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54–241 PDF 2010

S. HRG. 111–211 

PROTECTING NATIONAL SECURITY AND CIVIL LIBERTIES: STRATEGIES FOR TERRORISM INFORMATION SHARING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TERRORISM, 

TECHNOLOGY AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 21, 2009 

Serial No. J–111–15 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

BENJAMIN L. CARDIN, Maryland, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

RON WYDEN, Oregon 

EDWARD E. KAUFMAN, Delaware 

JON KYL, Arizona 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BILL VAN HORNE, Democratic Chief Counsel 

STEPHEN HIGGINS, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S Senator from the State of Maryland .............. 1 

prepared statement .......................................................................................... 49 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 6 

prepared statement .......................................................................................... 85 

WITNESSES 

Baird, Zoe, president, Markle Foundation, and Co-Chair, Task Force on National Security in the Information Age, New York, New York ........................ 3 

Fredrickson, Caroline, Director, Washington Office, American Civil Liberties 

Union, Washington, D.C. ..................................................................................... 11 

Gorton, Hon. Slade, former U.S. Senator from the State of Washington, and 

Member, Markle Foundation Task Force on National Security in the Information Age, Seattle Washington ........................................................................ 7 

Manger, J. Thomas, Chief of Police, Montgomery County, Maryland, and 

Chairman, Legislative Committee, Major Cities Chiefs Association, Rockville, Maryland ..................................................................................................... 8 

QUESTIONS AND ANSWERS 

Responses of Zoe Baird to questions submitted by Senator Feingold ................. 26 

Responses of Caroline Fredrickson to questions submitted by Senator Feingold ........................................................................................................................ 30

Responses of J. Thomas Manger to questions submitted by Senator Feingold .. 35 

SUBMISSIONS FOR THE RECORD 

Baird, Zoe, president, Markle Foundation, and Co-Chair, Task Force on National Security in the Information Age, New York, New York, statement ..... 37 

Center for Democracy & Technology, Leslie Harris, President and Chief Executive Officer, Washington, D.C., letter ............................................................... 52 

Fredrickson, Caroline, Director, Washington Office, American Civil Liberties 

Union, Washington, D.C., statement .................................................................. 55 

Gorton, Hon. Slade, former U.S. Senator from the State of Washington, and 

Member, Markle Foundation Task Force on National Security in the Information Age, Seattle Washington, statement ..................................................... 73 

Manger, J. Thomas, Chief of Police, Montgomery County, Maryland, and 

Chairman, Legislative Committee, Major Cities Chiefs Association, Rockville, Maryland, statement .................................................................................. 88 

(1) 

PROTECTING NATIONAL SECURITY AND CIVIL 

LIBERTIES: STRATEGIES FOR TERRORISM 

INFORMATION SHARING 

TUESDAY, APRIL 21, 2009 

U.S. SENATE, 

SUBCOMMITTEE ON TERRORISM AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:35 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Cardin and Kyl. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Chairman CARDIN. Good afternoon, everyone. Let me welcome 

you all to the first hearing of the Terrorism and Homeland Security 

Subcommittee of the Judiciary Committee for the 111th Congress. 

First, I want to acknowledge and thank Chairman Leahy for allowing me to chair this Committee and to convene this Subcommittee. This Subcommittee has a proud tradition. I know that 

Senator Kyl will be joining us shortly, who is the Ranking Republican member. But the leadership on this Subcommittee under Senator Feinstein and Senator Kyl has established, I think, a record 

for our Subcommittee to follow. I just want to acknowledge that up 

front that I very much rely upon the leadership of Senator Feinstein and Senator Kyl in going through the agenda that we hope 

to handle in our Subcommittee. 

We have several issues that we will be taking up. Of course, 

today we are going to be starting with, I think, the most important 

responsibility we have, and that is the security of our country, and 

whether we are getting the maximum information, intelligence information to keep the people of this Nation safe. 

This Subcommittee will also have to deal with the PATRIOT Act. 

Several provisions of the PATRIOT Act will expire this year, and 

Congress will need to consider extending those provisions or modifying them. I intend for this Subcommittee to play an active role 

in that regard. 

We also have the detainee issues, those that will be leaving 

Guantanamo Bay, and we will be reviewing with the administration how they intend to deal with the detainees. 

We will be dealing with passport fraud. The GAO report recently 

showed some weaknesses in our system, and we will be taking that 

2 

issue up. We will be dealing with cyber security, biological research 

security, in which I have a direct interest in Maryland, considering 

it was breached in my own State; encryption policies, espionage 

laws. So we have a full agenda for our Subcommittee. But today 

we start with what I think to be one of the most important functions of Government, and that is to keep our people safe. We want 

to make sure that we have the best intelligence information 

against the threats of terrorism and the tools that are appropriate 

for the collection of reliable intelligence information. 

I think it is our responsibility to make sure that we have the 

proper use of resources. After all, these are scarce resources that 

are taxpayer dollars, that we get reliable intelligence information 

that can be shared with those who can keep us safe, and that we 

have the protections for civil liberties. That is our obligation, and 

that is what we are looking to do. 

As a result of the attack on our country on September 11th, the 

agencies that are responsible for intelligence have been reorganized, and we now have a Department of Homeland Security. We 

have a Director of National Intelligence. We have a National 

Counterterrorism Center. And the question is: Is this the right 

mechanism, the right structure to make sure that we get the most 

reliable information to keep our Nation safe? 

There have been major issues raised about sharing of information, whether we are sharing the information in the most effective 

way. The Department of Justice has the Joint Terrorism Task 

Force, which I have worked with in my own State, and is that the 

best way in order to share information? Are there more effective 

ways to get information back and forth to keep people safe? 

The Department of Homeland Security has their Fusion Centers. 

I think we need to evaluate whether they are working as appropriately as we think they should. 

Have we overcome the bureaucratic obstacles to get information 

to those who can prevent a terrorist attack? That is a question I 

hope our witnesses will deal with during the course of this hearing. 

We know that the Maryland State Police were involved in a 14- 

month investigation of peace groups in my State who protested 

against the use of capital punishment in a very lawful way. There 

appears to be no reason whatsoever that that investigation should 

have taken place. We know information was made available to Federal intelligence agencies. The question is: Do we have adequate 

protection for privacy and civil liberties in our system? Are we 

doing the right oversight? 

Congress passed a law providing for a privacy and civil liberties 

oversight board in 2007 that has not been appointed yet. Should 

that board be appointed now? Should we move forward on those 

issues? 

I hope these would be issues that we will take up during the 

course of this hearing. The 9/11 Commission concluded that, ‘‘The 

choice between security and liberty is a false choice,’’ quoting from 

the report, ‘‘as nothing is more likely to endanger Americans’ liberty than the success of a terrorist attack at home. Our history has 

shown us that insecurity threatens liberty. Yet if our liberties are 

curtailed, we lose the values that we are struggling to defend.’’ 

3 

I think the 9/11 Commission got it right. I think that is the balance that we are trying to achieve in protecting the security of the 

people of our country and protecting the civil liberties which are 

the values of our Nation. 

I hope that today’s hearing will help Congress and the new administration work together to figure out the most effective way to 

organize our intelligence-gathering capacities and establishing better guidelines for privacy and civil liberties. 

Well, we are very proud to have a very distinguished panel of experts who I hope can help us sort through what we need to do. 

Zoe Baird serves as the President of the Markle Foundation and 

also served as the Co-Chair of the foundation’s Task Force on National Security in the Information Age. Her task force issued a 

March 2009 report on the subject of today’s hearing entitled: ‘‘Nation at Risk: Policy Makers Need Better Information to Protect the 

Country.’’ 

Of course, it is a pleasure to welcome back former Senator Slade 

Gorton to the U.S. Senate, to the Judiciary Committee, former Senator from the State of Washington, who has a very distinguished 

record in the U.S. Senate and served as a member of the Markle 

task force and also as a member of the 9/11 Commission. 

We will also hear from J. Thomas Manger, the Chief of Police of 

Montgomery County, Maryland. I have worked with Chief Manger, 

and I thank him very much for his work in law enforcement. He 

represents the largest jurisdiction in the State of Maryland and one 

of the most diverse jurisdictions, I think, in our Nation. He certainly knows a lot about how these issues affect local law enforcement. Chief Manger also serves as the head of the legislative committee for the Major Cities Chiefs Association. 

Our final witness will be Caroline Fredrickson, who is the Director of the Washington Office of the American Civil Liberties Union. 

I want to thank the American Civil Liberties Union for working 

closely with us in trying to make sure that we are asking the right 

questions and that Congress exercises its responsibility of oversight. 

I was just checking the protocol of swearing in the witnesses because I have never sworn in a former Senator before. But the tradition of the Judiciary Committee is for the witnesses to take the 

oath, so if you would all stand. Do you affirm that the testimony 

you are about to give before the Committee will be the truth, the 

whole truth, and nothing but the truth? 

Ms. BAIRD. I do. 

Mr. GORTON. I do. 

Chief MANGER. I do. 

Ms. FREDRICKSON. I do. 

Chairman CARDIN. Thank you. We will start with Ms. Baird. 

STATEMENT OF ZOE BAIRD, PRESIDENT, MARKLE FOUNDATION, AND CO-CHAIR, TASK FORCE ON NATIONAL SECURITY 

IN THE INFORMATION AGE, NEW YORK, NEW YORK 

Ms. BAIRD. The real breach of protocol is probably to have me 

testify ahead of Senator Gorton, but as a member of our task force, 

he has graciously suggested that as co-chair of it, I should start. 

Thank you very much for having us, and I am really grateful to 

4 

all the staff who is here. It is such a wonderful showing of interest 

on the part of the staff. 

Senator Gorton and I, in addition to both coming from Washington State, have had the privilege of working together on the 

Markle Task Force on National Security in the Information Age, 

which I have co-chaired with Jim Barksdale, the former CEO of 

Netscape. The Task Force has been made up of a lot of experts on 

national security from every administration since the Carter administration, civil liberties advocates, and experts on information 

technology. We have worked since 9/11 to try to work our way 

through the challenging questions of how the country can use information in order to better protect us against threats to national security while at the same time preserving traditional civil liberties 

and privacy interests. 

Our recommendations were adopted very substantially by the 

9/11 Commission and have been part of both intelligence reform 

laws that have been passed by Congress—the original Intelligence 

Reform Act and then the law that was passed that was H.R. 1 and 

became the intelligence reform law a couple of years ago. 

The principal thing I would encourage you to take away from 

this hearing—and it is apt that you are starting your hearings with 

this topic—is that our country will not be able to address any of 

the threats your Subcommittee intends to take up unless we have 

the best information and we are able to use that information effectively to understand those threats; and to use that information in 

a way that builds public confidence in the Government; and in the 

Government’s understanding of its constraints as well as its powers. 

So with that overview of what this is all about, I would say that 

our Task Force, after working in the 7 years since 9/11, concluded 

in our report that we just put out that, unfortunately, this Nation 

still cannot connect the dots. We have been very fortunate that we 

have not had another major terrorist incident since 9/11, and a lot 

of that is due to good work by the Government. But we still are 

unable to really know what we know, and certainly we are unable 

to know what we know adequately. 

And, in addition, this Nation is still at risk because we do not 

have the governmentwide privacy policies that we need. Those policies are very important to have the public confidence in the Government’s development of intelligence against these new threats we 

face, whether they be terrorism or energy security or cyber security. While they are important for public confidence, the privacy 

and civil liberties policies that are needed governmentwide are also 

critical to empower Government officials, because, by and large, 

most Government employees do not want to do something that is 

wrong, and they do not want to be up here in front of you explaining to you why they did what they did that looks wrong. 

So there is a great deal of reluctance to act on the part of the 

intelligence community and law enforcement officials as well, if 

they do not have clear guidance. So both to achieve our objectives 

of obtaining and using the information that we need to provide national security and to ensure the protection of privacy and civil liberties, we need governmentwide policy guidelines on privacy and 

civil liberties. This is a very important area for your Subcommittee 

5 

to encourage the administration and to provide continuing guidance. 

We made in our report four principal recommendations on how 

to achieve this. I will go through these very briefly, and then obviously I am very happy to answer any questions you have. 

First of all, we encourage you to press the administration and 

your colleagues in Congress to give priority to this. It is critical 

that we are able to connect the dots. We need to get information 

sharing right with good policies for privacy and civil liberties, and 

we are concerned that this has been languishing and that we may 

have lost our focus. And as I say, nothing else you want to achieve, 

whether it is cyber security or border security or anything else you 

want to achieve, can be achieved without good information so that 

policymakers can make good decisions. 

Second, we really have encouraged two elements of information 

sharing that require more focus and may be of interest to you. One 

is the concept of discoverability. Our task force does not believe in 

creating large centralized data bases. We believe that information 

should stay with those who collect it and who can keep it accurate 

enough and up to date. That is a privacy protection as well as a 

protection to make sure that the information we use is the best information that we have; that is not out of date; that it has not been 

discredited. But it needs to be discoverable, so whether it is someone in the Maryland State Police who needs to find out if anyone 

else has information on a particular subject, or whether it is a CIA 

analyst, people need to find information. They do not need all the 

content. No one needs all the content. But they need electronic directories. Information needs to be tagged. Even paper directories 

are better than what we have now so that people can find out who 

else is working on a problem, who else might have information. 

Then the second concept that goes with that we believe is authorized use. In the last intelligence reform law, the law asked the administration to advise us—because they never held hearings on our 

concept of authorized use, but they put it in the bill anyway— 

whether this is something Congress should adopt. This really needs 

to be dug into more, because the authorized use concept basically 

says that if you want to get access to information, the rules have 

to say that you are authorized for your mission, for your need, for 

the predicate that you articulate, the purpose you articulate for 

why you want to have access to the information. And then if you 

meet those tests, you can get access to the information in a way 

that we can audit against it. So later, in a review of whether someone was appropriately looking at information, you can go back and 

audit whether it was an appropriate authorization, whether they 

indeed articulated a predicate that was related to their mission. 

And this is very important because the old classification systems 

do not really work well anymore. We cannot get collaboration between the Justice Department and the CIA if the only principles 

we have for what defines what information people have access to 

are classifications. It is too crude, and it is not oriented toward the 

current threats. 

So that is the second area of focus. The first is leadership, making this a priority; the second is developing the notions of 

discoverability and authorized use. 

6 

The third are the governmentwide privacy policies which I have 

talked about already. 

And then the fourth area of recommendations that we have made 

are related with what I would sum up by saying, ‘‘Old habits die 

hard’’; that both Congress and the administration need to find 

ways to encourage people to come into the modern age, to encourage people to change their work habits, to become collaborative, to 

understand that agency lines are not written around the currentday problems that we face. And that can be through setting 

metrics, through expectations Congress has for the executive 

branch, through awards, rewards for employees who get it right. 

But that cultural issue of how do you change old habits is one that 

really deserves attention, and my guess is something that you are 

looking at in other areas of reform that you want to see as well. 

Thank you very much. 

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

for the record.] 

Chairman CARDIN. Thank you for your testimony. 

Senator Kyl, of course, is now here. I just wanted to point out, 

Ms. Baird, that one of the reasons that we—I never make excuses 

for my fellow Senators, but there is a major bill signing this afternoon on the Volunteers Act with Senator Kennedy and President 

Obama, and I know that there are members of the Judiciary Committee that are at that bill signing. So I just really wanted to point 

that out to the witnesses. I know some of the members of this Committee had that conflict, and that is where they are this afternoon. 

I want to give Senator Kyl a moment. I said before you came, I 

thank you and I thank Senator Feinstein for your leadership on 

this Subcommittee. You have established a bipartisan record of 

putting our Nation’s security first on dealing with terrorism in the 

work of this Subcommittee. It is a model that I intend to follow, 

and I personally want to thank you for the work that you have 

done, both as Chairman and Ranking Member of this Committee. 

And we hope to follow in that tradition. 

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

STATE OF ARIZONA 

Senator KYL. Mr. Chairman, thank you. I will just put my opening statement in the record but return the thanks. It has been 

wonderful working with Senator Feinstein. We have been both 

Chairman and Ranking in turn, and there has never been anything 

partisan about our activities. It has always been focused on how to 

protect our constituents and fellow citizens. 

You have been very helpful in the same vein in organizing this 

hearing and others, and so it is really a pleasure to work on a Subcommittee like this where that is the attitude that prevails, and I 

thank you very much. And my sincere apologies to everyone. From 

time to time you cannot get exactly where you need to be on time, 

and I very much apologize. I will catch up on the reading here and 

not make any further statement, but thank you all. 

Senator Gorton, it is great to see you again. 

[The prepared statement of Senator Kyl appears as a submission 

for the record.] 

Chairman CARDIN. Senator Gorton? 

7 

STATEMENT OF HON. SLADE GORTON, FORMER UNITED 

STATES SENATOR FROM THE STATE OF WASHINGTON, AND 

MEMBER, MARKLE FOUNDATION TASK FORCE ON NATIONAL 

SECURITY IN THE INFORMATION AGE, SEATTLE, WASHINGTON 

Mr. GORTON. The Markle Task Force on National Security in the 

Information Age is now some 7 years old and has issued three reports on that subject, the latest of which focuses on information 

sharing and the vital importance of appropriate information sharing at all levels of government toward our national security. 

At one level, I have good news, Mr. Chairman and Senator Kyl. 

We are not asking you for any new laws. We believe that the two 

statutes that were passed pursuant to the recommendations of the 

9/11 Commission, which in turn depended significantly on the 

Markle Commission’s earlier reports, are sufficient to do the job. 

The problem is in their implementation. The problem is in a very 

slow-moving bureaucracy which takes a long time in changing its 

habits. And we want a major change in habit. We have lived for 

generations on a basis of sharing intelligence on a need-to-know 

basis. We think the philosophy ought to be ‘‘need to share,’’ with 

the burden being on those who would not share rather than the 

other way around. 

The 9/11 Commission reported on ten lost operational opportunities to derail the 9/11 attacks. Now, we cannot say that any one 

of them or even all of them would absolutely have done so, but we 

had ten chances that were missed, and every one of them involved 

a failure to exchange, to share information which was in the possession of one Government agency or another. And so the current 

Markle Task Force report, which you have and which you and your 

staff have read, says that even 7 years after 9/11, our Nation is 

still at risk. We need better information to defend the homeland. 

I am sure that Chief Manger is going to report that it is much 

easier today to share information upwards from his level than it is 

downwards from the national level to the law enforcement agencies 

that are on the front line of our defense. And that is only one example of where we have not done the job exactly right. 

We have a couple of very specific requests directed more at the 

administration than they are here at the Congress. The first one 

is that the program manager for the information-sharing environment be lodged in the White House. That seemed to be at the 

present time something of a bureaucratic morass somewhere in the 

Intelligence Committee. In the White House, that officer would 

have the ability to see to it that information is shared appropriately. 

And, second—and you mentioned this yourself, Mr. Chairman, in 

your opening remarks—these two statutes have set up a privacy 

board which is not yet appointed and in being. We also believe that 

while the Obama administration has started very well in setting 

out a philosophy for privacy, it needs to enforce a uniform policy 

on all of the agencies of Government, and it needs to make that 

policy enforceable, not just a set of suggestions. 

Finally, I want to express a real admiration for the two of you 

and for your Subcommittee in one very important matter. You are 

not going to get very much publicity or political credit for doing the 

8 

kind of oversight job that needs to be done. Success breeds complacency, and we have now gone 71⁄2 years without a terrorist attack 

in the United States—partly due to better laws and better enforcement, even though they are still inadequate. And that means that 

people are paying attention to other matters, and that complacency, in my view, is the cause of the great risks that we run at 

the present time. 

So you need to be on the forefront of harassing and talking to 

people in the administration and getting them to do their jobs right 

in a way that is probably not going to bring you very much credit. 

But if you do it right, you will see to it that that 71⁄2 years of no 

attacks on the United States will be many, many more years in the 

future. 

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

for the record.] 

Chairman CARDIN. Thank you, Senator Gorton. I appreciate that 

very much. 

Chief Manger? 

STATEMENT OF J. THOMAS MANGER, CHIEF OF POLICE, 

MONTGOMERY COUNTY, MARYLAND, AND CHAIRMAN, LEGISLATIVE COMMITTEE, MAJOR CITIES CHIEFS ASSOCIATION, 

ROCKVILLE, MARYLAND 

Chief MANGER. Chairman Cardin, Ranking Member Kyl, I appreciate the invitation to be here this afternoon speaking on behalf of 

the Major Cities Chiefs of Police, which represent the 56 largest police departments in the United States. 

I am pleased to report that the relationships and information 

sharing between and among Federal, State, local, and tribal police 

has never been better. But we were coming from a time when it 

was not very good. So the rest of the story remains that there is 

still a great deal more to do to fully engage the more than 18,000 

law enforcement agencies in this country as full partners in the 

quest for homeland security. 

Federal agencies, despite their ever-improving efforts, have still 

yet to completely leverage the vast resources of our Nation’s police 

and sheriffs. 

Since September 11, 2001, the FBI and the Department of Homeland Security—and all other agencies included in the intelligence 

community—have made tremendous progress in incorporating 

State, local, and tribal law enforcement into the national effort to 

protect our homeland. 

But as with any effort so monumental, any effort that has 

achieved progress so quickly, we need to take a good, long look at 

what has been created and make certain that what we have is 

what we intended. Keep what is working and build on it, eliminate 

duplicative efforts, and fix what is not working as it should. 

The areas of oversight for this Subcommittee are far-reaching 

and critical. But because my time here is limited, I want to focus 

on just a limited number of topic areas. I will focus on the role of 

local law enforcement in homeland security; several systems in 

place to facilitate the exchange of information; establishing and 

maintaining safeguards for everyone’s privacy and civil liberties; 

9 

and, finally, some shortcomings from the perspective of local law 

enforcement. 

Law enforcement’s role in uncovering and disrupting terrorist activities is well documented. Sergeant Robert Fromme from the 

Iredell County (North Carolina) Sheriff’s Office saw two men enter 

a discount tobacco shop with over $20,000 cash in a plastic grocery 

bag. These men came into the shop almost daily buying many cartons of cigarettes. Fast-forward several years and a long-term Federal investigation later, and the ATF and FBI indicted 26 individuals who were using the proceeds from a cigarette-smuggling operation to fund a terrorist group based in Lebanon. A suspicious activity noted by local law enforcement, appropriately documented 

and legally investigated, results in a terrorist operation being shut 

down. 

This type of story is repeated over and over again because of the 

relationships and information-sharing mechanisms in place within 

the Nation’s law enforcement community. 

I think everyone would agree that the key lesson that 9/11 

taught us is that law enforcement is more effective when relationships, protocols, and information exchange systems are established 

and in place before a crisis strikes. 

The national Suspicious Activity Report System—or SARS—is an 

effort still in its infancy that needs to be invested in and allowed 

to grow. 

The SARS process has directly enhanced the ability of local police to protect our communities from violent crime including terrorism. And, most important, the SARS process can and will be 

done in a manner that protects the privacy, civil liberties, and civil 

rights of all. 

The two greatest values of SARS are: one, the ability to connect 

events that in the past would never have been connected; and, two, 

it is a nationwide initiative that for the first time is providing consistent criteria and consistent training to all law enforcement personnel. 

We are training our first responders how to identify behaviors 

associated with terrorism-related crime and providing them the 

training they need to distinguish between those behaviors that are 

reasonably associated with criminal activity and those that are not. 

No police chief wants his officers involved in confrontational 

interactions with people engaged in innocent, constitutionally protected behavior. 

Not every person wearing baggy pants is a gang-banger and not 

every person videotaping the Washington Monument is a terrorist. 

Public safety is not enhanced and homeland security is not increased by filling data bases with information about people, organizations, and activities that have no nexus to criminal activity or 

terrorism. 

I firmly believe that the SARS system can operate with strong 

protections for privacy and civil liberties while it provides the Nation’s best practice for information sharing among law enforcement 

agencies. JTTFs and fusion centers can also operate effectively 

with these protections. From a local perspective, involvement in the 

JTTFs and fusion centers remains the most effective way to stay 

on top of the latest terrorist threat information. 

10 

Unfortunately, one of the harshest realities remains that only if 

a police agency is capable of assigning someone to the local JTTF, 

or a state or local fusion center, that agency is likely to get its most 

timely threat information that it can. Those agencies that cannot 

assign folks to those JTTFs and fusion centers are still likely to get 

their most timely threat information from the media. 

The Montgomery County Police Department, like many large police agencies, has the resources to assign our own personnel to the 

FBI’s JTTF and two fusion centers in this region. We have assigned personnel to the Maryland Coordination and Analysis Center, the MCAC, and the Washington, D.C., Regional Threat and 

Analysis Center. 

While there is some overlap in the intelligence and threat information we receive from these three operations, at any given time 

one center will have information that is of interest to Montgomery 

County that the other two do not have. By virtue of our proximity 

to the Nation’s Capital, it is best that we be plugged into all three 

sources. It is staff intensive and highlights the importance of Federal funding of intelligence analysts that work for the State and 

local agencies. 

Another area that has been a long-term issue is the need for a 

nationwide system for Federal security clearances. DHS has been 

very accommodating for sponsorship of security clearances, and the 

FBI likewise has sponsored clearances for police officials that have 

membership in the JTTF. Constant promotions, retirements, and 

transfers make it very difficult for the FBI and DHS to keep up. 

While the Major Cities Chiefs and Major County Sheriffs applaud the FBI and DHS for their willingness to provide clearances, 

there has been little progress in accomplishing a process for reciprocal acceptance of those clearances to access systems and conduct 

briefings. Refusal by one Federal agency to routinely accept the 

clearances issued by another is a disruptive policy that contradicts 

information sharing and threatens our progress toward realizing 

the goals of the Committee. The chiefs and the sheriffs ask for your 

help to resolve this issue once and for all. 

Another issue involves the sharing of some information with the 

JTTFs. While fusion centers allow law enforcement agencies to 

share information generally, there is a problem when the information goes through the vetting process at the JTTF. If the FBI decides to enter the information into the Guardian system for further 

investigation by the JTTF, the information immediately becomes 

classified, thus limiting access to the information. 

So if, for example, a Guardian lead is investigated involving 

fraudulent identifications, and it is later determined that the individuals involved have no nexus to terrorism, the lead is then closed 

by the JTTF. Local police, however, may be interested in working 

the case from a local crime perspective—an identity theft case. Unfortunately, the information gathered by the JTTF remains classified and often unavailable to local police. These issues require continued work between the FBI and local authorities. 

Let me summarize. SARS is working. Let’s find a way to get it 

fully implemented around the Nation—the training, the accountability, and the technology. 

11 

Fusion centers are working. Let’s ensure safeguards are in place 

to protect our civil liberties and that all centers are equipped to 

combat both crime and terrorism. Done legally and done effectively, 

these centers have been responsible for the arrests of bank robbers, 

criminal street gang members, money launderers, and terrorists. 

The cases were made because multiple jurisdictions quickly linked 

crimes, patterns, and individuals involved in criminal wrongdoing. 

The value of fusion centers is the information they put out to all 

stakeholders. 

Every local police or sheriff’s department has the particular mission of protecting neighborhoods—protecting communities from 

crime and terrorism. Cops on the street are uniquely positioned to 

receive and document information from a variety of sources that 

could assist the Federal Government in maintaining our homeland 

security. 

We have systems in place to facilitate the sharing of that information. Let’s make sure all agencies are plugged in. We have systems in place to facilitate the sharing of that information. Let’s ensure effective analytic capability so that we do not go down the 

wrong road. 

These systems are in place to facilitate the sharing of that information. Let’s establish safeguards so that information is used appropriately and hold people accountable. 

We have systems in place to facilitate the sharing of that information. Fund these systems and allow them to mature and improve. It will make our neighborhoods safer and our homeland 

more secure. 

Thank you. 

[The prepared statement of Chief Manger appears as a submission for the record.] 

Chairman CARDIN. Thank you very much, Chief Manger. 

Ms. Fredrickson. 

STATEMENT OF CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, DC 

Ms. FREDRICKSON. Thank you very much, Chairman Cardin, 

Ranking Member Kyl, for holding this very important hearing. 

We all agree, clearly, from this panel that law enforcement has 

a legitimate need to share lawfully collected information regarding 

terrorism and other criminal activity in an effective and efficient 

manner. But we should also all agree that increasing the Government’s authority to collect and disseminate personally identifiable 

information about Americans can pose significant risks to our privacy and civil liberties. 

Last year, as Senator Cardin mentioned, the ACLU of Maryland 

exposed an extensive Maryland State Police spying operation that 

targeted at least 23 non-violent political advocacy organizations 

based solely on the exercise of their members’ First Amendment 

rights. The Maryland State Police spied on an array of political and 

religious organizations, including religious groups like the American Friends Service Committee, immigrants rights groups like 

CASA of Maryland, human rights groups like Amnesty International, anti-death penalty advocates like the Maryland Citizens 

12 

Against State Executions, and gay rights groups like Equality 

Maryland. None of the Maryland State Police reports from these 

operations suggested any factual basis to suspect these groups 

posed any threat to security. Not surprisingly, no criminal activity 

was discovered during these investigations, some of which lasted as 

long as 14 months. Despite this lack of evidence, the Maryland 

State Police labeled many of these activists ‘‘terrorists,’’ distributed 

information gathered in the investigations widely among law enforcement and intelligence agencies, and uploaded the activists’ 

personal information into a Federal drug enforcement and terrorism data base. 

The Department of Homeland Security was also involved, collecting and disseminating e-mails from one of the peace groups to 

assist the State police spying operation. From a pure informationsharing perspective, things were working well. But the sharing of 

such erroneous and irrelevant information provided no security 

benefit to the people of Maryland and only undermined the credibility of State and Federal intelligence systems. 

In recent years the ACLU has uncovered substantial evidence 

that domestic intelligence powers are being misused at all levels of 

government to target non-violent political activists. In addition to 

the Maryland State Police investigations, the ACLU of Colorado 

and the ACLU of Northern California uncovered widespread illegal 

spying by Federal, State, and local officials. ACLU Freedom of Information Act litigation revealed Joint Terrorism Task Force investigations targeting peace activists in Pennsylvania and Georgia, 

and Department of Defense intelligence operations targeting antimilitary and anti-war protestors from around the country. 

The ACLU has produced two reports warning of problems at intelligence fusion centers, so we were not surprised when intelligence products written by fusion centers in Texas, Missouri, and 

Virginia targeted a wide variety of political and religious groups. 

And a well-publicized assessment published by DHS this month 

warned that right-wing extremists might recruit and radicalize 

‘‘disgruntled military veterans.’’ And a DHS contractor’s report 

smeared environmental organizations like the Sierra Club, the Humane Society, and the Audubon Society as ‘‘mainstream organizations with known or possible links to eco-terrorism.’’ 

Abusive intelligence reports that share misleading information 

about the ideologies and activities of non-violent activists do nothing to improve security and only undermine public support for law 

enforcement. While effective and efficient information sharing 

among law enforcement agencies is an important, and critical goal, 

intelligence activities that target political dissent as a threat to security lead only to misguided investigations that violate rights, 

chill free expression, and waste the time and resources of our security agencies. 

Frederick the Great warned that those who seek to defend everything defend nothing. Guidelines and regulations that require law 

enforcement officers to have a reasonable factual basis to suspect 

illegal behavior before collecting and distributing personally identifiable information help curb this abuse and focus finite police resources where they belong—on criminal activity. 

13 

Congress has an obligation to examine and evaluate all Government intelligence and information-sharing programs regularly and 

withhold funding from any activities that are unnecessary, ineffective, or prone to abuse. 

We do not have to choose between security and liberty, and I 

think it was in the Markle report that said this is not a zero sum 

game. Security and liberty both support each other. But in order 

to be effective, intelligence activities need to be narrowly focused 

on real threats, tightly regulated, and closely monitored. We look 

forward to working with this Subcommittee to establish and enforce reasonable standards that protect both privacy and security. 

Thank you. 

[The prepared statement of Ms. Fredrickson appears as a submission for the record.] 

Chairman CARDIN. Well, once again, let me thank all four of our 

witnesses. I found your testimony very helpful. 

Senator Gorton, let me start, if I might. You said something 

which I agree with, and that is, it looks like our primary responsibility of this Committee is going to be oversight. We have passed 

a lot of laws, and there is a lot of authority, and it is a matter of 

getting it right. But much of it is administrative more so than 

passing any new laws. 

Then, Ms. Baird, you pointed out something that I found interesting, and that is, rather than sharing the information directly by 

transferring it to different data banks, as I understood your testimony, you are saying that the collector agency should maintain it, 

keep it current, and then make it accessible for those who have use 

for that type of information. That would certainly have handled one 

of our major concerns in Maryland. We were concerned in Maryland not only with what the Maryland State Police did, but the fact 

that they made that information available to a Federal data bank, 

and we were concerned that it was then being used extensively in 

a Federal data bank when it should not have been in a Federal 

data bank to start off with. 

My question basically is: How does one access the information if 

they do not know it exists? If you are doing a criminal investigation 

or you stop someone, and if you do not have access within your 

data bank to that information through appropriate sharing, how do 

you get timely access to information that allows you to deal with 

a terrorist threat? 

Mr. GORTON. We came up with an analogy, the analogy to a public library and the card catalogue and the old-fashioned way of footing that. And under that kind of system, the gathering agency 

would not publish it to every other agency by any means, but it 

would have a short and anonymous index to the subject matter, 

something of that sort. That would be available to the other agencies, and then if another agency was in that subject matter, they 

could seek through appropriate means to get a hold of the entire 

bed of information that—the entire bed of information itself. Just 

as, you know, you do not go to a public library and wander up and 

down the aisles hoping that you will find a book on the subject that 

you want; you look in the card catalogue which has that very brief 

summary. 

14 

This is one way of keeping the information anonymous, not 

spreading it willy-nilly to every potential reader by any stretch of 

the imagination, but at least telling the searcher who is looking for 

a particular subject that something on the subject exists. 

Chairman CARDIN. But let me just give you an example. Chief 

Manger is investigating some criminal enterprise in Montgomery 

County that may very well be local, or it could very well be connected to terrorist activities. How would he know that the individuals that are participating in this activity are of interest to the collectors of intelligence information nationally as potential terrorists? 

Mr. GORTON. If he came up with a particular name, I think—and 

I am going to let Zoe correct me on this, if she wishes to do so— 

about which he had reasonable grounds to feel might be of national 

interest or some such thing, presumably he would be able to find 

out whether or not the Federal Government had information on 

that individual or on the type of the activity in which he was presumably engaged. 

Is that an accurate description, Zoe? 

Ms. BAIRD. Yes, I think that is fair, and I think the point is twofold: One, he has to be able to articulate why it is he thinks this 

person is connected to terrorism, and he will be accountable for 

that. But, secondly, the rules that need to be written are rules 

which would say in passing that information along to the relevant 

Federal agencies, say the FBI, does he need to pass on the name, 

or should he pass on the character of the activity that he is seeing 

to see if it might be related to other activity that the FBI is concerned about? 

Obviously, if a local police officer has hard information or reasonable suspicion that someone is engaged in a terrorist activity, they 

know what to do today. That is, you know, an area that is pretty 

well worked out. But what we are talking about is the use of intelligence information where the piece of information one individual 

has does not tell the whole picture. So you need to be able to ensure that that information gets connected up with other people who 

might have other pieces of information. And we could go back to 

the 9/11 story. You know all those stories about the bits of information the FBI had, the bits of information the CIA had, and how 

those dots were not connected. 

In fact, in our first report we showed how you could have identified all 19 terrorists from publicly available information, but terrorists are probably a little smarter. Those terrorists were using the 

same addresses, even the same frequent flyer numbers. 

But the key answer to this is that we need the governmentwide 

policies, and this is an area where you could call in the agencies 

to account to you what are the policies that they are using to answer these questions. How does a local police officer know, with 

care, how to share information with other agencies? 

Chairman CARDIN. Here is my concern. I do not know whether 

the local law enforcement has enough dots to connect, and they 

may very well need to access the national data bank in order to get 

the missing dot that makes the connections. 

Chief Manger, does this work the way—— 

Ms. BAIRD. If I could add one more comment before you respond, 

because this may help in your response. 

15 

Chairman CARDIN. Sure. 

Ms. BAIRD. Take the scenario where, at the Federal level, we 

have picked up information abroad that terrorists are looking at 

the possibility of major terrorist attacks on shopping centers—Mall 

of America, for example. There needs to be a way for the national 

apparatus, even short of an actual threat warning, to inform local 

police that they should be observing shopping centers, and if they 

see information that is suspicious, there is a place where that can 

be brought together with what the foreign intelligence is. But there 

is no need for the local police officer to know the details of the foreign intelligence, and there is no need for everyone involved in that 

information-sharing exercise to know the names of the people who 

are being observed. 

Chairman CARDIN. And I think that is probably handled through 

the Joint Terrorism Task Force and the fusion centers; that if there 

is a reason for concern, that information should get to law enforcement through those mechanisms. But my concern is if there is not 

a red flag nationally about a problem that would warrant notifying 

Montgomery County, but Montgomery County has part of a scenario but not everything, how does it fill in the blanks without having greater access than I think you would normally give the local 

law enforcement to be able to check that information? 

Ms. BAIRD. The local law enforcement officer, if he is concerned 

about something he is seeing in a shopping center, should have a 

directory which says these are the other people who have been 

looking at threat warnings related to shopping centers, talk to 

them, create an ad hoc group that is going to discuss what the 

problem is what they are observing. And that is what we hope the 

overall information-sharing exercise will encourage, is the forming 

of groups that share information based on identifying that others 

are working a similar problem. 

Mr. GORTON. Let me give you a specific example, if I can, from 

9/11. I believe, from my memory, that FBI agents in Phoenix, I 

think, discovered that a significant number of people were taking 

flying lessons but only how to take off and never how to land. Now, 

the same thing was going on with Moussaoui in Minnesota. But 

even within the FBI, you know, if the FBI agents in Phoenix had 

said, ‘‘Is this going on somewhere else?’’ they would not have gotten 

the information back. If both of them had known it, it might very 

well have been that the FBI would have authorized going after a 

subpoena for Moussaoui’s laptop—you know, which it did not do. 

Now, if that did not happen in the FBI, just imagine what would 

happen if the Chief of Montgomery County had found people doing 

the same thing and, pre-9/11, had asked the FBI if it were going 

on anywhere else. He would have gotten a blank wall from doing 

that. 

But take those bits of information. No one needed to know the 

names to begin with. The fact that there were people in various 

parts of the country taking these peculiar types of flying lessons 

might have been something that brought them together to the 

point at which they all went forward to the next step. It would 

have been—it could have been anonymous, would have been anonymous in the original instance. But it did not even happen within 

16 

the FBI, much less between the FBI and any local law enforcement 

agent. 

Chairman CARDIN. And I agree with you on scenarios that should 

be shared. I still have a concern about local law enforcement. With 

Senator Kyl’s permission, I am going to give Chief Manger a 

chance just to respond. 

Chief MANGER. Just a couple of reactions. The system that has 

been described, you initially asked would that work. And I guess 

the short answer is I am not sure. Ideally, if we can put the guidelines in place and have them be consistent throughout the country, 

I think that absolutely needs to be done. And I will tell you an example. 

We have gang data-bases that we use regularly, every day, in 

Montgomery County where there are individuals and information 

about specific gangs as well as specific individuals in this database. There is a specific set of criteria, and it has been—we have 

discussed it with the community, I think even with the local chapter of the ACLU knows our criteria of how someone can get entered 

into our gang data-base. The information is scrubbed every so 

often, but I bring this up because if one of my officers stops somebody for running a stop sign and, you know, because we have the 

computers in the cars, we just routinely make ‘‘Wanted’’ checks on 

someone, you know, is that a bad thing? Now, all this person has 

done is run a stop sign. But shouldn’t that officer know that this 

person is listed in the gang data-base and in the information in the 

gang data-base, they were arrested a year ago and they were carrying a gun? I think that is information that is good for that officer 

to know. 

Now, again, the officer can deal with the running of the stop sign 

and that is it, but that is information that I believe is necessary 

for my personnel to have. 

If there are criteria for how someone gets into a data-base and 

that criteria is agreed on and has protections in it, then I think 

that it makes sense for that officer who, you know, stops that individual for running a stop sign, if they are on a terrorist watchlist 

or have some nexus to terrorism, I think it is good that the Federal 

authorities are made aware that this person ran a stop sign, just 

for their information. Now, is that going to open up a case? No. But 

that kind of information sharing could end up being useful. We do 

not know. 

Another example. We had a case where a maintenance person in 

an apartment complex called us and said, ‘‘I have got a suspicious 

activity. We have a group of men who have rented an apartment. 

They pay their rent in cash at the end of every month. We just had 

to go in to change the furnace filters. We went in there. There is 

not a stick of furniture in this apartment, but there are magazines. 

There are flight instruction magazines in the apartment.’’ 

They called us. Now, there is not a law that has been broken. 

There is no law that says you have to have furniture in your apartment. There is no law against subscribing to flight instruction magazines. But what you have here is, in my view, a situation that 

warrants further looking into. 

You know, my folks are not equipped to do terrorism investigations, but, you know, that kind of information needs to be shared 

17 

with the JTTF. And that is what it was. We turned all the information we had over to the JTTF. 

And so I think the key here is having a set of guidelines for information. If information is in the data-base, then it has already 

been scrubbed. It has already been verified as being appropriate to 

be in a data-base. And if that is the case, then we should be able 

to share it with anybody. 

Chairman CARDIN. Let me turn to Senator Kyl. We may come 

back to this in the second round. 

Senator KYL. Thank you, Mr. Chairman. I am interested in the 

same thing, so you are doing a good job of cross-examination there. 

Ms. Fredrickson, just on that last point, anything wrong with the 

Chief’s folks sharing with the Joint Terrorism Task Force information that they came across, including, let’s say, the names of the 

people who leased the apartment, just as something that they 

might want to look into? 

Ms. FREDRICKSON. Well, I would like to go back to something 

that the Chief said in his testimony, which I think puts us exactly 

in the same place. He said that it is important to make sure that 

the officers are looking at individuals or events that are reasonably 

associated with criminal activity. And I think this is an example 

similar to the running of the stop sign. 

What we have a problem with is what the Maryland State Police 

was involved with—— 

Senator KYL. OK. I heard you testify about that. But there is no 

obvious criminal activity in the circumstance that he discussed. In 

retrospect, knowing what we know about 9/11, you know, a light 

bulb would go on in our mind. Pre–9/11, I am not sure that your 

guy seeing that would have necessarily called a joint task force, if 

it existed at that time. 

Chief MANGER. You are right. 

Senator KYL. I am just presupposing that. 

Ms. FREDRICKSON. And I think this is why there is a need, exactly what Ms. Baird also called for earlier, there is a need for 

standards. There is a need for standards governmentwide. I think 

we have a lot of different government entities—the JTTFs, we have 

the fusion centers, we have a lot of different—I am getting back to 

your—— 

Senator KYL. Let me just interrupt you there. What kind of a 

standard would be appropriate for the circumstance, just the reallife circumstance that the Chief just talked about. 

Ms. FREDRICKSON. Well, I think you have to be very careful not 

to start putting people’s names in data-bases if there is not something some reason to believe that they are associated with some 

criminal activity. I think bringing to Federal task forces this paradigm, I think, again, to refer to what my colleagues have said on 

this panel, you know, you have to disassociate personally identified 

information from circumstances—— 

Senator KYL. But if I can interrupt you, how do you—some three 

people rented an apartment that had only magazines in it. Well, 

can you give us their names so we can see if they have some previous terrorist activity? No, I cannot do that. I mean, what good is 

the info that there was an apartment rented by three people that 

had no furniture, but just a bunch of—— 

18 

Ms. FREDRICKSON. Well, I would say that in most circumstances, 

that information would probably not be worthwhile, and you really 

do have to be careful about putting—every time you discover an 

apartment with only magazines, and you look at the people’s 

names on those magazines, and they go into a Federal terrorism 

data-base, I think that is probably quite problematic. 

Senator KYL. Are you maybe jumping some—they go into a Federal terrorist data-base. I think you are skipping one step. The 

names are reported to someone who determines whether or not 

they have any kind of information on them. Wouldn’t there be a 

standard before they are actually put into the data-base to try to 

connect them? Chief, would that be the normal step that would be 

taken? 

Chief MANGER. Yes. I think the key there is, you know, we reported the information to the JTTF. I would be very discouraged 

if the JTTF just took the names of those four people that were on 

the lease and stuck them in the data-base. What they need to do 

is an investigation at this point. 

Senator KYL. Right. 

Chief MANGER. And I think it is prudent to do that investigation 

and then, based on the results of that investigation, then determine 

whether those names should go in the data-base or not. 

Senator KYL. Could I ask any of you—and maybe, Chief, you are 

the one to answer this—what kind of information generally is in 

the SARS data-base? 

Chief MANGER. It is suspicious activity reports, and it is anything that has a nexus to terrorism. I mentioned that—— 

Senator KYL. Is it terrorism only? Or could it be drug running 

or—— 

Chief MANGER. SARS is primarily for terrorism. 

Ms. BAIRD. I could maybe jump in try to shed some light on this 

in terms of the kinds of guidelines that are needed. The circumstance that we do not want to miss is a situation where the 

FBI in its Intelligence Unit, for example, has information from the 

CIA that is causing it to look for terrorists who might be living in 

Baltimore, and then to find that the local police find this apartment, find the flight manuals, and we have some other information 

which says that there is a terrorist group that is trying to use airplanes to commit a terrorist act. 

The situation we do not want to be in is where that information 

cannot be looked at as a whole by someone who is analyzing the 

situation. On the other hand, we also do not want to be in a situation where we are taking the names of people, where we have no 

information at all that they have committed any crime, and we are 

running them against law enforcement or Federal data-bases. 

So I would say that this is a very good example of the care with 

which these guidelines need to be written because I would think 

that in a circumstance like this, the local law enforcement can say 

we got a report of this apartment, these magazines, no reason to 

think anybody is involved with a crime, but someone was suspicious about this. It is just like the original stories of the time of 

9/11 where the Attorney General was talking about the need for 

the UPS truck driver who sees something suspicious to be able to 

have someone to call, and the magnificent op-ed written by a UPS 

19 

truck driver in the New York Times which said, ‘‘I do not want to 

start becoming a law enforcement officer and reporting on the people I see on the street.’’ Well, we have to figure that out as a country. 

So what I would say is you need a place, a circumstance, a guideline which says something that low level—an empty apartment 

with some magazines lying on the floor—I would not jump to the 

belief that that person is engaged in terrorism, or we will have 

laws passed which say we cannot look at any information, because 

that is not the country we live in. 

Senator KYL. Well, if I—— 

Ms. BAIRD. But we need to—if I could just finish, we need to be 

able to have someone who might be looking for a terrorist cell in 

that city, maybe even in that neighborhood, have some suspicion 

brought to their attention without necessarily having to identify 

the names, but the ability to go back and find out those names if 

someone has a reason, can document a reason to obtain them. 

Senator KYL. Well, with all due respect, a lot of police work is 

based on hunches and suspicions, and this reminds me of another 

suspicious activity that turned out to be a problem and so on. And 

I think if you try to put too many restrictions on what police officers can follow up—they are not accusing anyone of a crime. They 

are not putting him into a data-base. What they are doing is saying 

here are names of three guys on magazines that we picked up 

under somewhat suspicious circumstances to the Federal authorities, is there anything about these three guys that you already 

know that might lead us to want to follow it up? I see absolutely 

nothing wrong with that. Do you? Ms. Baird? 

Ms. BAIRD. Well, I think the really important part of what you 

said is the police officer’s knowledge of what is suspicious. I think 

we have to honor that and certainly enable that. But I think we 

also have to ensure that that professionalism is carried through 

and that by opening up an information-sharing environment and 

an intelligence role for law enforcement officers, that we do not say 

to law enforcement anything goes now, there are no rules. And that 

is the problem we have had. And, quite frankly, it has been more 

an inhibition on the law enforcement officers who want to participate in an information-sharing environment because they are used 

to following rules and laws, and they need the new rules and laws 

that operate in the intelligence context, which is different than the 

law enforcement context. 

One of the reasons that the rules might be less stringent in the 

intelligence context is that the way we act against that information 

is to not take away someone’s liberty by locking them up. In other 

words, a law enforcement investigation brings the power of Government behind it; whereas, an intelligence investigation might not 

have the same consequences for an individual. 

Senator KYL. So there could be different standards, depending 

upon the nature of the investigation. 

Ms. BAIRD. Right. 

Senator KYL. Thank you. 

Chairman CARDIN. Well, continuing this line, because I think 

this is really the critical part, we are trying to get it right on sharing of information. And it is interesting, I think we might be drawVerDate Nov 24 2008 10:57 Jan 19, 2010 Jkt 054241 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54241.TXT SJUD1 PsN: CMORC
20 

ing a distinction between information and intelligence. If we gather 

too much information, we can clog the system and violate privacy, 

make it very tempting to violate privacy. If we do not collect 

enough information, then good leads go—you do not follow them 

up. You do not deal with what we should do to keep people safe. 

Now, do not oversell the Maryland situation. The Maryland situation, they did a full investigation. There was nothing there. Nothing should have been forwarded to the Federal Government. It was. 

It was wrong—violation clearly of laws and privacy—and the Maryland Legislature has taken action. I have not had a chance to review their statute. I know the summary of it, and I would be curious. We can maybe talk later about how effective you believe the 

Maryland Legislature will be. I am also interested in Chief Manger’s view as to what the Maryland Legislature did. 

But I think the challenge we have here, we need uniformity on 

guidelines. We have got to know what the right rules are, and they 

have to be enough to share information so that when you get information that requires a follow-up for you to complete an investigation, either you turn it over to the appropriate agency to complete 

the investigation, or you complete the investigation with access to 

information and intelligence that have been gathered that you 

should be able to get access to. That is what we are trying to 

achieve. 

I am somewhat concerned about having to draw too many conclusions locally before local law enforcement has access to actionable 

intelligence information. And I know this is a difficult balancing 

act, but I do have that concern. And I think we are going to need 

to follow that up in more detail. 

But, Chief Manger, I want to ask you a question because you 

pointed out a real practical problem we have for local law enforcement in getting information. We have the fusion centers. We have 

the Joint Terrorism Task Forces. But if you cannot either participate in that or you do not have the resources to assign an intelligence officer to participate, your chances of getting timely intelligence information may be lost. 

So I look at some of our smaller law enforcement agencies in 

Maryland who cannot afford to hire full-time intelligence officers to 

participate in this and wonder how they get access to information 

they need in order to participate in keeping our communities safe 

from terrorism. 

Chief MANGER. That is the million-dollar question, and I do not 

have the answer other than to say the FBI offers LEO, Law Enforcement Online. That does provide some information to anyone 

who gets an account. It is restricted to law enforcement only, and 

you can get into that data-base and get some information. 

For instance, in the smaller jurisdictions within Montgomery 

County, I try and maintain a very good dialog with those jurisdictions so that when we get information about a threat, we share 

that information. But, I mean, I cannot worry about sharing it with 

the city of Frederick or, you know, Hagerstown or somewhere else. 

So, you know, they are sort of at the mercy of the agencies that 

are plugged in whether they get that information in a timely manner. The fact is they usually get it from CNN. That is where it ends 

up getting to them. By that time, everybody has got it. 

21 

Chairman CARDIN. Yes. Senator Gorton? 

Mr. GORTON. Mr. Chairman, I would like to go back to Senator 

Kyl’s question, and I must tell you that sitting here and listening 

to a question de novo, I do not believe that I know the answer to 

that question in any highly positive fashion. But I believe that is 

the very reason that we made our recommendation that while this 

administration has taken a good first step in coming up with information-sharing guidelines for the Federal Government, it ought to 

make certain that those guidelines are, one, mandatory and, two, 

you know, apply to all of the agencies, because under those circumstances, people who spend a lot of time thinking very carefully 

about the values on either side of those questions will have thought 

them out, I trust, with great care. 

And then if we get this privacy board actually appointed and in 

business, you know, there will be an entity, again, that focuses, I 

think, very, very carefully on this kind of question. Both the 9/11 

Commission report and Ms. Fredrickson in her testimony stated 

something that ought to simply be a truism. We are not engaged 

in a zero sum game here in which every enhancement of national 

security can only come because we are limiting civil liberties or 

every attempt to validate civil liberties is going to decrease our national security. The two can work together. They can be self-reinforcing. 

When I get asked a specific question like that, I just hope there 

is someone who has thought about it more than I have in 5 minutes right here and can come up with a set of rules and a set of 

policies that will make it work. And I believe that is clearly possible, and that your function here as a Subcommittee is to try to 

push the administration into doing that as promptly and effectively 

as possible. 

Chairman CARDIN. Thank you. 

Ms. Fredrickson, I wanted to give you a chance to respond as to 

what you would urge us to look at on guidelines are our highest 

priorities on protecting the legitimate privacy and rights of our citizens. 

Ms. FREDRICKSON. Well, we have a fuller set of recommendations 

in the testimony we provided to the Committee, but I think one of 

the important parts is to go to 28 CFR Part 23 and codify that regulation, which would establish a reasonable suspicion standard for 

all criminal intelligence information collection programs and limit 

dissemination absent a legitimate law enforcement need. 

I think it is very critical that there be standards that are governmentwide, that will be clear for law enforcement and will prevent 

the kind of surveillance based on First Amendment-protected activities that we have seen not just in Maryland, although that was 

one of the more recent examples, but across the country. 

Chairman CARDIN. Under that guideline, would Chief Manger be 

able to enter information concerning that apartment that he observed? 

Ms. FREDRICKSON. Well, I think there was a general agreement 

that information would be entered into a data-base without some 

kind of corroboration of actual criminal activity. But whether there 

would be an ability to talk to fellow departments and speak with 

the Federal Government about whether or not there were similar 

22 

activities that had been observed, you know, I do not think that 

would be precluded at all. 

Chairman CARDIN. Senator Kyl? 

Senator KYL. Chief, one of the things you said was that we need 

to make the SARS more broadly available, or words to that effect. 

Two questions. How available? What exactly are you talking about? 

And, second, what is keeping that from happening? Which would 

lead us, obviously, to the third point, which is how to make it happen. 

Chief MANGER. It is still a very new program, and each individual police agency—and there are 18,000 police agencies in this 

country—has to make the decision to hook into this. And it takes 

technology, it takes, you know, funding, and some departments— 

the Los Angeles Police Department has been a pioneer, done a nice 

job at getting in there. 

The Montgomery County Police is just getting plugged into the 

SARS program, and it is a pilot agency for the State of Maryland. 

Senator KYL. So it basically requires you to get the funding to 

physically by computer tie your system into that system so that 

your officers, or at least some of them, can access that information. 

Chief MANGER. That is correct. And then also the key here is 

having an analyst who knows what should go in and what should 

not go in, and the training, the guidelines, everything—— 

Senator KYL. So this is interactive in the sense that your guys 

can put stuff into it as well. They are not merely gaining access 

to information somebody else has already put in. 

Chief MANGER. That is correct. 

Senator KYL. One reason I mention this is that yesterday Senators Lieberman, McCain, and I held a hearing in Phoenix about 

the drug cartel activity coming through Mexico and spilling over 

into the United States. It is an awful situation, and we asked the 

Phoenix police chief, for example, what to do about it. He had several stories, and one of the points he made was that they need to 

be able to get into the SARS system. I did not ask him at that 

point, ‘‘What do you need to do that?’’ But they will stop someone 

on a traffic charge and then only later find out that the car was 

owned by a drug dealer or had been stolen or was operated by 

someone known to be a carrier for the cartel or something of that 

sort. And so he was lamenting the fact that they were not tied into 

it. So it is primarily a matter of resources for local police to tie into 

the system. Is that correct? 

Chief MANGER. That is correct. 

Senator KYL. Well, it is good to know that it is only resources. 

One of the questions that I had was this comment that, Ms. 

Fredrickson, you made. You said the current method of homeland 

security is an ‘‘all crimes, all hazards’’ approach. And I would just 

like to know from the members of the panel, is that OK? Or were 

you suggesting that that is a real problem? 

Ms. FREDRICKSON. I was suggesting that is a problem because it 

is wasting resources that should be focused on criminal and terrorist activity. 

Senator KYL. But the example that the Subcommittee—in 2004 

we had a Subcommittee hearing, and here is a quotation from the 

testimony: ‘‘Three of the 19 hijackers on September 11th were 

23 

stopped by State or local law enforcement officials in routine traffic 

stops in the weeks leading up to the attacks on the Nation. For example, on September 9th, 2 days before the September 11th attack, 

Maryland State Police stopped Ziad Jarrah for driving 90 miles an 

hour in a 65-mile-an-hour zone in a rural section of I–95 near the 

Delaware State line. A videotape of the stop shows the State trooper approaching the car, obtaining the driver’s license and registration, returning to his patrol car for a radio check of the credentials. 

Jarrah, who was on the CIA watchlist, was given a ticket and allowed to go.’’ And there are other similar situations. 

Now, that is an example where if we had really applied the ‘‘all 

crimes, all hazards’’ approach, we might have been able to identify 

him, is it not? And that would have been a good thing, would it 

not? 

Ms. FREDRICKSON. Well, what we were referring to in the testimony was actually the examples that we discussed, which is of law 

enforcement mistaking First Amendment-protected activity for suspicious activity and using resources to track, for example, in Maryland anti-death penalty activists or anti-war activists or gay rights 

activists. That is what we are talking about when we are talking 

about—the gathering of this kind of information, the sharing of 

that kind of information with Federal law enforcement and the 

clogging of the data-bases with that irrelevant—— 

Senator KYL. Well, if I could just interrupt, these are your words, 

not mine, the ‘‘all crimes, all hazards’’ approach. I interpreted that 

to mean that you had to have a crime, that you are not just targeting free speech activity, but you have to have a crime, first of 

all, and then see whether or not that leads you to something else. 

Ms. FREDRICKSON. Well, that is not what was intended in that 

statement. It really is ‘‘all hazards’’ point of view, and what we are 

saying is that there needs to be appropriate, effective attention actually to crimes and to terrorist activities. 

Senator KYL. So just the general proposition that when a crime 

is committed, let’s say a traffic stop, and then something else is investigated or the data-base is accessed to see whether this would 

lead to anything else, as a general proposition that is not what you 

were criticizing, is that—— 

Ms. FREDRICKSON. No. 

Senator KYL. Anybody else on the panel want to refer to that? 

[No response.] 

Senator KYL. It seems to me that, just as a general proposition— 

let me get your reaction to it—that while guidelines are really important when you are investigating these kinds of activities, you 

also need to be very careful that you do not get into a situation 

analogous to the wall of separation that existed before 9/11, where 

an arbitrary legal standard prevented the sharing of data. And I 

can just see one of the officers pulling out a manual about the 

size—I mean, if you have ever seen a flight manual, they are about 

that thick—and trying to figure, OK, now here is what happened, 

what can I try to find out and where do I find it out? I mean, I 

think you would all agree, would you not, that this has to be done 

in a very usable way, and that argues against really complicated 

legalese that is going to make it very difficult for the people on the 

24 

spot to be able to access the information in a quick and profitable 

way. Ms. Baird? 

Ms. BAIRD. Senator Kyl, if I could comment on that, in my opening statement I made a statement I would like to reiterate, which 

is that we need these guidelines not just to constrain Government 

employees but to empower them, that there is a great deal of uncertainty now about what people are authorized to do, and so they 

are not doing it. 

And the second comment I would make is that you are absolutely 

right that this has to be very easy to understand and you need to 

be able to walk around the building, stop somebody in the hallway, 

and ask them the question and have them be able to answer it. It 

has got to be that, you know, real time that they know what the 

answer is of what they are able to do. And we can help that with 

technology. We can facilitate it by having automatic authorizations 

or approvals of things that happen because a particular individual 

enters their identification code and the reasons why they think 

they need the information. So if we can get the technology systems 

built as well as the policies written, we ought to be able to facilitate this. 

But the lack of adequately robust policies now is really slowing 

things down more than the technology question, and if anything, 

the technology is getting out ahead of the policies. And so you are 

creating more and more ways that we might collect or analyze information, but people are not using it or do not know what they 

are empowered to do because they do not have robust enough policies. 

So I think you are absolutely right, the objective here is not to 

write a rule book. You know, when I first went to work as general 

counsel of the chairman, they handed me a 2-inch thick glossary 

of terms of that industry, and I said, ‘‘If I have to learn this, I cannot do my job.’’ You cannot weigh people down with things that 

make it impossible for them to understand what they have to do. 

But we do need these rules to empower people so that they are not 

afraid to act because they do not want to wind up here in front of 

you saying why they did something without any real authorization 

that they can point to to say that they were supposed to do it. 

Mr. GORTON. I just want to emphasize my full agreement with 

Zoe in that respect. In this report we say we want a paradigm of 

need to share rather than need to know. And traditionally in the 

Federal Government—on this point, I am speaking only of sharing 

within the Federal Government—there have been great penalties 

for the unauthorized sharing. And that is why you absolutely had 

to prove you needed to know something before you got it, and you 

did not know what you did not know so you could hardly look for 

it. 

We need a set of policies that is at least as encouraging for the 

sharing of information with people and agencies that have some 

reasonable access to it than there are penalties for unauthorized 

sharing. And, again, you are absolutely right, it has got to be clear. 

People have got to be confident in what they are doing. 

Chairman CARDIN. Let me again thank the witnesses for their 

testimony. As I said at the beginning, this is the first hearing of 

this Subcommittee. It is intentional to be the first hearing because 

25 

I consider this to be our most important responsibility in making 

sure that actionable intelligence information is gathered in a way 

that is made accessible to those who can prevent terrorist activities 

in our country. And I think the comments that have been made 

about the laws are adequate, provided that there is proper oversight and there are clear guidelines, which we have not yet implemented in our Government. So it is an issue that our Committee 

will clearly be continuing to have interest in and conduct additional 

oversight in these areas. 

So, once again, let me thank our four witnesses for participating 

in this hearing. The hearing record will remain open for 1 week for 

any additional statements or questions, and with that, the Subcommittee will stand adjourned. Thank you. 

[Whereupon, at 3:55 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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