U.S. GOVERNMENT PRINTING OFFICE

69–488 CC WASHINGTON : 2001

S. HRG. 106–848

COUNTERING THE CHANGING THREAT OF

INTERNATIONAL TERRORISM

HEARING

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY, TERRORISM,

AND GOVERNMENT INFORMATION

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON

THE NATIONAL COMMISSION ON TERRORISM’S REPORT ON ISSUES RELATING TO EFFORTS BEING MADE BY THE INTELLIGENCE AND LAW

ENFORCEMENT COMMUNITIES TO COUNTER, AND U.S. POLICIES REGARDING, THE CHANGING THREAT OF INTERNATIONAL TERRORISM

TO THE UNITED STATES

JUNE 28, 2000

Serial No. J–106–95

Printed for the use of the Committee on the Judiciary

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

SUBCOMMITTEE ON TECHNOLOGY, TERRORISM, AND GOVERNMENT INFORMATION

JON KYL, Arizona, Chairman

ORRIN G. HATCH, Utah

CHARLES E. GRASSLEY, Iowa

MIKE DEWINE, Ohio

DIANNE FEINSTEIN, California

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

STEPHEN HIGGINS, Chief Counsel

NEIL QUINTER, Minority Chief Counsel and Staff Director

(II)

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Kyl, Hon. Jon, U.S. Senator from the State of Arizona ........................................ 1

Feinstein, Hon. Dianne, U.S. Senator from the State of California .................... 3

CHRONOLOGICAL LIST OF WITNESSES

Statement of L. Paul Bremer III, chairman, National Commission on Terrorism, New York, NY; accompanied by R. James Woolsey, Shea and Gardner,

Washington, DC, and member, National Commission on Terrorism; Jane

Harman, Harman International, Los Angeles, CA, and member, National

Commission on Terrorism; John F. Lewis, Jr., director, Global Security,

Goldman, Sachs and Company, New York, NY, and member, National

Commission on Terrorism; and Juliette N. Kayyem, associate, Belfer Center

for Science and International Affairs, John F. Kennedy School of Government, Harvard University, Cambridge, MA, and member, National Commission on Terrorism ................................................................................................. 5

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Bremer III, L. Paul:

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

Prepared statement .......................................................................................... 29

APPENDIX

ADDITIONAL SUBMISSIONS FOR THE RECORD

Prepared statement of Alexander Philon ............................................................... 35

Letter from Juliette Kayyem, Harvard University, John F. Kennedy School

of Government to Senator Kyl, dated June 27, 2000 ........................................ 36

(1)

COUNTERING THE CHANGING THREAT OF

INTERNATIONAL TERRORISM

WEDNESDAY, JUNE 28, 2000

U.S. SENATE, SUBCOMMITTEE ON TECHNOLOGY, TERRORISM, AND GOVERNMENT INFORMATION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The subcommittee met, pursuant to notice, at 2:11 p.m., in room

SD–226, Dirksen Senate Office Building, Hon. Jon Kyl (chairman

of the subcommittee) presiding.

Also present: Senators Grassley and Feinstein.

OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR

FROM THE STATE OF ARIZONA

Senator KYL. The subcommittee will please come to order. Let

me first welcome everyone to this hearing of the Subcommittee on

Technology, Terrorism, and Government Information. Today, we

are going to be discussing the report entitled ‘‘Countering the

Changing Threat of International Terrorism,’’ recently published by

the congressionally-mandated National Commission on Terrorism.

America is entering a new national security era. During the cold

war, we faced the threat of a massive nuclear attack and massive

conventional attack across Europe from the Soviet Union. Since the

end of the cold war, however, the threats facing the United States

have become much more complex. Perhaps the most problematic is

the threat of terrorist attack against our homeland and our citizens

abroad.

And the face of terrorism itself has changed significantly over the

last quarter of a century. The Soviet bloc, which once supported

terrorist groups, no longer exists. While some states like Iran continue to support terrorist groups, other groups like the terrorists financed and led by Saudi millionaire Osama bin Laden are not

state-sponsored. These groups have varying motives and are more

difficult to track and deter.

These new terrorist groups have demonstrated the desire and capability to reach large portions of the globe. Bin Laden was responsible for the bombing of two U.S. embassies in Africa, and according to press reports, U.S. intelligence agencies discovered and

thwarted his plans to attack other U.S. embassies and a military

base in Saudi Arabia.

Furthermore, a growing share of terrorist attacks are intended to

kill as many people as possible. As the Commission pointed out in

its report, the World Trade Center bombing killed 6 and injured

2

about 1,000 people. But the terrorists’ goal was to topple the twin

towers, killing tens of thousands of people.

More recently, terrorists have expressed growing interest in more

lethal means, including chemical, biological, and nuclear weapons.

For example, the Japanese cult Aum Shinrikyo, which carried out

a sarin nerve gas attack in the Tokyo subway, could have killed

thousands.

Also, according to another congressionally-mandated advisory

panel on weapons of mass destruction terrorism, chaired by Virginia Governor Gilmore, the cult also attempted, and failed on at

least nine occasions, to disseminate biological agents such as anthrax.

So the threat is real. In the fact of this threat, Congress mandated this National Commission on Terrorism to address America’s

capacity to prevent and respond to the threat. To their credit, the

bipartisan Commission was not shy about delving into the thorny

issues surrounding counterterrorism efforts.

For example, should our intelligence agencies recruit unsavory

people to gather information on terrorists in order to thwart their

attacks? Should information currently collected on foreign students

in the United States be consolidated into a national data bank?

Should we revise the guidelines for monitoring Americans under

statutes like the Foreign Intelligence Surveillance Act? Should we

include allies like Greece on a list of nations seen as not fully cooperating with counterterrorism efforts? And should we empower

the Defense Department to lead response efforts to extraordinary

terrorist incidents, like a biological weapons attack in the United

States?

We have 5 of the 10 members of the Commission here today to

present the group’s findings, expound on their discussions, clarify

any misunderstandings, and recommend legislative action to increase our ability to protect the American people from terrorist attack.

We are pleased to be joined by the chairman of the Commission,

Ambassador Paul Bremer, who served 23 years in the diplomatic

service, including 3 years as Ambassador at Large for counterterrorism. The vice chairman of the Commission was Maurice

Sonnenberg, a member of the President’s Foreign Intelligence Advisory Board. He was invited to testify here today, but was unable

to attend.

In addition to the chair, we are joined today by four other distinguished Commission members: former Congresswoman Jane Harman, who served on the House Intelligence and Armed Services

Committees; John Lewis, former Assistant Director of the National

Security Division of the FBI; James Woolsey, former Director of the

Central Intelligence Agency; and Juliette Kayyem, who previously

served as a legal adviser to the U.S. Attorney General at the Department of Justice.

Before we hear from our witnesses, I would like to turn to Senator Feinstein for her opening remarks.

3

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

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thanks very much, Mr. Chairman. I don’t

want to be redundant. I thought your opening statement was excellent and has really outlined much of the concern.

I would like to congratulate the people that worked on this report. I think the report rightly emphasizes that terrorists today are

a different breed than they were 20 or 30 years ago. In the 1970’s

and 1980’s, they wanted attention. Today, they simply want to kill

as many people as possible. In the 1970’s and 1980’s, terrorists

often had concrete political goals. Today, they operate out of religious belief or apocalyptic vision, out of hate for certain groups, the

United States or the West. They are often without fear of losing

their own life.

In the 1970’s and 1980’s, much terrorism was state-sponsored.

Today, terrorists are often transnationalist, and even self-funded.

You mentioned Osama bin Laden. He has moved between several

adopted countries, and has a fortune estimated in the hundreds of

millions of dollars. Aum Shinrikyo, the Japanese group you mentioned, Mr. Chairman, has spent tens of millions of dollars preparing chemical and biological attacks. In addition, terrorists disperse

themselves even further, hiding in cells in multiple jurisdictions,

stockpiling their supplies and waiting to strike. We know that we

have many such cells in our own country.

The film ‘‘The Battle of Algiers’’ nicely encapsulates just how

much things have changed. As that movie shows, the French were

able to break the FLN terrorist network in Algiers in the 1950’s because the paratroopers could literally diagram it on a blackboard.

But, today, some countries, and Greece is one that comes to mind,

cannot diagram their terrorist groups on a blackboard. Since 1975,

only 1 of 146 terrorist attacks against Americans or American interests in Greece has been solved. And just this past weekend, we

read about Jihad in the New York Times which really described

how states-sponsored schools can begin the training that a youngster would need to become part of this kind of movement.

The result of all of this is that now more than ever we need to

take what actions we can to combat terrorism. In fact, as the number of world states increase, ethnic, religious, political, and economic discord will heighten, and terrorism will only become more

noteworthy.

We have taken a number of steps already. For example, the 1994

Crime bill increased sentences for international terrorism, extended the statute of limitations for terrorist offenses, extended

criminal jurisdiction to attacks against citizens on foreign vessels,

attacked foreign counterfeiting of U.S. currency, and prohibited the

provision of material support to terrorists.

Nowadays, many terrorists penetrate nongovernmental organizations or companies to gain access to money, logistical networks, and

cover. So we need to make better use of the Office of Foreign Assets Control at Treasury, the IRS, and Customs to track and analyze data regarding terrorist fundraising, and to stop funding and

logistical support for terrorists. As we well know, many terrorist

groups have a charitable arm and a terrorist arm, and they raise

4

money under the charitable arm and then they transfer that money

into the terrorist arm.

The Antiterrorism and Effective Death Penalty Act of 1996 required the addition of chemical taggants to plastic explosives to

make them more traceable, strengthened controls of and enforcement against biological agents and pathogens, facilitated the removal of alien terrorists, expanded the Government’s ability to exclude from the U.S. aliens who were involved in terrorist activities,

and denied asylum to alien terrorists and streamlined the deportation process for criminal aliens.

I authored legislation in 1996 that would prohibit military sales

to countries that do not cooperate with U.S. antiterrorism efforts.

Thus, I was quite interested in the Commission’s recommendation

that the President should make more use of his power to punish

states that are not cooperating fully by embargoing defense sales

to these countries or imposing other sanctions. A weaker version of

my amendment was sponsored by Senator McCain and passed as

part of the 1997 Foreign Operations Appropriations bill.

I think we have got a great deal left to do. I also think that this

is very difficult because it is an atraditional battle. As some of the

more controversial recommendations of the Commission suggest,

you have got to counter atraditional actions with atraditional reactions, and that is where, for a democratic society, things become

very dicey.

So I look forward to hearing from the Commission and then

being able to ask questions about some of their recommendations.

Senator KYL. Thank you, Senator Feinstein.

Senator Grassley, we are delighted to have you join us. I know

of your interest in this subject and appreciate your being here with

us today.

Senator GRASSLEY. I don’t have any opening statement. I was

just wondering, would I be able to ask questions by 3 o’clock, or

won’t that be possible?

Senator KYL. I think the witnesses are going to try to be as quick

as they can because I think Senator Harman has to leave roughly

in that timeframe, too, and we would like to give her an opportunity to both speak and answer any questions.

Senator FEINSTEIN. You promoted her to the Senate.

Ms. HARMAN. Thank you very much for that.

Senator KYL. Did I say ‘‘Senator Harman?’’

Senator FEINSTEIN. Both seats from her State are already filled.

[Laughter.]

Senator KYL. Well, I am really torn, Madam Vice Chairman, because what you say is certainly true, but I wouldn’t want that to

be considered as a Freudian slip. But I did serve with Representative Harman and we worked on a lot of things together, and I have

one question in particular that relates to something we worked on.

We will get that later.

Mr. Bremer.

5

STATEMENT OF L. PAUL BREMER III, CHAIRMAN, NATIONAL

COMMISSION ON TERRORISM, NEW YORK, NY; ACCOMPANIED BY R. JAMES WOOLSEY, SHEA AND GARDNER, WASHINGTON, DC, AND MEMBER, NATIONAL COMMISSION ON

TERRORISM; JANE HARMAN, HARMAN INTERNATIONAL, LOS

ANGELES, CA, AND MEMBER, NATIONAL COMMISSION ON

TERRORISM; JOHN F. LEWIS, JR., DIRECTOR, GLOBAL SECURITY, GOLDMAN, SACHS AND COMPANY, NEW YORK, NY, AND

MEMBER, NATIONAL COMMISSION ON TERRORISM; AND JULIETTE N. KAYYEM, ASSOCIATE, BELFER CENTER FOR

SCIENCE AND INTERNATIONAL AFFAIRS, JOHN F. KENNEDY

SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, CAMBRIDGE, MA, AND MEMBER, NATIONAL COMMISSION ON

TERRORISM

STATEMENT OF L. PAUL BREMER III

Mr. BREMER. Mr. Chairman, thank you for the opportunity to be

with you today. If I may, I would like to ask that my full statement

be entered for the record.

Senator KYL. All statements will be entered into the record, and

might I also enter into the record, without objection, a statement

by Alexander Philon, the Ambassador of Greece, who wished to

have his country’s policy with regard to terrorism recorded in the

record of the hearing, and another statement which was submitted

on June 27 by Juliette Kayyem, Commissioner of the National

Commission on Terrorism, a copy of which I believe you also have,

Senator Feinstein.

Senator FEINSTEIN. Thank you.

Senator KYL. Without objection, they will be entered in the

record.

[The prepared statement of Mr. Philon and the letter of Ms.

Kayyem are located in the appendix.]

Mr. BREMER. I will try to briefly summarize our findings, Mr.

Chairman, in the interests of time. Both of you have rightly pointed out the key finding, which is that the threat of terrorism is

changing. It really is the theme of our entire report. The threat is

changing.

We have seen the World Trade Center attack. We saw the attacks on our embassies in East Africa. These are conventional attacks. The thing that concerned many of us on the Commission is

what if terrorists escalate to nonconventional attacks using biological, chemical, or nuclear radiological weapons. And that could

cause casualties not in the hundreds or the thousands, but even in

the tens of thousands.

A lot of our concern, Mr. Chairman, flowed from the view that

this was not unimaginable. Five of the seven states which the State

Department designates as states sponsoring terrorism are, we

know, already developing their own programs in those areas, and

so this is a real concern.

The first major finding concerned the critical importance of intelligence to this fight. We have made a number of recommendations

in that field. I will just briefly summarize a couple of them and,

of course, we are prepared to answer questions.

6

We found that in many areas the Federal Government is stymied

by bureaucratic and cultural obstacles to the quick and broad collection of important intelligence. In the area of the CIA, we felt

that some guidelines that have been in place for the last 5 years,

whatever their intention, have had the effect of making it less likely that we will get the right kind of people providing the right kind

of information about terrorists.

What do I mean by that? Well, if you are going to prevent a terrorist attack, you have to know what their plans are, and to know

what their plans are you essentially have to have somebody inside

the group talking to you. In other words, you have to have a spy

who is also a terrorist. And we believe that the CIA agents in the

field ought to be able to use the same kind of discretion which municipal police departments and law enforcement departments all

over this country do to use informants to get prosecutions, in effect,

but in this case to get prevention of terrorist attacks.

We looked at the guidelines under which the FBI field agents operate in the United States, and there is a difference, Mr. Chairman. We thought the guidelines are adequate in their scope, but

they are unclear in how they are written, and we recommended

that they be made clearer. We have all looked at them. There are

more than 40 pages worth of guidelines there, and I must say I

was as confused reading them as some of the agents whose testimony we heard.

Another problem that you touched on briefly and directly is the

overly cautious approach by the Office of Intelligence Policy and

Review in the Department of Justice in considering applications for

wiretaps against domestically-based international terrorists. The

Commission came to the same conclusion that the Department of

Justice’s own internal investigation came to in the Wen Ho Lee

case, which is that the Office of Intelligence Policy and Review

takes a too-conservative approach, asking for more information

than is, in fact, required by the statute, the Foreign Intelligence

Surveillance Act.

Mr. Chairman, one question you raised in your opening statement leads me to make a clarification. We did not in our report

anywhere call for changing the guidelines on the FISA applications.

I just want to be sure that that is clear. There was an implication

in one of the sentences you read as a question that some people

might think that is something we recommended. That is not what

we recommended. We recommended that the Attorney General instruct the OIPR office to ask for nothing more than the probable

cause standard that is already in the existing statute. We do not

recommend a change in the statute.

We believe there are important resource needs in the collection

of intelligence. The FBI is trying to establish a technical support

center, which we would encourage members of the subcommittee to

give favorable consideration to. It is particularly important as terrorists now use advanced means of encryption and communication

that we not be behind. We also recommended more resources for

CIA and NSA.

As Senator Feinstein pointed out, as the decline of state support

for terrorism occurs, terrorists are looking elsewhere for funding,

and we made recommendations that the Government should take

7

a much broader approach to attacking terrorist fundraising, in particular using offices such as the one she mentioned, the Office of

Foreign Asset Control at Treasury and the IRS, and take basically

a broad view.

Finally, Mr. Chairman, we made some recommendations relating

to the possibility of catastrophic terrorism. Some people have been

critical of us for not defining catastrophic terrorism. I have said in

testimony we are talking about not hundreds or thousands, but

tens of thousands of casualties. In our view—and I would say this

is an important conclusion based on our discussions—we have to

worry about the possibility that this could happen in the United

States.

Indeed, I was interested to read yesterday that the FBI has reported a dramatic increase in the number of threats of using such

agents in the United States in the last 4 years. In 1996, there were

37 such threats. Last year, there were over 250. Fortunately, these

were basically hoaxes, most of them about the use of anthrax. But

the fact of the matter is we can’t ignore the possibility.

We therefore thought it was important for several things to happen. First, the Government should be clear—and this is a responsibility of the executive branch—what authorities it has and what

authorities it lacks in the event of dealing with a catastrophic terrorist attack, and we suggested the President should make such an

inventory.

Second—and this is a point that has been much misunderstood— we believe that if you had a catastrophic attack, it is possible that

under extraordinary circumstances that catastrophe could go beyond the capabilities of local, State, and Federal agencies, or it

might even be part of an armed conflict, an ongoing armed conflict.

And in such cases, the President of the United States might want

to consider designating the Department of Defense as the lead

agency for responding to such a catastrophe.

We are not recommending marshal law, we are not recommending that this happen automatically. What we are saying is, particularly if you are concerned about preserving civil liberties—and

every one of the people sitting in front of you is—it is very important to think through that kind of catastrophe beforehand rather

than trying to figure out what to do in the hysterical aftermath.

The example I give, Mr. Chairman, is what happened after Pearl

Harbor, when two great American liberals, Franklin Delano Roosevelt and Earl Warren, locked up Japanese Americans in the

hysteria following that catastrophic military attack. And we don’t

want that to happen again and we think the best way to avoid having civil liberties trampled on is to have thought through what

would have to happen in the wake of a catastrophic terrorist attack.

We also recommended in this area, Mr. Chairman, that controls

should be tightened on biological agents and equipment that would

be needed to turn biological agents into real weapons. This is an

area where Congress would have to take the lead because it would

require some legislation. We have made specific recommendations

in our report which I won’t go into in detail.

Mr. Chairman, I think you have before you the report of 10

Americans from both parties, from different backgrounds. We think

8

it is a balanced report. We think that we have made prudent suggestions. We didn’t mince words, as you pointed out. We let the

facts drive us to our conclusions. We reached in all cases but one

a complete consensus on these recommendations, and we think if

these recommendations are followed by Congress and the executive

branch, Americans will be safer, and that is the bottom line of

what we were after.

Thank you.

Senator KYL. Well, thank you very much. I know the other Commission members have been willing to let the chairman speak initially on behalf of the entire Commission. Is there anything that

any of you would like to add at this point, recognizing that since

the initial release of the report and the flurry of testimony and

news conferences—incidentally, your first news conference I

thought was one of the best news conferences I have ever seen in

explanation of something like this.

There has also been response from a variety of quarters, and I

see this hearing today at least potentially as an opportunity for you

all to reply to some of that response, as well. I would also note that

I specifically sought out a couple of organizations that I knew had

expressed some concerns—the ACLU, which I had also asked to

testify before and they had declined to testify at our hearing before

on privacy implications of the national plan for protection against

cyber attack, but I invited them again in any event.

Also, the American Arab Anti-Discrimination Committee. I asked

them if they would be willing to submit some questions which I

would ask on their behalf. They did, and I will. I offer that same

opportunity to others if they have specific concerns. But I see to

some extent today’s hearing as an opportunity for you all to clarify,

and also to then help us understand where you think we go from

here.

Because Senator Grassley has asked for the opportunity to be

sure to be able to ask some questions, let me yield, Senator Grassley, to you at this point if you are ready.

Senator GRASSLEY. Do you want Congresswoman Harman——

Senator KYL. Well, I think any questions that we want to pose

to her, we should do fairly early on, and I do intend to do that.

Senator GRASSLEY. I didn’t have specific questions of her, but I

do have—the first instance I want to bring up would be a request

for some information to back up a position you have taken.

On page 8 of the report, you argue that the 1995 process for recruiting informants is too strict. And you say this: ‘‘Recruiting informants is not tantamount to condoning prior crimes, nor does it

imply support for crimes they may yet commit.’’ To me, this is getting a little bit into dangerous territory. Let me explain.

We have had too many cases where law enforcement not only

condoned crimes of informants, but actually facilitated them. So

this sounds a little bit like we are going back to the Whitey Bolger

era of informants. I would like to see what concrete evidence your

Commission has on which to base your statement that because of

the stricter enforcement process, agent morale is down and a significant number of officers have retired or resigned. I hope you

could provide that material to the committee. Could you, please?

9

Mr. BREMER. I can answer it right now. We took testimony from

a large number of serving and retired field agents, both in Washington and in the field. I think it is fair to say I certainly never

heard among all of those witnesses anything but the view that

these guidelines had restricted and had reduced the recruitment of

terrorist informants. I never heard a contrary view, and I don’t

think anybody else on the Commission did. I mean, the testimony

was absolutely clear, convincing, and consistent.

Senator GRASSLEY. Well, these were taped and recorded interviews?

Mr. BREMER. No, they weren’t.

Senator GRASSLEY. Notes taken?

Mr. BREMER. In some cases, notes were taken. In most cases,

they were not.

Senator GRASSLEY. Then I guess I would want to see the notes.

Mr. BREMER. I would have to consider that question, Senator.

Senator GRASSLEY. OK.

Mr. BREMER. Most of the people who spoke to us, because of the

sensitive nature of this issue, spoke to us on the understanding

that they would not be cited.

Senator KYL. Might I just interpose, would it be possible perhaps

to have a private conversation with the chairman to describe in

more detail the type of individual, the number, and perhaps some

further identification, just for the benefit of—— Senator GRASSLEY. Well, I want to follow up some way.

Mr. BREMER. I would be happy to do that. I would be happy to

do that, Senator.

Senator KYL. It is a good question.

Mr. BREMER. We are in a very difficult situation in terms of

the—you can appreciate, I think, Senator, with your long experience in this town that this is not an easy subject to talk to serving

officers about, or for them to talk to us about. I should put it that

way.

Mr. WOOLSEY. Senator Grassley, could I perhaps add one point

on this?

Senator GRASSLEY. Yes, please do.

Mr. WOOLSEY. It doesn’t appear in the report, but it is something

that I have long felt and I think is important in this context.

Throughout the cold war, the United States recruited successfully a large number of what I would call good people working inside bad governments. A substantial share, for example, of the Soviet agents that the CIA was able to recruit over the years were

genuine Russian democrats, anticommunists, people who, even

though they were GRU colonels or KGB generals, hated their system and worked for us because they were decent people.

That happens with some frequency inside bad governments. It is

one of the great strengths of American intelligence around the

world that we are—we and the British and one or two other countries tend to be places where a good person trapped inside a bad

government will go in order to try to help defeat communism or

fascism or whatever his government’s characteristics are.

And I think one can have a reasonable point of view that because

of that phenomenon, when one is dealing with spying on governments, one may well want to consider balancing and not necVerDate 11-MAY-2000 15:00 Feb 06, 2001 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 69488.XXX SJUD4 PsN: SJUD4
10

essarily recruiting or using readily, let’s say, as an informant some

of the types of individuals, for example, that in the Guatemalan

military gave rise to the concerns which Senator, then Congressman, Torricelli articulated and which in turn gave rise to my successor, John Deutch, implementing these 1995 guidelines.

But when one is talking about spying on terrorist organizations,

if you are inside Hizbollah, it is because you want to be a terrorist.

You don’t have for all practical purposes this phenomenon of good

people inside bad organizations. If you want to get information

about what a Hizbollah is doing, you have to recruit a terrorist, the

same way that if the FBI wants to recruit someone inside the

Mafia to inform on John Gotti, they are going to end up with someone like Sammy ‘‘the bull’’ Gravano, who killed 19 people and still

was given his freedom in exchange for testifying against Gotti.

Working against terrorist organizations is much more like the

FBI working against criminal organizations than it is like working

against other governments. So this Commission’s responsibility was

solely in the area of terrorism, and I believe that in that area it

is quite reasonable to suggest, as we did, that the Government not

use these 1995 guidelines which require a balancing between the

nature of the act that the individual may have committed before

and the information he might provide, but rather go back to the

CIA’s traditional method of so-called vetting of agents and to require its officers, and in appropriate cases with scrutiny from Langley, an assessment of the likelihood that the individual is going to

give real intelligence, real information.

Is he credible? Does he have access? Even if he is a bad person

in some other ways, is he likely to be telling you the truth? That

is the balancing that we thought ought to occur in the context of

terrorist organizations. So this should not be read as a general rejection of the 1995 guidelines. Different ones of us have different

views on those. But with respect to terrorism only, which is all the

further our writ ran, we felt, all of us, that it required a recognition

really up front that working against a terrorist organization routinely requires the recruitment of people who have done some very

bad things as informants.

Ms. HARMAN. Senator, could I just add one more word to that?

This was probably the most contentious among us of the recommendations in the report. We spent many, many hours, and

there was a range of views in our own Commission. On the one

hand, some wanted to rescind the guidelines. On the other hand,

some wanted just to clarify the guidelines. We came out in the middle.

We do not rescind the guidelines, and we make very clear also

on page 8 that the balancing test, as Jim Woolsey has just described it, will apply to the recruitment of any terrorist assets. We

are not talking about eliminating a balance, and we are very, very

well aware of how complicated it is to do this well. But we felt we

had no alternative if the goal is to find out in advance about the

activities of these very dangerous terrorist groups around the

world.

Senator GRASSLEY. Before I ask Ms. Kayyem another question,

I think I would accept the chairman’s suggestion, particularly if the

11

chairman and/or Senator Feinstein would be interested in following

up with me. I think I would like to have your interest as well.

But also my reaction to Mr. Woolsey is that it sounds a little

Machiavellian, what you tell me is the goal. And maybe in this

world it has to be, I don’t know. I guess I don’t know because I

wouldn’t draw the conclusion that you are right, but I accept your

statement with sincerity, in a sense, that the end justifies the

means in this instance.

But let’s just assume that if you do have to hire bad people because you are involved with bad organizations, I don’t know whether that goes so far as in the one instance I referred to that our Government would help, or at least know about their commission of

crimes as well; that we would go that far and be that far involved

with them.

Mr. WOOLSEY. Senator, if it is a crime under American law—and

killing an American in an act of terrorism overseas is a violation

of American law—there is a separate set of rules that also comes

into play and which we did not address and made no recommendation on. That set of rules deals with something called crimes reporting.

What that says is that if someone who is to be recruited as a spy

by the CIA overseas may have violated a U.S. Federal law, then

prior to that individual being recruited, there has to be a notification of the Department of Justice and the Justice Department has

to give a declination letter to decline to prosecute before that person may be recruited.

Now, there is criticism of this also among case officers overseas.

This would mean, for example, if there is a Swiss businessman who

knows a good deal about smuggling precursor chemicals to the Mideast that might be used in chemical weapons, and 20 years before

there is some evidence that he may have been involved in insider

trading when he was in the United States, before the CIA officer

could recruit that businessman as a source regarding proliferation

of chemical weapons, he would have to go to the Justice Department or have the CIA go to the Justice Department and get a declination letter saying we are not going to prosecute this fellow for

insider trading 20 years ago.

So, that check which some people believe is excessive nonetheless

exists, and that is an independent check on what case officers may

do. What we are talking about in our recommendation is not crimes

under American law, but rather acts by an individual in a foreign

country that may violate that foreign country’s law and may be a

very bad thing, robbing someone, killing them. It is the acts of an

individual that don’t violate U.S. law that are the subject of this

recommendation.

Senator GRASSLEY. I will go to Ms. Kayyem on another point,

and this comes from my Subcommittee on Administrative Oversight and the Courts and the Wen Ho Lee investigation we have,

and then Senator Specter proposing legislation to amend the Foreign Intelligence Surveillance Act. And if Senator Biden were here,

I would be glad to compliment him on his authorship of that legislation in the first instance and the bipartisan support for the

amendment that Senator Specter has proposed.

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On page 10 of your report the Commission states, ‘‘The Department of Justice applies the statute governing electronic surveillance and physical searches of international terrorists in a cumbersome and overly cautious manner.’’ One of the recommendations

of your panel stated, ‘‘The Attorney General should substantially

expand the Office of Intelligence Policy and Review staff and direct

it to cooperate with the FBI.’’ I notice that you did not concur with the content of this section,

and since this is a current issue before the Senate and we are considering this legislation regarding FISA, I would like to have you

elaborate why you did not concur with the Commission’s recommendations.

Ms. KAYYEM. I submitted a letter to the committee, as well, that

elaborates further. But let me first state where we do agree, where

all the commissioners agree. Everyone agrees that at least the constitutional standard of reasonableness applies in FISA, and certainly the statutory probable cause standard applies. So we are not

questioning that. I actually agree in the first recommendation that

you quoted. If necessary, the OIPR attorneys—there may need to

be more, and there should be greater cooperation between the FBI

and OIPR.

My concern with the Commission’s recommendation had less to

do with the specific language of the recommendation—certainly, no

one wants Government to work in a cumbersome manner, especially regarding terrorism—but the suggestion in the write-up to

the recommendations, and I lay this out in the letter, regarding

what would constitute membership in a foreign terrorist organization.

As I lay out in the letter, membership is a very difficult thing

with terrorist organizations. Most of them don’t keep membership

lists. We all know that, and when we are talking about foreign intelligence surveillance, we are talking about one of the more

invasive types of surveillance—secret wiretaps against Americans—but in the case the Commission was talking about, nonAmericans as well.

It was my concern in the write-up leading to the recommendations that the standard regarding what would constitute membership or mere membership was, at least by the Commission—the

suggestion that a mere showing by the FBI of membership, I

thought, probably wouldn’t satisfy either the statutory or the constitutional standards.

The OIPR was created by Congress to ask the tough questions

of the FBI. Do you have probable cause to go forward in this case?

And it is going to have to ask tough questions about what does

membership mean. Was someone at a meeting? Were they reading

literature? Were they giving money? I think that those questions

have to be made.

If the process is cumbersome, it may be cumbersome because we

need more people in OIPR, but I don’t think it is cumbersome because OIPR is asking the wrong questions. I think the evidence in

terms of the numbers before the FISA court and the great confidence that the FISA court has in the OIPR attorneys that they

are bringing forward cases that are legitimate is proof that there

is good cooperation. And if there is sort of a turf battle between the

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FBI and OIPR, maybe the way to solve that is through more people.

Finally, on the Wen Ho Lee case and the Department of Justice

recommendation, I have been reading letters, Senator Grassley,

that you sent to Senator Specter. There are a lot of lessons to learn

from the Wen Ho Lee case, as we know, and one of them was not

only that possibly the OIPR were cautious, but also at the initial

stages before things heated up, the FBI admitted to at least itself

in internal documents that it probably didn’t have the case. And

until all the evidence comes out on Wen Ho Lee, I think that we

should reserve judgment specifically on that case.

Senator GRASSLEY. Just quickly, I was going to read a long quote

from your report, Ambassador Bremer. It is on page 12, but the

bottom line of it is when it comes to offering to buy insurance for

agents, why should the FBI and the CIA be singled out for this

benefit when there are a lot of other men and women in Federal

law enforcement putting their lives on the line everyday investigating not only terrorists but other criminals? And I am particularly

concerned about the State Department Diplomatic Security Service

not being recommended for the same thing.

Mr. BREMER. Well, I am sure we would all agree with you, Senator. I don’t think there is any argument. We just happened to

focus on the two which were brought to our attention because they

are the two mostly on the front line. I think any public servant who

puts his or her life on the line certainly in the fight against terrorism ought to have this benefit. I speak for myself, but I am sure

I speak for the whole Commission.

Senator GRASSLEY. Thank you.

Senator KYL. Thank you very much, Senator Grassley, and we

will pursue the other matters.

Senator GRASSLEY. I appreciate your letting me go first.

Senator KYL. You are very welcome, and I ordinarily would call

on Senator Feinstein next, but she has kindly allowed me to ask

one quick question of Jane Harman before you have to leave.

As you may know, Senator Mack and Senator Lautenberg have

introduced the frozen terrorists asset bill, which I cosponsored. The

bill would allow victims of terrorism to be compensated from assets

of the state-sponsors of terrorism that are frozen in the United

States that have won court cases against sponsors of terrorism.

For example, Steve Flato’s 20-year-old daughter Alissa was killed

when a Palestinian suicide bomber attacked a bus in the Gaza

Strip in 1995. Mr. Flato won a court judgment against Iran, but

the administration has not allowed him to receive the compensation.

Do you believe that this legislation would aid ultimately in our

efforts to fight terrorism?

Ms. HARMAN. You bet, and our chairman just commented to me

that a frozen terrorist is the best kind of terrorist. [Laughter.]

Senator KYL. One whose assets are frozen and can be obtained

is certainly the right kind.

Ms. HARMAN. Mr. Chairman, could I just say a few things additionally?

Senator KYL. Absolutely.

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Ms. HARMAN. First of all, I want to observe that over the many

years I have known you, it has been an absolute pleasure to work

with you, first, in the House and then between the House and the

Senate—work with you and your staff on issues like this and on

technology transfer. It is always impressive to see how thoroughly

prepared you are and the way you work in a bipartisan fashion

with people like my senior Senator, Senator Feinstein, who I think

sets the gold standard for Senators. So I really want to say for the

record, as somebody who has perhaps more knowledge than most

of how this thing works, what a great asset you are.

Senator KYL. Thank you.

Ms. HARMAN. On the subject of frozen assets, not frozen terrorists, you and I worked together a great deal on ways to stop the

flow of technology and people from places that may be questionable

to places that are truly dangerous, where they work on or become

part of the arms race against us and our allies or missiles targeted

at our ally, Israel, or in this case part of the reach of some of these

terrorist organizations. We have to use the tools available to us.

We have to enforce legislation on the books, and there is good legislation. Obviously, we need to do more to make more happen.

But in this report—as I think you know, Senator, it was one of

the things the chairman did not highlight today—we call for no further concessions to Iran. The reason we do that is that we believe

that Iran continues to have a hardline foreign policy. Its domestic

leadership may be improving, and that is wonderful for the Iranian

people. But we saw no evidence, and I don’t believe there is any

evidence that its missile production, its harboring of terrorists, and

its threat to us and our allies is decreasing. So for that reason, we

continue to call for a hardline policy against Iran in the interest

of protecting Americans.

A final point on bipartisanship. Another thing that is in our report at the end is a call for bipartisanship by Congress in dealing

with this issue of terrorism. We call for additional staff on the appropriations committees—I know Senator Feinstein is a member of

the Senate Appropriations Committee—so that we could review as

a whole—you are, too, Senator Kyl—we could review as a whole

the counterterrorism budget and make sure that things like better

technology for our surveillance agencies are fully funded.

I thank you for giving me the opportunity to speak early, and I

just want to tell you again what an honor it has been to serve with

this excellent Commission under the chairmanship of Jerry

Bremer. Thank you.

Senator KYL. Thank you very, very much. Clearly, this is a nonpartisan issue. There is nobody who is better at it than my vice

chairman, Senator Feinstein, as you noted, and we have worked

very closely together.

I would also note before you leave that Senator Schumer and I

are going to be sending a letter around which specifically recommends against granting any additional concessions, for example,

on food sales or things of that sort to Iran until we see definite evidence of Iranian foreswearing of terrorism. Thank you very much.

If I could, before I call on Senator Feinstein, did the Commission

make any specific recommendations for dealing with Iran? I know

that the report notes that despite the election of Katami, on page

15

20 the report says there are indications of Iranian involvement in

the 1996 Khobar Towers bombing in Saudi Arabia, et cetera. In October 1999, President Clinton officially requested cooperation from

Iran in the investigation. Thus far, Iran has not responded. I just

wondered if there were any recommendations specifically with respect to Iran.

Mr. BREMER. There are really two; a general one, which is that

the U.S. Government should make no further concessions toward

Iran until it actually does stop supporting terrorism, and then a

rather specific one relating to Khobar.

We have a disagreement with a lot of our allies about how to approach Iran. They have different objectives than we do. They see

the thing differently than we do, but we ought to be able to persuade them that on the question of criminal acts like the attack

which killed 19 American soldiers in Khobar, everybody ought to

be able to say to the guilty party—and there is some evidence that

it is some people in Iran—you have to cooperate on a legal basis.

Put aside the politics of it.

This doesn’t affect the position the U.S. Government took on Pan

Am 103 vis-a`-vis Libya, where we had the same disagreements

with our allies, but where we were able to persuade the allies, even

if they didn’t like the politics of it, that on a legal basis it was important to insist on Libyan cooperation with the investigation into

Pan Am 103.

Our recommendation is the administration should take the same

approach vis-a`-vis the Khobar Towers. They should say to the allies, even though you may not agree with the politics of our approach toward Iran, you should be willing to say this is a criminal

act and Iran should be forced to comply with the request to cooperate in the investigation.

We think the Administration took the first correct step, which

was the President to write a letter directly confronting the Iranians. The Iranians have never answered the letter. We think the

Administration should push further now both directly on the Iranians, but more importantly through our friendly countries to say

this is a legal question. Those are the two recommendations on

Iran, Mr. Chairman.

Senator KYL. Thank you.

Let me call on Senator Feinstein.

Senator FEINSTEIN. Thank you, Mr. Chairman.

Jim Reynolds, the Chief of the Terrorism and Violent Crime Unit

at the Department of Justice, recently testified on your DOD recommendation, which he thought was unnecessary. He noted that a

number of statutes exist permitting the use of the military under

extreme situations, including statutes that permit the military to

be used for consequence management and technical assistance. In

all cases, though, the military would be under the leadership of the

FBI and FEMA.

Did the Commission examine these statutes before making your

recommendation?

Mr. BREMER. Yes, we did, Senator. We started with the Posse

Comitatus Act of 1874, went down through—I have got a whole list

of them here—the Insurrection and Civil Disturbances Act, et

cetera, et cetera.

16

Senator FEINSTEIN. Talk a little bit about how you came to that

recommendation?

Mr. BREMER. Well, first of all, we are not, as I said in my opening statement, making any general recommendation as to what

should happen. We are saying it is possible to conceive of—and certainly all of us could conceive of it, and if you can’t conceive of it,

it seems to me people are not using their imagination—an attack

where you have tens of thousands of casualties which quickly go

past the capability of State and local and Federal agencies to cope

with—the FBI, FEMA, or whoever is trying to cope.

In circumstances like that, there will be enormous public pressure for the President to take action and to use what is at hand.

And the tool which is at hand with the best communications, logistics, and command and control is the U.S. military. It could be

under Federalized National Guard; there could be a lot of ways.

The Federalized National Guard has been used for a lot of things

in the last 40 years, including patrolling the borders. I mean, there

are lots of uses of the military that, in fact, are not consistent with

Posse Comitatus.

Posse Comitatus doesn’t say it is not allowed. It simply says, ‘‘except in cases and under circumstances authorized by the Constitution or by Act of Congress.’’ And a number of Acts of Congress

have, in fact, allowed the military to be used. Even in law enforcement, there are a number of Acts of Congress. That wasn’t what

we were after.

What we were after was how do you protect civil liberties. How

do you assure that in the aftermath of a biological attack at Chicago O’Hare Airport, where you have tens of thousands of people

down, many of them dead, people getting on planes to go somewhere else, hysteria beginning, attention in the press, huge pressures on whoever is in the White House to do something now—how

do you assure that what he or she does is consistent with civil liberties and also saves lives? So our starting point was to say this

is the kind of thing which is not unimaginable and which ought to

be thought through ahead of time.

I do not agree with Mr. Reynolds. I respect him greatly. He testified several times before our Commission. I just think he is wrong.

I think he is not being very imaginative.

Ms. KAYYEM. Senator Feinstein, could I——

Senator FEINSTEIN. Please.

Ms. KAYYEM. Certainly, as a legal matter, at least the insurrection statutes as part of the Constitution—if the pressure is on the

President to do something, I don’t think there is any question as

a legal matter that the Department of Defense could take the lead

role.

Given that that is the case, my concern certainly is the last thing

you want to do is to, for want of a better verb, unleash the Department of Defense and the military in civilian society and not have

any idea what that is going to look like.

Even after the most recent Posse Comitatus exceptions in the

late 1990’s were put in place for nuclear and biological, the Department of Defense was told to plan and prepare for the possibility

during a nuclear attack. From what we know, or at least testimony

17

that we heard, that still has not happened or it is stuck somewhere

in the Department of Defense or the Department of Justice.

The last thing that anyone would want is to have the law applied

and permit the Department of Defense to be utilized in a lead

agency role—I mean, certainly there would still be civilian leadership; no one is talking about marshal law—and now know what

that is going to look like. Let people see what that is going to look

like.

My concern certainly is bad things that can happen. I will be

honest with you. Imagine if the attack is a foreign terrorist attack

and imagine that it came from a place with an ethnic identity. I

think the pressures would be extremely strong to maybe possibly

violate people’s rights just based on where they are. We saw it happen after Pearl Harbor. If the event occurred from a terrorist from

Latin America or the Middle East, I think the pressures would be

exceptionally strong. I think we need to think about it now and

know that actions like that are unlawful.

Senator FEINSTEIN. I think you have both raised a very good

point. If you think of an attack on that broad scale, you wonder

who else, besides the Department of Defense, would actually be

equipped to handle it.

I would like to ask a question of Mr. Woolsey, if I might. I want

to just talk for a minute about the 1995 Deutch guidelines. Apparently, the CIA responded to your report that the 1995 guidelines

work fine and that CIA headquarters has never turned down a case

officer who has ever wanted to recruit a terrorist.

Is that true?

Mr. WOOLSEY. I believe that is, in essence, what they said, yes,

Senator Feinstein. Although I have a high regard for the current

Director and for the organization that I used to head, I don’t think

the response was on point. We are quite willing to accept their

statement that they haven’t turned down any requests, but that is

not the issue. The issue is how many requests get made.

What these guidelines do with respect to terrorist organizations

is, as the chairman said, and the Commission was also told by a

number of current and past intelligence officers—what they do is

add a deterrent to submitting the request in the first place because

of the time that is required and because one, in a sense, as a young

case officer out in the field, has to be saying, ‘‘Well, I think this

person that I am about to recruit or that I want to recruit’’—the

information outweighs this terrible thing they may have been involved in 10 years ago.

And so there is a deterrent that operates in such a way as to get

people not wanting to seem to stand behind prior bad acts by their

potential recruit or not to want to be criticized or not want to have

to become an object of special attention by their bosses. All of those

sort of subtle incentives in the bureaucracy can, and we heard that

they do keep people from submitting requests.

So the issue is not, of the 5 or 10 or whatever it is requests that

have been submitted, have all of them been approved. We are quite

willing to recognize that that is the case, assuming that that is

what the CIA’s records indicate. The question is how many requests get made. Are we deterring case officers from making these

requests?

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And I think if the FBI had similar guidelines to these in terms

of recruiting informants inside the Mafia, we would not have seen

the very extraordinary progress that we have seen over the course

of the last decade or two in undermining the power of many of the

organized crime families in the United States.

I think you have to give your people out in the field some authority and responsibility, and this seemed to us to be too great a deterrent. It implicitly says that what we really want you folks to do

out there is, as much as you can, when you are spying on terrorist

groups, recruit nice people as spies. And if you recruit mainly nice

people as spies in, say, Beirut, you will have a pretty good idea of

what is going on in the churches and the chamber of commerce,

and so forth. But you don’t want to know that. You want to know

what is going on inside Hizbollah.

Senator FEINSTEIN. If I can, let me just follow this up for a second. It is my understanding that Mr. Deutch adopted these guidelines in part because the House and Senate Intelligence Committees were never informed of the recruitment of individuals who had

murdered Americans or engaged in torture before or after they

were on the CIA payroll. So that raises the question, I think, of

whether the United States should go back to that kind of situation.

Mr. WOOLSEY. Well, there are two separate issues here. One is

if someone in many circumstances kills an American overseas—this

is not true of all, but in the case such as the one that was described—that is also a violation of American law. And as I mentioned in response to Senator Grassley’s question, if there is evidence of some violation of American law, that request to recruit

that individual that may have so violated American law has to go

to the Justice Department as a crimes report, quite apart from anything we talked about. We didn’t deal with this issue. The Justice

Department has to give a declination letter, a waiver, essentially,

that it is all right to recruit that individual.

And as I also mentioned in response to Senator Grassley, I think

a reasonable case can be made, and reasonable people can be on

both sides of this argument, that one ought to be very cautious

about recruiting people inside governments that have committed,

let’s say, human rights violations in the past, as was allegedly the

case with the Guatemalan military officer involved, because one

has other alternatives in getting information from governments.

You can recruit spies, as I mentioned, good people trapped inside

bad governments, and you can have intelligence liaison relationships in which you exchange information and you learn things. It

may not be necessary to recruit brutal people and pay them money

inside foreign governments in order to obtain information.

The problem is that inside terrorist organizations, there isn’t

anybody there unless they want to be a terrorist. So if you are

going to get inside information, it is going to virtually always have

to be from somebody who has participated in or been involved in

some type of terrorist activity in the past. And so in dealing with

terrorist organizations, we felt that those guidelines should not be

observed. And we took no position on the guidelines with respect

to the types of recruitments that had given rise to the business

about Colonel Alpirez and Jennifer Harberry and Bamako and all

19

of that back in 1995 which led to John Deutch issuing the guidelines.

Senator FEINSTEIN. Thank you.

Senator KYL. You have mentioned the John Gotti case, and I

think Sammy ‘‘the bull’’ was out in Arizona. They spent a lot of

money putting him up.

Mr. WOOLSEY. He went bad again.

Senator KYL. But other people wouldn’t have been put away.

Senator FEINSTEIN. That is right.

Senator KYL. And he allegedly killed people, so you have that

kind of a situation. And I was going to ask Mr. Lewis to respond

to that, but I have another question for him, too.

Let me ask some of the questions that were submitted by the

American Arab Anti-Discrimination Committee because, again, I

would like for this hearing to be, among other things, an opportunity to reply to some criticism. And I think there have been some

good questions raised.

One of the questions that I was asked to ask, and I am happy

to do so, has to do with recommendation on tracking of foreign students. The question is how would tracking foreign students according to a student’s field of study or change of major help the United

States anticipate and thwart a potential terrorist attack? What is

the significance of a student changing a major from, for example,

English literature to nuclear physics, and how is a student’s area

of academic interest relevant to efforts to combat international terrorism?

I might ask that, first of all, of Mr. Lewis, but anybody else who

has expertise.

Mr. BREMER. Let me answer that first because I am probably the

only person at the table who spent quite a bit of his life issuing

student visas, so I have seen this from the front to the back.

Senator KYL. OK.

Mr. BREMER. Let me first of all say that any student who applies

for a visa to the United States has for 31⁄2 decades had to specify

his or her major in the application form.

If you are a student applying for a visa from a state which is designated as a state-sponsor, of which there are currently seven,

there are special visa waiver procedures which are in placed called

SAO’s, special advisory opinions, which must be sought by the consular officer before he can issue the visa.

In the case of some of those countries, if the major is a major on

something which the INS calls a critical subjects list—and things

on a critical subjects list are things like nuclear physics, biochemistry, and so forth, things like that—you may not issue the

visa; that is to say, it is in the law as it stands now.

Since that is well known, a person coming from one of those

states—and, incidentally, very often people coming from those

states are sponsored by their government. The only case is Libya,

where for many years by law the Libyan government has not been

allowed to send money for students.

Somebody coming from those states could therefore apply for a

visa using a different major, and when he or she switched majors

after coming here, they would be in violation of their visa status.

In fact, that is a violation of the law to change your major in some

20

cases. So the precise, specific answer is that it would be a violation

of their visa status for some students to change their major.

So that is a very precise answer, but I am going to let Mr. Lewis

give you a more general answer.

Senator KYL. And one of the recommendations was that this information be computerized so that it would be easier to track.

Mr. BREMER. Well, of all of the things this Commission has said,

this has been the most comprehensively misreported and misunderstood recommendation of all. Let me first of all say it is, in our

view, not a very important recommendation among our recommendations. It doesn’t even deal in any important sense with the

problem of border security.

Every single day, Mr. Chairman, 1.5 million people legally cross

American borders—1.5 million people, many of them in the Senator’s State, legally. So we are talking here about something on the

order of 250,000 student visas issued every year. It is a very minor

number compared to 1.5 million everyday, something like 500 million a year.

The Commission felt that we have a major border security problem in this country. It goes way beyond terrorism; it has a lot of

other implications. It was such a big issue, with only 6 months for

us to study terrorism, we basically said we can’t solve this problem

in 6 months. And we recommended Congress or another commission or somebody take a real look at this.

We did come across this one program that is in place, and has

been in place since 1965. And it is in response to a law which you

passed in 1996 that the INS has set up this pilot project to monitor

students, and what they are monitoring is essentially the same

things that have been monitored since 1965 when I started issuing

student visas, nothing more, nothing less, except we are doing it

on a computer now instead of in shoe boxes. But if I could ever get

anybody to understand that, I would consider that I had achieved

my goal.

Senator KYL. This hearing hopefully will help to do that.

Mr. BREMER. I hope so, Senator.

Senator KYL. I think that your answer helps to put it in perspective.

Mr. LEWIS. Well, quite frankly, the chairman has stated it very

well. The only thing that I might add is from the FBI’s standpoint,

we cite as an example in the report the issue of the student that

dropped out and was involved in the World Trade Center bombing.

What we are looking for is just some information of what is the

status of particular students, and we are going back to this 1996

pilot program. That is all we are asking for. Again, this has been

widely misunderstood.

Ms. KAYYEM. If I could follow up, right before this hearing I actually met with a group of Muslim leaders and I asked them, what

is the problem here, why is it this one—and Ambassador Bremer

is right—of all the recommendations, because certainly the law has

been there for a long time. I think that there is a concern, and

probably a legitimate concern, that it is not so much this law, but

how it is going to be applied in practice.

Certainly, you have all heard from the Arab and Muslim community that objective laws can be applied in a discriminatory fashion.

21

Speeding laws can be applied in a discriminatory fashion if the

only people pulled over are African-Americans. We know that. And

I think that those concerns are legitimate. I think that they should

be heard as the INS and this Senate vote on extending it nationwide. I think the INS has to be forever vigilant on that.

Terrorism has an identity in America and it tends to be Muslim

or Middle Eastern, and I think it is important that we hear those

concerns and complaints and that we respect that that is actually

the concern at hand. It is not so much the law; it is the potential

of this law. This is not a law that the INS is going to collect information and then give it to anyone who asks, so that every student—you know, we are going to know what they ate or if they are

on a home study program. It is an immigration law, but I think

that those concerns we need to respect and are valid if we learn

that this law is being applied in a discriminatory fashion.

Senator KYL. Let me just ask this question. Does somebody then

ostensibly monitor the information not only to determine whether

the technical immigration law might have been violated when, let’s

say—and let’s take a hypothetical country so that we are not stepping on any toes, but an individual sponsored by that country

changes from dance and music to nuclear physics, maybe doesn’t

even report it, but information comes to the attention of Immigration which validates that change.

Now, somebody in INS may decide that that is a technical violation of the law and therefore we are going to revoke the student

visa, if that is the appropriate remedy. But is it anticipated here

that there would be an additional step because of the potential, at

least the idea here being that that could be an activity involving

espionage or terrorism of some kind, and that that information

would be turned over to a law enforcement agency like the FBI?

Mr. Lewis.

Mr. LEWIS. No, to answer it shortly. It is INS’ call on something

like that, and if there is any indication on the part of the INS official involved that a possibility of some clandestine activity or something that goes beyond just the change of status, then, yes, very

well it could be, or the FBI would be alerted. Now, that doesn’t

happen in all instances and that is a judgment call on the part of

the INS.

Senator KYL. So there would have to be something in addition?

Mr. LEWIS. Something dire, something really different and noticeable, but this is not routinely done.

Senator KYL. OK.

Mr. LEWIS. We would like to have known about the World Trade

Center. See, he changed his status. He was no longer a student,

but just stayed here. Now, that should be reported.

Senator KYL. But even that fact would not ordinarily alert a law

enforcement agency to a potential problem, would it?

Mr. LEWIS. No, not necessarily.

Senator KYL. It would be a violation. I mean, there are a lot of

people who get here on a visa of one kind or another and then just

end up staying illegally.

Mr. LEWIS. Right, yes, Senator.

22

Mr. BREMER. That is why we make no pretenses that this is a

very important recommendation to deal with the much broader

problem of border security.

Senator KYL. But it does deal in one way with security, and that

is whether or not the individual may have some involvement in terrorism. At least there is a remedy for removal from the country for

the technical violation of law.

Mr. BREMER. Right, that is right.

Senator KYL. Might I ask just one more of these questions and

then I will turn back to you, Senator Feinstein?

I think this is a good one to clarify as well. On February 4, 1999,

FBI Director Louis Freeh testified before the Senate Appropriations Subcommittee on Commerce, State and Justice, and told the

subcommittee that since the World Trade Center bombing of 1993,

‘‘no single act of foreign-directed terrorism has occurred on American soil.’’

The Commission report states that, ‘‘Today, international terrorists attack us on our own soil,’’ and cites the arrest of Ahmed

Ressam at the Canadian border in December 1999 as evidence. The

citation I have for that is page 1. I am not certain of that.

However, given that Director Freeh confirms that there have

been no incidents of international terrorism in U.S. territory in

many years, and that Mr. Ressam was arrested at the border, the

question asks, isn’t it reasonable to conclude that current security

measures are proving effective in protecting Americans on American soil?

Mr. BREMER. What is left out of that, by necessity, is testimony

from the Director of the number of attempts which have been

thwarted, and we heard testimony that that number is in the several dozen just in the last 5 years alone, including some where

there was the possibility of the use of weapons of mass destruction.

What is enough security? How do you find the balance between

respect for civil liberties, which we all feel very strongly about, and

providing security for Americans? You can always say, since it

didn’t happen, it won’t happen, and therefore we don’t have to do

anything. I think the burden of our report is that the threat is

changing enough that we need to take further prudential steps to

meet it, including steps involving, for example, resources for the

FBI. And I think all of us stand by that. We are not comforted by

the fact that the FBI has been effective in the past in thwarting

these attacks. We want them to continue to be effective.

Senator KYL. I might say that, before this subcommittee, the FBI

Director, Louis Freeh, has said that each year for the last several

years—he hasn’t been specific—that about roughly a dozen terrorist attacks are thwarted.

Mr. BREMER. Right.

Senator KYL. And I think he may have even qualified that saying

‘‘major terrorist attacks.’’ I don’t remember.

Mr. BREMER. We certainly heard numbers in the several dozens.

Senator KYL. OK.

Mr. BREMER. And it is the case that the Ressam arrest was

largely luck and very good instincts on the part of a very smart

border guard who spooked the guy.

23

Senator KYL. So the statement in the report—and I have not

compared this question to the report itself, but the quotation is,

‘‘Today, international terrorists attack us on our own soil.’’ Do you

remember writing that, and would you want to qualify that in any

way?

Mr. BREMER. No; you could say ‘‘attempt to attack us,’’ but they

did attack us. They attacked us at the World Trade Center.

Senator KYL. OK; well, he was saying since then.

Mr. BREMER. And they tried to attack us at the Millennium. That

was thwarted.

Senator KYL. OK, great.

Senator Feinstein.

Senator FEINSTEIN. I don’t know whether it was Mr. Bremer or

Mr. Woolsey, but the comments on probable cause for a wiretap

under FISA—I didn’t quite understand what you were saying. You

said that the Department demands evidence beyond what was required in the law. Could you be more explicit?

Mr. WOOLSEY. Just a couple of points, one that Ms. Kayyem

spoke to. We noted that, for example, OIPR sometimes requires

specific knowledge of a terrorist practice rather than merely being

a member of a terrorist organization. And I think this is a legitimate argument which the Commission took one view on and Ms.

Kayyem stated her view. I think that is a reasonable disagreement

between reasonable people.

The one that stuck most in my mind was the fact that, typically,

OIPR doesn’t generally consider past activities of a surveillance

target in determining whether a FISA probable cause test is met.

And it strikes me that in an area such as terrorism, past behavior

is something that is quite reasonably considered. And, again, in

none of these cases were we recommending that the FISA statute

be changed, nor were we recommending that the judges exercise

different standards than what they do.

What seems to have occurred from time to time is that OIPR has

not let through requests that might well have been successful before the FISA court. The fact that in all of the FISA court’s existence it has only—and you can get two different views of this—it

has either never turned down a request or perhaps has turned

down one, suggests that the prior screening that is going on at the

OIPR may be a bit too stringent.

My wife says that if you don’t miss an airplane once in a while,

you are spending too much time in airports, and people differ on

that, but the point is a reasonable one. It is that if you always

show up 2 hours ahead of every flight, you are never going to miss

a flight, but most people try to make judgments a bit more balanced than that.

In these cases, I think what one should read between the lines

of this portion of the report is that most of the commissioners felt

that OIPR was not permitting some requests to get to the court

which would meet the statutory standards and would normally be

approved by the court.

Senator FEINSTEIN. Are you saying, under present practice, let’s

say if Osama bin Laden were in the United States, there would not

be just de facto probable cause to wiretap him?

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Mr. WOOLSEY. Well, he is sufficiently famous; he might get

through most any screen.

Senator FEINSTEIN. He is a known terrorist. I just used that because it was extreme.

Mr. WOOLSEY. If one could not consider membership in an organization and if one could not consider past behavior, then at least

I suppose theoretically he might not get through the OIPR screen.

As a practical matter, I am sure OIPR would approve a request to

wiretap Osama bin Laden.

Mr. BREMER. Commissioner Lewis has the most experience of

any of us in this area.

Senator FEINSTEIN. Right.

Mr. LEWIS. Senator, obviously this is one of those issues that I

feel very strongly about, and I have to state right up front that I

strongly disagree with my esteemed colleague here on my right.

The FISA statute clearly sets out the standard for probable cause.

Membership alone is spelled out if you are a non-U.S. person.

What the OIPR attorneys do—and I have the utmost respect for

them—they are always doing what they think is correct and I believe is wrong, is the simple fact that they always are looking for

quantity. They are substituting their judgment for the judgment

that the Congress has set out in the statute. That, in effect, is what

happens. The statute requires A and B. OIPR wants A, B, C, and

D.

Now, we say maybe one has been turned down. Well, the fact of

the matter is most of them never get there. Much like the request

to become an asset of the CIA abroad, you are not going to get the

request because they are stymied down below, and that is what

happens on a routine basis.

Senator FEINSTEIN. Thank you. That is helpful.

Mr. BREMER. I just want to underline one point, Senator. Commissioner Woolsey said it, but I want to say it again. We in no way

are suggesting a change in the probable cause standard that is in

the statute. That is not our recommendation.

Senator FEINSTEIN. You are just saying observe the statute.

Mr. BREMER. And Ms. Kayyem understands that.

Ms. KAYYEM. Yes.

Mr. BREMER. There is no disagreement. We are not doing that.

Ms. KAYYEM. And on the past acts issue, we didn’t raise it as a

Commission. I mean, we know that there is legislation that you all

are addressing, and I actually think it would be relevant. I think

if Osama bin Laden shows up, although we didn’t address it as a

Commission, I think that that would be in some instances very legitimate. This really just came down to a basic question, as Mr.

Woolsey said, about membership in organizations that it is very

hard to find out about membership.

Mr. WOOLSEY. I think that is a reasonable point.

Senator FEINSTEIN. That concludes my questions. Thank you, Mr.

Chairman.

Senator KYL. We may have a whole series of votes here in a

minute, and so as soon as that starts, we will probably have to conclude the hearing. There may be some other questions that occur

to us that we would want to submit to you and I would like to have

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the opportunity to do that, but we have just a couple more minutes,

if I could take some additional time.

One of the things that I have become persuaded of since I have

been active in the Federal Government here is that the United

States generally, and our allies, place a lot of reliance on international agreements. And then after the press conferences and

signing ceremonies and hoopla and reading the next morning’s

headlines, the international agreements are essentially forgotten

because they are very difficult to enforce, usually.

Frequently, there are overriding concerns. Our allies have certainly made this clear with respect to some of these terrorist countries. They have got trade, for heaven’s sake. Why would they want

to enforce an agreement? We have got to make a buck.

Now, in view of that, one of your recommendations endorsed the

International Convention for the Suppression of the Financing of

Terrorism as a tool to internationally affect the fundraising of terrorist groups, certainly a laudable goal. The Convention calls for

each signing party to enact domestic legislation to criminalize fundraising for terrorism and provide for the seizure and forfeiture of

funds intended to support terrorism. I think it was Senator Feinstein a moment ago who noted the fact that a lot of organizations,

under the guise of charitable purposes, raise a lot of money. And

who knows where that money eventually goes?

Given the failure of the international community to enforce other

multilateral agreements, why do you think that this would be such

an effective tool in affecting the financing of terrorist organizations?

Mr. BREMER. Well, Senator, I don’t think we think this is the

greatest thing since smoked bacon in terms of fighting fundraising.

I think, in the end, most of the fight against terrorism is not going

to be multilateral; it is going to be unilateral and bilateral. Most

of it is going to take place behind closed doors in liaison with law

enforcement agencies, treasury departments in this case, people

who have organizations like the Office of Foreign Asset Control.

We by no means, want to suggest that just putting this Convention into effect will be a silver bullet. It won’t be. It may help

gradually in the process that started in the early 1970’s, in effect,

of essentially saying it is not OK to be a terrorist. I think there

are now 12 U.N. treaties that have been signed affecting terrorism,

starting with the hijacking treaties in 1970 and coming all the way

forward. You could say about each of them more or less what you

have said about this one, that by itself, well, it is sort of marginal.

On the other hand, what it does do is it creates a political climate abroad in the world that says it is not OK anymore to be a

terrorist. And I think one of the reasons you are seeing less overt

state support for terrorism in the 1990’s is that during the 1970’s

and 1980’s, we did manage to criminalize terrorism in the eyes of

a lot of people. We delegitimized it.

We should be very modest in our expectation of this Convention

and the one on cyber terrorism, which I know you are particularly

interested in, Mr. Chairman, which we also endorsed. They are

modest steps. They are better than nothing, as long as they don’t

lead you to believe you have solved the problem.

26

Senator KYL. Right, and this is one that I find it hard to see

what harm it could do.

Mr. BREMER. Exactly.

Senator KYL. There are others that can do harm, among other

things, because of what you just pointed out. I just wondered if I

was missing something there.

I think I asked this question at, was it the Intelligence Committee hearing that we had? And I believe I asked the panel how do

you get at this problem of differentiating between legitimate fundraising and that which ends up supporting terrorism. I believe that

the answer at the time was, really hard to do, but again you have

got to try to work at it. Is there anything to add to that?

Mr. BREMER. I don’t think we have gotten any smarter in the intervening 2 weeks, Senator.

Senator KYL. Well, could you characterize how big you think the

problem is? That might be helpful for us.

Mr. BREMER. I am all for going after terrorist funding, but one

of the problems is it is a pretty cheap crime. I mean, you don’t need

a lot of money really in the long run to be an effective terrorist.

Senator KYL. I remember this was another part of your answer

before.

Mr. BREMER. You need an AK–47, a couple of clips, and, you

know, arrive at an airport. On the other hand, when you have people like Osama bin Laden, who is reputed to have hundreds of millions of dollars stashed away in various places, and who is now sort

of self-financing, my colleague Jim Woolsey points out that we don’t

have the problem of terrorists supporting states now. We have— what do you call it?

Mr. WOOLSEY. The other way around. We have terrorists supporting states.

Mr. BREMER. Terrorists supporting states, not states supporting

terrorists, yes. It makes a lot of sense to see if you can figure out

where his money is. And, of course, there has been a lot of progress

in tracking funds in the narcotics field and now in the sort of

money laundering field. There is a lot of knowledge out there in the

world among bankers and governments. And we certainly ought to

go at it, but we shouldn’t think that it is going to be easy.

Senator KYL. Perhaps my last question. Going back to the subject

that has come up—and it was the first question Senator Grassley

asked and it has come up several times during our hearing here,

and that has to do with the FISA approach. We understand you are

not recommending a change in guidelines. We understand that

there is at least one different point of view with respect to one element of that, and your letter, in addition to your testimony, will

be a part of the record.

As I understand it, the Commission has said that the practice of

the Justice Department is to require specific knowledge of wrongdoing or specific knowledge of the group’s terrorist intentions, in

addition to the person’s membership in the terrorist organization,

before forwarding an application for a FISA court for a search or

surveillance. Is that correct so far?

Mr. BREMER. Correct.

Senator KYL. I gather that the distinction between a terrorist organization and the group’s terrorist intentions is meant to apply to

27

the difference between the general and the specific. In other words,

even though you know that Hizbollah, for example, is a terrorist

organization, and Mr. Jones here is somebody that you want to surveil because of his membership in that organization, the effect of

the Justice Department policy here is to say we need either knowledge of his wrongdoing or specific knowledge of the intentions of

Hizbollah to engage in a particular kind of terrorist act, or an intention to engage in terrorism, beyond its general reputation.

Do I understand that correctly?

Mr. LEWIS. Yes, but when you talk about that, there is a difference between a U.S. person and a non-U.S. person. What you

are looking for is any kind of clandestine activity, something that

goes beyond the mere membership. That is what you need for a

U.S. person to show that there is something more here. But going

back to a non-U.S. person, membership alone is sufficient if it fits

the statute.

Senator KYL. And the Commission’s view, with one dissent,

would apply the recommending in what way?

Mr. LEWIS. We are recommending as a Commission, with one

dissension, that OIPR follow the statute, what the statute specifically says for FISA’s, nothing more than that. There is no change

in anything, just OIPR’s interpretation. That is what we are recommending, again, going back to quantity over quality—A, B, C, D,

et cetera.

Senator KYL. And the effect of that in this particular situation

would be not to require specific knowledge of the group’s terrorist

intention. Is that correct?

Mr. WOOLSEY. If they are non-U.S. persons.

Senator KYL. If they are non-U.S. persons.

Ms. Kayyem.

Ms. KAYYEM. You read that recommendation alone and it seems

quite unobjectionable, and I bet you the OIPR attorneys would

agree with it, that they ask for nothing more. It is really a question

of interpretation about both the statute, because I disagree with

Mr. Lewis on the interpretation of the statute, but also the kinds

of questions you want the lawyers to ask regarding when was this

person a member, the nature of their involvement. I think that

these are really hard questions.

I respect the Commission’s viewpoint on this difficult issue of terrorism, but when it comes to both the statutory and, of course, the

constitutional standards, I think OIPR has shown itself to be very

successful in these cases.

Senator KYL. Let me ask this question to probably Mr. Lewis,

but any of the rest of you might have some experience with it. In

the matter of domestic terrorism, let’s say a militia-type organization, where there is some reason to believe that this is a group that

likes to talk pretty tough and may have some history of even having—it seemed like they were planning terrorist activities, but

nothing current, and you would like to find out what is going on

with this group and you would like to get somebody on the inside

so you could find out if they are planning anything. What is the

law?

Mr. LEWIS. Those fall into the domestic guidelines, and we didn’t

address that as a Commission, but that falls under the general

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criminal domestic guidelines. We are not talking about FISA’s. We

are talking title III, and certainly we can put somebody in the

group. This is going to get into preliminary inquiries, full investigations, and it gets very complicated.

But if it is a preliminary inquiry, which we probably would do

to start off with, we could not go out and recruit somebody. We

could use an existing informant that we know of and try to get

them in there. That is in accordance with the Attorney General’s

guidelines. Once we make a determination that they are up to no

good, then we can recruit informants, et cetera, and work from

there.

Senator KYL. And that is one of the key distinctions between the

foreign and the domestic situation?

Mr. LEWIS. Yes, Senator.

Senator KYL. I think it is important for the American citizenry

to understand these. And I understand that these can be complicated issues and everyone has a pretty visceral reaction to any

infringement on our freedom in this country. That is why I think

it is also important that you had the opportunity to further expound on the situation that could potentially involve tens of thousands of people injured or killed in this country, the need for some

kind of general government policy in dealing with the emergency,

and the desire to know in advance what the general guidelines

would be.

You can easily foresee, for example, the situation where an ethnic group would be singled out, and Ms. Kayyem made the point

there that you can’t allow that kind of thing to occur in the application of this kind of emergency power if it is going to be granted to

the Government, such as the Defense Department.

Mr. WOOLSEY. Mr. Chairman, if I might, just one clarifying

thing. John or any of the others can correct me if I am wrong. In

the context of the distinction between title III and FISA and U.S.

persons and non-U.S. persons that we are talking about, a permanent resident alien, a green card holder, is a U.S. person for this

purpose. When we are talking about a non-U.S. person, we would

be talking about someone who was, say, here on a student visa or

something like that.

Ms. KAYYEM. There can be FISA surveillance against U.S. citizens if the U.S. citizen has a connection to foreign intelligence. So

U.S. citizens would apply in the FISA and the title III. What John

and Jim are getting at is in both statutes, there are different requirements, depending on if you are a U.S. citizen or not. And, of

course, they are much stricter for U.S. citizens, as would be appropriate under the law.

Mr. WOOLSEY. U.S. persons.

Ms. KAYYEM. U.S. persons, right.

Senator KYL. Somewhere, someplace there probably should be a

nice chart.

Mr. LEWIS. We have one.

Senator KYL. There probably is, OK, and for those of our fellow

citizens who are interested in this kind of thing, I certainly invite

questions. We may not be able to answer them, but we can certainly get them to the people that can.

29

I want the American people to feel good about the fact that we

have very dedicated citizens of this country, very knowledgeable

people who have served in the Government who are looking at

these issues, who care enough to make recommendations about

how to deal with terrorism, and who care very deeply about the

necessary constitutional protection of American citizens in the process.

I urge them, if they have concerns, rather than venting concerns,

as I have heard some do, to channel those concerns in a constructive way, such as those who submitted questions to us today to

pose to you. I think that is the right way to go about doing this,

and would urge any of those kinds of groups in good faith to do

that. And I will certainly respond in good faith, and I know that

the Commission members will react in that same way.

I hope that you will be available if we have additional questions.

I appreciate your service in this matter very much, and appreciate

your testifying here today.

Mr. BREMER. Thank you, Mr. Chairman.

[The prepared statement of Mr. Bremer follows:]

PREPARED STATEMENT OF AMBASSADOR L. PAUL BREMER III

Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to

appear before the Subcommittee this afternoon to review the conclusions and recommendations of the National Commission on Terrorism.

The threat of terrorism is changing dramatically. It is becoming more deadly and

it is striking us here at home. Witness the 1993 bombing of the World Trade Center,

the thwarted attacks on New York’s tunnels, and the 1995 plot to blow up 11 American airliners. If any one of these had been fully successful, thousands would have

died. Crowds gathered to celebrate the Millennium were almost certainly the target

for the explosives found in the back of a car at the U.S. border in December 1999.

The Annual Report of the Canadian Security Intelligence Service, released earlier

this month, cites the Millennium arrests as an example of today’s threat: that of

‘‘an international ad hoc coalition of terrorists’’ who ‘‘have expressed the intention

of causing harm to Americans and their allies.’’ Overseas, more than 6,000 casualties were caused by just three anti-U.S. attacks, the bombings of a U.S. barracks

in Saudi Arabia and of the U.S. embassies in Kenya and Tanzania.

If three attacks with conventional explosives injured or killed 6,000, imagine the

consequences of an unconventional attack. What if a release of radioactive material

made 10 miles of Chicago’s waterfront uninhabitable for 50 years? What if a biological attack infected passengers at Dallas-Fort Worth Airport with a contagious disease?

It could happen. Five of the seven countries the U.S. Government considers terror-supporting states are working on such weapons and we know some terrorist

groups are seeking so-called weapons of mass destruction.

Congress established the National Commission on Terrorism to assess U.S. efforts

to combat this threat and to make recommendations for changes. The Commission

found that while many important efforts are underway, America must immediately

take additional steps to protect itself.

First, we must do a better job of figuring out who the terrorists are and what they

are planning. First-rate intelligence information about terrorists is literally a life

and death matter. Intelligence work, including excellent cooperation with Jordan,

thwarted large-scale terrorist attacks on Americans overseas at the end of last year.

Such welcome successes should not blind us to the need to do more.

Efforts to gather information about terrorist plots and get it into the hands of analysts and decisionmakers in the federal government are stymied by bureaucratic

and cultural obstacles. For example, who better to tell you about the plans of a terrorist organization than a member of that organization? Yet, a CIA offficer in the

field hoping to recruit such a source faces a daunting series of reviews by committees back at headquarters operating under guidelines that start from the presumption that recruiting a terrorist is a bad thing. This presumption can be overcome,

but only after an extensive process designed to reduce the risk from such a recruitment to as near zero as possible.

30

Even if a young case officer makes it through this gauntlet, will the potential terrorist recruit still be around? Will the attack have already occurred? These guidelines were issued in response to allegations that the CIA had previously recruited

individuals guilty of serious acts of violence. The Commission found that whatever

their intention, they have come to constitute an impediment to effect intelligence

collection and should not apply to counterterrorism sources. CIA held officers should

be as free to use terrorist informants as prosecutors in America are to use criminal

informants.

We also need more vigorous FBI intelligence collection against foreign terrorists

in America and better dissemination of that information. FBI’s role in collecting intelligence about terrorists is increasingly significant. Thus, it is essential that they

employ the full scope of the authority the Congress has given them to collect that

information. Yet, the Commission found that the Attorney General guidelines that

govern when the FBI can open a preliminary inquiry or full investigation are unclear (they run to over 40 pages). The Commission heard testimony from both serving and retired agents that they are often unsure whether the circumstances of a

particular case meet the criteria, which contributes to a risk-averse culture. Thus,

the Commission recommends that the Attorney General and the Director of the FBI

develop guidance to clarify the application of the guidelines, specifically the facts

and circumstances that merit the opening of a preliminary inquiry or full investigation.

Another problem affecting the FBI’s terrorism investigations is the overly cautious

approach by the Office of Intelligence Policy and Review (OIPR) within the Department of Justice in reviewing applications for electronic surveillance against international terrorism targets. The Commission concluded that OIPR is requiring a

higher standard than required by the Foreign Intelligence Surveillance Act in approving applications submitted by the FBI. The Justice Department came to the

same conclusion in its report on the Wen Ho Lee matter, finding that OIPR was

needlessly restrictive of the statute. The Commission therefore recommends that the

Attorney General direct that OIPR not require information in excess of what is

mandated by the probable cause standard under FISA. The Commission also recommends additional OIPR personnel to ensure timely review of FISA applications.

Once the information is collected by the FBI, technology shortfalls and institutional practices limit efforts to exploit the information and get it into the hands of

those who need it—such as intelligence analysts and policymakers. The Commission

recommends increased resources to meet FBI’s technology needs, particularly in the

area of encryption. More than 50 percent of the FBI’s field offices report encountering encryption in criminal, counterintelligence or terrorist activity. In many of these

cases, the FBI has difficulty in gaining timely access to the plain text of lawfully

seized evidence, greatly hampering investigations and efforts to protect the public

safety.

In the President’s budget request, the FBI specified urgent requirements for improved technology, including the formation of a Technical Support Center to respond

to the increased used of encryption. The Commission urges the Subcommittee to

give the request careful consideration and to work with your colleagues on the Appropriations Committee to ensure this critical need is adequately funded. We also

have a recommendation designed to improve the ability of agencies to quickly identify, locate, and use translators—a perennial problem that plagues not just intelligence agencies but is particularly critical for time sensitive needs such as preventing a terrorist attack.

This de-crypted and translated information is only valuable, however, if it gets to

the people who need it. Dissemination of general intelligence information has not

traditionally been an important part of FBI’s mission. They do a good job of sharing

specific threat information but, otherwise, sharing of information is not given a high

priority. In fact, if the information is not specific enough to issue a warning or is

not relevant to an investigation or prosecution, it may not even be reviewed. Information collected in field offices often never even makes it to headquarters. There

is a dangerous possibility, however, that the unreviewed information could be the

key to preventing an attack in the future.

The World Trade Center case is an example of this problem. In 1992, Ahmed

Mohamed Ajaj entered the U.S. with Ramzi Yousef. In addition to several passports,

Ajaj carried with him manuals containing instructions on constructing bombs of the

type used in the WTC bombing. But more than seven years later, Ajaj’s notebooks

and manuals, specific pages of which were submitted as evidence during the WTC

trial, have yet to be disseminated to the intelligence community for full translation

and exploitation of the information.

The CIA faces a similar problem with the information it collects overseas in trying

to protect sources and methods while disseminating the information as quickly and

31

as broadly as possible to those who need it. CIA addresses this with dedicated personnel, called reports officers, located overseas and at headquarters who are responsible for reviewing, prioritizing, and distilling collected information for timely distribution. The Commission recommends that the FBI establish its own cadre of reports officers. To disseminate effectively the information while protecting criminal

prosecutions and privacy rights, the FBI reports officers should be trained both in

the information needs of the intelligence community and the legal restrictions that

prohibit disclosure of some types of law enforcement information. To take on this

new mission, the FBI must be provided the additional resources that would be required.

Recent events have also demonstrated what terrorists could do if they decided to

use their increasingly sophisticated computer skills to perpetrate a cyber attack. A

vigorous plan for defending against such attacks must be a national priority. In addition, because cyber attacks are often transnational, international cooperation is essential. The Commission therefore recommends that the Secretary of State take the

lead in the drafting and signing of an international convention on cyber crime.

There is a current draft Council of Europe convention on cyber crime and the U.S.

is participating in the negotiations. The Commission did not take a position on the

current draft, which is months away from a final version. The draft does, however,

contain some important provisions that will aid in international investigations of

cyber attacks. The convention would make cyber attacks criminal offenses in all the

signatory countries. It also recognizes that with cyber attacks, cooperation in international investigations must be accomplished in a matter of hours, before critical

evidence disappears.

The Commission also strongly recommends measures to improve the lagging technological capabilities of the National Security Agency, the FBI and the CIA so that

they don’t completely lose their ability to collect intelligence against techno-savvy

terrorists. These agencies, particularly the NSA, require funding to close the gaps

in technology.

On the policy front, the United States needs to go after anyone supporting terrorists, from state sponsors, to nations that turn a blind eye to terrorist activity, to

private individuals and organizations who provide material support to terrorist organizations.

Mr. Chairman, three of the state sponsors of terrorism. Iran, Syria and North

Korea are currently undergoing internal changes. In the case of Iran, while the

Americans may hope that President Khatemi can institute sensible political and economic reforms, the regrettable fact is that Iran continues to be the world’s primary

terrorist nation. Indeed, in the period since Khatemi’s election, Iranian support for

terrorists opposed to the peace in the Middle East has actually increased. Furthermore, there are indications that Iran was involved in the 1996 bombing attack in

Saudi Arabia that killed 19 Americans. We think it is vital that the American government makes a sustained effort to enlist our allies in pressuring Iran to cooperate

in the Khobar Towers bombing investigation. Until there is a definitive change in

Iranian support for terrorism, we recommend that our government make no further

gestures towards the Iranian government.

It is too early to tell if the death of Syrian dictator Hafez Assad will bring any

change in that country’s long support for terrorism. In conversations which American officials have with the new leaders of Syria, it should be made clear that Syria

cannot expect normal relations with the outside world until it takes concrete, measurable steps to stop its support for terrorists. Hopefully the new leader of that country will come to understand that such a step is the prerequisite to obtaining the

Western trade and investment essential to modernize Syria’s economy.

Similarly, it is too soon to know if the dramatic summit in Pyongyang two weeks

ago will pay dividends in getting North Korea to stop its support for terrorism. For

years, that country has provided safehaven and support to radical Japanese terrorists. The communist government itself has been guilty of savage and bloody acts of

terrorism, including an attempt to kill the entire South Korean cabinet and blowing

up a South Korean airliner. More recently, the government is suspected of having

sold weapons to terrorist groups.

Recognizing the importance of encouraging change in North Korea, the U.S. Government last week eased a number of long-standing prohibitions against contacts

between our two countries. But wisely the U.S. has left in place those sanctions

which flow from the North’s continued support for terrorism. And I believe our government should insist, as with Iran and Syria, that the North take specific concrete

steps to stop its support for terrorism before giving them a clean bill of health.

The other countries the U.S. identifies as state sponsors (Cuba, Sudan, Iraq and

Libya) should be made to understand that we will continue sanctions until they take

32

concrete steps to cease all support for terrorism. In addition, the Taliban regime in

Afghanistan should be designated a state sponsor.

There are also states that, while they may not actively support terrorists, seem

to turn a blind eye to them. Congress gave the President the power to sanction nations that are not fully cooperating against terrorism, but the power has not been

effectively exercised. There are candidates for this category. For example, Pakistan

has been very helpful at times, yet openly supports a group that has murdered tourists in India and threatened to kill U.S. citizens. NATO ally Greece seems indifferent to the fight against terrorism. Since 1975 terrorists have attacked Americans

or American interests in Greece 146 times. Greek officials have been unable to solve

145 of those cases. And just this month, terrorists struck again with the cowardly

assassination in Athens of the British Defense Attache.

As today’s terrorist groups receive less monetary support from states, they must

seek funding elsewhere, such as individual sympathizers and non-government organizations (NGOs). Thus, disrupting these non-state sources of funding for terrorism

has an increased importance. The Commission recommends that the U.S. government use the full range of legal and administrative powers at its disposal against

these funding sources. The current strategy against terrorist fundraising is too focused on prosecutions for providing material support to designated foreign terrorist

organizations (FTOs). While these cases are not impossible to make, it is very difficult to prosecute and convict under the FTO statute. The Commission therefore

recommends a broader strategy against terrorist fundraising. Money laundering,

tax, fraud and conspiracy statutes all lend themselves to aggressive use against terrorist organizations, their front groups and supporters.

To implement this broad strategy, the Commission recommended the formation of

a joint task force of all U.S. Government agencies with information and authority

relevant to terrorist fundraising, as well as an expanded role for the Treasury Department’s Office of Foreign Assets Control. As the Commission’s report was going

to press, the resident announced a Counterterrorism Funding Request that included

the formation of an interagency National Terrorist Asset Tracking Center and an

expanded OFAC. The President also requested funding for additional DoJ prosecutors, which would support the Commission’s recommendation for using all available

criminal statutes against terrorists. The Commission therefore urges support for the

President’s funding request.

In addition, because international cooperation is necessary in many cases of terrorist fundraising, the Commission calls for the ratification of the International Convention for the Suppression of the Financing of Terrorism. This new UN treaty

would criminalize terrorist fundraising in the signatory countries and provide for cooperation in the investigation and prosecution of those crimes.

It is difficult to predict whether terrorists will use chemical, biological, radiological or nuclear weapons. But it is troubling to note that the FBI reports that there

has been a dramatic increase in the number of threats to use such agents in the

U.S. over the past 4 years. The consequences of even a small-scale incident are so

grave that certain weaknesses in American approach should be addressed immediately.

Three concrete steps should be taken right now to reduce the risk that terrorists

will get their hands on a biological weapon: criminalize unauthorized possession of

the most worrisome biological agents, strengthen safeguards against theft of these

agents, and control the sale of equipment necessary for weaponizing biological

agents. Examples of this critical equipment include specialized fermenters, aerosol

and freeze-drying equipment. Controls on biological agents should be as stringent

as those applied to critical nuclear materials.

The Commission also examined the actions that the U.S. Government would have

to take in a catastrophic threat or attack, and the legal authorities for such actions.

The Commission found that most of the needed legal authorities exist, but are scattered throughout different federal statutes. There are also some gaps in legal authorities. For example, there are gaps in the quarantine authority of cities and

States and no clear federal authority with regard to vaccinations. It is not clear that

law enforcement officials are aware of their powers for certain types of searches in

emergency situations. If government officials are not fully aware of the extent of

their legal authorities, there is the danger that in a crisis situation they will be

hesitant to act or act improperly. The Commission therefore recommends that the

President direct the preparation of a manual outlining existing legal authorities for

actions necessary in a catastrophic threat or attack and that the President determine whether additional authorities are needed to deal with catastrophic terrorism.

Let me also take this opportunity to clarify the record on a couple of our recommendations that have been incorrectly reported in the press. First, there have

been some reports claiming that the Commission recommends putting the DepartVerDate 11-MAY-2000 15:00 Feb 06, 2001 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 69488.XXX SJUD4 PsN: SJUD4
33

ment of Defense in charge of responding to terrorist attacks in the U.S. This is not

true. What we said, and I am now quoting from the report, is that ‘‘in extraordinary

circumstances, when a catastrophe is beyond the capabilities of local, state, and

other federal agencies, or is directly related to an armed conflict overseas, the President may want to designate DoD as a lead federal agency.’’ (Emphasis added.)

The Commission did not recommend or even suggest an automatic leading role

for the Defense Department in all cases. But if we undertake contingency planning

for a catastrophic terrorist attack in the U.S., we must consider all plausible contingencies, including the possibility of a federalized National Guard force operating

under the direction of the Secretary of Defense. Not to do so would be irresponsible.

In making this recommendation, the Commission had in mind the lessons of the catastrophic attack on Pearl Harbor. In the hysterical aftermath of the attack, two of

America’s great liberals, Franklin Roosevelt and Earn Warren, locked up JapaneseAmericans. The best way to minimize any threat to civil liberties in such an extraordinary scenario is through careful planning, including a thorough analysis of the relevant laws, the development of appropriate guidelines, and realistic training. Thus,

the Commission recommended that the National Security Advisor, the Secretary of

Defense, and the Attorney General develop detailed plans for this contingency.

The second recommendation that has been misrepresented has to do with foreign

students in the U.S. The Commission looked at the larger concern of border security

and the difficulty of dealing with the massive flows of people crossing U.S. borders

every day. But with only six months, the Commission did not have time to develop

a full recommendation on how to improve it. It is a huge problem, and one that

probably would benefit from a full review by Congress or the executive branch (or

another commission). The Commission was alerted to one aspect of the problem

dealing with a long-standing program relating to foreign students in the U.S.

For decades, the INS has required colleges and universities to collect and maintain information on the foreign students enrolled in their institutions. This has included information on citizenship, status (e.g. full or part-time), the date the student

commenced studies, their field of study, and the date the student terminated studies. The purpose was to ensure that foreigners who came to the United States as

students did not break the law by staying after they had finished, or stopped, their

studies. Until recently this data was managed manually and was thus not available

to the government in a timely manner.

The bombing of the World Trade Center in 1993 showed the weakness of this

long-standing process when it was discovered that one of the bombers had entered

this country on a student visa, dropped out and remained here illegally. He was

subsequently tried and convicted for his role in that terrorist attack, which took six

American lives and injured over 1000 others. He is currently serving a 240-year

prison term.

Concerned about the obvious inadequacy of the long-standing program to collect

information about foreign students, in 1996 Congress directed the Attorney General

to modernize that system. In response, the INS established a pilot program using

an Internet-based system to report electronically the information colleges and universities had already been collecting for many years.

The pilot program, called CIPRIS, covers approximately 10,000 foreign students

from all countries who are enrolled in 20 colleges, universities, and training programs in the southern U.S. The purpose is to bring the visa-monitoring system into

the 21st century. After several years experience, the INS has concluded that CIPRIS

is effective and has proposed to apply it nationwide.

The Commission reviewed CIPRIS and the criticisms of the program, the primary

one being the INS proposal to have the universities collect the fees needed to support the program. It is my understanding that, while the universities opposed the

idea of having to collect the fee, they did not oppose the main objective of the program to require reporting of information on foreign students.

The Commission concluded that monitoring the immigration status of foreign students is important for a variety of reasons, including counterterrorism. The Commission did not believe, however, that it was in a position to recommend specifically

that the CIPRIS program be implemented.

The Commission is not recommending any new requirements on foreign students

in the United States. The Commission’s position is consistent with regulations that

have been in place for many years, and with the view of Congress which mandated

the creation of a program to more efficiently keep track of the immigration status

of foreign students.

As the danger that terrorists will launch mass casualty attacks grows, so do the

policy stakes. To protect her citizens, America needs a sustained national strategy

in which leaders use first-rate intelligence to direct the full range of measures-diploVerDate 11-MAY-2000 15:00 Feb 06, 2001 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 69488.XXX SJUD4 PsN: SJUD4
34

matic, economic and commercial pressures, covert action and military force-against

terrorists and their state sponsors.

Mr. Chairman, at this point I would like to introduce my fellow Commissioners

who are here today: the Commission’s Vice Chairman, Mr. Maurice Sonnenberg, Ms.

Jane Harman, Ms. Juliette Kayyem, Mr. John Lewis and Mr. James Woolsey. In

addition to those here today, the Commission included Dr. Richard Betts, Gen.

Wayne Downing, Dr. Fred Ikle and Mr. Gardner Peckham. It was a privilege to

work with this group of dedicated individuals.

[Whereupon, at 3:42 p.m., the subcommittee was adjourned.]

(35)

A P P E N D I X

ADDITIONAL SUBMISSIONS FOR THE RECORD

THE PREPARED STATEMENT OF ALEXANDER PHILON

GREECE’S POLICY AGAINST TERRORISM

Combating terrorism is a top priority for the government as well as for the people

of Greece, because of the lives lost, foreign and mainly Greek, the threats against

persons and properties and also because of the damage caused to Greece, one of the

safest countries in Europe.

The government has declared a relentless war against terrorism and seeks the

mobilization of the whole Greek society for tackling this phenomenon, which threatens many countries. Greek people realize more than ever the harm done to the

country and this was evident from the unprecedented outpouring of public sympathy

to the family of Brigadier Saunders and from many comments in the Greek press.

Greece has been closely cooperating with the law enforcement authorities of the

U.S. and with the relevant authorities of other countries such as Scotland Yard who

are helping Greek police in the investigation of the murder of Brigadier Saunders.

We have enhanced the anti-terrorism unit’s resources and personnel, many of which

have been trained in the U.S. and other countries. It should be pointed out, in this

framework, that an FBI unit operates in Greece in close cooperation with the Greek

authorities and a Greek-U.S. memorandum on bilateral police cooperation will be

signed shortly. This ongoing cooperation has been repeatedly confirmed publicly by

the U.S. Administration. In view of the need to tackle terrorism on an international

basis, the Greek government has also launched a joint initiative within the European Union to combat terrorism.

The safety of U.S. diplomats serving in Greece has always been of outmost concern of the Greek government and their protection, in collaboration with the U.S.

Embassy in Athens, has also been assured.

The reward for any information leading to the apprehension of the terrorists has

been doubled to the sum of $ 2.8 mil.

Measures are being prepared to increase the effectiveness of the existing legal

framework including a provision for the exclusion of jurors from the composition of

courts trying terrorists and the formulation of a witness protection system.

As to the rumors that the governing socialist party ‘‘turned a blind eye to terrorism’’, no evidence has ever been forwarded to the Greek authorities.

Furthermore from 1975–1981 and 1990–1993 conservative governments in Greece,

were not successful in tracking down terrorist groups, even though the son-in-law

of the then-Prime Minister Mitsotakis was assassinated by the 17 November terrorist organization.

Finally why should the Greek ruling party allow itself to be branded as passive

in combating terrorism when, in fact, its own members and premises have been targeted and when prominent Greek citizens have been assassinated and Greece itself

is the ultimate victim of this scourge? In fact, the very aim of terrorism is to destabilize the country and also to create problems between Greece and her European

Union partners and NATO allies.

36

HARVARD UNIVERSITY,

JOHN F. KENNEDY SCHOOL OF GOVERNMENT,

Cambridge, MA, June 27, 2000.

Hon. JON KYL,

U.S. Senate,

Washington, DC.

DEAR SENATOR KYL: As a former Commissioner on the National Commission on Terrorism, it is an

honor to respond to your request regarding the important recommendations of the

Commission in regard to combating terrorism, and, in particular, the Commission’s recommendation concerning the Foreign Intelligence Surveillance Act (FISA). Under

the exceptional leadership of Arnbassador L. Paul Bremer, the Commission came together to explore, debate and resolve some of the main issues confronting American

counter-terrorism policy. While all Commissioners agreed on the vast majority of

recommendations, I could not concur in the section and recommendation regarding

thc FISA. Report at 10-12.

The Commission’s recommendation proceeds on the proper assumption that the

constitutional probable cause standard applies here as it would in an ordinary

criminal investigation. Every member of the Commission is committed to ensuring

that the constitutional and statutory protections are met in the most lawful and efficient manner. We should not lose sight of this critical point of agreement. Nevertheless, I did not concur in this portion of the report.

The question before the Commission was: given the FBI’s concerns that the process for securing a wiretap under FISA was slow and unwieldy, how can we fix it?

As a preliminary matter, it is important to put these concerns in context. This issue

involves the possible surveillance of persons while they are lawfully in the United

States; 880 wiretaps were approved alone last year. The FISA court has never, except possibly once, denied an application. Moreover, when Congress passed FISA,

it was not simply to ensure that appropriate surveillance could be undertaken. It

was also to ensure that the FBI’s use of secret wiretaps not be abused. To that end,

Congress established the Office of Intelligence Policy and Review (OIPR), a group

of specialized attorneys who were charged with ensuring that the FBI had put forth

adequate evidence to show probable cause. I believe Congress was correct in making

the judgment that such an institutional safeguard was necessary.

In this respect, I concur with the Commission’s recommendation that there should

be more cooperation between law enforcement agencies and, if necessary, greater resources for the OIPR attorneys who work with the FBI to ensure that the probable

cause standard is met. These steps may go a long way towards addressing the concerns that the FBI identified.

The more difficult questions concern the kind and amount of information that

OIPR attorneys should request from the FBI before it proceeds to apply for a court

order under the FISA. The Commission Report concludes that ‘‘to obtain a FISA

order, the statute requires only probable cause to believe that someone who is not

a citizen or legal permanent resident of the United States is a member of an international terrorist organization. In practice, however, OIPR requires specific evidence

of wrongdoing or specific knowledge of the group’s terrorist intentions in addition

to the person’s membership in the organization before forwarding the application to

the FISA court.’’ Report at 11. The Commission then recommends that ‘‘[t]he Attorney General should direct that the Office of Intelligence Policy and Review not require information in excess of that actually mandated by the probable cause standard in the Foreign Intelligence Surveillance Act.’’ Report at 12. The report therefore

suggests that OIPR has in some cases requested information in excess of what the

statute requires. Report at 11.

In my view, OIPR may be justified in construing the statute in specific cases to

require information of a target’s knowledge of a group’s intentions or activities.

‘‘Membership’’ is potentially a very broad status. Its meaning is uncertain in this

context, and the statute nowhere defines what evidence demonstrates membership.

In many cases, there may be no membership list, and thus evidence of membership

would have to be based on less formal indicators. In other cases, a person may be

included in the membership list of an organization, even though his initial membership pre-dated the objectionable activities of the organization and even though his

contacts with that organization during the period in which it was engaged in terrorist activities have been non-existent. Such a person could have an entirely passive

connection to the organization. He also may be entirely unaware of the activities

of the organization that has drawn the attention of law enforcement. As a result,

it would be quite surprising if Congress intended to authorize surveillance of such

a person without any additional showing being made. OIPR does not seem to me

37

to have been acting in excess of its statutory mandate in proceeding on that assumption.

The language of the FISA statute seems consistent with this conclusion. It provides that an application for surveillance is met if ‘‘on the basis of the facts submitted by the applicant there is probable cause to believe that * * * the target of the

electronic surveillance is a foreign power or an agent of a foreign power.’’ 50 U.S.C.

Sec. 1 804(a3(4)(A). The statute defines a ‘‘foreign power’’ to include ‘‘a group engaged in international terrorism or activities in preparation therefor[.]’’ The statute

goes on to provide that an ‘‘ [a]gent of a foreign power’’ means * * * any person

other than a United States person, who * * * acts in the United States as an officer

or employee of a foreign power, or as a member of a foreign power. * * *’’ It further

provides that an ‘‘agent of a foreign power’’ can include one who ‘‘acts for or on behalf of a foreign power’’ which engages in certain specified activiities. In addition,

the Act provides that an agent of a foreign power is one who ‘‘knowingly aids or

abets’’ any person in certain specified activities or ‘‘knowingly conspires with any

persons to engage in such activities. * * *’’ 50 U.S.C. 1801, et seq.

These provisions indicate that it may be entirely appropriate for OIPR to have

sought the kind of additional information that it has apparently requested in some

cases. The Act defines an ‘‘agent of foreign power’’ to be a person who ‘‘acts . . .

as a member of a foreign power.’’ The verb ‘‘acts’’ signals that something more than

passive membership may be required. Indeed, subsequent provisions defining ‘‘agent

of a foreign power’’ refer to the targeted person either ‘‘knowingly aiding or abetting’’ or ‘‘knowingly conspiring.’’ These provisions contemplate a target who is somehow actively engaged in, or knowingly aware of, proscribed activities. As I have

said, the statute does not define what evidence suffices to prove membership. In this

context, in particular, that is likely to be a difficult, fact-intensive inquiry in which

evidence of a target’s knowledge of an organization’s activities and intentions may

be quite relevant.

One must also assume that, whatever the statutory standard, the constitutional

protections within the Fourth Amendment must also be met before a FISA application can be granted. The Commission and I are in agreement on this point. In my

view, the Constitution may require more than simply showing that the target retained formal membership in an organization with which he has had little or no contact for a significant period of time. It may require showing that the target has at

the very least some awareness that the organization of which he is a member is a

‘‘group engaged in international terrorism or activities in preparation therefor.’’ It

could therefore be relevant in an analysis of probable cause to determine when the

target became a member of the targeted organization. It could be relevant as well

to determine the nature of the person’s involvement with that organization during

the time period in which it was engaged in terroist activities.

In sum, as I read the statute, and understand the constitutional standard, the

facts of each case must be carefully considered to ensure that the legal standards—

whether statutory, constitutional, or both—have been met. That careful consideration is one appropriately carried out by the attorneys that Congress foresaw would

have the expertise to make such judgrnents. The recommendation that the Attorney

General direct OIPR attorneys to require no more than what the statute requires

is not necessarily objectionable. I am concerned, however, that the recommendation,

if followed, would preclude the OIPR from asking questions of the FBI that are in

accord with the proper legal standard rather than in excess of it.

I realize that the Commission would still require the FBI to maintain court approval and thus that the FISA court would serve as an important check on any application. That check would apply even if OIPR were directed to approve any application to wiretap a person who was formally a member of a targeted organization.

But, courts are often quite deferential to law enforcement in this area. And, perhaps, appropriately so. For that very reason, however, the executive branch has a

special obligation to satisfy itself before it asks a court to reach that conclusion.

That is particularly true where, as here, the determination of probable cause turns

on fact intensive judgements about the precise details of a target’s connection to an

organization that, in many circumstances, will be operating outside this country. As

a result, one must give some room for discretion and judgment by the very attorneys

who need to make the case and who are trained to make such judgments. In fact,

I think the Justice Department’s record of success in FISA cases in court thus far

is in part attributable to its willingness to abide by that obligation. The Department’s care in this regard no doubt bolsters its credibility in those cases in which

a court may be hesitant to grant a request. Therefore, I did not concur in the Commission’s recommendation.

In explaining my disagreement with the Commission on this issue, I do not mean

to detract from the important ways in which this report does respond to the very

38

real concerns of persons from communities who are often peculiarly affected by our

counterterrorism policies. In particular, I think it is important to highlight in this

regard the Commission’s important recommendation concerning the use of secret

evidence by the INS to remove aliens from the United States who are suspected of

terrorism or other national security threats.

Nearly two dozen people have been detained on the basis of secret evidence, some

for two years or more. They can not see the evidence. Their counsel can not see the

evidence. It is significant, for me, that nearly all, if not all, are Arabs or Muslims.

The Commission noted that ‘‘resort to the use of secret evidence without disclosure

even to cleared counsel should be discontinued, especially when criminal prosecution

through an open court proceeding is an option.’’ Report at 32.

Some have suggested, perhaps appropriately, that it is necessary to limit the use

of this practice even more than the Commission recommends. Nonetheless, the Commission has made substantial progress on secret evidence and has suggested several

protections—mandatory declassified summaries and access to a counsel who is

cleared to review national security materials but who could also provide adequate

representation—be put in place. I hope that its recommendation will serve as the

basis for a reconsideration of this practice by both the Congress and the Department

of Justice.

I appreciate the opportunity to further explain my views regarding the Commission’s recommendations.

Sincerely,

JULIETTE KAYYEM,

Commissioner, National Commission on Terrorism.

Æ