if the Executive Branch deems them to be enemy 

combatants or unlawful combatants in the war against terrorism. 

 This practice began with persons picked up in the combat 

areas of Afghanistan, over 600 of whom have been transferred to 

the U.S. naval base at Guantanamo. Nearly all of these are 

aliens from many different nationalities. One of them, however, 

named Hamdi, was discovered to have been born in the United 

States and so to have U.S. citizenship. He was thereupon brought 

to the United States but remained under a strict detention 

regime. 

 The reach of the enemy combatant doctrine was then 

considerably expanded when a U.S. citizen named Padilla was 

picked up not in a combat area but at O'Hare Airport. He was 

soon declared an enemy combatant and has been held incommunicado 

in a military prison ever since. The government has also picked 

up one non-citizen in the United States and held him under 

similar conditions. 

 The government asserts the authority to hold such enemy 

combatants under the law of war until the end of hostilities, 

apparently meaning the war against terrorism, whose end of course 

is not anticipated for a very long time. The government has 

strongly resisted court review of such detentions, or failing 

that, has argued for an extraordinarily deferential standard of 

review. Moreover, it has asserted the authority to hold such 

persons virtually incommunicado as part of a stress and duress 
68

interrogation regime meant to break down the person's resistance 

to providing information the interrogator seeks. 

 It has fought had to prevent court-ordered access to counsel 

for Padilla or Hamdi, although just last week the Defense 

Department decided to extend that privilege to Hamdi as a matter 

of grace and not of right. Furthermore, the President made a 

controversial blanket determination that all of these enemy 

combatant prisoners at Guantanamo, even Taliban fighters, were 

not entitled to prisoner of war status under the Third Geneva 

Convention. The government eventually did say it would provide 

core protections to them, but the core evidently does not include 

the treaty's explicit ban on coercive interrogation. 

 Now, the government today has prevailed in the Guantanamo 

cases in its view that no court has jurisdiction to consider 

habeas corpus there, but just a few weeks ago the Supreme Court 

accepted a Guantanamo case to consider precisely this question. 

Lower Court decisions in the citizen cases, in contrast, have 

recognized jurisdiction in habeas corpus but have provided highly 

deferential standards of review. 

 Now, what should we make of this practice? In my view, what 

is objectionable here is not the underlying idea that the law of 

war should be applied in some fashion to our struggle against 

terrorism after September 11th. I agree with that. What's 

objectionable is rather the extraordinary sweep of the 

government's asserted powers with regard to those labeled enemy 

combatants. We must now go beyond the law enforcement model, I 

agree with that, but model and structure our anti-terrorist 

efforts before September 11th because of the scale of the threat 

that we face. We should find ways to use the wide range of tools 

that a state of war brings into being, but there must be limits. 

 The most important tools for present purposes are two. 

First, war allows preventive detention of captured combatants 

without any need to prove criminal charges. Secondly, war 

privileges certain acts that would be considered murder or 

assault under other circumstances. We can target al Qaeda 

members without any need for warrants, indictments, trials or 

sentences. The key point however is that war brings into play a 

different set of rules, not the absence of rules altogether. The 

world community has gone through a painful evolutionary process 

over the past 100 years and more to try to refine the laws of war 

so as to avoid indiscriminate cruelties. The United States has 

participated actively in this development and U.S. military 

lawyers have been among the leaders in asserting the importance 

of these humanitarian limits. 

 The protections that are most relevant here are, first, the 

safeguards of the third Geneva Convention, applicable to 

prisoners of war throughout their detention, including important 

minimum standards for conditions of confinement. And secondly, 

rules requiring that privilege violence be directed only at 
69

military targets and adversary combatants, carefully 

distinguishing civilians to the greatest extent possible. This 

is often called the “principle of distinction.” 

 Unfortunately, the Executive Branch in our current struggle 

appears to want the added powers that would come with treating 

the anti-terrorist struggle under the law of war, but without 

most of these hard won restrictions or protections, even in some 

form -- and I emphasize this -- even in some form appropriately 

modified to take account for the different character of this 

conflict. That's a highly worrisome development: powers without 

protections. What we badly need now is a serious effort to 

wrestle with how to adapt the laws of war to the new kind of 

conflict we face but to modify them in a way that still balances 

powers and protections. 

 This will not be easy by any means and it will surely be 

controversial, whatever framework is developed. But the 

Executive Branch, in my view, should have taken the lead in 

trying to spell out such a new framework, probably in the form of 

legislative proposals that could receive full debate and 

consideration before Congress. That opportunity has so far been 

missed, but it is possible that the Supreme Court's decision in 

the Guantanamo case will help induce Congress to take up that 

issue. 

 In my view, the Guantanamo detainees should presumptively be 

given the full range of protections set forth in the Geneva 

Conventions for POWs until we work out an appropriate, more 

limited regime. I say this because I am quite concerned, as has 

been the International Committee of the Red Cross which has 

visited prisoners there, about the current conditions of their 

confinement. In addition, in order to honor the principle of 

distinction, we should offer an early opportunity for detainees 

to demonstrate that they had nothing to do with terrorist acts, 

that is to show that they're basically innocent civilians. 

 Applying these protections does not immunize detainees from 

punishment for their own crimes or violations of the laws of war. 

That's a highly important point. But punishment should occur 

only after a trial in which they're given a reasonable 

opportunity to defend themselves. Trial by military commission 

could be suitable for these purposes, but we must strive to make 

their procedures conform to the protections set forth in the 

Geneva conventions. 

 The Padilla detention, involving a citizen picked up on U.S. 

territory is far more chilling. The government's argument 

supporting his indefinite confinement gives little sense at all 

of how profound a line is being crossed in that case. If Padilla 

can be held, as the government asserts, we are all vulnerable to 

indefinite detention without any access to counsel or even to 

family on the mere say so of an executive official. This is not 

a question of current good faith, this is a question of the kinds 
70

of powers that are being made available and asserted. The 

Supreme Court, in my view, should swiftly declare that that 

particular detention unconstitutional. 

 In conclusion, Mr. Chairman, and members of the Commission, 

we suffered a terrible blow on September 11, but it must not be 

allowed to obliterate the accumulated learning of centuries 

dating all the way back to Magna Carta about the dangers of 

unchecked, executive detention authority, or about the need to 

observe humanitarian boundaries even as we wage an armed conflict 

against the new and ruthless enemy. Thank you. 

 MR. KEAN: Thank you very much, Professor. 

 Governor Thompson. 

 JAMES THOMPSON: Thank you, Mr. Chairman. 

 Professor Ting, let me take you back to the two questions 

you asked and ask you for the answers to your questions. The 

first was, why are borders still as open as they are? Three 

points here, if you wouldn't mind commenting on that. Do you get 

the sense that there is a distinction between the resources and 

the manpower that we devote to guarding the southern borders of 

the United States, along the Mexican border, for example, as 

opposed to the resources we employ in guarding the northern 

border of the United States, our border with Canada? And is this 

a matter of policy? Is it a matter of money and does this have 

implications for the ability of terrorists, for example, to cross 

one border more easily than the other? 

 The second is, do you have the sense that the national 

security implications of border control policy have been 

subordinated to, let's say, drug control policy? That we're more 

concerned about people bringing in drugs to the country than we 

are about people entering the country and doing something here? 

And if so, is that a wrongheaded use of our resources? 

 MR. TING: Well, thank you, Commissioner. I think it's 

important to note that historically, Americans have always felt 

ambivalent about immigration law enforcement and border 

enforcement. I mean, obviously, we're all descendants of 

immigrants, we all pay tribute to our immigrant ancestors and the 

struggles that they went through and the hardships that they 

experienced. We're a nation of immigrants and we're all proud of 

that. But the reality is we are not willing to take everybody in 

the world who would like to come to the United States and that 

means you have to have a system of law enforcement so that the 

people who are not chosen get removed. 

 Now, why are our borders -- just to respond to your 

question, I mean, obviously there's a disproportionate allocation 

of resources, and there always has been, to our southern border 

rather than our northern border. But as somebody who grew up 
71

along the northern border, I can attest that that border presents 

the same sort of issues that we have on the southern border. The 

border is largely wide open, and indeed, every night, every day 

of the year, people cross over from Canada into the United States 

and we have no idea who they are. 

 Is it a question of resources? Well, of course it's a 

question of resources, but it's mainly a problem of political 

will. There's basically a lack of political will in this country 

to enforce our borders for a variety of reasons. Business 

interests want the borders open and I think electoral 

considerations come into play, or the perceptions of tightening 

up the border and the electoral implications of that. 

 But, you know, why are -- this has just occurred to me, why 

are military bases allocated in the United States according to 

whose district is in the hands of a powerful member of Congress 

or a chairman of a committee? Why are bases allocated that way 

rather than in a way that makes sense for national security 

considerations? Why aren't they positioned more along our 

borders where they can add to our national security in that 

regard? 

 No one can argue that drug enforcement isn't a serious 

national priority, but I think in the context after 9/11 we all 

ought to understand that immigration, law enforcement and border 

security is part of our national security concern also. 

 MR. THOMPSON: Your second question about the enforcement of 

the law against employment of illegal aliens. Is the bottom line 

answer that employment of illegal aliens in the United States has 

become such an integral part of our economy that it would suffer 

harm were we to enforce the law? 

 MR. TING: Well, again, I think it reflects the national 

ambivalence over illegal immigration in the United States. I 

reject the contention that we hear so often, that illegal aliens 

do jobs that Americans don't want. I just think that's factually 

untrue. Americans are simply not willing to work at those jobs 

for the wages that those employers want to pay. 

 But I say in my class, if you pay me enough, you can hire me 

to pick your fruit, you can hire me to clean your toilets, you 

just have to pay me enough. Americans just want decent wages, 

that's the issue. So I think it's a complete misstatement to say 

as we always hear that Americans don't want to do these jobs. 

Americans will do those jobs for fair wages, but obviously 

political considerations come to the fore. 

 I think it's important to note that the drop off in work 

site enforcement occurred pre-9/11. It's not the case that we've 

simply devoted more resources to the anti-terrorist struggle and 

that's why work site enforcement has dropped off. It dropped off 

before 9/11. 
72

 MR. THOMPSON: Would you comment on Professor Martin's view 

of the Padilla case? 

 MR. TING: Well, I certainly agree that Padilla is the 

difficult case. I mean the reality is, there's I think a 

progression of concern. But I think the real cutting edge is 

between Hamdi and Padilla, and I don't think I'm the only one 

that has no problem with Hamdi. Hamdi was detained on the 

battlefield. If he had been detained in Afghanistan would there 

even be an issue? If you've detained someone in Afghanistan and 

keep them in Afghanistan, as there probably are people detained 

in that way now, is that an issue? It's become an issue only 

because he was brought to the United States. 

 I don't think that should make a difference. I mean during 

World War II, we brought lots of German and Italian POWs to the 

United States. That did not give them any more rights than they 

had when they were detained on the battlefield in Europe or North 

Africa. But the Padilla case is the most difficult case and I 

don't think anyone can deny that. 

 I do not find outrageous, as many people do, the 

government's assertion that the battlefield is here, that it's 

not limited to Afghanistan and Iraq. I don't think that's an 

outrageous assertion. But I appreciate very much the 

implications that Professor Martin and others have raised as to 

what the significance of that assertion leads us to. I do think 

that the Fourth Circuit's opinion in Hamdi was helpful. The 

Fourth Circuit rejected the government's assertion that there's 

no role for the courts to play in these cases. They said there 

is a role for the courts to play, we do assert jurisdiction over 

these cases, but it's a limited jurisdiction to whether the 

government is actually using the war power or not. 

 Obviously the Executive Branch has broad discretion in 

exercising its constitutional war power. If David Letterman is 

arrested for telling jokes about the First Lady and the 

government labels him an enemy combatant, I don't think that's an 

exercise of the war power, and I would rely upon the courts to 

step in and insert itself in that situation. So I think it is a 

tough issue. Is the arrest of Padilla at O'Hare Airport a 

legitimate exercise of the war power or not. If it is, then I 

think the Executive Branch has a strong argument that it's 

entitled to discretion in how war is going to be waged under the 

Constitution. 

 MR. THOMPSON: Is it your notion that the Fourth Circuit 

opinion would not allow the courts to examine the weight of 

evidence or look at the evidence that the Executive Branch is 

assessing in deciding whether or not to declare someone enemy 

combatant? 
73

 MR. TING: If I were on the court, I would be very reluctant 

to put the court in the position of second guessing the decisions 

the Executive Branch and military are making as to proper conduct 

of the war. I think it is very appropriate for the courts to 

ask, is this an exercise of the war power or is it something 

else? But if it is an exercise of the war power, do we really 

want the courts stepping in and saying, you know, in exercising 

the war power, I think -- I have a different opinion, you know. 

I think the war power should be exercised this way rather than 

that way. I would hope for some deference on the part of the 

courts to legitimate exercise of the war power by the military. 

 MR. THOMPSON: Could a court examine whether or not the war 

power was being exercised without examining the sufficiency or 

the existence or the weight of the evidence? 

 MR. TING: I don't know. I'm not sure that I would have any 

objection to the court wanting to have as much evidence as can be 

brought to its attention in making its determination as to 

whether this is or is not a legitimate exercise of the war power. 

 MR. THOMPSON: But as you understand the government's 

position in Padilla, they would object to having to bring any 

evidence before a judge? 

 MR. TING: I think the -- I don't want to characterize the 

government's position in Padilla. Maybe David can help out here. 

But -- 

 MR. THOMPSON: Professor Martin, can you do that? 

 MR. MARTIN: I think the government position was -- 

 MR. THOMPSON: Here's an example. The President gets it 

into his head this afternoon that Lee Hamilton is an enemy 

combatant and has him arrested and put into military custody. 

What remedy, if any, does he have to challenge that custody? 

Right to counsel? Right to have a court review the evidence? 

Right to talk to his family? I mean, what does he do, what's the 

-- if Padilla is sound, can't they do that to Lee this afternoon? 

 MR. MARTIN: The government's position has been that there 

is no right to counsel in those circumstances. About as far as 

they've gone in saying there's an evidentiary inquiry is to say, 

look at the affidavit submitted by this Defense Department 

official and essentially, I guess, absent total contradictions or 

idiocy in that kind of a statement, which you would never see, 

the courts are supposed to defer to it. That's what I think is 

quite disturbing. 

 I do agree with Professor Ting that as we work out a new 

body of doctrine to deal with these new circumstances, there 

should probably be a distinction between pickups on the field of 

battle, and I mean something fairly -- a fairly obvious 
74

battlefield like Afghanistan and those done on U.S. territory. 

There is more call for deference in the battlefield situation. 

But certainly on U.S. soil, we can't accept a situation where 

suddenly every location in the country is a battlefield for 

purposes of allowing executive detention of anybody. 

 MR. THOMPSON: Well, if they picked up Padilla on the site 

of the World Trade towers, is that a difference, between the 

World Trade towers site and Chicago? 

 MR. MARTIN: I don't have a completely worked out system for 

how you define the boundaries of the battlefield, but I would 

still suggest, even in that setting, if it involves a U.S. 

citizen, there should be an inquiry that goes a bit farther than 

the Hamdi case allowed, and that is you should allow the 

individual counsel and allow the individual to be heard in person 

on the matter, even if the ultimate test that's applied is 

considerably deferential to the military or to the executive 

authorities. 

 MR. THOMPSON: Professor El Fadl, there was an interesting 

article in the paper, it was either yesterday or today, that 

talked about the impact of the battle against terrorism on the 

political reactions, both the Arab community in the United States 

and the Jewish community in the United States, and it seemed to 

suggest that the Jewish community would move away from the 

Democrats and over towards the Republicans because of the Bush 

administration's support of Israel and that the Arab community, 

which had been Republican in the last election, would move away 

from the Republican Party and towards the Democrats because of 

the concern over treatment of Muslims since 9/11. 

 Putting that political context aside, is there a basis for 

saying that the totality of law enforcement actions since 9/11 

has resulted in a widespread feeling in the Muslim community in 

the United States, whether native or immigrant, that religious 

profiling is going on, that the policies are going too far, 

particularly the immigration detentions? And does this have an 

impact on the ability of our enemies abroad, whether it's al 

Qaeda or something else, to make hay? 

 MR. EL FADL: I think -- Commissioner, I think you're 

identifying exactly my concerns. I think it's a dangerous -- 

it's dangerous to look at our war against terrorism as if the 

only relevant context is the United States, and as if the only 

relevant time is the moment that we live in. A couple of things. 

When I say that -- this is -- the war with terrorism is really a 

war with propaganda or communication or message. And it's really 

a war of moral message versus moral message -- in this case, 

really moral message against immoral message. 

 I don't mean it rhetorically, and I know that it's very easy 

to take this language as some rhetorical, dogmatic posturing, but 

the concrete results are felt materially and immediately and 
75

directly. Al Qaeda is extremely adept at emphasizing -- and in 

fact, their whole instrument, tool, is the claim of American 

hypocrisy. And if they concede that the United States offers its 

people and those who accept its way of life, a good life, a moral 

life, they would lose the battle. So what they claim, however, 

is that the United States is insincere about what it says it 

offers humanity. 

 So every -- and I wish -- this message is emphasized for me 

every night as I watch the Arabic channels, the various satellite 

Arabic channels, because I see how -- and, in fact, I also do 

make a visit to some of the Persian channels and some of the -- 

what people in Malaysia and Indonesia are saying. I mean, 

satellite dishes are a wonderful thing and maybe I have too many 

of them. But you see how our actions and our ideology and our 

practices are translating to the world and the extent to which 

the world believes that -- listen, when we were challenged, we 

caved in just like everyone else. I mean, we're not, for all our 

tough talk, we really -- the only difference between us and a 

dictatorship is that a dictatorship has confronted a lot of 

violence and broke long before than we did but we just have been 

lucky and we have not been confronted with that much violence. 

But if we would have, we would have broken a long time ago. 

 The only thing is that I -- as an immigrant, as someone who 

grew up in a dictatorship, this talk about designating enemy 

combatants and the executive having this type of power, I'm going 

to be honest with you, is sending chills down my spine. Maybe I 

don't understand the extent of institutional guarantees in the 

United States that will forever differentiate the United States 

from dictatorships in the world, but my experience in life is 

that human beings gravitate towards oligarchy and despotism very, 

very easily and they often do it with the best claims and best 

intentions. 

 And the story of success that I read in American history is 

a story of restraint on executives, not a story of deference to 

the executive. That's the story that we spend time studying in 

law school. If it was a story of deference to the executive, it 

would be a very short law class. It would be wrapped up in, you 

know, one week. 

 MR. THOMPSON: Of course, if you accept the notion that 

everything is relative, nothing is absolute, can you think of a 

place in the world, any other country in the world which would 

deal with issues of terrorism or the preservation of national 

security in a pure, cleaner way than the United States has thus 

far? I mean, it's hard for me to imagine such a place. If you 

start with the Muslim countries, for example, many of which are 

dictatorships or oligarchies, if you look at Great Britain, where 

police powers are greater than they are in the United States, if 

you look at the countries of continental Europe where the same is 

true. Indonesia -- it's hard for me to imagine a place that 

Muslims could point to and say, here, in the world, there is less 
76

hypocrisy in the enforcement of these laws when you get into the 

area of national security. Is that a valid notion? 

 MR. EL FADL: I don't think so. One, when we talk about 

Muslims, we're often talking about Muslims -- as I said, this is 

the only country they know and so their frame of reference is not 

what's going on in Egypt or what's going on in Syria. Their 

frame of reference is the United States they learned in high 

school and the United States they know today. So that's one, but 

the second point is that there -- you know, one can do as some 

scholars do -- they undertake comparative studies between what 

the Israeli Supreme Court has said about individual rights in 

light of terrorism or what the Swedish Supreme Court has said or 

New Zealand or Denmark or France or so on. There is a material 

difference, though, and that is the remarkable power -- the 

remarkable position of leadership that the United States 

occupies. 

 In fact, I'll go further. If we assume, arguendo, that 

Sweden's, let's say, track record is better than the United 

States in some aspects, I think that when you take the moral 

position that a country like Sweden plays compared to the United 

States, whether their track record is better or worse really is 

irrelevant. What is relevant is whether when we say that 

democracy really matters when the going gets tough is whether we 

really mean it or we mean it as long as it involves someone else 

getting hurt but not us. 

 MR. THOMPSON: Thank you, Mr. Chairman. 

 MR. KEAN: Vice Chairman Hamilton. 

 MR. HAMILTON: Professor El Fadl, just picking up one some 

points you were making there. I've been sitting there, asking 

myself, okay, you've got a large number of Americans, Muslim Arab 

Americans who are deeply alienated from the system and so I ask 

myself what do you have to do to break down this enmity and 

hostility between American intelligence and American law 

enforcement and that significant community in America. And maybe 

one answer -- I want your answer -- but maybe one answer would be 

that you've got to have some kind of a predictable and orderly 

process that deals with those tough cases that we've been talking 

about here, and what strikes me is that we don't have it. 

 The Congress has not given us the framework to deal with 

this new phenomenon of terrorism and, so far as I can see, the 

Executive Branch has not either. And so you get these results of 

people being held for very extended periods of time without 

counsel, without -- incommunicado, with some suggestions at least 

that they've been physically abused, some suggestion -- I don't 

know if it's true or not -- that we've deported some of them to 

countries that commit torture. It just seems to me that you have 

a lack of a framework, a lack of a system. I don't know where 
77

this phrase "enemy combatant" came from. I mean, all of a 

sudden, it's become -- it's blossomed. 

 Well, I've raised a number of things, but I guess the key 

question is what do we do about this relationship with all of 

these people that are alienated now. 

 MR. EL FADL: I want to emphasize and actually try to -- 

 MR. HAMILTON: I'd like the others to comment on my 

observations as well. 

 MR. EL FADL: I try to make this point in the report as 

well. I don't think we've reached a point in which we can say 

that the American Muslim community overall is alienated. The 

American Muslim community played a very large part in the last 

elections and whilst I think played a key role in getting 

President Bush elected, and we are really talking about trends 

and orientations, I don't think we have yet got to the point 

where we can say that the American Muslim is alienated or feels 

completely alienated or feels like an insular minority or an 

oppressed minority or something like that. I think the American 

Muslim -- 

 MR. HAMILTON: Is it okay for the American government to do 

nothing? 

 MR. EL FADL: No. This is actually the part where I 

completely -- in fact, not only the existence of a framework, 

which I completely agree with you about, not only the existence 

of a framework, but I think that it would do not just the 

American people but even would do the American Muslim community 

and Arab community a great good if we are extremely serious about 

the enforcement of something like our immigration laws. I don't 

think this state of confusion where we have laws that we enforce 

at times and not enforce at other times does not actually help 

this community figure out the rules of the game and so that they 

can know what do they have to do to stay safe and what type of 

conduct would get them into trouble. 

 MR. HAMILTON: And have we overemphasized the immigration 

system as a counterterrorism measure? 

 MR. EL FADL: I think we have -- we tend to overemphasize it 

conceptually, but we are woefully lacking in applying our 

immigration system as we actually talk about it. 

 MR. HAMILTON: Most of the people that have been detained 

have been detained under the immigration law, have they not? 

 MR. EL FADL: Yes, except for those detained as material 

witnesses, they're American citizens and outside the purview of 

the immigration law. 
78

 MR. HAMILTON: Professor Ting and Professor Martin, I'd like 

you to comment on this question of a framework and any other 

thoughts you have about the things that Professor El Fadl and I 

have been talking about. 

 MR. TING: Well, I'm gratified to hear Professor El Fadl say 

that the American Muslim community is not in fact alienated. My 

hometown is Dearborn, Michigan, which has the largest Arab 

American community in the United States. It's certainly my 

impression that people are not alienated. I have to say that, in 

my view, the success of the American experiment speaks for 

itself. That there are always going to be foreign enemies of 

freedom who are going to pick away and criticize the way in which 

we do things, this or that. That's always going to be the case 

and there's frankly not a whole lot we can do about it. If we 

fix this, they'll criticize something else. 

 So I don't think, you know, we need to tell the world that 

we're perfect in every regard. We're not perfect. We are, after 

all, a republic founded on slavery. So we've got plenty of bad 

experiences in our history. 

 MR. HAMILTON: Mr. Ting, are you not worried about the fact 

that the power of government can hold someone indefinitely until 

the end of hostilities? 

 MR. TING: I'm not worried -- 

 MR. HAMILTON: That they do not have access to counsel and 

that they're held incommunicado, doesn't that bother you? 

 MR. TING: I'm not worried because the system of checks and 

balances established in our Constitution will come into play. We 

will have considered judgment on that very issue. And, you know, 

I concede it's a difficult issue, but that's why we created a 

court system, to hear these difficult issues. Mr. Padilla will 

get a day in court. His case will be heard. And, you know, wise 

jurists, in accordance with the Constitution, will tell us what 

they think ought to be done in this situation. So -- 

 MR. HAMILTON: The system will eventually work. 

 MR. TING: Yeah. The system of checks and balances, the two 

party system is all in play here, I think. And so I have 

confidence in the system. I have confidence in the Constitution. 

These issues are going to be raised in due course. 

 MR. HAMILTON: Mr. Walker. Professor Walker. (sic) 

 MR. MARTIN: Yes. I fully agree with the need for a clearer 

framework, both in this area of applying the laws of war to an 

anti-terrorist struggle and in the realm of immigration law. 

That's really what I was trying to address in my comments. We 

would be in a lot better position now, I would be less concerned 
79

about the occasional use of these kinds of detention powers for, 

quote, enemy combatants, if the Executive Branch had made an 

effort to try to spell out an overall framework for when that 

power is authorized, what are the limits, what are the checks, 

where do they apply. We really haven't had that. We've had 

instead, pretty much all out defense of complete authority in the 

Executive Branch. I don't minimize the difficulties in working 

that out, and modifying rules from other situations -- 

 MR. HAMILTON: The Congress has not done it either. 

 MR. MARTIN: Congress has not done it either, no. Well, 

yes, it would be good for Congress to do it. It probably would 

have been best for the executive branch to make a proposal and 

put it in the form of a proposed bill. In the immigration area 

it is -- one of the bases for seeing some of the uses of 

immigration powers after September 11th as illegitimate was that 

they are powers that are not very widely used, not resolutely 

used in other sorts of settings. It's not that they were 

illegitimate in themselves, but there seemed to be a sort of 

picking and choosing in that way. 

 I mean, I detect a real agreement among all three members of 

the panel on how we would be better off as a society if we were 

more thorough in applying immigration controls generally more 

resolutely and beefing up enforcement of all kinds, not 

necessarily for its immediate impact on the war against terrorism 

because that would be a better scenario, that's probably not 

totally characteristic of people who teach immigration law in law 

schools today, but I think that is very important. And then we 

would be in a position to feel that the occasional use here was 

justified. 

 I would say one other thing. I think it's a mistake to look 

to immigration powers themselves though as a major part of the 

war against terrorism. They can be employed, but usually when 

information has been developed through other means, better 

intelligence in particular, then among the things you may do with 

regard to someone who is identified as a terrorist may be to use 

immigration authorities. 

 MR. HAMILTON: Let me ask you another question. I'm working 

now in an institute of advanced research. And one of the things 

we do is bring scholars in from all over the world, quite a large 

number of them in the course of a year, not unlike, really, what 

a lot of universities do. We've been having a lot of trouble 

with visas, getting certain people here, we hear the stories 

about scholars who want to come here -- not scholars but maybe 

highly trained professionals who want to come here for additional 

training. They're having difficulty getting into the country. 

 We hear stories now about scholars from -- particularly in 

the Middle Eastern countries who prefer to go to London or some 

other country for their education. And all I have at this point 
80

is kind of anecdotal evidence and I don't know really what's 

happening. And I know that our government is concerned about it. 

But I just wanted to kind of get the sense that you folks have. 

Are we in this situation, denying ourselves access to these 

highly qualified individuals in a variety of fields? Is it 

something that we need to be worried about or is it not? Will, 

as Professor Ting says, the system correct itself without us 

doing anything? Is it a problem? 

 MR. MARTIN: I believe it is a problem. It's not an 

insurmountable problem. I think there are correctives that are 

in the works and I'm not totally pessimistic in the long run, but 

we need to keep that kind of risk in mind as we design additional 

safeguards to apply in the immigration screening system. A lot 

of new systems were employed after September 11. Some of them 

have gotten off to a kind of rocky start, they take a long time, 

there's understandable confusion about exactly how they operate. 

And I think that's been the source of at least some of the 

discouragement that people have felt. 

 Now we could get to a tipping point and people will start 

looking in much larger numbers to other countries as the place 

where they want to go. So we need to be mindful of that. But 

there have been some improvements in those systems, if they can 

be worked more into a kind of smooth routine of immigration 

processing it won't be such a big issue, but we really should 

think about that. Some efforts -- well, in this whole realm, 

it's a matter of tradeoff. 

 We still have very strong interest as a nation in 

facilitating immigration, students, tourists, scholars, for 

business purposes. And to the extent that we expand screening 

mechanisms, we will discourage some of that. We needed to, and 

we have, improved it to some extent. But we need to keep very 

much in mind that kind of tradeoff. 

 MR. TING: I fully concur on what David has just said. I 

will only add that what was clearly unacceptable was the 

situation that we had before 9/11 where we had students coming 

into the United States and we had no clue whether they were in 

fact enrolling as students, we had no clue whether they were 

dropping out and doing other things. We didn't know whether they 

were, in fact, taking courses or not. And I think you know -- 

 MR. HAMILTON: In things like pilot training. 

 MR. TING: Pardon? 

 MR. HAMILTON: In things like pilot training. 

 MR. TING: Yeah, in things like pilot training. So I think 

that the steps that Congress has repeatedly directed be 

implemented are in the right direction. 
81

 MR. EL FADL: My experience, at least direct experience, has 

been -- the most troubling thing is that part about 

inconsistency, and I think the key word is confusion. Recently, 

for instance, there have been several individuals in their 50s or 

in their 60s -- typically university professors have traveled, 

delivered papers in England and all over Europe, recognized 

specialists in one field or another. And then it comes as a real 

surprise, and some of them, in fact several of them, had already 

come to the United States several times for conferences and so 

on, and then they're denied a visa. 

 And my experience is that this inconsistency in practice and 

the inability to sort of say, well, this criteria -- I can rely 

on these criteria or I cannot rely on these criteria is still 

very much not just an earmark of the system but it's become much 

more so after 9/11. And I don't have the same trust as Professor 

Ting does in the system. I don't think the system corrects 

itself. I think it's invariably human beings who create the 

system, who correct the system, who constitute the system. 

 And I just want to say that quite often, you know, if you 

think about cases like the Chinese exclusion cases or the 

Japanese internment cases, or even the more recent cases, the 

cost that we pay is extremely high before we can claim a 

correction. And that's fine for the people who are not directly 

involved in paying the cost. But, again, it's a mind frame that 

I am extremely uncomfortable with when we are willing to 

sacrifice, as long as it's on someone else's dime. 

 MR. HAMILTON: Do you believe we're profiling Muslims now? 

 MR. EL FADL: In what context? I mean, I -- 

 MR. HAMILTON: In immigration and granting visas. 

 MR. EL FADL: Most certainly we have applied a different 

sets of criteria and standards to the admission of Muslims and to 

the consideration of visa applications for Muslims. All you have 

to do is go to the American Embassy in any Muslim country and 

you'd feel this. One of the things that had struck me, I was 

speaking to the -- I asked the American ambassador in Egypt about 

this and he confirmed that visa applications to the United States 

from a country like Egypt saw a sharp drop, but it's a sharp drop 

from the wrong type of people, the people that we would actually 

want to encourage to come to the United States because of their 

accomplishments, their achievements, so on and so forth. 

 And the perception is there's no point in applying because 

we don't want Muslims. And I don't think it's a completely 

unjustified perception. I think we need to set our criteria very 

clearly, our immigration laws very clearly, and we need to send a 

message to the world that we are dead serious about applying both 

our criteria that say welcome and our criteria that say we don't 

want you in this country. 
82

 MR. HAMILTON: Thank you. 

 MR. KEAN: I have a question just to follow up on 

Congressman Hamilton's. It seems that we are doing a number of 

things to keep out people who it is in our best interest to allow 

in, such as distinguished scholars. I've got a lot of anecdotal 

issues of the University President dealing frankly with Chinese 

scholars, not Muslims at all but another part of the world. So 

we're doing that. At the same time, Dr. Ting said there are 

people coming across our borders on a regular basis, every day, 

hundreds of people, we have no idea who they are. 

 We've learned that when we're finding people who are illegal 

immigrants, we lose them again very shortly and have no idea 

where they are or what they're doing. And what I think I've 

heard you all suggest basically is we need more consistency in 

the system and perhaps some tinkering to make it better. It 

sounds to me like that's not enough. It sounds to me like this 

is a system which just simply isn't working in our national 

interest. And if so, perhaps we need more than tinkering. Would 

you care to comment on that? 

 MR. TING: Well, if I could just say, it does strike me that 

perhaps the wrong people are getting in and some of the people 

who we might want have come in are not. I've always favored an 

immigration system that was skewed more in favor of young people 

rather than older people, people with education of skills I 

think. And I think too much of our immigration system does not 

reflect what I would think would be our major priorities in 

deciding who comes into the United States. So I've written a 

piece I think in my written testimony which suggests some ways in 

which the legal immigration system might be changed for the 

better. 

 MR. MARTIN: Mr. Chairman, I think we need some perspective 

here. Overall our immigration system has done a lot of good 

things for this country. I think immigration has been a source 

of a lot of the richness and accomplishments of our society, and 

we've all benefited from them. And most of the people who come, 

come through fairly routine processes, they come here, they stay 

and leave according to their terms. I tried to run a very rough 

estimate of it. Ninety-nine percent of the people, I believe, 

don't overstay their visas, they don't come and use a nonimmigrant visa as a temporary stay to come in and establish a 

long-term residence. 

 Now, there are some problems and we need to address those. 

But I think we ought to keep it in the context of the great 

values that immigration, both permanent and temporary 

immigration, has provided for our society. That's where the 

tradeoffs need to come. I mean, and maybe -- it's probably more 

than tinkering, but I don't think we have to just throw out the 

whole system. And also I think we have to be aware of really how 
83

massive the system is and how challenging it is to design 

effective techniques to control it. A lot of things that sound 

good in very sweeping comments, when they have to get broken down 

and translated into precise steps to take on the ground, they 

become very difficult. You can't do all of those at once. You 

need to pick your targets and figure out which parts you 

emphasize first of all. 

 So I think we need some serious steps but we need to keep in 

mind that the overwhelming majority of people who immigrate do so 

for perfectly valid reasons and they enrich our society, and we 

don't want to kill that off in the course of worrying about those 

whose presence is not valid and may be quite dangerous in some 

instances. 

 MR. KEAN: Commissioner Gorelick. 

 MS. GORELICK: I have one question for Professor Martin. 

You were general counsel at the Immigration and Naturalization 

Service in the -- for a number of years in the '90s, during a 

period of time when we had various political paroxysms over 

immigration. One of the responsibilities of this commission is 

to look at the interaction between the Executive Branch and its 

execution of its various responsibilities under the law, and the 

laws that are passed by Congress, mandating certain conduct by 

executive branch agencies, and the oversight. 

 So my question to you is this. Could you comment on the 

nature of the mandates that were placed on the INS, particularly 

with regard to the apprehension and detention of immigrants who 

had in some fashion or another violated the law or who had 

overstayed their visas, and the capacity of the INS to carry out 

those mandates? 

 MR. MARTIN: Well, let me start out by saying there were a 

number of important steps that were being taken throughout the 

1990s to improve overall enforcement, including the efforts to 

have better systems to deal with aliens with criminal records. 

The key to that, the key to the successes which were required was 

enhanced funding and some efforts to provide thoughtful designs 

for ways to do it, through better arrangements with local jails, 

with the prison systems and so forth. 

 That was going forward but that wasn't quite enough to -- it 

wasn't quite visible enough I think to satisfy the political 

demands that we saw, particularly in the 1996 elections. And 

that was kind of a carryover from California's experience in 1994 

with Proposition 187. There was a big outcry about immigration 

enforcement. The steps that were being taken through -- the 

quieter steps that were being taken I think were likely to be 

much more effective. 

 Instead, what we got into was kind of a bidding process for 

tougher legal provisions that were embodied in the 1996 law, 
84

detention mandates, elimination of various kinds of provisions 

that allowed someone who had a criminal conviction to say, Well, 

nonetheless, look at the way that I've reformed or my other ties 

to the community and allow me to remain despite my commission of 

this offence. That was an over tightening. That has overloaded 

the immigration authorities with some of those particular 

mandates and made it harder to focus strategies in way that I 

think might be the most productive. 

 I guess what I'm really trying to say is the challenge for 

better immigration control is largely a matter of resources and 

careful strategies and not just toughening up the legal provision 

themselves. We might want to rethink some of those overly strict 

provisions adopted in '96 so as to free up some resources and 

time and effectiveness with regard to other measures that may be 

quieter but might provide longer term payoff. 

 MS. GORELICK: Would it be fair to say then that you were 

experiencing -- your experience of our immigration system 

through that period of time is that, if prudent policy making is 

politicized, it can end up backfiring. So that you get a 

perverse result rather than the one that is intended or would be 

good policy. 

 MR. MARTIN: That can definitely happen, yes, and I think we 

did experience some of that. Not all of the '96 Act, the 

immigration legislation reform was of that character. There were 

some steps that were useful and made a lot of sense. But it did 

tend to get carried away with some of that and I think there are 

ways to walk back prudently from some of those measures and free 

up some time and energy for more effective strategies. 

 MS. GORELICK: Thank you. 

 MR. KEAN: Our last questioner is Secretary Lehman. 

 MR. LEHMAN: Thank you. (Off mike.) -- questions. One, 

recently, the Commission visited JFK Airport to review INS 

procedures in the wake of 9/11 and the consolidation under 

Homeland Security. We were amazed to find that those illegals 

that were able to successfully get through the two screens, first 

the INS screen and then the Customs screen, and make it through 

the sliding doors were home free, in that New York City and the 

Port Authority police and all other police forces are essentially 

prohibited from cooperating with INS. And similar municipal laws 

are enforced in other places, particularly in the south and west. 

 Do any of you have any recommendations about what we should 

recommend to deal with this real anomaly? I mean, you can argue 

that laws may be too tough but if the laws in one jurisdiction 

prohibit the enforcement of federal law and immigration, that 

creates a breakdown of the rule of law. So what would you 

recommend, if anything? 
85

 MR. EL FADL: I just want to make a comment. I used to feel 

very strongly that state and local police should basically help 

enforce immigration laws. When I lived and taught in Los 

Angeles, I had an opportunity to come to know some of the Los 

Angeles area local police and some of the policymakers there. 

What I would say is, before making any recommendation in this 

regard, it's really important to listen, to seriously consider 

what local police has to say. 

 What I frequently heard was that enforcing immigration laws 

comes at a cost and that we are left footing the bill for -- in 

other words, the federal government does not help us carry the 

cost of the extra manpower and energy and resources that would go 

into inspecting alien status and making immigration law type 

enforcement decisions and achieving the amount of training that 

would be required to do the job effectively and so on. 

 So often the practice is that if there is a situation where 

the police officer, at least from Los Angeles, encounters someone 

who they suspect is an illegal alien, they will simply hold them 

and call INS and just let INS deal with it. And that's the 

extent of their involvement and there is a lot of resentment -- 

at least that was expressed to me -- about having to say things 

like, are you legal here? Show me your immigration papers, et 

cetera, et cetera. 

 So I think it needs a more -- my sense is it needs a more 

comprehensive treatment if we're going to impose any additional 

duties on local police we have got to make sure that there is the 

funding and there is the training that they seem to badly need in 

order to be able to perform this additional function. 

 MR. TING: Commissioner, there's one proposal out there that 

I personally very much support and I think it comes from the 

Administration and that is the notion that at least the names of 

the absconders and the criminal aliens whom the government is 

seeking ought to be put into the nationwide database and that we 

ought to mandate that, when our local, state and local 

authorities bring someone into custody for any reason, such as a 

traffic stop and they run the name through the database anyway, 

that they be mandated to hold the individuals when they get hits 

on that database. 

 And it seems to me that would a very productive step forward 

and again it would not put the state and local police in a 

position of having to interpret immigration law for which they 

may or may not be qualified but simply to mandate them to, when 

they get an immigration hit against this database, they have 

either a criminal alien that we're looking for or one of the 

absconders for whom there is already a removal order in place, 

that they be obligated to hold that person for the immigration 

service. I think that could be done and I think it would not put 

the state and local police in a position of having to interpret 

immigration law. 
86

 MR. MARTIN: Yes. I think the issue calls for some 

subdivision here. There are ways in which we ought to promote 

more cooperation between local police authorities and the 

immigration authorities and other ways in which it probably makes 

sense to have some division of labor there. My fellow panelists 

have addressed some of those. 

 I think the reason is, from my own conversations with local 

police authorities, they don't want -- they want to encourage 

cooperation from among all residents of the community to give 

them information about crime that's going on. If it's believed 

that they have a mandate that whenever they think even a 

complaining witness is illegally in the country, they run to the 

immigration authorities, then that may dry up some of that kind 

of information. And I don't think we want that. We're not at a 

point where we need that. 

 On the other hand, there are other very well designed 

targeted ways in which better cooperation could work out. The 

use of the NCIC system for absconders from removal orders is one 

way. I think if we had a broader comprehensive policy which I 

would favor to do more about internal enforcement of the 

immigration laws and beef up those parts of the immigration 

machinery to be better equipped for that. We give most attention 

to the border. We should give more attention to interior 

enforcement. If we did that, then we might find ways to have a 

more productive interrelationship with the activities of the 

local law enforcement. 

 But there are some very specific initiatives that have been 

pioneered, for example, arrangement with local jails. As part of 

their own booking procedures, they will find out whether someone 

is foreign born or not. Many of those maybe turn out to be 

naturalized citizens, but we were working out arrangements when I 

was at INS to arrange for either INS officers to interview 

several of those to see if -- for the INS to make a determination 

whether they seem to be in the country illegally or, even better, 

to arrange for a video hook-up so it can be done without INS 

officers having to spend a lot of travel time to different jail 

facilities. 

 I think that's a very productive, cooperative way that 

focuses on those for whom there is a least probable cause of 

criminal activity and it could be advanced. And actually, I 

would say, there is a wide variety of these non-cooperation 

policies that local municipalities have adopted. Most of them, 

if you look at the fine print, they do allow for cooperation if 

there is an indication of criminal activity. So we should 

address that some more. The Commission could probably make some 

useful recommendations along those lines. The strong noncooperation policies go too far but we should be careful about 

exactly the forms of cooperation that we design and they should 
87

include careful training and a well-stated agreement about who 

does what in those circumstances. 

 MR. LEHMAN: That leads to my final question. There have 

been proposals -- in fact, there are half a dozen at least bills 

still lying here in the Congress -- to approach the problem from 

a different angle and to legalize and document illegal temporary 

workers that have a regime similar to that in the European 

community, where you could have everyone that is in the country, 

legally or illegally, come and register. They don't become 

citizens, they don't get green cards, but they get work permits. 

 And by recognizing the force, as you had in your testimony 

pointed out, of the private companies and the many economic 

forces that depend on illegal, particularly south of the border 

temporary workers, why not recognize the problem, document them 

and then allow an INS enforcement activity that doesn't target 

those that have the political clout behind them and perhaps, not 

only economic, but moral high ground. And that would require a 

significant legislation. Do any of you disagree with that, and 

if so, do any of you think it's practical? 

 MR. TING: I disagree with that, Commissioner, for at least 

two reasons. First of all, I don't think that is going to do 

anything to solve the problem of illegal immigration in the 

United States. If anything, it's going to aggravate the problem. 

It's going to legalize a lot of people here into the 

infrastructure, kind of the support structure. 

 It's kind of what happened after the '86 amnesty, that 

suddenly you had a much greater support base in the United States 

for illegal immigration. There were people now prepared to 

receive illegal immigrants openly. And unless something else is 

done on the enforcement side, plus the fact that it's rewarding 

people who have gotten in here illegally and the thought is, 

well, gosh, maybe we better get in there now so that we can catch 

the next amnesty that comes along. 

 Secondly, and perhaps more importantly, we have to 

recognize, having just talked about mandates, the enormous burden 

that another amnesty program of this sort would place on the 

immigration surface, because people have to be qualified in order 

to participate in this program. And everybody is going to try 

and get qualified for that program. And someone is going to have 

to make the yes or no decision as to whether you're qualified or 

not. We're going to have another wave of lawsuits, as we did 

after the '86 amnesty, as to who's qualified and who's not, who's 

been intimidated and who wasn't. 

 So I'm very apprehensive, having talked about how overburdened our immigration services already are, to say, well, 

let's put one more gigantic burden on them. Let's make them rule 

on who's qualified for this new benefit or not, in addition to 

everything else that they're already doing. 
88

 MR. MARTIN: There are basically two kinds of proposals that 

are floating now that meet the objectives you're talking about. 

Some of them would have a registration procedure, an adjudication 

procedure, so the people would get temporary status. It's a kind 

of guest worker provision and some sorts of rules for how they 

would have to go back for at least part of the year to wherever 

their home country is. 

 Other ones would have a more complete amnesty, like we had 

in 1986, a legalization program where people would eventually get 

full lawful permanent resident status. I think we have to be 

very skeptical about both those as to whether they would really 

solve the problem. Guest worker programs basically have not 

worked. The history of them throughout the world is they don't 

work. The intention is that this will really make this truly 

temporary. It doesn't work, at least not without enforcement way 

beyond what is contemplated in these proposals I've seen or that 

other countries have really been willing to provide. 

 Now, a broader amnesty in light of -- for people who have 

been here for a long time, maybe at that point that would be part 

of an overall solution. But to me, the real question for those 

programs is what kinds of new enforcement measures is that being 

coupled with, because you have to have an effective new set of 

enforcement measures in place to make that sensible to make sure 

you don't get in the same soup again a few years later. In fact, 

maybe the momentum would be increased because people might think, 

well, this would be the second amnesty in 20 some years, I better 

get there because maybe there'll be a third one coming down the 

road. 

 So I think the key is to show that we -- to adopt some 

carefully thought out resolute and well-financed techniques to 

improve interior enforcement. And once we've shown some real 

progress along those lines, then we might think about amnesty or 

other kinds of legalization programs as a part of the overall 

solution. 

 But I just -- the problem is most of those are proposed as 

though there's a static population there, if we take care of that 

they'll all be registered, we'll know where they are. It doesn't 

ever stop there. There will be people coming the next time 

around and we have to have something in place where you've 

thought about what do you do about that next wave of migration. 

 MR. LEHMAN: Thank you very much. 

 MR. KEAN: I want to thank the panel very, very much. It's 

been a good panel. You've informed us and helped us. Thank you 

very much and we appreciate your help. 

 Could I ask our next panel, if they're here, to join us at 

the table? 
89

 (Recess.) 

 MR. KEAN: Bring the hearing back to order. If I could, our 

final panel on government organization and domestic intelligence 

consists of William P. Barr, vice president and general counsel, 

Verizon Communications, and former attorney general of the United 

States; John Hamre, president and chief executive officer, Center 

for Strategic and International Studies and former deputy 

secretary of Defense; and John MacGaffin, director, AKE LLC, and 

former associate deputy director for Operations, Central 

Intelligence Agency. 

 I understand, General Barr, we begin with you. 

 WILLIAM BARR: Thank you, Mr. Chairman, members of the 

Commission. It's a real honor for me to have this opportunity to 

share my views with you. I guess this leg of the hearing's focus 

is on organizational issues, and obviously as you can tell from 

my prepared statement, I have very strong views that the 

suggestion of separating domestic intelligence out of the FBI and 

creating a separate MI5 type agency is a very bad idea, and I'll 

be glad to answer any questions the Commission may have about 

that topic or in fact any other topic that arose during the day. 

 When we make organizational decisions or judgments in the 

national security arena, we frequently create dichotomies and 

fissures that really are artificial and create difficulties. And 

obviously one of the fundamental decisions we made was separating 

foreign and domestic intelligence. Well, in the area of 

terrorism or in the drug war and in many areas we face, threats 

do not emerge in tidy categories of domestic threat or foreign 

threat, they're integrated wholes. There are foreign terrorist 

organizations that are attacking us and trying to insinuate 

themselves into the United States, but they don't neatly fall 

into either category and we frequently spend a lot of time once 

we make these divisions, trying to surmount the institutional 

difficulties by reintegrating them in some form or another. 

 And I think looking back at 9/11, I think one of the 

foremost structural shortcomings we had in our counterterrorist 

effort was this separation of law enforcement and intelligence 

and the idea that they can be easily cabined and carried out in 

separate domains. And I think this is obviously a false 

dichotomy. Terrorist organizations don't present themselves to 

us either as a law enforcement matter or a national security 

danger, they are both at the same time and they're just different 

sides of exactly the same coin. And if we have to approach them 

as both national security threats and law enforcement threats. 

 I think the primary lesson to be learned from 9/11 

organizationally is the need to tightly integrate our law 

enforcement activities and our intelligence activities in the 

area of domestic counterterrorism. And I think the FBI is in 
90

fact uniquely situated to provide the kind of integrated approach 

that's necessary by conducting both sets of activities in tandem. 

Clearly there were problems at the FBI, at the CIA and many of 

the agencies that contributed in one way or another to our 

failure to detect the imminent attack from al Qaeda. 

 Now, my own view is that the genesis of this is not so much 

some kind of institutional incapacity to handle national security 

and law enforcement at the same time. In fact, historically 

through World War II and well beyond, the FBI did view itself and 

did a fairly good job in both the national security arena and law 

enforcement. I really think the genesis of the difficulty came 

more from external constraints placed on the FBI and the societal 

expectations in the '70s and '80s and even into the early '90s. 

But whatever the source of the problem, the fact is there were 

problems. 

 And I think that Attorney General Ashcroft and Director 

Mueller have made major strides in addressing them. They clearly 

have reoriented the FBI and made it very clear that the mission 

is preemption or prevention of terrorist attacks, not the 

ultimate prosecution of a case. And on the intelligence side 

they have proceeded -- Director Mueller has proceeded to create 

collection capabilities at the FBI to create the capacity to 

diffuse and disseminate intelligence with all other sources of 

information and creating an analytical capability within the FBI, 

but also fusing and coordinating and contributing to other 

analytical infusion centers in the intelligence community. 

 And on the law enforcement side, we've heard a lot about the 

disperse case approach that the FBI uses and that was a problem, 

as it affected intelligence collection and national security 

activities. But we see developed within the FBI now an approach 

that allows the extraction of information from the criminal 

justice side that has intelligence value and its dissemination 

and ultimately its fusion with all other sources of intelligence. 

 In thinking about, you know, the institutional locus for 

intelligence collection, I think one thing to bear in mind is 

that intelligence, I think, should be carried out with reference 

to the end game. Intelligence, at least this kind of 

intelligence collection, is not an end in itself so we collect 

intelligence to act upon it, to do something with it. And within 

the United States, that is domestically, our end game is usually 

going to be a law enforcement response. And to me that means 

that intelligence activities designed to intercept threats within 

the United States have to be carried out with a view toward all 

those law enforcement options. An awareness of those options and 

an approach that keeps all those options on the table at a 

moment's notice. 

 For example, there may be a requirement to, at any given 

time, to pursue evidence, so we may have enough from an 

intelligence standpoint to satisfy ourselves that a particular 
91

group is up to no good, but in order to have something stick 

against those individuals we may have to develop some evidence. 

So that effort has to be carried out with a view toward 

developing the evidence that could serve as a predicate for a 

criminal case. Or we may have to develop an alternative source, 

alternative evidence, in order to protect intelligence sources 

and methods, or we may need to develop a charge on a technical 

violation, simply to find a basis for holding somebody. 

 These are all things that are dynamic, that take place in 

the course of learning more and more about a group. And it seems 

to me that what that suggests is that in a domestic realm it's 

really impossible to separate out and handle on separate tracks, 

the collection of intelligence from the law enforcement context, 

which in most cases will be the group that's called upon to 

apprehend and hold the terrorists within the United States. 

 So those are just some general views on these organizational 

issues and I'll be glad to answer any questions the Commission 

has. 

 MR. KEAN: Who would like to go next? 

 (Laughter.) 

 JOHN MacGAFFIN: He always wins when we have these 

conversations. Chairman Kean, Vice-Chairman Hamilton, 

distinguished members of the Commission, it's an honor for me to 

speak to you today. 

 Neither the American people nor our federal, state and local 

governments have yet been able to fully understand the long 

developing crisis in national security which suddenly revealed 

itself to us on 9/11. Consequently, it should be no surprise 

that we have not yet been able to set a clear course for the 

future and to determine what steps we must take to increase the 

likelihood that such disasters can be prevented in the future. 

Attacks by those who carried out the events of 9/11 have 

continued against American interests since that time, although 

none as yet taken place again within the United States itself, 

but that's just a matter of time. 

 It falls to the Commission to provide the clearest possible 

view of the causes of 9/11, both the motivations and passions of 

those abroad who are consumed with hatred for us as well as 

understanding the workings of the national security elements of 

government which served us well before 9/11 and those that did 

not. It is only with this information that you will be able to 

judge the adequacy of those changes which have been put in place 

since September and to highlight those things still to be done. 

It's a difficult task but one in which failure is not an option. 

 All Americans have personalized the ways in which the 

attacks of 9/11 came home to them. For me it was the awful 
92

understanding sometime during the night of September 11 and 12 of 

the magnitude of my failure and that of my colleagues at the FBI, 

the CIA and DOD to fully implement those systemic changes to our 

national security structure writ large that could have prevented 

this attack. It's harsh but true. The tragedy is we had the 

vision but not the will. 

 So is the problem domestic intelligence collection or is it 

one of analysis? For instance, last July, John Hamre and I and 

five of our colleagues collaborated on an article that was 

published in the Economist and entitled, “America Needs More 

Spies.” It focuses on the critical requirement to improve the 

collection of intelligence domestically. We asserted that the 

harsh facts of the 9/11 tragedy are, and I quote, "Secret members 

of a conspiratorial foreign organization operated clandestinely 

abroad and in this country for almost a decade before September 

11th, to plan, lay the groundwork for and successfully carry out 

a surprise attack on the United States. The activity was 

conducted by the leadership in Afghanistan, by plotters in the 

shadow of a Hamburg mosque, and by operational travelers from 

abroad and by an established al Qaeda support structure based in 

this country," unquote. 

 The bulk of the criticism of the national security 

establishment's performance before 9/11 has centered on a failure 

to, quote, "connect the dots." While I concede the lack of 

analysis and interagency communication might have contributed 

marginally to the intelligence failure, the main cause was a lack 

of effective collection against al Qaeda, both domestically and 

abroad. There simply were not enough of the right dots that 

would help us truly understand the plans and intentions of the 

enemy attacking us. 

 My remarks today address this issue in the context of 

domestic collection. Under current ground rules, domestic 

intelligence collection is primarily, if not exclusively, the 

responsibility of the FBI. Before proceeding further, we must 

clarify a distinction which sometimes unwittingly, and sometimes 

intentionally I think, has clouded this debate for years. That 

is, we must make the critical distinction between collection and 

gathering as it pertains to intelligence. While the FBI 

correctly highlights its unmatched ability to gather evidence, 

and with it information, there is nonetheless a national security 

imperative which distinguishes intelligence collection from a 

similar but different function found in law enforcement. 

 Gathering, which is not driven and informed by specific 

focused national security needs, is not the same as intelligence 

collection, as the DCI and the intelligence community understand 

that term. This collection is accomplished not incidental to law 

enforcement, but by a conscious, specifically targeted 

operational clandestine espionage activity, whether technical, 

human or a combination of both. Collection, as I will use the 

term today, means those intelligence activities which are 
93

dictated by, coupled to a policy-driven, strategically determined 

set of collection requirements, and this is accomplished by a 

focused, clandestine operational activity. Tom Powers, the 

biographer of Richard Helms, described this focused, proactive 

effort as an effort to determine where the danger lies. That is, 

what we have to have in domestic collection rather than a more 

reactive approach to people who have broken or are about to break 

our laws. 

 So what are the essential elements and solutions to domestic 

intelligence collection which protect the country, and at the 

same time protect our constitutional liberties? First, I think 

we must recognize that domestic intelligence is critical and is 

the missing element of the national security system. Second, I 

believe we must acknowledge that the FBI has failed to establish 

an effective, nationally directed domestic intelligence 

collection organization, despite claiming counterterrorism and 

counterintelligence as its number one and two priorities. 

 Ironically, it is very well positioned geographically and 

resource wise to perform domestic intelligence collection 

missions. It has thousands of special agents, thousands and 

thousands of recruited assets, surveillances, court authorized 

electronic intercepts. We do not need significant new 

authorities, but we do need to use better those authorities we 

already have. 

In order to establish an effective, nationally directed 

domestic intelligence collection capability -- capacity, the FBI 

must establish a national security entity responsible for all 

domestic intelligence collection against individuals and 

organizations who threaten our core diplomatic, economic and 

national intelligence interests, whether they be terrorist 

organizations, intelligence service or other foreign elements. 

 The new organization must be a career service with the 

attendant recruiting, training, operational and administrative 

structures and priority emphasis within the larger FBI 

organization. It should comprise approximately 60 percent of the 

total FBI support and special agent personnel, consistent with 

the prioritization of counterterrorism and counterintelligence on 

the top of the FBI task list. 

 For over nine-tenths of the FBI field office special agents 

in charge to have no national security, counterterrorism or 

counterintelligence experience, does not communicate in practice 

or in fact that counterterrorism and counterintelligence are the 

bureau's top two priority areas. For the bureau's award program 

to recognize, as it did last week in the Presidential Rank 

Awards, predominantly criminal law enforcement accomplishments 

indicates that either the bureau's counterterrorism and 

counterintelligence accomplishments are inadequate -- and if so, 

there should be consequences -- or the bureau's statement that 
94

counterterrorism and counterintelligence are the top two 

priorities is not accurate. 

 I've provided in my statement a fuller description of what 

this organization, this national security entity within the 

bureau, should comprise. I agree with Attorney General Barr that 

the MI5 solution that's widely seen around this town is wrong for 

lots of reasons. First of all, we don't need a British system 

with British antecedents and its roots in British history and 

British governance. What we need is an American system rooted in 

our needs. But we also don't need to continue not doing the 

business of domestic collection that we've got now. So I do 

believe that the MI5 issue is often held up as a red herring here 

to divert attention to the problems of MI5, which are 

significant. So I stress I don't believe we should do that, but 

I also stress that we cannot continue on the path we are. 

 I have provided at your request a list of questions which I 

believe will help you better understand the several policy, 

operational and administrative areas that need to be transformed 

in order for the FBI to succeed in its domestic intelligence 

mission. Domestic intelligence collection, as opposed to 

gathering, must be part of and synchronized with national foreign 

intelligence collection. National foreign intelligence is driven 

by a national security requirements process. The domestic 

intelligence collection activity must also be driven by the same 

national security requirements process. The National Security 

Council, the DCI and the attorney general must provide validated 

collection requirements to the FBI and hold the FBI accountable 

for producing and disseminating domestic intelligence. 

 In conclusion, if the FBI can make this truly significant 

change and no longer cling to the law enforcement centered 

traditions and approaches which have served them and the country 

so well against another set of adversaries in another time, then 

we should all get firmly behind their reform efforts and bring 

the resources of our country to bear to ensure they succeed. If, 

however, the FBI cannot fully make this transition -- and this 

will be clear to you as you approach the end of the Commission's 

deliberations -- then I believe that you will have no choice but 

to propose some even more radical solution which places these 

responsibilities for counterterrorism, counterintelligence in 

another perhaps new organization. The stakes are just too high 

and the time too short to do otherwise. Thank you. 

 MR. KEAN: Thank you. 

 Mr. Hamre. 

 JOHN J. HAMRE: Governor Kean, Vice Chairman Hamilton, 

thank you for inviting me. Let me begin by saying how grateful I 

am that all of you have agreed to serve on this commission. I 

know over half of you well from personal previous professional 

exchanges, and I know you sure as heck didn't need this job. 
95

(Laughter.) But the fact that you were willing to do it on 

behalf of us, on behalf of the country, addressed one of the 

biggest issues that we've got. This is really a testament to 

your patriotism and I want to say thank you, I really do. I'm 

grateful that you're willing to do it. 

 The good news about being able to go third on a panel is 

that everything has been said. The bad news is that everything 

has been said. And so I will be very, very brief. I, in my 

prepared statement, listed the three primary underlying factors 

that I think are causing great limits to our capacity to get 

actionable intelligence today. As Attorney General Barr said, 

one is the great divide that separates foreign intelligence and 

domestic intelligence. Obviously the bad guys know how to take 

advantage of that great seam in our constitutional democracy and 

that we have to overcome that. 

 Second, as Brother MacGaffin said, this bias towards 

collection at the expense of analysis, it's plagued us for years 

and it's plaguing us now, and I'll say just a minute where I 

think we have a particularly unique problem in the area of 

homeland security in this regard. But this is also -- it's an 

historic problem. We've always had this problem. And the third 

are the series of both official and unofficial ground rules that 

are tying the hands of law enforcement, especially with the FBI. 

 You know, I think a lot of it was put in place through 

explicit rules. Frankly, it's even larger in the sense of 

unwritten culturally understood rules. Don't do X because you're 

going to get in trouble. It really substantially constrains the 

inventiveness and the imagination of our law enforcement, and so 

these cultural dimensions are even bigger problems. We've got to 

deal with it. 

 Now, I think these under the underlying problems and, 

frankly, since September 11, I hate to say it, I think we've 

gotten off on the wrong foot on a lot of this. Because we had 19 

folks hiding in our midst planning for a couple of years to 

attack us, we've gotten off on the mode that we've got to collect 

just about every bit of information on everybody. And it is just 

-- that's the core of the great growing anxiety Americans are 

feeling about the loss of their privacy as we try legitimately to 

get our arms around homeland security. 

 There is no solution to this problem other than a much 

stronger domestic intelligence program, surveillance. But unless 

that starts with a much stronger dimension of protecting privacy 

in the process, we're going to fail. And we can't afford to 

fail. We can't afford to fall back on comfortable rules, which 

is what we did with law enforcement, you know, in the '80s and 

the '90s: to tie their hands. So that they wouldn't get 

innocent people in trouble, we tied their hands so that they 

couldn't help us find the bad guys. 
96

 So we've got to address the privacy issues upfront. And we 

make it worse when we start with all the innocents and when we 

try to work our way in to try to find the guilty. For crying out 

loud, let's start with the people that we already are suspicious 

about. We went a full year before we committed ourselves to 

getting an integrated watch list. And I'll tell you, talk to 

people privately who are working on these things in the 

government, they say it's years away. The energy behind that 

isn't anywhere commensurate with its payoff. 

 We ought to start with the problem -- the likely problem 

people and build our way out, rather than start with a vast 

population of innocent people and work our way in. And we're 

just off on the wrong foot. And we've got a chance to fix this, 

but we really do have to change it. And it just scares Americans 

to think that before they get on an airplane there's a computer 

some place that's going to give them a red, yellow or a green 

color code, you know, before they're allowed to get on. When 

instead we ought to be tracking the 70,000 or 80,000 people who 

we know have ties with problem institutions, and then work our 

way out from that core. 

 We have a lot better chance, frankly, of dealing with the 

privacy issues if we start that way, and I would argue have much 

more actionable intelligence in the process. And we're going to 

have to go out and create actionable intelligence. This was what 

John and I argued in our little piece. You know, we're looking 

for the needle in the haystack, but we're spending all our time 

adding hay to the pile, okay? We need to find the needles. And 

that means we have to kind of create the dots. 

 We've got to use our intelligence capabilities to go out and 

find the problem people, the bad people, and that's going to take 

covert operations inside this country, and we're very nervous 

about that. Rightly so. I mean, you know, this is something 

that scares people. Most Americans came to this country from 

their home country because they didn't want to be around a 

government that spied on them, okay? So we understand the kind 

of impediments that we're facing that we want. That's part of 

our culture. That's what we value. But we're still going to 

have to overcome that. 

 Now, how do you organize to do that? Well, you know, I mean 

the -- and I'll use shorthand. You know, the CIA clearly is 

competent, but people don't trust it to spy domestically. The 

FBI was good at it in the past, but frankly the last 25 years has 

shifted it dramatically over to very much a constrained law 

enforcement culture. I completely agree with Attorney General 

Barr that Director Mueller is really working hard to change that, 

but we're a long ways away. I mean, I serve on his advisory 

board. I want him to succeed and I'll do anything I can to help 

him succeed, but we are a long ways away from having a 

transformed culture inside the FBI that would make that happen. 
97

 And the Department of Homeland Security was cobbled together 

with people that don't have an intelligence starting point. So 

what do you do? I mean, we're all wrestling with this problem. 

In our little group we opted for the view that it ought to stay 

inside the FBI, but that this frankly is a provisional case. I 

believe we need to start there because I strongly believe any 

domestic surveillance must be under the supervision of a 

constitutional officer of the government. I don't believe you 

can ever convince Americans to trust a system that isn't overseen 

by the attorney general. 

 Can the FBI make that transition? Frankly, we were somewhat 

divided. As a matter of fact, we were very divided. I think all 

of us have the hope that it would work. Not all of us had the 

conviction that it will and we made a few recommendations that we 

thought might strengthen the chance that it would. One would be 

to bring in direct management from the intelligence community 

that has analytic experience -- inside the FBI, a free standing 

entity, subject to the FBI's and the attorney general's 

oversight, but that has management leadership that has strong 

analytic skills. 

 Now, if that works, then we've got the best of all worlds. 

If that doesn't work, you at least have the prototypical starting 

point for a new entity if you need to spin it off and to create 

it, if you don't believe you can grow it inside the FBI. I want 

it to succeed inside the FBI and inside the Department of 

Justice. But if it doesn't succeed, you at least have not wasted 

a couple of years on an experiment that might fail. 

 Again, let me conclude by saying the only reason -- I may be 

too narrow. But the only reason to study history is how it 

informs our view of the future, and that's really what I think 

you're doing. I think these hearings are just crucial and the 

country really is looking to you, so I'm grateful that you gave 

us a chance to come today. Thank you. 

 MR. KEAN: Commissioner Gorelick. 

 MS. GORELICK: Thank you, Mr. Chairman, and thank you to the 

three of you for being here today and for sharing your thoughts 

with us. We have a fair amount of fire power on this panel. And 

I have a lot of questions but I know my fellow commissioners do 

as well, so I'll try to pick the most important ones from my 

point of view. 

 I was -- and this is a question for all three of you. I was 

struck, Attorney General Barr, by your very strong defense of the 

bureau as the appropriate agency to have the lead. And you say 

in your prepared statement that there are three basic criticisms 

of the FBI, which it is addressing. The one that I was struck by 

was the middle one, where you say that the FBI failed to exchange 

information with other elements of the intelligence community, 

and that it is addressing that failure or that criticism. But 
98

what I hear from Mr. MacGaffin and Mr. Hamre is that they 

wouldn't say that that's the right question. 

 And so the second part of my question is to the two of you, 

because the way you pose the question it is not did they share 

the information they had, but did they cooperate with others in 

setting the strategic goals of collection and go out together 

with the other relevant agencies, primarily in the intelligence 

community, to seek out the right information domestically? And 

so my first question is whether the three of you would comment on 

that, that is: What is it that is the failure, if you will, and 

how are we going about addressing that failure? And if you could 

be brief, because I have a number of follow-ups, I'd appreciate 

it. Thank you. 

 MR. BARR: Well, I do think one of the failures was the 

failure to have in place, develop, foster intelligence collection 

as a function distinct from building criminal cases with criminal 

predicates. And I also think it was a failure not to have an 

analytical capability. And a lot of the sharing problems were 

caused by, in my view, ill-conceived constraints on law 

enforcement and the sharing of intelligence information. 

 In terms of the setting of the -- it's true that 

intelligence collection is different than gathering and it should 

be focused, and there has to be some agreement as to what the end 

is. But I also think we can get a little carried away here 

because a lot of this counterintelligence -- counterterrorism 

intelligence domestically within the United States has a somewhat 

of a tactical flavor to it. In other words, it is focusing on 

groups and elements. It's not sort of sitting back and saying, 

where's the next threat coming from and, you know, is this a 

breeding ground for terrorists over here in this part of Africa, 

or what have you. That's the CIA's function. But the function 

of sort of protecting the homeland when groups get into the 

United States has a certain operational, tactical flavor to it 

and I'm not sure that -- you know, it's the same as sort of doing 

national intelligence estimates and sitting around figuring that 

-- you know, I don't think it takes that long to figure that out, 

frankly. 

 MR. MacGAFFIN: I certainly agree that the failure to share 

is not the heart of the problem or the most egregious problem. 

There was, to follow my argument, not very much to share in any 

event. The problem is that there still two years later is not 

much more to share. I'm told, for instance, that the 

disseminated -- the information that is produced by the FBI's 56 

field offices to be disseminated to other parts of the government 

has -- the good news is it's increased fourfold in that two-year 

period. The bad news is that that's -- it now averages four 

pieces of disseminated intelligence a day, in distinction to 450 

by DIA or some of the others. So numbers are the wrong way to 

look at it, but there's a problem here. 
99

 But it is a failure: not the failure to share so much as 

the failure to acquire the right information. And while I agree 

with Attorney General Barr that the national estimate approach, 

you know, where's the next bad thing going to come from, ain't 

too hard, that's not the kind of work -- it's hard to get right, 

but it's not hard to sort of say it's going to come from that 

disadvantaged part of the world or another. But the work that 

has to be done is not that sort of intellectual. It's hard 

tactical penetration work to have your spy sitting next to the 

spy in the bin Laden mountaintop and in the bin Laden cell in 

Cincinnati, if you will, over long periods of time. So I don't 

accept that it -- I don't agree that it's tactical in the sense 

of we get a little snippet here and there and we'll put them 

together. It's long-term, hard work to get the right people in 

the right places to obtain over time the right information about 

those who wish us harm. 

 MR. HAMRE: Very quickly, September 11th really transformed 

this world so dramatically. I mean, the willingness of the 

intelligence community and the law enforcement community to share 

information is really unprecedented compared to my recollection. 

I mean, I've been around 25 years looking at it and it's 

unbelievable how much stronger the sentiment of collaboration is 

right now. 

 On September 12 I was asked to go up to an emergency meeting 

of an advisory board for one of the intelligence agencies that I 

try to help, and I can remember at the time we said we only had 

one, maybe two pieces of intelligence in all the files that we 

thought were relevant. Six months later we had lots more 

information, and what that tells me is that the way you change 

your filters that we look at the data gives you a sense that 

there's a lot more or a lot less that you're looking at. And, of 

course, an event tends to change your perception of what you're 

looking for. You want to proactively anticipate that and try to 

properly tune your filters before something happens rather than 

after it happens, where you have 100 percent certainty. 

 That's a very problematic question, of course, how to do 

that. But I do think it is a matter of mindset and I think we 

clearly missed September 11 because, for whatever reason, our 

collective policy intelligence minds weren't tuned to look the 

right way, even though there probably should have been plenty of 

evidence that we should have. I think we collect a lot of 

information. I think a lot of it is, frankly, pretty useless. 

We could probably extract a lot of intelligence out of the 

information that we have that we aren't currently processing, 

again because our filters aren't designed right -- our mental 

filters aren't designed right. 

 After you go through that process then you say, but where 

are there gaps that I think we should intentionally go out and 

create facts? And that, I think, needs to be a joint process. I 

think the spirit of collaboration is now present like it's never 
100

been before, but that frankly the competencies and the mechanisms 

of cooperation don't really yet exist. 

 MS. GORELICK: Well, let me follow up on that because it 

seems to me that the central theme that we have heard over and 

over again is that there is not a common strategy between 

domestic and foreign law enforcement. And while, Attorney 

General Barr, I take your point very well, particularly given my 

own experience in the Department of Justice, that there are big 

dangers in separating out the people who do domestic collection 

from the prosecutors who might have to act on it, nevertheless 

what we now see is a proliferation of coordination points with no 

one discernible to us that can be identified as setting the 

strategies. 

 So you have the counterterrorism centers at both the FBI and 

the CIA, both of which have members of the other, you have the 

Defense Department with its own unit, you have the new TTIC 

that's been stood up, you have the terrorist screening function 

newly at the FBI, and then you have the Department of Homeland 

Security also standing up its own function. And so my question 

to you, if you will, old hands is would you structure it this 

way? And if not, how would you structure it? I understand, 

Attorney General Barr, you view -- the notion of an MI5 is not a 

good one. But what would you do with this proliferation and 

seeming lack of direction? And I'd like all three of your 

answers on that. 

 MR. BARR: Well, I don't know about seeming lack of 

direction. I assume that the director of Central Intelligence 

would be providing overall intelligence direction. But I don't 

necessarily think proliferation of fusion centers or even 

analytical centers is necessarily a bad thing, because sometimes 

intelligence has to be reworked, repackaged, reexamined from the 

standpoint of the operational mission of a particular agency. 

For example, Homeland Security I view as a static defense agency. 

The FBI in my view is dynamic. 

 That is, the FBI's job is to proactively go after and 

dismantle and destroy these groups as they come into the United 

States, whereas the Homeland Security is static defense of 

infrastructure, borders and so forth. They may need to take a 

look at the intelligence from the standpoint of what it means for 

them to have to do, whereas the FBI, launching attacks against 

these organizations, may want to take a look at the intelligence 

from its mission. It's very much the -- we have a CIA but that 

doesn't mean we take intelligence out of DOD. It doesn't mean we 

take -- we may have, you know, DIA but it doesn't mean we take 

intelligence out of the Navy. So I'm not disturbed by the 

proliferation of fusion or analytical centers. 

 MR. MacGAFFIN: I agree that there is a question of who's in 

charge of the common strategy, and I think that despite, as Dr. 

Hamre says, the willingness to collaborate and cooperate is 
101

infinitely greater than it's been before, the actuality is of it 

is not there, number one. And what makes it even harder is that 

-- and why you have to have someone in charge, and it straddles 

this divide we're talking about of law enforcement and 

intelligence, isn't as neat as it's in the United States, 

therefore the FBI will deal with that. 

 For instance, and this will be perhaps a bit questionable, 

but the notion of the fellows in Lackawanna who -- the six 

alleged terrorists who were arrested there, the decision that was 

made to proceed with arrest and criminal prosecutions of those 

six. My personal view is that, you know, their most serious 

infraction was they went to the wrong summer camp. They should 

have gone to Lake Winnipesauke rather than Lake Tora Bora. They 

were not truly terrorists. 

 But leaving that aside, the right resolution instead of six 

in prison was probably four of them sent to their rooms and two 

of them somehow sent back to the Yemen to spy for us within that 

organization, the al Qaeda organization, to find out what's about 

to happen to us. That decision is -- because, going to your 

point of no one in -- how are we in charge across this divide -- 

not that no one is in charge, I don't mean that, but across this 

divide that decision is not made. What is in the national 

interest? Send them to their room and back to the Yemen, or send 

them to jail? 

 MS. GORELICK: So your view -- just so I can understand with 

some clarity here. Your view is a decision to prosecute in that 

circumstance, or one analogous to that circumstance, should not 

be made at the Justice Department because the Justice 

Department's tools, if you will, are focused on prosecution, but 

rather jointly across the national security spectrum because one 

of the things you might want to do is re-infiltrate someone like 

that? 

 MR. MacGAFFIN: Right. That's exactly correct, and I -- 

 MS. GORELICK: And that would be analogous to the way we 

would treat a spy, for example? 

 MR. MacGAFFIN: For example. And I think that recently the 

trend with the more active involvement of AUSAs in the terrorist 

task force, joint terrorist task forces, that decisions on the 

ground tend to be the weight of their presence pushes things to 

the law enforcement side of the boat, making it very difficult 

for the FBI agent and these special agents to make the decision 

to develop long-term, difficult penetrations of these 

organizations that will do us harm. And it's just the weight of 

-- they're on that side of the boat and the boat is tipping in 

that direction, and that's not how you get at this problem. 

 MR. HAMRE: I'll be very brief. My worry is not that we 

have no direction, but that we -- our only direction is to 
102

prevent exactly the same circumstances that caused September 11. 

I mean, that's what's tying us up in knots right now. I think we 

need to separate the issue of gunsmithing from marksmanship. I 

mean, I think what we're really lacking is a coordinating 

mechanism for the marksmanship questions. 

 What are we trying to stop? What are we trying to hit as a 

goal? What are we trying to stop? And what we've created for 

mechanisms of coordination are gunsmithing mechanisms. You know, 

how do we get the FBI and the CIA to share databases, and the 

TTIC? I mean, the TTIC is a -- I support it, but I think it's 

not going to do what we really need to have done, given the way 

it's currently constituted. There needs to be a coordination at 

a much higher level government-wide that represents the strategic 

thinking of the government about the problem, not the tactical 

manipulation of the boxes inside the government. 

 MS. GORELICK: And who should do that? 

 MR. HAMRE: Well, my personal view is that this is -- I do 

not agree with the notion that there is a domestic security 

that's separate from a national security. I don't think that it 

makes sense to have a National Security Council and a Domestic or 

a Homeland Security Council. I think that makes no sense. I 

think there is a national security imperative with a venue that 

it's a foreign sector and a venue that's in a domestic sector. I 

would put it under that rubric and I would, frankly, have the 

analytic leadership come from that quarter, with the intelligence 

community under the DCI leading the strategic question. But 

always the mechanism of action has to be under the supervision of 

the attorney general, in my view. 

 MS. GORELICK: So the overarching direction would come from 

the intelligence community, and the execution -- 

 MR. HAMRE: Through the National Security Council. 

 MS. GORELICK: -- geometrically would come about in the -- 

somewhere within the Department of Justice? 

 MR. HAMRE: Yes. 

 MS. GORELICK: Mr. MacGaffin, you draw a somewhat -- well, 

strike "somewhat." You draw a bleak picture of our capacities, 

both from the data point which suggests that even today, in terms 

of distributed intelligence, very little of it relative to what 

is being distributed is coming from our domestic agencies, to are 

not honoring our intelligence officers within the FBI, to the 

failure to create an intelligence career track. In your heart of 

hearts do you believe that the Bureau, even with the energy that 

is being applied to this effort by Director Mueller, can do this? 

Can do what needs to be done? 
103

 MR. MacGAFFIN: I'm not sure and I spent, as you know, six 

years as senior advisor to the director and the deputy director. 

I found the similarities between the CIA and the FBI in terms of, 

you know, type ‘A’ point end of the stick guys who really want to 

get it done. I mean, I desperately want it to work that way, but 

there have to be some significant changes in the way it goes 

about its work relative to this very issue. So it's got 

everything going for it. It's got the -- I believe we have 

sufficient authorities, it's got the tools, but we've got to 

somehow turn this corner that we've all been talking about here 

and concentrate on penetration of those who would do us harm. 

The Tom Powers' analogy of the job here is to determine where the 

danger lies seems to be the most important part, and we're not 

doing that appropriately. 

 MS. GORELICK: Secretary Hamre, you said that your 

confidence, if you will, that the FBI can do this is provisional. 

How long is provisional? 

 MR. HAMRE: Well, there's no question that the director 

really has made it his priority. He's certainly communicated 

that to the Bureau. There are some small but very bright shining 

lights inside the Bureau that are starting to emerge. I think 

it's -- you know, the prevailing day-to-day culture is not -- 

does not embrace his vision. You know, clearly there needs to be 

an assessment -- an objective assessment about how well he's 

doing. I think this is very hard because he's very confident 

it's going to work because his vision is right, and I think his 

vision is right. 

 I remember being in government. I mean, you are so isolated 

when you are in government because the first thing you hear in 

the morning when you walk in is somebody saying, boy, you had a 

good day yesterday, Mr. Secretary. And the last thing you hear 

is, boy, you really kicked butt today. You know, I mean 

everybody around you is telling you what a great job you did and 

really your situational awareness of your own organization is 

really quite limited. 

 And trying to find a way to help the director get a sense of 

is this working or not, and is it really getting at the cultural 

imperatives that really motivate your average special agent who 

comes in every day, that's I think a harder question. I'm not -- 

I'm new to the law enforcement community so I would not want to 

render judgment about how to do that. I know how we do it in the 

military, but I would not know how to exactly do it here. But I 

think that there needs to be a very supportive but self-critical 

look at how well this is going. 

 MS. GORELICK: General Barr, you supervised the FBI as 

deputy attorney general and as attorney general for as long as 

most, if not all, of your predecessors, and you detail in your 

written statement and as well as in your testimony the number of 

regulatory and legislative and cultural barriers to the FBI being 
104

the kind of organization that Mr. MacGaffin and Secretary Hamre 

are describing as necessary. What is your level of confidence 

that the bureau can do what needs to be done? 

 MR. BARR: I have a high level of confidence that the Bureau 

can evolve into precisely the kind of counterterrorism agency we 

need domestically. But let me just say that I think we're going 

to be attacked again, and I think we're going to be attacked 

probably several times very successfully, and we can't do 

anything about that. I think every employee of the United States 

government acting in absolute good faith and acting very 

competently, and still the nature of this danger and the problem 

we face as such that we're not going to be able to catch every 

terrorist that comes into the United States to do us harm. And 

so, you know, I think that we shouldn't underestimate the 

magnitude of the problem we have here. 

 And the other thing is, you know, I think we're actually 

getting a little bit too down on the FBI here. Yes, they -- in 

my view because of external restraints -- did not develop the 

kind of domestic intelligence collection that we now want them to 

have, and didn't sit around setting up analytical centers to 

analyze intelligence about people within the United States. And 

there was a time where if they tried to do that, they would be 

slapped down in good order. Now we want them to do it and they 

will develop it and do a good job on it. 

 But the fact of the matter is that before 9/11 the Justice 

Department was developing a lot of information about al Qaeda and 

Osama bin Laden. Developed more information than MI5 had. 

Developed more information and gave it to the British than MI5 

had about Osama bin Laden's activities in Britain. So, you know, 

the Department wasn't doing that bad a job. Other agencies had 

problems as well as the FBI. If we're going to penetrate these 

organizations, they're not going to be penetrated initially by 

the FBI in the United States. They're going to be penetrated 

overseas, as you say, on a mountaintop in Afghanistan or 

somewhere. That's not the FBI's job. That's the CIA's job. 

 So, you know, our intelligence agencies have failed 

occasionally. They didn't get it right necessarily. The FBI has 

problems and we're trying to fix that. But we also shouldn't 

raise the bar here to a degree that -- and create expectations 

that we're going to be able to stop every terrorist that tries to 

kill Americans. We're not going to be able to do it. 

 MS. GORELICK: Thank you for your testimony. 

 MR. KEAN: Secretary Lehman. 

 MR. LEHMAN: Thank you. I'd like to ask you all to focus on 

just one overarching set of issues in framing the questions I'm 

going to ask and that is the genetic or cultural issue that 

underlies this debate about whether FBI should be the domestic 
105

intelligence agency. What is the problem we're talking about? 

Well, sharing is certainly one manifestation of that. One very 

senior intelligence official has told us that he did not learn 

about the connections of three of the principal actors in the '93 

bombing on the World Trade Center until years after when the 

trial was finally finished and they released the grand jury 

evidence. And we had this morning the former deputy attorney 

general tell us that one of his proudest accomplishments was his 

6th August 2001 memo notifying the FBI that they must bring in 

the prosecutors immediately when they're beginning a case. 

 Time and time again, we've had witnesses that we've 

interviewed, including another one this morning, that have said, 

Well, I'd prefer not to answer those questions because this 

matter is in the grand jury or this matter is now in litigation. 

We got that answer time after time in pursuing issues around the 

Moussaoui case, for instance, but there were many others. Now, 

that's understandable perhaps before 9/11. But after 9/11, one 

would have expected that that mentality, the prosecutorial, the 

forensic, rather than the preventive mentality would have 

changed. 

 Yet, as late as last June 18th, a witness before the House 

Appropriations Subcommittee, in explaining how the FBI was 

pursuing or thought to be pursuing the terrorist issue, testified 

as follows, in part. "When we do our intelligence in the FBI, it 

should be forensic intelligence. It should be based on evidence. 

It should be based on fact. It must bear the scrutiny of law 

that can be looked at by a jury and a judge." And she went on, 

"We need to know what is reality, what can be proved and not 

based on simple assessments and projections." And on, "Well, 

other recourses may seem expedient, it is only through careful 

and aggressive case work that we will rid ourselves of the foe 

and maintain the cooperation of the American public." 

 Well, I've never read a more perfect articulation of antiintelligence work than I could find. It reflects very well why 

the FBI is the best police force in the world, but it could also 

suggest that it could be the worst intelligence force in the 

world because intelligence is looking forward and sharing and not 

protecting evidence to get convictions. The situation or the 

question I'd like to pose to you assumes certain things. As Mr. 

MacGaffin has rightly said, the MI5 issue has, I think, been 

repeatedly dragged out as a red herring because MI5 is certainly 

not the alternative here. 

 A far better, closer potential alternative is the Canadian 

Security Intelligence Service which has many more analogies and 

interestingly, reading the debate in the 80s that went on when 

this was created, the exact same arguments that General Barr has 

educed here were made by the Royal Canadian Mounted Police and 

rejected. I think most observers within the Canadian government 

believe that real cultural problems were fixed by getting 
106

intelligence functions out from under the police and the Justice 

Department, in effect. 

 My distinguished colleague, Jamie, earlier described very 

succinctly what the Justice Department has as its mission. 

Number one, to prosecute criminals and miscreants and, number 

two, to protect the rights of citizens. Well, both of those 

things are really at odds all the time and intentioned with 

intelligence collection and analysis and that does not mean that 

it can't be done, but it is certainly a major tension. Indeed, 

you can argue that the problems that have been discussed earlier 

in testimony about the threats to civil liberties by the PATRIOT 

Act and by powers before that and the corollary, the overreaction 

in bending over backwards as in the Moussaoui case, not to tread 

into that territory, is precisely because we try to do two 

incompatible functions, police work and intelligence in the same 

agency. 

 With that brief preamble, I'd like to ask you all to 

consider four options. Now, all three of you, in one form or 

another, have said that you favor essentially the status quo. 

More resources, the FBI should run faster, jump higher, do more 

language training, get better, more intelligent professionals in 

it but, basically, you're all three arguing for the status quo 

and just make it better. Now, I understand all of us have been 

laboring to acquire the same skills of collegiality that in your 

article in The Economist and sitting, as you are, as a panel, 

that you don't want to disagree too directly but I'd like to ask 

you to sort of leap out of that collegiality in your answers 

here. 

 First, I see four potential options that I'd like you to 

comment on. I've already commented on the first option, more 

resources, do better and give them a chance. Give Director 

Mueller time to do what he has set out to do and he's made 

significant changes. That begs the question, how do we know that 

he's succeeding? Do we have to wait for another 9/11 or, in its 

absence, we say he's succeeding? Or other metrics or measures 

that we can apply so as not to give this an indefinite tenure 

until it's proved its failure through another catastrophe? So, 

how about commenting on that? I mean, I suspect there's at least 

one closet CSIS sympathizer there, but let's see. 

 MR. BARR: I think it's analogous to the MI5. It's been a 

bad experiment for Canada. They're spending a lot of their time 

right now trying to patch up that relationship and reintegrate 

these functions. The Royal Canadian Mounted Police have had to 

create a lot of redundant functionality because of that split up. 

So I would say that I would not look at the Canadian system as an 

exemplar and I think, you know, your litany was really, I think, 

unfair. 

 First, you talked about the prosecutorial mentality because 

in fact they are prosecuting a case. Once a decision is made to 
107

prosecute a case -- and the Moussaoui case was that decision was 

not made just by the Justice Department, it was made by the 

President to move down that tract -- then it is a prosecution and 

when it is a prosecution, you don't share grand jury information 

and other things and that's the law. So it doesn't surprise me 

that they weren't sharing it with you. That doesn't mean that it 

wasn't being shared within the Executive Branch. 

 The examples you gave in the past were precisely the problem 

as to why we needed the PATRIOT Act because of the limitations on 

grand jury information and because of the limitations on sharing 

intelligence with law enforcement and those have been addressed 

in the act. This culture thing is way overdone. You know, prior 

-- as I say, prior to the '70s, the FBI was well into domestic 

intelligence. They viewed themselves as wearing two hats, 

national security and law enforcement. 

 The problem with the FBI, as most people would have said 

then, was they were collecting too much intelligence about 

domestic matters. They knew too much about civil rights 

organizations, about anti-war organizations. They had the field 

pretty well covered. They knew how to collect information. If 

you look at certain other of their functions, like organized 

crime, that's an intelligence effort. That's not rushing in 

early and prematurely just to prosecute people. They know how to 

penetrate groups and keep those penetration agents in place for a 

long time and learn information and take down -- build 

intelligence on organizations and take them down. They've done 

that in the counternarcotics area, they've done that in the 

counter intelligence area. 

 So this notion that they're just prosecution bent and that's 

their culture and they can't do anything else is just hogwash. 

Now, what we've had is a period of time in the, you know, '70s, 

'80s, and '90s, where people didn't want them in that field, and 

they put a lot of restrictions on them. And you'd ruined your 

career if you stepped out of line at the FBI and started snooping 

around domestic matters too much. And now we've had an epiphany. 

Since 9/11 we want them to get back into that. That's the real 

story. 

 Now, you say that these are fundamentally incompatible, 

that's wrong. They're not incompatible. They are compatible 

activities. In fact they have to be carried out together because 

they both involve collecting information within the United 

States, and the tools and the resources are the same resources. 

That's my reaction. 

 (Laughter.) 

 MR. MacGAFFIN: I certainly can't associate myself with the 

run faster, jump higher approach, more resources, that's not at 

all what I'm recommending, and I think that's wrong. I think -- 

to go back to a question that was asked of John Hamre, I think 
108

time is running out to get this right. I do not believe -- and I 

hope the formal statement I've submitted makes this clear, I 

don't believe that the changes and reforms that are in place are 

sufficient or adequate to the task. I don't believe they'll get 

us there. I'm hoping that your efforts and our efforts jointly 

to focus on this very issue will change, will add to and add an 

urgency and a significant change course correction in what 

Director Mueller and the others are doing. I do not think the 

path we're on now will get us there because I don't believe it 

really makes the distinction between gathering and focused 

collection, which is the heart of it. 

 The advantage of having Attorney General Barr is he's got 

the recollection to say what it was like, but today the FBI 

cannot rent 5,000 square foot of office space without getting 

advanced permission from the Congress. Operationally, the 

cultural environment they live in and the oversight they live in, 

which I think is unproductive, is dramatically constraining their 

imagination of what they think they can do. And I support -- 

wanted to give them the tools of the PATRIOT Act and there's 

great controversy about the PATRIOT Act. Frankly, what's been 

accomplished since they got it is modest. 

 In a large measure it's because of this culture. Granted, 

they had a history, but this is 25 and 30 years ago. I mean, 

there are five members of Congress that trace themselves back to 

that history. So I mean we really have a very different 

environment that we're working with now. Again let me state I 

want them to succeed, I want this to work. It isn't that I'm 

after the status quo. Plus this has to change, but I start with 

a premise of wanting competence under a constitutional oversight 

and I think the best place to ground that is in the FBI. I'm not 

confident it's going to work, but I want it to work. I'm hopeful 

but not optimistic. That's where I am personally. 

 Now, on that note let me say I think that there -- I'm a 

chief operations kind of guy, and there are things you could do 

to help them. This dichotomy between law enforcement and 

analysis is, I think, false, because intelligence doesn't spring 

out of just wise people sitting around a room thinking, it really 

springs out of facts that are presented to people who are then 

integrated into a framework and then tested against the 

hypotheses of other people. It really is grounded on collection. 

And for years we've not had the capacity to translate cases into 

intelligence input. You know, and the director is addressing 

that. 

 We need to start buying the capacity at every field office, 

people that can take a case and then extract out of it the 

intelligence that can be used and shared without violating the 

internal integrity of the case itself. We do that in the 

military world. We have analytic officers placed at tactical 

intelligence units, not to report on what's going on with that 

unit per se, but what are we now seeing about new tactics that 
109

are being employed with radars, for example. We need the same 

kind of skill. But if you look at the grade structure in the 

FBI, what does it take to become a, you know, senior person. You 

ain't going to make it to be an analyst, you'll make it if you 

get to be a special agent, and you're on a different track. So 

you can solve this, but there's some real, serious gunsmithing 

questions internal to the FBI we need to tackle in the process. 

 MR. LEHMAN: I'd like to get each of your comments on the 

two most prominently discussed alternatives to leaving the 

functions in the FBI. Not the straw men that float around but 

the option of taking the organization that has been built and 

placing it somewhere else. And the two options that have most 

currency are -- and, by the way, all of them involve judicial 

oversight, not letting them run free. But taking them out from 

under the attorney general and the executive oversight, which I 

think is the real failing of the MI5 system, trying to apply it 

here. But have judicial oversight when they have to go to 

request a wiretap, it has the same or even stronger protections. 

Plus there is not the concern of the police power being 

collocated with the intelligence, analytic and gathering. 

 And the second common thread is that wherever it resides, it 

would collocate in the regional offices of the FBI, analogous to 

the way the CIA operates out of embassies abroad and other cover. 

So the two options that seem to be most current are to take the 

current domestic intelligence function from FBI, perhaps 

augmenting it with some of the other existing -- not creating a 

new organization, but taking the domestic intelligence function 

and placing it under number one, the director of Central 

Intelligence, as one option, or putting it in Homeland Security 

as another option. 

 So just limiting it to that option of a clearly overseen 

entity that is collocated with the FBI, has, as General Thompson 

said, rapid and open communications to prosecutors, but not as 

subordinates to the prosecutors who decide to make it a case and 

run for Congress or something. And this is the option that I'd 

like you to address, putting under the DCI, putting it under 

Department of Homeland Security. 

 General Barr. 

 MR. BARR: I think they're both ridiculous options. You 

know, who's going to collect -- analysis is centralized, 

collection is dispersed. You need resources to do it in the 

United States. It's different collecting intelligence and 

information you can act upon within the United States than it is 

in Afghanistan. You need feet on the street. You need the 

resources and the expertise that already exists in the FBI. And, 

as I said, it seems to me it has to be coordinated with the end 

game. You know, I'm all for shooting hellfire missiles from 

drones and knocking off people once we decided we found them in 
110

Yemen. We don't do that in the United States. So we need an end 

game in the United States, and the DCI doesn't have an end game. 

 Putting it over to Homeland Security, you know, just boggles 

my mind. Those are law -- would you rather have a Customs 

culture influence these people? I mean, I don't know what you 

accomplish by that, except seemingly taking it out. You know, 

the object seems to be to remove it from the law enforcement 

function which is collecting a lot of information on its side of 

the house. In the United States where do we get the information 

from mostly? We actually get it by threatening people with 

prosecution. A lot of the information that's been developed has 

been developed by law enforcement side, by threatening punitive 

action against people, okay. 

 Now, maybe overseas we catch them in compromising positions 

and take photographs of them or something like that. But over 

here we collect information in different ways. 

 MR. LEHMAN: Next. 

 (Laughter.) 

 MR. MacGAFFIN: The problem is that the organization that 

has been built, that part of the FBI that you -- we're now sort 

of moving around the table or nailing down to the FBI the way 

General Barr would, doesn't do domestic collection. So the first 

and most fundamental thing is we've got to do it, and the point 

of whether the reforms currently in place will get us there or 

not, let's leave that aside. 

 I certainly agree with the notion of if you had a domestic 

collection capacity to really collect it domestically, putting it 

at the Department of Homeland Security doesn't make a lot of 

sense to me either, for a variety of reasons. Putting it under 

the DCI as has the first problem, the one John Hamre raised, and 

then during General Barr's, his attitude that, you know, who 

would trust the CIA to get it right. So for a lot of reasons you 

can't put it under the DCI in an organizational sense but you 

can't separate it from the notion of what is the whole picture 

we're trying to fill in here. 

 As we've all said at the beginning, you can no longer 

separate foreign and domestic in the sense that it goes from the 

shadow of the Hamburg mosque to Cincinnati, you've got to make 

this connect, and the DCI is -- and the intelligence assessment 

of the whole picture has got to be what guides domestic 

collection internally. So I don't think that to my mind the 

Department of Homeland Security is not an issue. There's got to 

be a DCI/NSC component for the kinds of issues at an operational 

level. We discussed about what happens to the kids up in 

Lackawanna and it's got to be relative to where are we going to 

put our time, Mr. FBI? What parts are you -- you can't just 

decide that on your own in the FBI where you're going to have 
111

domestic collection, it has to be driven by a broader construct 

and we don't have that construct and we don't have domestic 

collection, and we don't do compromising photographs. 

 (Laughter.) 

 MR. HAMRE: Mr. Secretary, I mean I think, you know, in 

every case here you're always trying to design your government 

structure to accomplish two goals. One is to make it competent 

and the other is to make it controlled, so that it only does the 

things that you, an appointed officer of the government, want it 

to do. I think the problem we have here with the FBI is that 

we've got good control functions in place now. The case with the 

CIA, we've got good competency functions in place, but not 

necessarily the control as far as domestic acceptability. And 

Department of Homeland Security, I think we're still working on 

that. 

 I think from my standpoint, I think to address your specific 

question, I would want to look at the structure of oversight and 

whether it gives you competent control over it. I think that 

becomes the overwhelming sense of the long-term viability of this 

to the American public. And oversight, there are three levels of 

oversight. There is environmental oversight, how do we connect 

it to me, the citizen? You know, I do that through elected 

representatives, I do that through the President, I do it through 

constitutional officers that have to get confirmed. 

 We have structural oversight, where you set up structures 

such as ombudsmen and inspectors general and, you know, this sort 

of thing so that you've got a system to check. Then you have 

transactional oversight, you've got to get a FISA order if you're 

going to do something. And where do you best engineer most 

optimally those elements of control? Again, you could move them 

to the other organizations and you'll have other problems that 

you'll need to engineer. 

 I personally come down on the mode of saying I think right 

now you've got the better chance of accomplishing your goal if 

you start building out from where you are now with the FBI, but I 

would give it a different direct management oversight, I would 

give it more analytic management oversight and bring a DCI kind 

of person to do that and try to reward the analytic skills that 

you want in the law enforcement community, not just simply the 

transactional skills. 

 If you can do that, and then you raised the key question how 

do you measure success, how do you know you're succeeding in 

doing that? And that frankly takes -- there's no statistical 

thing, you just have to have smart people who are sincerely 

committed to helping the FBI do that who come in and just tell 

them God's truth of what they really understand is going on and 

ask a directorate to take that on sincerely and to look at it. 
112

 MR. LEHMAN: Thank you. 

 MR. KEAN: We've got very little time, and three 

commissioners who've asked to be heard, so if we can keep our 

questions and answers as short as possible. 

 Commissioner Ben-Veniste? 

 MR. BEN-VENISTE: Thank you, Mr. Chairman, and thank you 

both for meeting with us privately, sharing your views, honing 

those views as I hear today, and providing for a very lively and 

informative discourse. I particularly want to observe my 

agreement with the notion of targeted, focused, intelligence 

collection which is, or should be designed, toward achieving a 

particular goal, rather than the diffuse collection of every 

available scrap of information about every American citizen which 

is being discussed in other quarters. 

 I think the reasons for that are obvious. They deal with 

the problem for which the enhanced capability should be directed 

and they do not stir up unnecessarily the emotions of the 

American public with regard to its government spying on them. 

It’s very basic, and I commend you for those observations. And 

without taking a lot of time I would suggest that the proposals 

in Mr. MacGaffin's statement here today, which are very specific 

and very directed toward a framework within the FBI of 

bifurcating the law enforcement functions from the intelligence 

functions, are those which we ought to very seriously consider in 

our recommendations as a commission. 

 The question I have is whether you gentlemen think that they 

can be accomplished without legislation, a legislative framework 

essentially reorganizing that part of the FBI that will deal with 

the recruitment of people who are most proficient in what it 

takes to analyze data, whether it is necessary to essentially 

legislate an individual function within the FBI that is charged 

with directing the collection of information, and whether it is 

necessary to establish a framework for measuring and promoting 

the individuals who would be selected for this intelligence 

function within the FBI. And I'll stop there. 

 MR. MacGAFFIN: Thank you for the endorsement of some of the 

work we've done on this. With regard to the question of is 

legislative input required, on a technical level, quickly 

reviewing the things that I wrote, I would think only the 

provision that the head of this new entity be -- the way in which 

he be selected and the term to run concurrently with or for the 

same duration as the director of the FBI's term, I think that 

probably would require it, I agree. Other than that, not only do 

I not -- can I quickly not think of anything that would require 

it, I would hate to do it because it's only going to work if 

everybody, if the whole process is, oh yeah, I got it, we've got 

to do this. And we've all been there where, you know, this part 
113

of town is legislated and we said, oh yeah, we're going to do it 

my way. 

 So, it's got to come -- I don't think legislation helps 

other than those, other compulsions got to be put to it, but not 

legislation. 

 MR. BEN-VENISTE: Thank you, and I'll defer to my 

colleagues' questions. 

 MR. KEAN: Senator Gorton. 

 MR. GORTON: (Off mike.) Mr. MacGaffin, I'm going to 

follow the compliments of Mr. Ben-Veniste. I look at these 11 

points as the most precise and substantive and -- 

 MR. KEAN: Microphone -- 

 MR. GORTON: I look on these 11 points as the most 

thoughtful and decisive and pointed suggestions that we've had to 

solve a very real problem. They've taken a great deal of thought 

and effort on your part and are the result of a great deal of 

experience. Generally speaking when you get a compliment like 

that before the question, there is a but, and this is the but: I 

go through this with great care, I listen to all three of your 

brutal criticisms of doing something like MI5 and now I want to 

ask you how this differs from MI5? 

 It seems to me that what you have created, what you've 

created here is two essentially separate entities. Maybe housed 

in the same place, but you will have a head that is appointed by 

the President, and really when you get right down to it, he's 

going to be picked by the President and he'll consult with these 

other three people in doing so for a fixed term. His personnel 

are going to be separate from the other FBI personnel. You're 

going to start with 60 percent FBI people but they will be 

trained and will go through a career entirely in this 

intelligence function. 

 And you don't get together at least until you get to the 

level of the attorney general, though I see little supervisory 

authority on the attorney general here, and now -- and I look at 

what we've learned about MI5, well, it's separate from the 

constables and law enforcement in Great Britain. They finally 

reach a point at the home secretary level is the first place that 

there's a real contact between them, who in turn is a creature of 

the prime minister. So, and with all respect, except for the 

fact that you call these people FBI agents, you know, my first 

question is how it differs from a separate entity such as that in 

the United Kingdom or in some other place? 

 I strongly suspect that you will have at least some sharing 

of information challenges between the old FBI and the new FBI. 

That's number one. Second, there's been, you know, bitter 
114

criticism here of saying that you might have exactly this same 

kind of function except maybe that it works up through the CIA to 

the President, rather than through the attorney general, you 

know, to the president. But what we have from a point of view of 

communicating with one another and solving the fundamental 

problem is, that here in this situation housed in the FBI, 

however you do it, you are mixing an intelligence function with a 

law enforcement function and a cultural clash that you have 

testified to only too eloquently. 

 If you were dealing with a domestic CIA, you wouldn't have a 

culture clash, you'd have to have an entirely separate 

organization like this one because the rules would be so 

different. But it would be intelligence, intelligence and the 

problem of communicating with law enforcement. Here you have an 

intelligence and law enforcement mixed and still nothing to 

increase the communication between the present CIA for 

intelligence overseas, and the domestic intelligence that this 

new group is going to take with the fact that the terrorists move 

back and forth across the borders with a relative degree of ease. 

 So it's sort of a long speech, but haven't you given us an 

MI5 just simply with a different name, and is it so totally out 

of even our line of consideration that we should have all 

intelligence with two separate sections under one head, rather 

than have that split between domestic and foreign, faced that 

split between intelligence and law enforcement? 

 MR. MacGAFFIN: First, and this is going to sound like I'm 

ducking it, and I'll come to some of the other issues later. The 

first and most important part is the fact that it is in the FBI 

as our first proposal serves to root it in the tradition of 

America, in the great tradition of getting John Dillinger and 

whatever, the great confidence the American people have in their 

fate. 

 MR. GORTON: That's a good point. 

 MR. MacGAFFIN: That is a very, very important thing. 

Something that I learned about but I didn't appreciate in my 31 

years at CIA but came to appreciate in my six years at the FBI, 

terribly important. So the fact that it's there is, number one, 

a very important difference, it's not a new organization, it's 

what's new is it's going to go about doing its business 

differently in a different form. It's going to truly do 

intelligence collection that it doesn't do now. 

 The comment on the relationship of the AG to this. You 

alluded to that in your remarks. There is an analogy in the 

Executive Order 12333 which essentially guides how in my old 

world of the CIA, how -- what is the approved and appropriate 

practice in regard to, in this case U.S. persons, the guidelines 

themselves were crafted and approved with full input by the 
115

attorney general, but on a day-to-day basis are administered by 

the DCI and the deputy director for operations. 

 I can't tell you how many times I had visitors have come out 

to John MacGaffin in Beirut or Baghdad or wherever it was, and 

gave me and my staff, you know, here do you really understand 

12333 with regards to -- I think that we need to do the same 

here, some version of the same thing here. To John Hamre's very 

well taken one, the attorney general has to have a firm foot in 

this, but not necessarily in the day-to-day management of what 

collection is done, but certainly has to set up and we've all got 

to be satisfied that the constitutional protections are there 

when the collection is done, if I make that point. 

 The communication, the last point you made was how do we, 

how does this deal with the question of communication across the 

intelligence -- across the great intelligence/law enforcement 

divide. You know, again while we've made progress in that since 

9/11 with a club over their heads, the level of noncommunications within the existing FBI across criminal and 

intelligence, national security sides is unbelievable at times. 

I mean, literally I was present when the person responsible for 

doing Russian organized crime met the person in the Bureau 

responsible for the national security side of pursing the 

Russians, and I knew them both -- you know, what's this all 

about. 

 So it's not that there is this great free flow of 

information across the internal workings of the Bureau as it 

exists now, that's a fallacy. It should be, I mean, the Bureau 

ought to be built on all the information that's appropriately 

available where it needs to be, but it doesn't work there now. 

So I guess that'd be my third point is that it's the ability to 

build this communication across law enforcement intelligence. 

The intelligence community would welcome and work with an 

organization like this embedded in the FBI that was clearly doing 

collection work, because then it's easy to say, here's the 

problem, it's al Qaeda, I'm going to do Paris and something else 

and you're going to do, you know, and that'll work. And when 

we've done that between the two, you know, it's a winner, and 

when we haven't you get what we got. 

 MR. GORTON: One brief question, Mr. Barr, do you buy into 

the MacGaffin formula? 

 MR. BARR: Not completely, I do think ultimately this will 

evolve into two directorates within the FBI. I think it's a far 

different situation than having a separate agency, because I 

don't think Mr. MacGaffin expected these two entities to be 

hermetically sealed. They would be interacting and coordinating 

in the field, in the field offices all the way up the chain. One 

thing to remember is, again, collection in the United States 

relies on law enforcement assets. 
116

 You know, during the first Gulf War when I was responsible 

for American counterterrorism, a lot of it boiled down to 

tracking people, figuring out where people were in the United 

States or where they were going. And that required a lot of 

stake outs, it required a lot of traffic stops, it requires, you 

know, going into stores to find out where certain apparel was 

bought. It requires going into hotels to check records in an 

entire city. Very intensive, requires feet on the street, law 

enforcement people. 

 An MI5 type agency, I don't care how many agents you put in 

it, it's not going to -- you know, you're going to have to have, 

you know, 20, 30, 40,000 agents running around the United States 

if they're specialized and dedicated, or it's going to have to be 

integrated with law enforcement assents in the United States. The 

FBI today has those assets, it is integrated with state and local 

law enforcement, 650,000 police, and they do a lot of the work 

necessary to track down terrorists. 

 In sharing information, any division even a division within 

an agency will create sharing problems. It happens at the much 

ballyhooed CIA, but in fact if it's in the same agency, the risks 

are lower, you usually get more sharing of information. The 

coordination with the CIA is something that happened, the FBI is 

part of the intelligence community and that coordination has to 

occur. And in that case, it's with, you know, entities outside 

the Department of Justice. But I don't think we should compound 

the problem by creating another fissure, this artificial 

distinction between law enforcement and intelligence -- 

 MR. GORTON: What part of MacGaffin's recommendations do 

you disagree with? 

 MR. BARR: Well, I'm not sure I would be so prescriptive. 

In other words, from my experience institutions will evolve over 

time and develop appropriate cultures. For example, take the 

CIA. When I was first there, there was, you know, some 

distinctive culture between the DDO, the Directorate for 

Operations and the DDI. And yet, you know, most of the career 

intelligence people in through the CT program, they got the 

training of the covert people even though they might ultimately 

end up over in the DDI. That's not to say there were other ways 

for people to come in. 

 So I think, you know, there will be some things where you 

may want some overarching program where you get some basic law 

enforcement orientation for people, but I think eventually you 

will end up with two directorates. But I don't think we should 

necessarily make them hermetically sealed against each other, 

some cross fertilization is a good thing. 

 MR. GORTON: Thank you. 

 MR. KEAN: Last question from Congressman Roemer. 
117

 REP. ROEMER: I want to begin anyway where Dr. Hamre 

started his remarks and that was thanking the panel here. We 

want to thank you for your advice and your counsel here this 

afternoon, but more importantly, Mr. Barr, for your service to an 

administration a few years ago, doing a very good job. Dr. 

Hamre, another administration doing an excellent job as well. 

Mr. MacGaffin, 30 years in the CIA serving your country. 

 I'd like to shift a bit here from the FBI to what Mr. Barr 

referred to as the much ballyhooed CIA. Given your service there 

for 30 years as an officer and a deputy director of Operations, 

you have quoted Thomas Powers a couple of times, and he has 

written a very interesting book of essays on the CIA, and in one 

of them, Mr. MacGaffin, he talks about a very difficult endeavor 

to undertake in any organization, and that is doing an internal 

assessment of when you make mistakes. 

 And he interviews somebody at the end of his essay on the 

9/11 failure, and he's talking to somebody with vast experience 

at the CIA that really finds it difficult to go through this 

internal assessment of where the CIA has made mistakes, and that 

it may be too bloody, it may be too difficult, we may not be able 

to do this, but we cannot fail to do this, we must undertake this 

assessment and this damage plan, and how we go forward with some 

vision in the future. 

 I'd like to press you very hard, because we get many of our 

most candid comments from people after they've left government 

service, and ask you in your remarks you're pretty explicit about 

the magnitude of the failure of 9/11. You say, and I quote, "The 

magnitude of my failure, the colleagues at the FBI, the CIA, the 

DOD, to fully implement those systemic changes to our national 

security structure writ large that could have prevented this 

attack." Unquote. 

 I just want to be specific in what do we need to recommend 

at the end of the day to see that these great talented people at 

the CIA that have done a wonderful job over 50 years in so many 

ways but may have been slow to get onto this new target of al 

Qaeda, what do we need to do specifically there at the CIA as an 

institution to see these changes made? What two recommendations 

would you make to us? 

 MR. MacGAFFIN: Unfair at the end of a long, tired day, but 

as you will note in my statement, I made very clear that while 

the issue here was domestic intelligence collection and we were 

going to spend a lot of time talking about the problems of that, 

that there are extraordinarily important issues that have to be 

addressed for the foreign side, for CIA and NSA particularly. In 

very short hand on the NSA side, getting out behind the 

technology curve, they're so far behind they can't get in front 

of it. For the CIA, I think it's getting back to the same 
118

criticism I make of the FBI, getting back to real focused 

penetration operations against the most difficult targets. 

 It's really hard work, and unlike -- I happen to live in 

places that now make you say, hmm, like Beirut or Baghdad or 

Riyadh. But when I lived in Beirut, you know, it was terrible, 

my sail boat sunk one day, but other than that it wasn't too bad. 

The places where you have to do this work now are terrible, and 

so getting people who are willing to do this work in those places 

and take the risks, everyone as we have to do, get behind the FBI 

to make it do what it's got to do and let them know we support 

it, we've got to do the same thing too for the CIA. 

 And the kinds of things the between General Barr and Dr. 

Hamre talked about were people in the FBI say, yeah, go do that 

and get yourself in trouble, you get held out to twist in the 

wind. The same thing is true for operatives in the CIA. We've 

got to let them know that we support and encourage that, and that 

still hasn't happened. 

 REP. ROEMER: But be more specific, I'm not letting you off 

the hook with that. We've heard that over and over and over, 

that we need better human resources and better penetration in 

terrorist targets and better language skills and analytical 

capabilities and better strategic analysis of the information 

that comes in. How do we do that? We've been talking about 

these kinds of things in the intelligence community for several 

years now and some of these things have just not been done. How 

do we focus on those two or three things and how do we implement 

and achieve those? 

 MR. MacGAFFIN: Okay, and I didn't sign up for all of those, 

although we could do better on all of them, I focused directly 

and specifically on human source and technical -- human enhanced 

technical penetrations of those hard targets. And how do we do 

that? We do it through the recruitment of people who can -- who 

can understand and reach into the Islamic communities and can 

deal in those languages. But it's got to be the constant focus 

of the oversight committees, of the Administration, of how are we 

doing? 

 I mean, we're really good now, I understand, you know, from 

everyone's favorite source Bob Woodward, that the President has a 

thing in his desk drawer, that he pulls out and when Mr. Tenet 

goes down, they sort of cross off, you know, how many bad guys 

have you got that are still at large? Let's turn it around, and 

even though this is a terribly sensitive issue, and keep 

everybody's nose to the grind of how many sensitive penetrations 

have the FBI and the CIA and the NSA together working jointly 

given us in all these places because it's the only defense 

against the terrorists and the other organizations to do us harm. 

You're not going to do it with satellites, you're not going to do 

it any other way. And until we keep -- that's the only payoff, 
119

is count them. Just as you count them when we take them out, 

let's count them when we bring them on board. 

 REP. ROEMER: Thank you, Mr. Chairman, thank you again. 

 MR. KEAN: Thank you very, very much. I want to thank you 

all. This has been a very interesting and a very valuable panel. 

I want to thank all the witnesses today for their time, we're 

greatly appreciative of the insights we've gotten. And while 

we've heard a diversity of opinions on each panel, we have also I 

think discerned some very interesting themes. First of all, the 

choice of security or liberty is false. Such thinking invites 

the pendulum swings of the past, going too far one direction then 

going back too far the other. 

 Instead we need creative thinking about how to live in a 

more dangerous world, how to make security and liberty into 

partners, not rivals, that creative thinking is in very short 

supply. But we heard witnesses today who helped us approach this 

challenge and do it constructively. In intelligence gathering we 

need guidelines that tell people what they can do, yet other ways 

to hold them accountable when there are abuses, that the wall 

between intelligence and law enforcement in place prior to 9/11 

may have faithfully impeded investigation of the future 

hijackers. 

 And if the United States is to prevent terrorist acts before 

they occur, sharing information between law enforcement and 

intelligence is vital. We heard that the PATRIOT Act, debate 

swirls around symbols as much as substance. But the Commission 

must think about what Congress should do when the key provisions 

of that act expire at the end of 2005. We heard that preventive 

detention of terrorists may be necessary, but witnesses thought 

that we do not yet have the institutions or rules in place that 

will make such measures sustainable in the long haul in our 

democracy. As one witness put it, changing the rules is better 

than having no rules at all. 

 We heard testimony about the importance of a clear framework 

for immigration law decisions and designations of enemy 

combatants. Such a framework simply doesn't exist today our 

witnesses testified. We heard testimony about the importance of 

consistent enforcement of the law, both for those who we welcome 

to our country and those we do not. We heard about the 

importance about working with the Muslim and Arab American 

community as a critical part of our antiterrorism work. We heard 

testimony that we should not appeal to foreign models for 

addressing security issues, but we need a model for domestic 

intelligence consistent with American values and our own system 

of government. 

 We heard a very good airing of views about the future of the 

FBI and the critical question that came out is this: Does the 

combination of law enforcement and intelligence compromise 
120

devotion to the intelligence mission? Or is that combination 

instead essential for the integration of collection and action in 

the field operating within the law? This is all very important 

to our mission. We need a strong, informed public debate about 

the U.S. government's new powers in fighting this war on 

terrorism. And I certainly hope, and we all do, that the 

Commission's hearing today contributed to that debate. Thank you 

all, very, very much. 

End.