IMPROVING THE EFFECTIVENESS OF ANTITERRORISM TOOLS AND INTERAGENCY COMMUNICATION (original) (raw)
[Senate Hearing 111-616] [From the U.S. Government Publishing Office]
S. Hrg. 111-616SECURING AMERICA'S SAFETY: IMPROVING THE EFFECTIVENESS OF ANTITERRORISM TOOLS AND INTERAGENCY COMMUNICATION
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JANUARY 20, 2010
__________
Serial No. J-111-71
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, ChairmanHERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota Bruce A. Cohen, Chief Counsel and Staff Director Matt Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
PageFeingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement.................................. 129 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 170 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 3
WITNESSESHeyman, David F., Assistant Secretary for Policy, U.S. Department of Homeland Security, Washington, DC........................... 10 Kennedy, Patrick F., Under Secretary for Management, U.S. Department of State, Washington, DC............................ 8 Mueller, Robert S., III, Director, Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC...... 5
QUESTIONS AND ANSWERSResponses of David F. Heyman to questions submitted by Senators Feingold, Grassley, Hatch, Leahy and Specter................... 49 Responses of Patrick F. Kennedy to questions submitted by Senators Leahy, Feinstein, Feingold, Specter, Sessions, Hatch, Grassley....................................................... 72 Responses of Robert S. Mueller III to questions submitted by Senators Feingold, Feinstein, Hatch, Leahy and Specter......... 101
SUBMISSIONS FOR THE RECORDBaird, Zoe, and Slade Gorton, Markle Foundation Task Force, National Security in the Information Age, New York, New York, joint statement................................................ 120 Constitution Project, preface only, (additional Material is being retained in the Committee files)............................... 127 Flynn, Stephen E., President, Center for National Policy, Washington, DC, statement...................................... 133 Heyman, David F., Assistant Secretary for Policy, U.S. Department of Homeland Security, Washington, DC, statement................ 138 Hutchinson, Asa, CEO, Hutchinson Group, Undersecretary, Department of Homeland Security, Washington, DC, statement..... 152 Jenkins, Brian Michael, Bruce Butterworth, and Cathal Flynn, statement...................................................... 157 Kennedy, Patrick F., Under Secretary for Management, U.S. Department of State, Washington, DC, statement................. 160 Leiter, Michael, Director, National Counterterrorism Center, Washington, DC, statement...................................... 173 Macleod-Ball, Michael W., Acting Director, and Christopher Calabrese, Legislative Counsel, American Civil Liberties Union, Washington, DC, joint statement................................ 178 Martin, Kate, Director, Center for National Security Studies, Washington, DC, statement...................................... 189 Mueller, Robert S., III, Director, Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC, statement...................................................... 196 Schneier, Bruce, [email protected]........................... 208 Spaulding, Suzanne E., statement................................. 210
SECURING AMERICA'S SAFETY: IMPROVING THE EFFECTIVENESS OF ANTITERRORISM TOOLS AND INTERAGENCY COMMUNICATION
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WEDNESDAY, JANUARY 20, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, Cardin, Whitehouse, Klobuchar, Kaufman, Franken, Sessions, Hatch, Grassley, Kyl, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Good morning. I think before we start on this hearing, every one of us has to be moved by what we have
seen on television or people we have talked with during the
past couple weeks in Haiti. And if I could, with the indulgence
of my colleagues, wearing another hat that I have as Chair of
the Appropriations Subcommittee that handles our foreign aid, I
have been particularly interested in what has been happening. I
have had talks with people on the ground in Haiti and others
who have gone down there, and I want to begin by thanking
President Obama, Secretary of State Hillary Clinton, USAID
Administrator Shah, General Fraser of the U.S. Southern
Command, and all the hard-working people here and on the ground
in Haiti for their efforts to save lives in the aftermath of
this devastating earthquake.
A number of States--I know California sent search and
rescue, Virginia did, and others. My own little State of
Vermont is sending down a medical team today. Recovering from
this disaster is a daunting challenge for the people of Haiti,
but Vermonters and all Americans have opened their hearts and
are sharing generously. We will continue to do so. Any one of
us just as human beings have to be moved by what we have been
seeing down there.
Now to the subject of this important hearing. A terrorist
intent on detonating an explosive was able to board a plane
with hundreds of passengers headed for Detroit, Michigan, on
Christmas Day. After Congress passed major legislation in 2004
to implement the 9/11 Commission's recommendations, and after
the country invested billions of dollars to upgrade security
systems and to reorganize our intelligence agencies, the near
tragedy on Christmas Day compels us to ask what went wrong and
what additional reforms are needed.
The administration responded quickly and has already
conducted a preliminary review. The President has candidly
identified problems. He spoke directly to the American people
about the incident, the threat, and the actions that are
necessary to prevent future attempted attacks. They did not
offer excuses, but instead they have taken responsible action
to provide additional security measures.
I know there will be some hard questions at this hearing.
We will want to know how and why we failed to successfully
detect and prevent this attempted attack. How did someone who
paid for an airline ticket with cash, who boarded without
luggage for a winter trip to Detroit, and whose father had come
to U.S. officials weeks before to warn that his son had become
radicalized, how was he able to board a flight for the United
States with a valid visa? Just as we now know the horrific,
deadly attacks on 9/11 could have been prevented, should have
been prevented, the recent White House review found that the
Government had sufficient information to have uncovered and potentially disrupted the December 25 attack.'' Our intelligence agencies did not adequately integrate and analyze information that could have prevented this attempt. The President called it a systemic failure,'' and he is right
that this is unacceptable. Just as we failed on 9/11, we failed
here.
Now, I would hope that all Senators here ask whatever
questions they feel they should, but I hope we proceed with the
shared purpose of making America safer. No one has been angrier
or more determined than the President. He did not respond with
denial and obfuscation, but instead came forward to identify
failures and correct them.
Let this not be a setting where we are looking for partisan
advantage. We are all Americans; we are all in this together.
Every one of us as members and virtually everybody in this room
fly often. Passions and politics'' should not obscure or distract us. We should all do our part. As the President said recently in announcing the immediate actions he had ordered: Instead of giving in to cynicism and division, let's move
forward with the confidence and optimism and unity that define
us as a people. For now is not a time for partisanship, it's a
time for citizenship--a time to come together and work together
with the seriousness of purpose that our National security
demands.''
I was here after 9/11. I saw Republicans and Democrats come
together to work together with the President to find out what
went wrong and to make sure it did not happen again. That is
what we need to do today.
Our witnesses today are public officials. They are not
adversaries. They each share with us a common purpose, as the
President said, to prevail in this fight...to protect our country and pass it--safer and stronger--to the next generation.'' In the aftermath of the Christmas Day plot as well as the Fort Hood tragedy, it can be tempting to forget that it is always easier to connect the dots in hindsight. It was not our intelligence agencies that first raised the alarm about the suspect who tried to blow up the Northwest Airlines flight. It was the suspect's own father, a Nigerian, who turned him in. Our response to the incident has to be swift but also thoughtful. It may be tempting to take reflexive actions, but to do so will only result in the unnecessary denial of visas to legitimate travelers and the flooding of our watchlists such that they become ineffective tools in identifying those who would do us harm. We want to stop real people who may do us harm, not 8-year-old children. A one size fits all'' mentality will only ensure that we
will miss different threats in the future. We cannot hunker
down and hide behind walls of fear and mistrust. We should not
let our response to the incident provide another recruiting
tool for terrorists, and we have to be smarter than that.
Finally, this morning, the Inspector General released a
report a few minutes ago detailing the misuse of so-called
exigent letters by the FBI to obtain information about U.S.
persons. The report describes how the FBI used these exigent
letters without proper authorization to collect thousands of
phone records, including in instances where no exigent
conditions existed. The report also details how the FBI then
compounded the misconduct by trying to issue national security
letters after the fact. This was not a matter of technical
violations. If one of us did something like this, we would have
to answer to it. This was authorized at high levels within the
FBI and continued for years. I understand, Director Mueller,
that the FBI has worked to correct these abuses, but this
report is a sobering reminder of the significant abuse of this
broad authority. No one is above the law--no Senator and no
member of the FBI. And there has to be accountability for what
happened here.
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, and I would join with you in your comments about the tragedy in Haiti and hope that we in a unified effort in Congress can do all possible to assist in that tragedy. It was on Christmas Day that America was reminded that the war on terror is still being waged and that our enemies will stop at nothing in their efforts to destroy our country. But for the bravery of passengers and crew aboard Northwest Flight 253 and a defect in the bomb, close to 300 innocent people could have been murdered. Make no mistake, this was another act of terrorism, another act of war. And now it appears clear that our intelligence officials had gathered enough information to stop Mr. Abdulmutallab from boarding the plane. In reality, it was our enemies' poor bomb-making skills, luck, and the courage of passengers and crew that saved that flight. The problem arose from a lack of action on available intelligence. Was it the result of policies arising from a hesitation to interfere in one person's travel plans? Or, was it a failure to connect the dots? Was it an individual failure somewhere, or a systemic failure? Perhaps all. It is clear that 8 years after September 11, 2001, there are still holes in our counterterrorism system. Al Qaeda has openly declared war on our country. They have attacked us and are still attacking us. This administration cannot wish that reality away, and I do not think they intend to. The threat cannot be negotiated away. What we must do is acknowledge this reality and work to both interrupt the attacks and destroy the organizations that are at war with us. It is a different kind of war, but a real war nonetheless. This hearing can help us get insight into the failures that occurred and what we need to do in the future. But until the administration and Congress fully acknowledges the reality of the enemy, I do not think we will be fully effective. The work of the 9/11 Commission unified our Nation behind the idea that preventing acts of war by traditional law enforcement techniques would not be effective. They declared we should treat this danger with a new understanding of war. The sad truth is that the administration tends to view this conflict wrongly as a law enforcement matter now, retreating from that national decision I thought we reached. Now we have a policy that presumes captured terrorists here and abroad will receive a trial in our civilian courts, be given Miranda warnings, be given court-appointed attorneys, not be subject to interrogations, and have rights to repeated court appearances and speedy trials, regardless of whether they might possess critical information concerning further deadly attacks that might be planned. This is what civilian trials mean. This is how they are conducted. As Attorney General Holder testified, civilian trials are not required in these cases by the law or the Constitution. And I would note that in no war, to my knowledge, has any nation has ever allowed the enemy to use their own courts to further the enemy's efforts to destroy that nation. This is not a case about whether there were red flags. The terrorist's father personally went to the U.S. embassy to raise a red flag. The would-be attacker bought his plane ticket with cash. He checked no luggage. He reportedly was known to have communicated with terrorists in Yemen. According to press reports, our intelligence agencies intercepted messages referring to ``the Nigerian,'' Mr. Abdulmutallab. So this case is one where our own intelligence commuity had information. People at risk in the far corners of the globe got valuable information. So we have preliminary information that suggests that the authorities were aware of this terrorist and had ample cause to stop and question him and deny him the right to board that plane. We cannot defeat al Qaeda through half steps, Miranda warnings, minimization procedures, and Inspector General reports. This is not the time for the Government to erect new barriers between the intelligence and law enforcement agencies. We understood that was a mistake before. Nor is it time to add more bureaucratic red tape, new reporting requirements, or unnecessary safeguards which do nothing more than hinder the ability to thwart the next shooting, the next bombing, the next 9/11. We should use every lawful power and tool we have to protect this Nation. This war was declared by al Qaeda and its terrorist allies long before September 11th, before Guantanamo Bay. Guantanamo Bay did not cause these terrorist attacks. This war started long before we invaded Afghanistan, before the drone attacks and before the fall of Saddam Hussein. This is a war that began to take shape in the early 1990s when al Qaeda attacked various U.S. facilities here and abroad. Unfortunately, it is a war which will continue, I have to say, for some time, for some years. And it is imperative that our intelligence and counterterrorism professionals have what they need on the front lines to disrupt the next terror plot and thwart the enemy at every turn. Rather than putting more bureaucratic hurdles on our intelligence agencies through a weakening of the PATRIOT Act, we should be looking to cut the red tape, strengthen their ability to stop the next airline bomber promptly before he gets a visa or is allowed to board a plane. We need to get this right. I appreciate the willingness of all the administrative witnesses to testify. I especially appreciate the presence of Director Mueller, who took a hard look 8 years ago at some of the warning signs that were missed before September 11th and address the reforms, good reforms, in the FBI. Through his testimony and experience and the testimony of Mr. Kennedy and Mr. Heyman, I hope we will be able to come to a consensus that we must give our investigators the tools and flexibilities they need to prevent further attacks on our country. Thank you, Mr. Chairman, and I am glad we are having the hearing. I know the Homeland Security Committee, I think, is also having one, and I believe it will help the American people feel that we are responding to the concerns that I know they are feeling. Chairman Leahy. Well, thank you, and I think the American people also expect us to work together on responding to these issues. I am going to ask each witness--I know you have long statements. The whole statement will be placed in the record. I am going to ask you to limit your time to the time that has been suggested to you because, as you can see, we have a lot of Senators, and I want to give every Senator the opportunity to ask the questions they want. We will begin with Robert Mueller, the sixth Director of the Federal Bureau of Investigation. Prior to that, he had a long and distinguished record at the Department of Justice, including serving as U.S. Attorney for the Northern District of California. Please go ahead.
STATEMENT OF THE HON. ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Mueller. Thank you, Mr. Chairman, Senators, Senator Sessions in particular. I am pleased to be here today. And before I begin, as did you, Mr. Chairman, I would like to take a moment on behalf of the men and women of the FBI to extend our condolences and support to the people of Haiti and to all of those who have lost family and friends from the devastating earthquake last week. The FBI is providing assistance to the rescue effort, but we are also focused on making sure that fundraising efforts are not tainted by fraud and that we are doing everything possible to ensure that funds raised for the relief in Haiti are legitimately going to support the victims of the earthquake. Now, let me turn to the subject of today's hearing, if I might. As recent events have made clear, terrorists remain determined to strike the United States. The FBI has transformed itself in recent years to meet our responsibilities to deter, detect, and disrupt these terrorist threats. We have improved our intelligence capabilities and created the administrative and technological structure needed to meet our national security mission. We are now a full partner in the intelligence community, and we, too, must consistently collect, analyze, and disseminate intelligence to those who need it. As has often been said, today we share information by rule and withhold by exception. Meeting these threats, however, requires continued vigilance and improvements on the FBI's part and on the part of every member of the intelligence community. Let me take a moment to address the evolving threats we have seen over the past several years. We not only face the traditional threat from al Qaeda but also from self-directed groups not part of al Qaeda's formal structure. We face threats from homegrown extremists, those who live in the communities they intend to attack, and who are often self-radicalized and self-trained. We also face threats from individuals who travel abroad to terrorist training camps in order to commit acts of terrorism overseas or to return home to attack America. And these threats continue to change and evolve as extremists are now operating in new sanctuaries around the world as al Qaeda and its offshoots are rebuilding in Pakistan, Yemen, and the Horn of Africa. While the terrorist threat has not diminished, together with our intelligence community partners we have disrupted a number of plots over the past year. We have learned a great deal from these cases, both about the new emerging threats and how to stop them. Let me offer several examples. In May, four individuals in New York, some of whom met and were radicalized in prison, were arrested for plotting to blow up Jewish synagogues and to shoot down military planes. In July, a group of heavily armed extremists in North Carolina were arrested for making plans to wage jihad overseas after traveling to terrorist training camps. In September, on the eve of September 11th, a Colorado resident was arrested in New York for planning to set off a bomb after having received detailed bomb-making instructions from Pakistan. That same month, two self-radicalized loners--one in Springfield, Illinois, and one in Dallas, Texas--were arrested for attempting to bomb a Federal courthouse and a downtown office tower in those respective cities. And weeks later, a Chicago resident was arrested for his role in planning a terrorist attack in Denmark and assisting in the deadly 2008 Mumbai attacks. And, of course, the killing of a young Army recruiter in Arkansas in May and the tragic shootings at Fort Hood in November are stark examples where lone extremists have struck military here at home. Last year's cases demonstrate the diversity of new threats we face. Some involve self-radicalized terrorists influenced by the Internet or their time in prison. Others receive training or guidance from known terrorist organizations abroad either in person or over the Internet. And the targets of these attacks range from civilians to Government facilities to transportation infrastructure and to the military both in the United States and overseas. On Christmas Day, the attempted bombing of Northwest Flight 253 has made it clear that the threat of attack from al Qaeda and its affiliates continues to this day, and we can and must do more in response to these threats. As directed by the President, the FBI has joined with our partners in the intelligence and law enforcement communities to review our information-sharing practices and procedures to make sure such an event never happens again. For the FBI, the President has directed a review of the visa status of suspected terrorists on databases at the Terrorist Screening Center and asked for recommendations for improvements to the protocols for watchlisting procedures at the TSC. Together with our intelligence community and law enforcement partners, we will learn from and improve our intelligence systems in response to the Christmas Day attack. Now, Mr. Chairman, you mentioned the exigent letter issue, and let me address that as well. Let me start off by saying that we take the issues raised by the Inspector General exceptionally seriously, and we have since he first undertook a review a number of years ago. At the outset, it is important to understand that the records obtained were telephone toll records and not the content of conversations. And, second, exigent letters have not been used since 2006. As I stated in 2007, when the Inspector General first reported on the FBI's use of exigent letters, the FBI had substantial weaknesses, substantial management and performance failures in our internal control structure as it applied to obtaining telephone records. And since that time we first became aware of this, we have reformed our internal controls and developed an automated program that together with changes in policy and training substantially minimizes any errors. On this issue, I would like to insert one quote from the report that summarizes what we have done since 2006. And the IG states: ``It is important to recognize that when we uncovered the improper exigent letter practices and reported them to the FBI in our first NSL report, the FBI terminated those improper practices and issued guidance to all FBI personnel about the proper means to request and obtain telephone records under the ECPA.'' He goes on to say that that does not excuse--and I agree with him--does not excuse the improper use of exigent letters and the ineffective and ill-conceived attempts to cover them with other NSLs. Chairman Leahy. Thank you, and the rest of the statement will be placed in the record. We will probably be going back to this issue during the hearing. [The prepared statement of Mr. Mueller appears as a submission for the record.] Chairman Leahy. Our next witness will be Patrick F. Kennedy, who is Under Secretary of State for Management, a career minister in the Foreign Service. Under Secretary Kennedy oversees the Bureau of Consular Affairs and is the Secretary's principal adviser on management issues. Mr. Kennedy, please go ahead, sir.
STATEMENT OF HON. PATRICK F. KENNEDY, UNDER SECRETARY FOR MANAGEMENT, U.S. DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Kennedy. Thank you very much. Chairman Leahy, Ranking Member Sessions, and distinguished members of the Committee,
thank you for the opportunity to appear before you today.
As Secretary Clinton stated following the attempted bombing
of Flight 253, we all are looking hard at what did happen in order to improve our procedures to avoid human errors, mistakes, oversights of any kind...and we are going to be working hard with the rest of the administration to improve every aspect of our efforts.'' We acknowledge that errors were made and that processes need to be improved. Here are the steps we have already taken. The Department of State misspelled Umar Farouk Abdulmutallab's name in a Visas Viper report. As a result, we did not add the information about his current visa in that report. To prevent this, we have instituted new procedures that will ensure comprehensive visa information is included in all Visa Viper reporting that will call attention to the visa application and issuance material that is already in the databases that we share with our national security partners. Chairman Leahy. With the forbearance of my colleagues, why can't you have something--if you go on a Google search or you go on a Yahoo search and you type in a name, the computer will automatically ask you, Did you mean . . .? '' and it will put
three or four other ways of spelling it. Why wouldn't that be a
relatively simple thing to do?
Mr. Kennedy. That is correct, Senator. When an applicant
appears before us, we already have that software installed on
our application screening process. If we put in the name
Kennedy and we misspell it, it will come back K-E-N-N-E-D-Y, K-
E-N-E-D-Y, K-N-N-D-Y. We had not loaded that software into the
database to check on already issued visas because we were
looking for a specific known commodity. We are in the process
of changing that.
We have also evaluated the procedures and criteria used to
revoke visas. The State Department has broad and flexible
authority to revoke visas, and we regularly use that power.
Since 2001, we have revoked 51,000 visas for a variety of
reasons, including over 1,700 for suspected links to terrorism.
In an ongoing effort with our partner agencies, new
watchlisting information is continually checked against the
database of previously issued visas. We can and will revoke
visas without prior consultation in circumstances where an
immediate threat is recognized. We can and do revoke visas at
the point of people seeking to board an aircraft, preventing
their boarding. In coordination with the National Targeting
Center, we revoke visas under these circumstances almost daily.
We are standardizing procedures for triggering revocations from
the field, and we are adding revocation recommendations to our
Visa Viper report. We have scrubbed our databases and reviewed
information in coordination with our partner agencies.
In our data scrub since December 25th, we have reviewed the
names and all prior Visa Viper submissions. We have re-examined
information in our Consular Lookout database on individuals
with potential connections to terrorist activities or support
for such activities. In these reviews, we have identified cases
for revocation and have also confirmed that substantial numbers
of these individuals hold no visas and few ever did. And for
the few who did, many were revoked prior to the current review.
We recognize the gravity of the threat and are working
intensely with our colleagues from other agencies to ensure
that when the U.S. Government obtains information that a person
may pose a threat to our security, that person does not hold a
visa.
At the same time, expeditious coordination with our
national security partners is not to be underestimated. There
have been numerous cases where our unilateral and uncoordinated
revocation of a visa would have disrupted important
investigations that were underway by one of our National
security partners. They had the individual under investigation,
and our revocation action would have disclosed the U.S.
Government's interest in that individual and ended our
colleagues' ability, such as the FBI, to pursue the case
quietly and to identify terrorists' plans and co-conspirators.
We will continue to closely coordinate our revocation
processes with our intelligence and law enforcement partners.
Information sharing and coordinated action are foundations of
our border security systems put in place over the past 8 years.
We believe that U.S. interests in legitimate travel and
trade promotion, as the Chairman mentioned, and educational
exchange are not in opposition to our border security agenda
and, in fact, further that agenda in the long term. We will
continuously make enhancements to the security and integrity of
the visa process. As we continue to do this work, we take a
comprehensive review.
The Department has close and productive relationships with
our interagency partners, and particularly the Department of
Homeland Security, which has authority for visa policy. The
State Department brings unique assets and capabilities to this
partnership. Our global presence, international expertise, and
highly trained personnel bring us singular advantages in
supporting the visa function throughout the world. We have
developed and implemented an extensive screening process
requiring personal interviews and supported by a sophisticated
global information network. This front line of border security
has visa offices in virtually every country staffed by highly
trained, multilingual, culturally aware personnel of the State
Department. We have embraced a multilayered approach to border
security which gives multiple agencies an opportunity to review
information and require separate reviews at both the visa and
admission stages. No visa is issued without being run through
security checks against our partner databases, and we also
screen applicants' fingerprints against U.S. databases as well.
We take our partners' consideration into every effort that we
make. We fully support the visa security program of the
Department of Homeland Security and work closely with them in a
dozen countries.
This multi-team effort to which each agency brings its
particular strengths results in a more robust and secure
process with safeguards and checks and balances. It is based on
broadly shared information and is a solid foundation on which
to build our border security future. We are past the era of
stovepiping data, but there is clearly more work to be done. We
are doing that work now and planning future improvements as we
continue our review.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Kennedy appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Secretary Kennedy.
David Heyman is the Assistant Secretary for Policy at the
Department of Homeland Security. He previously served as
Director of the Homeland Security Program of the Center for
Strategic and International Studies, also served as a senior
adviser to the U.S. Secretary of Energy, the White House Office
of Science and Technology Policy.
Secretary Heyman, thank you for being here. Please go
ahead, sir.
STATEMENT OF HON. DAVID F. HEYMAN, ASSISTANT SECRETARY FOR POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC
Mr. Heyman. Thank you, Chairman Leahy, Senator Sessions, and distinguished members of the Committee. I appreciate the opportunity to testify. Let me just start by echoing the sentiments regarding the tragedy in Haiti. This tragedy is of epic proportions, and the men and women at the Department of Homeland Security, Coast Guard, FEMA, and across the Department are working around the clock to support the international effort for the people of Haiti. As President Obama has made clear, we are, all of us, determined to find and fix the vulnerabilities in our systems that allowed this attempted attack to occur. Our country's actions against terrorism require a multiagency, multinational effort to include the intelligence community, the Defense Department, DHS, the agencies here today, as well as efforts of our international allies. Our aviation security relies on partnerships among the U.S. Government, the airline industry, and foreign governments. These partnerships must all come together when an individual seeks to travel to the United States. To board a plane, there are effectively three key requirements: An individual must retain proper documentation to include a passport, visa, or travel authorization, a ticket and boarding pass. That individual must pass through checkpoint screening to ensure that he is not concealing a weapon or other dangerous material on his person or in his baggage. And, third, the individual must be cleared through a pre- flight screening process that seeks to determine if that individual poses a threat and, thus, could be denied permission to fly. Within that travel process, let me briefly describe the DHS role. First, to accomplish pre-flight screening, the Department of Homeland Security is one of the principal consumers of the terrorist watchlist, which includes the no-fly list. We check against it and use it to keep potential terrorists from boarding flights and to identify travelers who should undergo additional screening. Second, within the United States, to prevent smuggling of weapons and other dangerous materials on planes, DHS performs the physical screening at airport checkpoints and provides further security measures in flight. Outside the United States, DHS works with foreign governments and airlines to advise them on required security measures for flights bound to the U.S. as well as on which passengers may prove a threat. TSA does not, however, screen people or baggage at international airports. I have submitted a longer written statement describing the various DHS programs that work to keep terrorists from boarding planes, but regarding the attempted attack on December 25th, Umar Farouk Abdulmutallab should never have been able to board a U.S.-bound plane with explosives. The interagency process to fix the vulnerabilities highlighted by this attack is well underway. As a consumer of the watchlist information, DHS welcomes the opportunity offered by this process to contribute to improving the Federal Government's ability to connect and assimilate intelligence, and we are working with the FBI, ODNI, and NCTC on that. We are also focused on improving aviation screening and expanding international partnerships to guard against a similar type of attack. I have just personally returned from a 12-day trip of consultations with key partners abroad. In terms of the DHS role, though, the bottom line is that Abdulmutallab was not on the no-fly list, which would have flagged him to be prevented from boarding; nor was he on the selectee list, which would have flagged him for secondary screening. Furthermore, the physical screenings that were performed by foreign authorities at airports in Nigeria and in the Netherlands failed to detect the explosives on his body. Immediately after the attack, DHS took a number of immediate steps to secure incoming and future flights to include directing FAA to alert 128 incoming flights of the situation, increasing security measures at domestic airports, implementing enhanced screening for all our international flights coming to the U.S., and working with State and local air carriers to provide appropriate information. In the report to the President regarding this attempted attack, the Department has outlined five key areas of action that we are now addressing. First, as the incident underscores, aviation security is increasingly an international responsibility. That is why Secretary Napolitano dispatched Deputy Secretary Lute and myself and other officials to meet our international counterparts on this issue. Today Secretary Napolitano is traveling to Spain to meet with her European counterparts for discussions on how to strengthen international aviation security measures. Second, DHS has created a partnership with the Department of Energy and its National Laboratories to use their scientific expertise to improve screening technology at airports. Third, DHS will move forward in deploying enhanced security screening technologies like advanced imaging technology and explosive trace detection machines to improve our ability to detect the kind of explosives we saw on the 25th. Fourth, we will strengthen the capacity of aviation law enforcement, including the Federal Air Marshals Service. And, finally, as mentioned earlier, we will work with our interagency partners to re-evaluate and modify the way the terrorist watchlist is created, including how names are added to the no-fly and selectee list. As the President has said, there is, of course, no foolproof solution, but there are many steps we can and are taking today to strengthen international aviation security. We face an adaptive adversary as we develop new screening technologies and procedures. Our adversaries will also seek new ways to evade them, as shown on Christmas Day. We must always be thinking ahead to innovate, improve, and adapt to the new emerging security environment, and I look forward to your questions to discuss this further. Thank you. [The prepared statement of Mr. Heyman appears as a submission for the record.] Chairman Leahy. Thank you. I still remain concerned, and, Secretary Kennedy, the State Department did not realize the suspect in the Christmas Day attempted bombing possessed a visa until after he initiated this action on the flight. The consular officer sent the first notice that was given to the National Counterterrorism Center, initially misspelled the name, as we have talked about. But within days, an amended notice was sent to NCTC with the corrected spelling. Why did the consular office not check the visa status of the Nigerian national at the time the second notice was sent? Mr. Kennedy. He did not do that, Mr. Chairman, because---- Chairman Leahy. I know he did not do it, but why not? Mr. Kennedy. Because the second message was launched from another source. Chairman Leahy. But why wouldn't--it may have been launched from another source, but why wasn't it checked? Mr. Kennedy. I cannot--because we did not have access at the embassy to that other reporting, Mr. Chairman, and we had entered his name in the incorrect spelling into the database that is our watchlist database, which was disseminated to all the appropriate agencies. We slipped up. I have no statement other than that, sir. Chairman Leahy. Thank you. Before I go into the Christmas Day attack, just to go back, Mr. Mueller, to some of the things you talked about, the Justice Department Inspector General report on the national security letters, the FBI essentially told those companies that got these letters that there was an emergency so that the company would give the records voluntarily, as we would expect them to do. And the letters they were given said a subpoena would follow. Of course, the subpoena did not follow. Often there was no emergency. And this goes beyond being a technical violation. These are records of Americans being obtained improperly, 2,000 telephone records. Has or will any FBI official be sanctioned or punished for these violations of the law? Mr. Mueller. Let me start by saying yes. This process started back in, I think it was, 2006 and initial reports were issued by the Inspector General. As a result of those reports, they were reviewed for discipline, and individuals have been disciplined for their participation in these series of issues. In this particular case, the report will go through our process, and we will look at the conduct and assign discipline as warranted. Let me also say I share with you the concern that this is information on American citizens that we had without following the appropriate protocols, in some cases where there was not an emergency, and we have put in place a process to go through every one of those numbers and determine whether we had a valid legal basis to retain that number, and where we did not, it was purged from our system. Chairman Leahy. Please let this Committee know what action is taken. I would note for the record you nodded yes on that. Mr. Mueller. Yes. Chairman Leahy. Now, what I worry about is the overinclusion of names on the no-fly list. You want to have the right names on there, but if you put every single possible name, in effect you have no names. You have such things as we saw last week in the New York Times, an 8-year-old boy who was on this list from the time he was an infant. He has been subjected to physical searches and patted down so much that the family does not want to fly. As his mother said, he may be a terrorist at home, but he is certainly not on an airplane. And it would be humorous except for what it causes to that family, but also what it says of the whole system when, complaint after complaint, the name stays on there. It is the same as the late Senator Kennedy, who was stopped numerous times because he was on the list. And even the President of the United States, President Bush, called him to apologize. He said it was not the President's fault. He just wanted to know how to get off the list, and he still did not get off the list for some time. I think we have to be looking first and foremost at our analysis and say what puts somebody on there. How do we go about, No. 1, making sure we have the right person on there but, second, that we now do not so overinflate the list that legitimate travelers, business people, students, just the average American suddenly finds themselves on a list and unable to travel? Mr. Mueller. Well, it is, on the one hand, a delicate balance. As we have seen in the Christmas Day plot, a name can be misspelled by one letter, and you will miss them. On the other hand, there are basically two precautions that are taken to assure we have the right person. For almost all of these lists, particularly the ones where it results in a stopping at an airport or at a no-fly list, it requires not just the name but an identifier, date of birth, something else that identifies it, as opposed to just the name. Second, the other aspect of it is there is a redress process. If a person is no-fly, there is a redress process that DHS maintains so that---- Chairman Leahy. Let me interrupt that. A date of birth, this 8-year-old first went on there when he was about a year old. Somebody looking at the list would say he is on there, he was born last year, and he is now on a terrorist watchlist. I mean, somebody---- Mr. Mueller. I cannot explain what happened with the 8- year-old any more than I could have explained to Senator Kennedy how he had gotten stopped. Chairman Leahy. I am sure. But, you know, I told him it was because he was Irish and they all know him. But you heard what Secretary Kennedy said. You have a list over here and you have a list over here. Who determines which agency carries the primary responsibility for a lead that touches several agencies? You might have input from State, NCTC, DHS, and other agencies? Mr. Mueller. Well, when it comes to international terrorism, the contributions, nominations on international terrorism go to the National Counterterrorism Center. It can be an international terrorism case developed by the CIA, DIA, NSA, or even ourselves. It goes to the National Counterterrorism Center. The National Counterterrorism Center makes the determination as to which lists the individual will be nominated to, whether it be the no-fly, the selectee, or the Terrorist Screening database. For domestic terrorists, it is the FBI that makes the recommendation to the Terrorist Screening Center as to who should go on that list. It is screened by both. The contributing agency and the National Counterterrorism Center screens it. Then the National Counterterrorism Center screens it itself. Then finally the Terrorist Screening Center does a follow-up screening to assure that there is sufficient identifying data and that the information putting the person on that list supports the criterion for being placed on that list. Chairman Leahy. I have gone over my time. I obviously have a lot more questions, and I do not want to interrupt others. We will go through these questions, and you and I may want to spend some time later in the week. And I am showing a list of testimony that I am going to submit for the record, a long list, and that will be submitted for the record. I am showing it to Senator Sessions. [The prepared statement appears as a submission for the record.] Chairman Leahy. Senator Sessions, over to you. Senator Sessions. Thank you. Briefly, I guess, Mr. Mueller, I will ask you, the NCTC, the center that maintains the list, do you think we can do better about getting people off the list? I heard somebody on a talk show the other day who said he was born here, his family is from Lebanon, but he keeps getting stopped. Mr. Mueller. Yes, in some sense, yes. If you have got people who do not belong on the list, they should be gotten off the list for a variety of reasons. It interferes with their right to travel---- Senator Sessions. And who would be responsible for that? Is that the NCTC? Mr. Mueller. NCTC in terms of international terrorism, yes. But also DHS in terms of the redress process. When somebody files a complaint that they should not be on the list, it is then handled principally by DHS. But generally you want to have on those lists--as many persons who meet that criterion should be on that list because it is protection against terrorist attacks in the United States. Senator Sessions. I could not agree more, and people in this world have--a lot of people have the same name, and it is difficult to know. And one of the reasons we are here complaining is because somebody did not get on the list. But, Mr. Heyman, I think you should look to see how a person who can prove that they may have the same name as a dangerous person can somehow not be given as much burdens at the airport as otherwise would be the case. Mr. Heyman. Senator, there is a one-stop-shop website that was developed for redress purposes, www.dhs.gov/trip, and anyone who has concerns that they are inappropriately on a watchlist should go there. There is an adjudication process. The Department through the interagency process has adjudicated 56,000 people at this point. Senator Sessions. I don't think--I just would say I do not think we need to have proof beyond a reasonable doubt that a person is a terrorist before they go on the list. What is the burden normally we would have there? It should not be too high. Mr. Mueller. It is reasonable suspicion that the person is either assisting, participating, or supporting terrorists. Senator Sessions. Are you satisfied that is the sound standard? Mr. Mueller. We are looking at the standards and seeing their application across various potential threats. But it has worked well in the past, and at this point, without further discussion, I am satisfied with that. I believe it is a low enough standard---- Senator Sessions. We are not putting them in jail. We are just simply confronting them before they get on an airplane. Mr. Mueller, after being dispatched by an al Qaeda affiliate in Yemen to blow up hundreds of civilians in an airline bombing, Umar Abdulmutallab was charged via a criminal complaint within 24 hours of the landing of Northwest Flight 253. He was reportedly given Miranda warnings shortly after being arrested, including being advised he had the right to remain silent and he was entitled to a lawyer. First, who made the decision that Abdulmutallab was going to be treated as a criminal rather than an enemy belligerent? Mr. Mueller. Well, let me preface this by saying, as I am sure you are aware, this is in litigation, but I think I can talk generally about what happened and not interfere with the ongoing litigation. Abdulmutallab was arrested on the plane after these incidents. There was no prior discussion. He was handed over, I believe, by the personnel on the plane to CBP, who originally had custody of him. He was taken to a hospital in which the FBI took custody of him. And it happened so fast that there was no time really at that point where the transfer was made very quickly given the moving circumstances to determine whether alternative arrest could or should be made. Senator Sessions. Well, who made the decision that he would be treated as if he were a criminal to be tried in civilian courts and be provided Miranda warnings? Who? Mr. Mueller. Well, the decision was to arrest him, put him in criminal courts. The decision was made by the agents on the ground, the ones that took him from the plane and then followed up on the arrest---- Senator Sessions. Well, this is a very big issue. So the decision was made by agents on the ground based on some protocol or some policy that they understood? Mr. Mueller. Based on an ongoing, very fluid situation in which they were trying to gather the facts and determine what culpability this individual had. But as important as determining the culpability of this individual is what other threats were out there that needed to be addressed. Senator Sessions. Well, surely you recognize--I know you do--that there are great differences between trying a person in military commissions. In fact, I was able to work on legislation and get language in that said anyone ``a part of al Qaeda at the time of the alleged offense was per se an unprivileged criminal combatant, enemy combatants, subject to military commissions and indefinite detention'' as long as we have a conflict with al Qaeda. And so this was a big decision. Immediately, I assume, the lawyer advised his client not to talk. Mr. Mueller. Well, without getting too much into the details, in this particular case the agents interviewed him for a period of time for any information relating to ongoing and other threats. Senator Sessions. Before or after a Miranda warning was---- Mr. Mueller. Before Miranda warnings were given. Senator Sessions. Well, that is pretty dangerous because anything he said during that time is not admissible in a civilian court, is it? Mr. Mueller. That is correct. Senator Sessions. So if he confessed---- Mr. Mueller. Well, I take that back. I take that back. As I am sure you are aware, there is a limited exception for emergency situations in the case called Quarles where---- Senator Sessions. But with regard to your agents, it seems to me you have a policy that these kinds of individuals will be tried in civilian courts rather than military commissions. That has ramifications because it is going to reduce, I think you would agree, the likelihood of intelligence being gathered. One of the things we learned from the 9/11 Commission is that intelligence saves lives, and we need to gather intelligence. That is not the motive of the criminal justice system generally in America. It is to prosecute criminals. So I think this is a serious matter. Are you satisfied that you have a clear understanding, a national policy about how these people should be treated once they are apprehended? Mr. Mueller. Well, I do believe---- Senator Sessions. It sounds to me like the guys on the ground just made a decision on the fly. Mr. Mueller. There are decisions made whether or not to arrest somebody, and our arrest powers are dependent upon---- Senator Sessions. Arrest powers, that is not a problem. Were you contacted about whether or not this individual should be treated as an unlawful enemy combatant---- Mr. Mueller. No. Senator Sessions.--or a civilian criminal? Mr. Mueller. No. Senator Sessions. So the decision was made below your level. Mr. Mueller. Well, that does not mean the decision can be taken--that does not mean the decision can or should not be taken later if one wants to go otherwise. But in this particular case, in fast-moving events, decisions were made, appropriately, I believe, very appropriately, given the situation---- Senator Sessions. I do not think you can say it is appropriately. We do not know what that individual learned while he was working with al Qaeda, and we may never know because he now has got a lawyer that is telling him to be quiet. Chairman Leahy. Senator Sessions, for one thing, let him finish answering the question. The fact is, of course, if you are talking about him going to a military commission, he would have been given a lawyer in a military commission. Military commissions had, I think, three convictions. The courts have had hundreds of convictions of terrorists. Senator Sessions. I do not think they are given lawyers who tell them to remain silent initially. If they are going to be tried in a trial by a military commission, they are given a lawyer. I think this is a matter of serious import. I do not think we have clarity of rules, and I believe we have got to get it straight. And I believe these people will be better tried in a military commission for a lot of reasons, one of which is the gaining of intelligence. My time is up, Mr. Chairman. Chairman Leahy. I might say to the distinguished Senator from Alabama, he, like I, was a prosecutor. Do you think any prosecutor is going to have to worry about what was said by somebody who tried to ignite a bomb and was stopped by several eyewitnesses? I do not think they are going to have to rely too much on a confession from them. Senator Sessions. Well, just in response to your question--
Chairman Leahy. Let us be serious for a moment.
Senator Sessions. In response to your question to me, it is not just the ability to prosecute this individual, but whether
if he were properly interrogated over a period of time we may
find out that there are other cells, other plans, other
Abdulmutallabs out there boarding planes that are going to blow
up American citizens.
Chairman Leahy. Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Director Mueller, how many people are on the no-fly list,
approximately? Is it being expanded now? What is the----
Mr. Mueller. We are generally hesitant to give the full
numbers. I would say several thousand.
Senator Kohl. And are you anticipating----
Mr. Mueller. Hesitant to give it in open session. That is
what I am saying.
Senator Kohl. I understand that. Are you anticipating that
list is going to be expanded?
Mr. Mueller. There are discussions, and there have been
some expansions, yes.
Senator Kohl. All right.
Mr. Mueller. And, again, that can be part of a briefing as
to what activities have taken place, particularly since
Christmas Day.
Senator Kohl. All right. Director Mueller, clearly there
are flights into the United States from hundreds of airports
all around the world, and these airports are under the
direction and supervision of other governments. I assume some
of them do a better job, some of them do not do as good a job.
For example, according to what we hear, in Israel they do a
terrific job of screening people before they board flights.
What kind of a problem is dealing with other countries to
be sure that their security measures at their airports
originating flights into the U.S. are sufficient?
Mr. Mueller. I would be happy to try to answer, but I
actually think my colleague Mr. Heyman from DHS would be more
familiar with this than I am.
Senator Kohl. All right. Mr. Heyman, go ahead.
Mr. Heyman. Thank you, Senator. The standards by which
international airport security are the ICAO standards, which is
the international body for developing security regimes for
aviation across the globe. Countries are required to meet ICAO
standards for the last point of departure to the United States.
TSA does audit those countries to ensure security standards are
met. But you are absolutely right, the ability to meet those
standards varies from country to country, and I think as we
look forward, one of the things we are looking at in terms of
discussions with our international partners is the ability to
help build the capacity around the globe for the right level of
security.
Senator Kohl. Well, it seems to me that is a crucial
element of this whole discussion we are having, how well do
they do their jobs in other countries and at other airports. I
would not be surprised that there may be airports around the
world that should not be allowed to originate flights into the
United States because of their lack of proper security
implementation. Wouldn't you imagine that might be true?
Mr. Heyman. Well, in order for a carrier to travel from a
country abroad, from a last point of departure abroad to the
United States on a direct leg to the United States, they have
to meet the ICAO standards, and they have to meet TSA audit
requirements. And the Department audits last points of
departure--there are about 245 of them--to the United States
every year, and if an airport or carrier do not meet the
standards, they are given an opportunity to address those
concerns, or the flights are discontinued.
Senator Kohl. I have never heard about an airport that has
been cited and disallowed from originating flights into the
United States because of lack of proper security observations,
and I would suggest that there must be some serious issues
relating to airports that are not doing the proper job of
screening prior to originating flights into this country. My
common sense tells me that that is very possibly true. What do
you think?
Mr. Heyman. I can tell you that of the 245 last points of
departure to the United States, the TSA has audited them on a
regular--does audit them on a regular basis to ensure the
safety and security of flights emanating from those points of
departure. Other cities that may be interested in direct
flights to the United States would have to go through the ICAO
standards and the TSA review, and if they were not able to meet
them, they would not be permitted flights.
Senator Kohl. I would like to hear a little bit from you
all about body scanners, their use, their effectiveness, and
plans to expand them. What are some of the issues that we are
dealing with, Director Mueller?
Mr. Mueller. That is a little bit out of my bailiwick as
well. Again, I would defer to DHS.
Mr. Heyman. I would be happy to answer that question,
Senator.
Senator Kohl. Go ahead.
Mr. Heyman. There are a number of different ways in which
we provide security at checkpoints here in the United States
and that are considered abroad for screening passengers who may
be trying to conceal weapons or materials. The standard use of
a walk-through metal detector is what is the predominant
security feature around the world. In the United States, we
have a number of layers of defense, layers of security, to
include behavioral observation, canines, explosive detection
devices as well as other technologies. We are in the process of
deploying whole-body imaging, enhanced image technology. That
technology has the advantage of detecting non-metallic
substances such as powders or liquids, such as what was found
on Abdulmutallab on Christmas Day. So we are moving forward
rapidly to deploy additional scanners around the United States
on that.
Senator Kohl. I would like to get back to my question about
different airports in different countries. What is it about the
Israeli airport security system that has attracted as much
praise as it has over the years?
Mr. Heyman. Senator, that is one of the countries I just
visited and, in fact, did take a tour of their airport, Ben
Gurion Airport, and had briefings from security officials
there. They have addressed their security concerns through a
number of layers, including things that we do in the United
States, such as behavioral observation, the way that they
interview--the interview is critically important to
passengers--and the number of layers of screening, of targeting
potential terrorists as well as screening of baggage that may
be on board.
They also live in a very different environment, and I would
not compare their targeting necessarily to the United States. I
think they have a very different environment that they live in
and, thus, not necessarily transferable. But their layers of
defense is something that we have also adopted in the United
States and is what a lot of people talk about.
Senator Kohl. Finally, I would just make the observation
again that this is a worldwide issue, clearly, and I am
troubled by the thought that rating security, airport security
in different countries, if it were done very critically, would
probably disclose wide variances between the security
effectiveness implemented in different countries. And until we
do a better job of trying to coordinate as a world the security
systems in different countries, we will continue to be at great
risk. Would you agree with that?
Mr. Heyman. Senator, I do agree. I think one of the key
things we learned from this is that access to any airport in
the world gives you access to the entire international system.
This individual bought a ticket in one country, traveled to a
second country, transited through a third country to target a
fourth country. There were somewhere near two dozen
individuals, two dozen nationalities represented on that plane.
They traveled across a number of different countries. This is
an international problem, and that is why Secretary Napolitano
is heading to Europe tonight to meet with European counterparts
for discussions on enhancing international security. There will
be additional--the President has tasked the Department to
expand international cooperation in this realm.
Senator Kohl. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman.
I will start with Secretary Kennedy. The State Department
has indicated that it could not provide this Judiciary
Committee with a copy of the Christmas Day bomber's visa
application prior to this hearing because it was part of an interagency DOJ review process.'' However, the Justice Department indicated to my staff yesterday, just yesterday, that the State Department had not even provided a copy of the application to the Justice Department yet. I do not understand why the State Department would tell us that it was being reviewed by the Justice Department if the Justice Department says they do not have it. So since I do not want to trust just executive branch opinion about what is on this and what process it ought to go through, I want to know for myself what information did this bomber put on his visa application. Why shouldn't we conclude that the State Department is simply trying to hide behind the Justice Department criminal process in order to avoid or delay a full accounting of how this terrorist got into this country on your watch? But my big question is, second: When will we get a copy of this application? Mr. Kennedy. Senator, we are by no means attempting to hide behind this whatsoever. Senator Grassley. OK. Well, then, when will I---- Mr. Kennedy. I promise you that I will return to my office and I will have our staff contact the Department of Justice immediately, and if it is in, we will proceed from there, sir. We are not attempting to hide behind the Department of Justice. We carefully coordinate all our activities with the Department of Justice, and we will get back to you, sir. Senator Grassley. But they have got to have it in order to review it, and you told me it is being reviewed. I do not say you did, but the people in the agency said it is being reviewed. Mr. Kennedy. We will check with the Department of Justice this afternoon, sir. Senator Grassley. I would think the first thing to do would be to walk it over there so that they can have it. I would like to go on to another issue with the FBI Director. On January the 7th, President Obama directed the FBI to conduct a thorough review of Terrorist Screening database
holdings and ascertain current visa status of all known and
suspected terrorists, beginning with the no-fly list.''
This directive implies that there is a concern that the
State Department may have issued visas to individuals who are
known or suspected terrorists. However, the Christmas Day
bomber was not labeled a known or suspected terrorist. Instead,
he was given a lesser classification by the State Department as
what they referred to as a P3B, meaning he was a possible or
probable terrorist.
Has the FBI reviewed all records in the State Department's
CLASS system for individuals designated P3B, meaning possible
or probable known or suspected terrorist, to determine if any
of these individuals were issued a visa?
Mr. Mueller. My understanding, Senator, is that we have
taken the no-fly list and assured that the persons there do not
have visas. We have taken the selectee list and determined that
persons there do not have access to visas. And then with regard
to the much larger Terrorist Screening database, we are going
through that and making certain--at this time we are going
through that database and assuring that those persons do not
have visas.
It is from the Terrorist Screening database that the CLASS
system is populated with information on particular individuals.
So we feel that this way we are looking at the databases which
are handled by the Terrorist Screening Center, and what we are
doing will be redundant to what is being done by the State
Department as well as by the NCTC.
Mr. Kennedy. Senator, could I, with your----
Senator Grassley. Well, just a minute, and then I will be
glad to have you do that. Just in case you answered my
question, but I do not know for sure if you answered it, have
you reviewed P3Bs, then? And if you have not, do you intend to
do so?
Mr. Mueller. I am not personally familiar with P3Bs,
Senator, but I would be happy to----
Senator Grassley. Well, they are the possible or probable
terrorists.
Mr. Mueller. Is that a definition for--I am a little bit
lost. Is that a definition for populating a particular list?
Senator Grassley. It is my understanding it is. But now
maybe I ought to let Secretary Kennedy speak.
Mr. Mueller. He may be more versed in that.
Senator Grassley. Maybe you could have solved this for me,
but go ahead.
Mr. Kennedy. Yes, sir, Senator. Thank you. If I could just
give 1 second of context, every visa applicant who comes into a
United States embassy and applies for a United States visa, his
or her name is run against a complete database that includes
entries from the FBI, entries from Homeland Security, entries
from the Terrorist Screening Center, entries from DEA. We take
entries in from all these agencies daily and load them into our
database, and so no one who applies for a visa, no one is
issued a visa without a complete scrub against the full
interagency database. And, additionally, they are also scrubbed
against the complete DHS and FBI fingerprint sets of
individuals who are of concern to those agencies.
So we run this complete screen. Then anytime someone is
moved up, so to speak, on the screening list from either of our
partners within the national security community, that
information is immediately transferred to us. We then run that
new information against our list of issued visas to see if
those agencies have obtained new information that they had not
been made available to us earlier, and then we run that. And if
someone has moved up on that list, we then move to revoke those
visas immediately.
Last, on your question, sir, about the P3B, the P3B is a
category, when someone comes to our attention, we have concerns
about them, but it is not conclusive. We then immediately send
that information to our partners in the intelligence and law
enforcement community, but we put this P3B code in so that no
State Department officer at that post or anywhere else in the
world will issue that visa without doing a double-check with
our partner agencies.
After December 25th, we rescrubbed that with our partners
in the intelligence community and have canceled seven visas.
Senator Grassley. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman. I
would like to just make a couple of comments and then some
questions.
I think it has become pretty clear now that the airplane
remains a major explosive device. I think it is very clear that
there are going to be more attempts. This attack took place
over United States soil. I think the handling by the FBI is
entirely appropriate. And I would like to bring to this
Committee's attention the fact that the FBI has done excellent
interrogation in the past. A Subcommittee on which Senator Kyl
and I have participated has had former FBI agents testify going
back to the 1993 New York City bombings where the interrogation
done by the FBI really brought about convictions of a number of
people, including the blind sheikh, people who are serving time
in prisons in the United States who were part of trials here in
the United States. So I believe the handling of Mr.
Abdulmutallab is entirely appropriate, and I think people
should understand that.
I am concerned about the no-fly list. I believe the
definition of who would go on the no-fly list is highly
convoluted. It takes a Philadelphia lawyer to interpret. And I
have been told by Director Blair that it is being reassessed
and hopefully will be redone.
PETN is becoming the explosive of choice. I suspect we are
going to have more attempts using this explosive, and hopefully
it will not be perfected soon.
So let us go for a moment to the visas, and, Mr. Kennedy,
let me ask you: Were you saying in your testimony that there
will be an automatic revocation of visas for subjects of a Visa
Viper cable or a Terrorist Identities Datamart Environment, the
TIDE, entry? The answer is yes or no.
Mr. Kennedy. The answer is no for the reasons outlined in
my testimony, Senator. We receive information that causes us
great concern as the first line of national security. We send
that information to our partners in the FBI, our partners in
other law enforcement agencies, and our partners in the
intelligence community. We have been requested on numerous
occasions by those agencies not to revoke the visa because
there is an active investigation----
Senator Feinstein. Well, let me stop you there because I
know all about that, and I have some questions about that, but
that is for another Committee, and we will be taking that up on
Thursday. But those are not many, and I know the number of
people on the no-fly list. It seems to me that we ought to have
a process which assured revocation of a visa, and what I have
learned is that essentially it is very difficult to revoke a
visa.
Mr. Kennedy. Senator, it is not very difficult to revoke a
visa. If the FBI, Homeland Security, any other member of the
law enforcement and intelligence community comes to us--and we
get information from them every day which we run against our
records. If they come in and say that this individual is a
danger to national security, we revoke the visa immediately.
Senator Feinstein. So that is automatic. And where does it
have to come from, the automatic?
Mr. Kennedy. The Terrorist Screening Center at the FBI, the
NCTC, from the Department of Homeland Security. We receive
information from all our partners, and if they provide us with
information that says that this individual is a danger to
national security, we revoke that visa immediately.
Senator Feinstein. All right. I am happy to hear that.
As you know, Mr. Abdulmutallab was issued a multiyear,
multiple-visit tourist visa in June of 2008. Do you believe it
is in the United States' security interest to issue visas that
allow entries over several years or more than one visit to the
United States?
Mr. Kennedy. Senator, because we receive information every
day from our law enforcement and intelligence community
partners, we are able to revoke and cancel visas on any given
day if new information comes to our attention that says an
individual who was not a threat when we ran his or her
application against our partners' databases. If those
circumstances change and we are notified by the intelligence
community or law enforcement that this individual's
circumstances have changed, we then immediately revoke his
visa.
Senator Feinstein. All right. It just seems to me we still
have a lot of learning to do. This Committee had the consular
officers before it who gave visas to certain of the 9/11
hijackers, and those visas should not have been issued, in my
view. And I think we have really got to batten down the hatches
of who we give visas to. And I am about to go into the Visa
Waiver Program because, in my view, that is the soft underbelly
of this country, Mr. Heyman.
Mr. Kennedy. Senator, if I could add one thing with your
permission.
Senator Feinstein. Sure. Go ahead.
Mr. Kennedy. You are entirely correct. Before 2001, we were
not--we, the State Department, were not receiving sufficient
information from our intelligence community and law enforcement
colleagues. Since 2001, the number of data elements given to us
from our partners is up 400 percent. We now have a 27-million-
name list from the intelligence community, writ large, from the
law enforcement community, and from our own sources that every
single visa applicant's name is run against that database as
well as run against fingerprint databases from the FBI and
Homeland Security.
So there has been an absolute change from the point that
you spoke of in 2001 where we were not getting sufficient
information in order to have a data set to run against. We now
have that. As I said, it is up 400 percent since 2001.
Senator Feinstein. I appreciate that, and I thank you for
it.
Mr. Heyman, as you will probably know, I am not a fan of
the Visa Waiver Program. We now have 16 million people from 35
different countries who come in without a visa, and we do not
know if and when they leave. I believe it is the soft
underbelly of this country. I believe that if Mr.
Abdulmutallab, who went to school in Great Britain, in the
U.K., became a naturalized citizen of the U.K., he could have
had a visa waiver and come into this country without one. And I
think that is a real, real problem.
So let me ask you: What checks do we have that someone who
is denied a visa but is not put on a terrorist watchlist can
come into this country at a later date through the Visa Waiver
Program?
Mr. Heyman. Well, just to clarify, in the Visa Waiver
Program you do not need a visa, but there is a travel
authorization that is required, an advance travel authorization
that runs the same checks basically that a visa check would do.
It is also done--the same kind of cursive review of the
watchlist and things like that to revoke or refuse
authorization is done. And I understand your concerns about it,
but let me just say that the Visa Waiver Program includes a
number of additional enhanced opportunities for cooperation and
information sharing to include reporting of lost and stolen
passports, standardized passports, sharing of terrorist
screening information, sharing of criminal data information,
and recurring auditing or review that we have with these
countries to evaluate overall security, which we do not have
with non-visa waiver countries.
So there are a number of enhanced security measures that
actually supplement security in the VWP programs, and so I am
not sure I would agree with the characterization, but I
understand your concerns.
Senator Feinstein. Yes, and I am not sure I would agree
with what you said, so perhaps we can debate this or discuss it
separately.
Chairman Leahy. This debate could go on, and I am sure it
will. We are going to do--Senator Feingold is going to be next.
Then Senator Cardin is going to chair the hearing. I have to go
on the floor on a judicial nomination.
I have been making notes here. I think all of you are
probably going to be getting calls from me or my staff in the
next few days. There are an awful lot of follow-up things.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Thank you all for being here. I join all members of this
Committee in my horror at what happened on Christmas Day on the
Northwest flight from Amsterdam to Detroit. While the attempt
did not end in the tragedy that it could have, we must
understand how and why the bomber was able to board that flight
and what steps we can take to prevent the next such attempt.
But we must also approach our task calmly and thoughtfully and
not treat this as an opportunity to score political points.
Congress needs to work with the executive branch to find the
right answer to these questions and not just lay blame or take
actions that are politically expedient but ultimately
ineffective.
By all accounts, the President was right to characterize
this as a systemic failure, and I agree with him that some very
tough questions must be asked to repair and improve the
counterterrorism systems that are now in place. This is not the
time for excuses, nor is it the time for pointing fingers. It
is time to fix the problem, and that is exactly what will make
us safer.
Mr. Chairman, I would just ask that my full statement be
placed in the record.
Senator Cardin. [Presiding.] Without objection.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Senator Feingold. Thank you, Mr. Chairman.
First, I am concerned that the policy of enhanced screening
for all nationals from 14 countries will potentially harm our
relations with governments and populations that can be allies
in defeating al Qaeda and its affiliates and may not be an
effective use of limited resources. Can any of you tell me
whether a formal intelligence analysis has been conducted
assessing the value of blanket screening of all people who are
traveling from or through or are nationals of particular
countries, either generally or specifically with respect to the
recently designated 14 countries? Somebody.
Mr. Heyman. Sure. The designation of the countries was a
determination in consultation with the Department of State and
the Department of Homeland Security, as well as an assessment
of new and emerging threat information. Their recommendation
includes not just the enhanced screening of a number of foreign
nationals, but, in fact, the majority of any individual
traveling to the United States, to include U.S. citizens. So it
is not, in fact, a blanket across specific nations per se, but
enhanced screening for all individuals coming to the United
States.
Senator Feingold. Mr. Heyman, my question was whether there
was a formal intelligence analysis that had been conducted as a
part of this.
Mr. Heyman. The threat information was included in the
analysis for determining the enhanced screening procedures.
Senator Feingold. I am not certain that is the same. Could
you provide that analysis to Congress? Formal intelligence
analysis that led to these determinations.
Mr. Heyman. I will have to get back with you. I was not a
party of the discussions, but I will be able to follow up with
you after.
Senator Feingold. OK. Secretary Kennedy, what role did the
State Department play in helping to determine which countries
should be on the list? And how did the State Department handle
the responses it received from those countries once they were
notified?
Mr. Kennedy. Thank you, Senator. The Department of Homeland
Security presented the State Department right after the events
of Christmas Day with a list of countries that they said that
they believe that these areas needed enhanced screening. We
reviewed that list. There were a couple of countries we asked
questions about. The list was then approved by the State
Department because Homeland Security felt on the basis of the
information, as Mr. Heyman said, was sufficient that as an
interim step that needed to be taken immediately in order to
safeguard not only American citizens but nationals of other
countries boarding those aircraft as well. And so I know from
discussions that have taken place that the Department of
Homeland Security is continuing reviewing that list to
determine the best way to provide safe and secure aviation
movement because of the boarding--let us call it the boarding
process, if I could, Senator.
Senator Feingold. How did the State Department handle the
response it received from those countries once they were
notified that they were in this group?
Mr. Kennedy. We shared that information with the Department
of Homeland Security, and we are in discussions with them. Our
Office of Counterterrorism at the State Department works very,
very closely with the Department of Homeland Security, as does
the Aviation Division of our Economic and Business Bureau.
Those discussions are ongoing, but the primary responsibility,
as Mr. Heyman said in his earlier testimony, for surveying
airports and determining whether or not that airport is safe to
launch aircraft to the United States is the last----
Senator Feingold. But what I would like to be able to have
access to is the information about what happened when these
countries were notified and what their response was. This is
very relevant to the value and wisdom of doing this.
Mr. Kennedy. Senator, I will----
Senator Feingold. So can we get a briefing on it,
classified if necessary?
Mr. Kennedy. Yes, sir. We will be in contact with your
staff this afternoon to set something up for you.
Senator Feingold. Thank you.
Director Mueller, we have heard criticism this morning for
the decision to try Abdulmutallab in Federal court, and I am,
of course, a little mystified by this reaction given the
similarity of this case to the attempt by Richard Reid who was
prosecuted in Federal court by the prior administration, now
serving a life sentence. Some have argued the decision has
compromised our ability to obtain useful intelligence. But as I
understand it, and as Senator Feinstein touched on, there are
quite a few examples of people who have been charged with
terrorism-related crimes in Federal court and who have
cooperated with the U.S. Government.
Do you see any reason to treat this case differently from
the Richard Reid case? And has it been your experience that
alleged terrorists charged with crimes in Federal court often
cooperate with the Government and provide useful intelligence?
Mr. Mueller. Well, in a direct answer to the question, we
have had a number of cases in which, through the process, the
criminal justice process of the United States, individuals have
decided to cooperate and provided tremendous intelligence. That
is not to say that there may not be other ways of obtaining
that intelligence, but, yes, in answer to your question, the
criminal justice system has been a fount of intelligence in the
years since September 11th.
Senator Feingold. Thank you for that answer. Director, I
cannot finish without telling you how concerned I am, as I am
sure you know, about the new Inspector General report that came
out this morning, which you talked about, detailing rampant
illegality at the FBI with regard to obtaining phone records. I
know you have taken a number of steps previously to address
those issues, but the IG recommends much more, and DOJ and the
FBI need to provide Congress today with the new OLC opinion
that states what legal authorities the FBI has to obtain phone
records. Will you make sure that that happens?
Mr. Mueller. I am trying to understand exactly what you
want.
Senator Feingold. The new OLC opinion that states what
legal authorities the FBI has to obtain phone records.
Mr. Mueller. If it ia an OLC opinion, it really is in the
hands of the Department of Justice. It is up to the Attorney
General. But I see no reason why you should not have it, but it
is not my decision to make.
Senator Feingold. OK. I thank all of you.
Thank you, Mr. Chairman.
Senator Cardin. Well, first let me thank all of our
witnesses for the work that you do for our National security.
In my role as Chairman of the Subcommittee on Terrorism and
Homeland Security, we held a hearing last year in which we went
over whether we are sharing information among the U.S.
intelligence agencies as effectively as we need to in order to
protect homeland security. At that hearing, Ms. Baird and
former Senator Gorton testified, and they have submitted
testimony for the record in regards to this hearing in regard
to the concerns they have about the culture of sharing
information within our Federal agencies. Without objection, I
am going to ask that their testimony be made part of this
record.
[The information appears as a submission for the record.]
Senator Cardin. I guess my first question is: There has
been concern as to the operational roles and responsibilities
in regard to making the decisions concerning who is to be
stopped at our airports, how we share the appropriate
information, and the President has asked for a review. Is there
currently in the works any recommendations for change as to the
sharing of information and the respective roles of the
different agencies in making these decisions?
Mr. Mueller. Why don't I try to address that? The President
has directed us to look at the criteria that are utilized to
put persons in various levels of the terrorist watchlist. That
is one aspect of it.
The President has also asked us to look and Admiral Blair
is looking at other mechanisms utilizing information technology
which will enhance our ability to better connect pieces of
information from various databases. That has been an ongoing
process since September 11th, and it is an ongoing process as
new technology becomes available and we have new data sets.
But I would say just as a comment that the sharing is--it
is a new world since September 11th in terms of our desire to
share with every other agency. Not a one of us, sitting at this
table or otherwise, does not understand that we have an
obligation to share that information to prevent the next
terrorist attack. So the motivation is there. The will is
there. A lot has been done. There is still work to be done,
particularly when it comes to utilizing information technology
to make our jobs easier.
Senator Cardin. And also how we connect the dots. Let me
get to Mr. Abdulmutallab for one moment. Information became
available last year to the State Department from his father,
and as I understand, that information was reviewed as to
whether there was a visa outstanding in regard to that
individual, and because of the misspelling of the name, it did
not pop up on your data search. Is that correct?
Mr. Kennedy. That is correct, Senator. As I said earlier,
we made--if I could add two points quickly. We did, though, put
the name correctly into our lookout system, and the lookout
system went to all the agencies in Washington, and a longer
classified message describing more in-depth conversations with
his father went in with the correct spelling, and the two were
married up in a single file in Washington. And so the
misspelling, our error, was obviated by the second message that
paired up with it, sir.
Senator Cardin. But it never gave you the information at
the time that a visa was outstanding. If it did, if it would
have shown that he had been issued a visa in 2008, was there
sufficient information available for you to take action in
regard to that visa?
Mr. Kennedy. No, sir. There was not sufficient information
from his father, nor do we take preemptive action because, as I
mentioned earlier, we always consult with our law enforcement
and intelligence community partners before we revoke a visa to
make sure the individual is not a subject of investigation and
we would compromise their investigation.
Senator Cardin. So let me make sure. Are you saying that
even if it would have popped up that he had a visa outstanding,
you would have not taken any action to revoke that visa?
Mr. Kennedy. There was insufficient information to
immediately revoke the visa, and also following the protocols
that have been in place since 2001, we check with our partners
in the intelligence and law enforcement communities to make
sure that our revoking that visa does not tip him off that he
is under surveillance by one of our partners in the national
security community, and, thus, our action would have
compromised their ability, let me hypothetically state, to roll
up a larger terrorism ring.
Senator Cardin. So in this particular case, we do not know
what would have happened if you made that inquiry.
Mr. Kennedy. We did notify--we did put his name, correctly
spelled, into our database that was available to law
enforcement and the intelligence community personnel.
Senator Cardin. And no dots were connected from that, that
we are aware of prior to Christmas Day.
Mr. Kennedy. Sir, that is something that is outside----
Senator Cardin. He did not go on any watchlist, did he?
Mr. Kennedy. No, sir. If the intelligence or law
enforcement communities had come back to the State Department
and said, We have other information on this individual in addition to the information you, the State Department, has provided us; we are putting him on one of the lists,'' we would have potentially--we would have revoked that visa in coordination with law enforcement and intelligence. Senator Cardin. So DHS had the information prior to Christmas Day, but did not have any reliable information to act. Is that where we are? Mr. Heyman. He was neither on the watchlist nor a no-fly list nor a selectee list, and so there was--no check against those lists would have come up with anything. Senator Cardin. But whose responsibility was it to look into that information and determine as to whether he was actively involved in al Qaeda in Yemen? There is information that he was there. It seems to me that there was significant information linking him to potential terrorist activities that was put into our data bank. Whose responsibility was it to follow up to see whether action should be taken to at least alert agencies of a risk factor, but also to investigate whether there is further reason to suspect that an act of terrorism might be taking place? No one seems to want to answer that. Mr. Kennedy. Senator, that is a subject outside the jurisdiction of at least the State Department. I can describe our process. Any information that comes to the attention of the State Department that says there is a potential terrorist, we send it in to the national---- Senator Cardin. You send it in. You type it in. It is sent in. You did not think he had a visa outstanding. If he had one, you would not have acted without further information from other agencies. And this point, I guess, Director Mueller, I was referring to originally as to responsibility. Whose responsibility was it to take that information and try to connect the dots? Mr. Mueller. I think the President's--the report identified by the President would say that the information goes into the National Counterterrorism Center where the lists are maintained from which you then put the person on no-fly or the---- Senator Cardin. Someone has to develop the---- Mr. Mueller. And so the information is developed. It is developed by NSA. It is developed by CIA, developed by the State Department, goes into the NCTC, the National Counterterrorism Center for determination as to whether that person should be on which watchlist. And to the extent that there is follow-up, it is done generally there when it comes to international terrorism. Senator Cardin. I would just make the observation there was information that was put into the data bank, and it appears like before Christmas Day no one acted on that. Mr. Mueller. Well, there is some information that did get to NCTC. There is other information that did not get to NCTC before then. And so it was a question of--I think it is fair to say some person should have passed information into NCTC that did not end up there, and the database, the ultimate database where you have the information that leads to putting a person on either the selectee or the no-fly list for international terrorism generally goes through that process. Senator Cardin. I guess my concern is that it is not clear as to whose responsibility it was to take that information and to develop it, whether it is a serious enough link not only to protect America against that individual but to use that information to try to determine whether there is active terrorist plots against America. And I hope that is being corrected because there was information there that was just sitting there, and obviously it could have been a very serious situation against this country. Senator Schumer. Senator Schumer. Thank you, Mr. Chairman. Let me thank all the witnesses for being here. My first question is for Mr. Kennedy from the State Department. It is about multiple-entry visas. One of the main criticisms that has been leveled in this matter was that Abdulmutallab's multiple-entry visitor visa issued to him by our embassy in London in June 2008 was not revoked once his father warned our Nigerian embassy about his extremist activity. This criticism is valid but does not take into account the complex process the State Department must typically follow in order to revoke a visa. You know that. So instead of focusing solely on visa revocation, which is more complex than people realize, I think we should look at the fact that Abdulmutallab and seven of the 9/11 hijackers came to America on unlimited multiple-entry visas that gave them a revolving door to come and go to America as they please. In other words, the multiple-entry visa, once you get it, you can go back and forth without anybody checking on you as many times as you want. And the new information that came in from al Qaeda in Yemen as well as from Mr. Abdulmutallab's father came in after he was issued that multiple-entry visa. That is the problem. So I propose that the citizens of the 14 countries identified as potential security threats by the Obama administration should be required to apply for permission each time they visit the United States rather than enter at will by virtue of the so-called revolving-door visas that stay valid for years at a time. This way we can have a calm re-examination of all the facts that we know about an individual each time they enter. So when new information comes in, that will be part of the file, and the burden of proof will be on the entrant rather than on the State Department to revoke. Had this policy been in place before the Abdulmutallab incident, he would have been denied a visa because his name was entered in the TIDE database, and the entry stated he would be presumed ineligible if he had applied for a new visa. So my question to you, Mr. Kennedy, is this: Do you agree that Abdulmutallab would have been unable to enter the United States had he been required to obtain a new visa prior to his flight to Detroit? Do you agree? Mr. Kennedy. Possibly, Senator, for this reason: I fully agree that we have to examine all issues, and that is part of the ongoing process we are engaged in. Two points, if I might, Senator. Senator Schumer. Well, let me ask my second question. I thought you were just going to say yes. Will you work with me to implement the suggestion that either administratively or through legislation that we implement this plan? So those are the two questions. Go right ahead. Mr. Kennedy. Yes, sir. We are examining all our processes now. As you rightly suggest, this calls for a full and complete review. Senator Schumer. Well, what do you think of this idea? Mr. Kennedy. The one point that I--if I could, with one preliminary statement. Once an individual receives a visa, it is not that that is continually reviewed. It is continually reviewed. If the National Counterterrorism Center or any of our other partners in the law enforcement or intelligence community say that they have new information on an individual, they pass that information to us on a daily basis. We run all that information against the list---- Senator Schumer. I understand that. That is not what I---- Mr. Kennedy.--and then we revoke the visa. Senator Schumer. I am not asking that, sir. If the information is missed, which it was here, if the burden of proof were on the entrant who had to get a new visa, it is much more likely that it would be caught than if you had to go revoke the visa, because you would have no way of revoking it because that new information was missed. Mr. Kennedy. Senator, I agree we have to look at this very strongly, and I totally agree with you. The point, I think, that are just our difference is that we do every day review every issued visa to see that new information has come in to us or not. And so we do continual reviews, and if we discover that the Terrorist Screening Center at the FBI or Homeland Security has elevated this person, we then revoke that visa immediately. Senator Schumer. So, again, I just want to get--why wouldn't it be better to do it the way I am suggesting? Mr. Kennedy. Because, Senator, if the information is not-- if the dots are not connected, then the individual is going to get the visa because there is no--then when they applied for the new visa and we ran it against the database, if the dots are not connected and an individual has not been put on the list by one of the intelligence or law enforcement communities---- Senator Schumer. But he was on the list. Mr. Kennedy. He was on a--no, sir. He was not on no- fly; he was not on--he was not on the no-issuance list. Senator Schumer. Right, but he was on the larger list. Mr. Kennedy. Right. Senator Schumer. And what I am saying is if the visa had to be applied for and you are from one of these 14 countries, then he wouldn't have gotten--if they would have seen him on this list, the bigger list, the 500,000 list---- Mr. Kennedy. Yes, sir. Senator Schumer. And they would have reviewed it more carefully. Mr. Kennedy. They reviewed--yes---- Senator Schumer. If they wouldn't, then something is profoundly wrong. Mr. Kennedy. You are--Senator, you are very correct that this all lies in connecting the dots. Senator Schumer. And you do not have access to the TIDE database, right? Mr. Kennedy. Yes, sir, we have access to the TIDE data--we are the people who caused his name to be put into the TIDE database when we filed the Visa Viper report. We caused his name---- Senator Schumer. OK. As I understand it, you have access to what you put into the TIDE database but not to the whole TIDE database. Correct? Mr. Kennedy. That is--we have---- Senator Schumer. Is that correct? Yes or no. Mr. Kennedy. Yes. Senator Schumer. OK. That is my point, isn't it? Mr. Kennedy. But if someone is in the TIDE database, Senator, and that comes up on the TIDE database, we then send a message to the intelligence and law enforcement communities and say, Should we issue this visa or not?''
Senator Schumer. OK. I am--I was told that the State
Department was seriously interested in making this change
instead of saying, well, we are going to study it, which means
nothing. Are you or aren't you?
Mr. Kennedy. We are seriously interested in finding any
means to improve national security.
Senator Schumer. Are you seriously interested in this
proposal and look at it carefully?
Mr. Kennedy. Absolutely, Senator.
Senator Schumer. And do you think it is a good idea off the
top of your head?
Mr. Kennedy. I think it is a good idea to figure out----
Senator Schumer. Do you think it would be tighter than the
present process?
Mr. Kennedy. That is what we are trying to figure out,
Senator.
Senator Schumer. What do you think?
Mr. Kennedy. It has its pluses and its minuses, and that is
why, because it is a serious proposal, we are very seriously
reviewing it.
Senator Schumer. All right. My second question--well, I do
not have much time left, so I will submit it in writing.
Mr. Kennedy. Senator, I would be glad to come up and visit
with you, if you would like.
Senator Schumer. Thank you.
Senator Whitehouse. [Presiding.] I will be chairing for the
remainder of the proceeding, and with some allowance for
working around a potential vote that may go off, my intention
would be to follow through until all the questions are answered
without interruption. We may have to do a little bit of a fire
drill on seats in order to accomplish that. But since I intend
to stay until the end, I would now yield to Senator Klobuchar
for her questions.
Senator Klobuchar. Thank you, Mr. Chairman. I think that
Senator Franken was here before me for the deadline, so he
would go first and then me.
Senator Franken. Well, I would like to thank Senator
Klobuchar and the Chair.
Here is a question that has been on my mind, and I would
like to direct this to the Director. And I think I know some of
the answers to this, but this Abdulmutallab was on the bigger
list, the 550,000 list. And he was not on the no-fly list, but
he was on this list. He gets to the airport. It is easy to
access--it is just as easy to access a list of 550,000 as it is
to access a list of 18,000. Nobody at a counter goes through
18,000 names. It is done through a computer. So a name kicks up
just as fast if it is on a 550,000-person list as it does if it
is on an 18,000-person list.
Why don't we have access--why don't the people who book
these people in have access to that list and simply say, OK,
that means you are going to get another patdown, or that means
you are going to go through the full-body scanner? And I just
came through Dubai, and you go through security once, and then
at the gate you go through security again. But at the gate you
could simply--so as not to slow down everybody at the first
security, at the gate if you come up, you could pat somebody
down, you could give them extra attention or take them over to
the one body scanner that might be at the Minneapolis-St. Paul
airport where we do not have one now, but if we did have one,
you could take them over there.
Mr. Mueller. Let me start, and then, if I can, pass it to
my friend from DHS in terms of the screening procedures and
what is accessed at the borders, whether it be at the airport
or otherwise.
The way the system is set up, there is a very large
Terrorist Screening database which is populated by various
agencies' information, and from that there is a selectee list
where the person--there is a showing that has to be made with
regard to the person's association with terrorism in order to
get on that list.
Senator Franken. I understand.
Mr. Mueller. Then there is the no-fly.
Senator Franken. But this guy was on the bigger list.
Mr. Mueller. He was on a much bigger list called the TIDE
list, and I did not know myself----
Senator Franken. And he came on board to bomb a plane.
Mr. Mueller. I do not know myself how that particular list
is treated as somebody comes through the airport, which is
why----
Senator Franken. It is evidently not treated. Is that
right, Mr. Heyman?
Mr. Heyman. The creation of the consolidated watchlist, the
TSDB, was intended specifically so that agencies did not go out
and create their own determination of who is a terrorist, who
is a known or suspected terrorist. The list that you are
referring to--it is called TIDES--is the larger list that
contributes to the terrorist watchlist. Somebody has to be
nominated from that list, and it has to be determined by the
NCTC process to make the cut, as it were, for somebody to be a
known or suspected terrorist.
There is another review that goes in to determine if
someone is on a selectee or a no-fly. None of those
determinations were made, and consequently, when the passenger
comes to board, he is allowed to board because there is no list
that he is on.
Senator Franken. No. He is on a list. He is on the TIDE
list.
Mr. Heyman. He has not made it to the known or suspected
terrorist------
Senator Franken. I know that. That is not what I am asking.
I am asking why the guy on the TIDE list cannot come up, which
he was on, and why that would not merit an extra look.
Mr. Heyman. Well, it merits an extra look today. I think
originally when it was created it was because not everybody on
the TIDE list merited becoming a known or suspected terrorist.
Senator Franken. But what is the harm?
Mr. Heyman. Today I believe that people agree that there is
a need to include the P3Bs from the State Department, these
national security concerns, in the look before people board
aircrafts, and we are doing that.
Senator Franken. So now, as of December 26th, people on the
TIDE list are going to have a second look?
Mr. Heyman. No, the----
Senator Franken. No. Why don't I understand then?
Mr. Heyman. Sir, there is a number of different--and this
is not--the TIDE list is maintained by the NCTC, so I am a
little out of my lane here. But the----
Senator Franken. Well, that might be part of the problem.
If you are out of that lane, and they are out of your lane,
shouldn't you all be in the same lane?
Mr. Heyman. We are a consumer of that database to determine
whether somebody is a board or no-board. We----
Senator Franken. I am not saying it is a board or a no-
board. I am saying--it is not a board or no-board. It is take
another look. It is a patdown. It is a scan. That is all I am
saying. I am saying that this guy's name was in a database of
550,000 people. That name, given today's technology, can come
up in an instant, and then all it needed to do was warrant
either a patdown or a body scan, and he would have been
discovered. And I think you just agreed about a minute ago that
that seems logical and that is what everyone agrees on, I think
is what you said. And then you said you do not know because you
are not in the right lane to know whether that is the practice
now. So that is what I am trying to figure out.
Mr. Heyman. Sure. Let me just clarify it. The State
Department record, which is classified as a P3B for national
security concerns, is a sub-element of this TIDE list. There
are a number of other elements in that TIDE list that have to
do with identifications of individuals, information of people
who may or may not be--who may have immigration issues that may
have nothing to do with necessarily the security of civil
aviation per se. And that is why there is a process to nominate
somebody to become on the terrorist watchlist and subsequently
to become a no-fly or a selectee, which would then get the
secondary look. The subset of information, the P3Bs, is now
being considered because of the national security
consideration.
Senator Franken. So the P3B is a sub-list, a subset of the
TIDE.
Mr. Heyman. Correct.
Senator Franken. And that is now accumulated as a--that is
its own separate list, and does that come up at airports now?
Mr. Heyman. Now CBP uses that for determining whether
somebody should get a second look, correct.
Senator Franken. OK. So that is the answer to my question.
Thank you.
Mr. Heyman. You are welcome.
Senator Franken. Thank you, Mr. Chairman.
Senator Whitehouse. Can I confirm before Senator Klobuchar
begins whether the vote has begun or not? Do we know that?
Senator Klobuchar. I think it has, Mr. Chairman.
Senator Whitehouse. All right. In that case, I will go and
vote and then return during Senator Klobuchar's questioning.
Senator Klobuchar.
Senator Klobuchar. Very good. Thank you.
Thank you very much to all of you. I was listening to all
the questions today, and I think anyone that looks at these
facts they think about this person getting on this plane, 300
people, with explosives attached. You think about the
misspelled name, the one-way ticket, no baggage, the father
coming in to express some very serious concerns, and it just
leads you to think how could this happen.
But I will say as a former prosecutor--and I know Director
Mueller knows what I am talking about--when you look back at
any crime or any problem, you always are haunted by what could
have been and what could have been changed, whether it is the
police not following up on the lead or it is a prosecutor who
made a deal 10 years ago or it is a judge that made a decision
that led to someone being out. And so the key for me is not as
much this blame game, because I truly believe you are all
devoted to fixing this, but how we do fix this going forward.
The first thing that is appealing to me when I look at this
is some of these scanners and technological fixes, because the
easiest thing to think about is if the right scanner was
there--and correct me if I am wrong. Maybe it is you, Mr.
Heyman, but this could have been caught because if one of those
full-body scanners, whether it was the--what are they? The
backscatter or the milliliter wave, millimeter wave, if they
were deployed, then this would not have happened. Is that
correct?
Mr. Heyman. Senator, I would not want to speculate on that.
I think that we have to be careful not to say that there was a
silver bullet to detect anything, no single technology or----
Senator Klobuchar. But if it was attached to his leg, would
it have been found with one of those things? We are having a
Commerce hearing this afternoon, and I am going to ask
Secretary Napolitano about this as well. But don't you think
that would have been discovered, chances are?
Mr. Heyman. I am happy to discuss that in a closed session
in terms of the capabilities of the technology and how it was
used and deployed, but I would not want to do that in this
session. But it is important to note that technology is part of
the solution, it is not the only solution, and that this
technology----
Senator Klobuchar. I am not saying it is. I am just trying
to--I mean, the President has clearly sent a clear message to
send--what?--450 more of these scanners out. I was doing the
math. We have 2,100 lanes at the airports, and now there are--I
do not know--just dozens of them out there right now. So the
plan would be to triage these and put them at certain
locations?
Mr. Heyman. That is correct. The technology has the
advantage of being able to detect non-metallic substances such
as liquids or powders, much like was used on the 25th and, as
such, provides an enhanced capability above the standard walk-
through metal detectors.
Senator Klobuchar. All right. And so do you know what the
timetable is for this?
Mr. Heyman. For deploying the--I can get back to you. In
the beginning of this year, we are already in the process of
looking at that deployment.
Senator Klobuchar. And I can ask Secretary Napolitano about
this, but as she goes to Europe tonight, I figure--what?--there
are 2,500 international flights coming in a day, that some of
the discussion will be about this technology as well?
Mr. Heyman. Absolutely, yes.
Senator Klobuchar. OK. Director Mueller, thank you for your
good work on this as well as the work you have been doing in
Minnesota that you and I have discussed regarding terrorism,
and I was thinking, as Senator Franken was saying, that we have
the names, it could pop up with modern-day technology. But I
think you and I talked about this before, and it is the
computer systems that do not always work the way they should,
that cannot search automatically and repeatedly for possible
links. Even simple keyword searches, as was reported in the New
York Times on January 18th, are a challenge, according to a
2008 report by investigators for the House Committee on Science
and Technology.
Is this a fair assessment? Do there need to be some
computer changes?
Mr. Mueller. There always has to be some computer changes
as a result of a number of factors. The growth of technology,
the growth of different databases, actually when Congress
passes a statute that allows us to gather information and then
disseminate the information, often in the dissemination it is
limited in some way, and so particular databases are developed
to address a particular problem with all the statutory
guidelines within that database, which makes it that much more
difficult to make it available to others within the same
agency, much less others throughout the Government. And what
you find is, as technology grows, however, it is much easier
for persons to do an all-source search given the new
technology. But often it is by fits and starts, and the Federal
procurement schedule, in order to get this done, keeps us a
step behind where we want to be. But I think in the wake of
what happened on Christmas Day, we are all looking at
particular fixes, short-term and long-term fixes, individually
within our agencies but also across the community. It is not as
if we have not been doing it since September 11th. We certainly
have. But this may give us additional momentum to find some of
the later fixes and then have them funded so that we can get
them into place as soon as we possibly can.
Senator Klobuchar. Thank you.
There have been a lot of discussions with my colleagues
about the watchlist. I actually have been concerned about this
for a while. We had a little kid going to Disneyland who got
stopped, could not go on the trip, and so, you know, this issue
where you have people on it that should not be on it and people
that are not on it, obviously, that should, I may explore that
at the end if I have time. But there is a piece of this that I
want to talk about that no one has raised.
Northwest Airlines' flight, now owned by Delta, but
Northwest Airlines, based in Minnesota--and I have had long
talks with Richard Anderson, the head of Delta, about this
whole thing. It was his employees in addition to that brave
passenger that really stopped this from happening. They were on
the front line. They did the right thing. They were really the
last resort here for the system failures. And some of the
concerns that really have not been talked about here is just
the relation.
As you know, with Secure Flight being implemented, the
airlines are supposed to be pulling back more from being the
one that is watching for this, but yet in the rest of the
world, they do not have the equivalent of the Transportation
Security Administration, and many airline carriers here and
abroad remain the primary security pre-screeners in foreign
airports.
So my question, whoever wants to take them, is: What steps
were taken immediately following the December 25th event to
inform the carriers and others within the commercial aviation
industry of the breach of security? And as you look at this
coordination going forward, have there been efforts to include
the aviation industry? Because, remember, abroad they are the
ones that are going to be on the front line many times making
these calls.
Mr. Heyman. I can answer that question for you, Senator.
This is obviously very important. The carriers are very much on
the front lines and have a central role to play as partners in
the security of the aviation system. Immediately following the
incident, the Transportation Security Administration notified
about 128 inbound flights of the issue, provided them with as
much detail as they could so that they could take appropriate
measures in their path on the way back into the United States.
Since the incident, we have had numerous conversations with
CEOs of carriers. The Secretary will be meeting with the head
of IATA in Geneva on this trip that she is going on today after
the hearing with you and will be having discussion with airline
carriers as to how we can all work together to improve the
security of the system.
Senator Klobuchar. Carriers have indicated that information
regarding passengers' visa status is not available in real time
when a passenger checks in at the airport. Will actions be
taken to address this and other similar information problems?
Mr. Heyman. The visa revocations and visa refusals or
denials are checked prior to boarding an individual or printing
a boarding pass. They are checked as part of the pre-flight
screening process that is ongoing and has been ongoing for some
time.
Senator Klobuchar. OK. Do you think there is an issue with
them not having this visa information in real time?
Mr. Kennedy. The State Department uploads all the visa
issuances that it makes to databases that we share with the law
enforcement and intelligence community, and my understanding is
that when the airline files its manifest passenger list for
this plane, there is a process called APIS, Automated Passenger
Information System, that then checks all of that material by
TSA and then gives a go/no-go to the carrier on that. So though
the airline may not know that you have a B1 visa or a J visa or
any of the various types, they know when they get the report
back from TSA that they are good to go with that individual
because he or she has a visa--or is an American citizen and
obviously does not need it. But that information that we make
available to DHS is then checked and then fed back to the
carrier, Senator.
Senator Klobuchar. OK. And just could I suggest as we go
forward--and I understand the priority put on coordination
between government agencies, but I think coordinating with some
of the airlines would also be a good idea just from what I am
hearing, especially given that they were on the front line
here.
Back to the security, the watchlist and things like that,
Director Mueller, if you could just talk about generally--I
know people have gotten, understandably, in the weeds about
these lists. But do you think adding more people to this
watchlist would be a smart idea? And how do you think we could
focus on improving criteria so we do not have the kid going to
Disneyland on the list?
Mr. Mueller. I do think there are standards that we ought
to look at in terms of developing or improving the criteria.
For instance, the selectee list requires generally that the
person be part of a terrorist organization and associated with
terrorist activity.
Senator Klobuchar. And that is the one that there are about
14,000 people on. Is that right?
Mr. Mueller. Generally, yes. And the issue there is what is
the nexus to terrorism, and you have a number of lone wolves
out there, lone actors now, and so proving that somebody is a
member can be an inhibitor to putting the person on the list.
So there are certain areas that we are looking at which would
change the criteria. That probably would expand the number of
persons, and appropriately so, who are on the particular list.
Senator Klobuchar. And this means they would be subject to
extra screening or screening at the airport.
Mr. Mueller. Yes, yes. Appropriately so, in my mind. On the
other hand, we have always put a tremendous emphasis on having
other identifiers. You have any number of names, iterations of
names, and often it is very difficult on a name itself to
identify a particular person. And so at the same time we are
changing the criteria to add persons who we are concerned
about. At the same time we have to continue to develop
identifiers, whether it be fingerprints or----
Senator Klobuchar. Right, and that is what--I was going to
actually ask you about that as we look at the misspelling that
took place. And, again, sometimes people have different names,
anyway, so just this whole biometrics. We have been talking
about this for years on flights and how you get on, just what
is the status of that, because to me that would help immensely
in this.
Mr. Mueller. Well, to the extent that we can go to an era
of biometrics, not just a date of birth but biometrics, we will
be much better able to identify the particular person who is
carrying that name and trying to get on an airline. And there
is a substantial interagency effort underway to expand our
biometrics, whether it be use of fingerprints, retina scans,
and the like. And my hope is that in the future we have better
ability to identify persons and, to an appropriate extent,
expansion of the criteria so that we get the troublesome
persons on the list that it will be more effective.
Senator Klobuchar. OK.
Mr. Kennedy. Senator, if I might add for one brief moment.
Senator Klobuchar. Secretary?
Mr. Kennedy. The State Department, when it receives a visa
application, already uses biometrics. We take the fingerprints
of every visa applicant and transmit them to Homeland Security
and the FBI, and if that applicant does not clear that
database, no visa is issued.
We also have probably the finest facial recognition
capacity so that if somebody comes in and applies as Jane Doe
in one place and then tries to apply as Sara Smith in another,
those applicants are----
Senator Klobuchar. So it is trying to take that information
and put it on the front line at the airports.
Mr. Kennedy. We share our material with our colleagues, and
so we are doing that as part of the application process, and
then we share the information.
Senator Klobuchar. OK. I am going to have to go back and
vote now, but one thing I want to just put in your mind and we
can talk about it later, Mr. Heyman, but it is just this idea
if we could actually potentially save some resources in the
long term with these scanners. I am someone that gets stopped
every time because of my hip replacement, and me and a number
of 80-year-olds are standing there getting our knees and hips
checked, and it is really time-consuming. Is there an argument
that you could go faster through this process if you used the
full-body scanner?
Mr. Heyman. Each technology is different, and the goal is
to try to get as fast as possible----
Senator Klobuchar. OK. I am not going to get you to comment
on the details. It is just a thought, because it takes a long
time. But my constituents love watching it happen, so, you
know, we will miss that. Thank you.
Mr. Heyman. Thank you for your questions.
Senator Whitehouse. I understand that Senator Sessions will
be returning and will have, I think, another very brief round.
But before he gets here, I wanted to ask a number of questions
myself. I will say one thing--actually, I will wait until he
gets here so that he has a chance to respond.
Director Mueller, in your testimony you described the
sipping from the fire hose phenomenon of trying to pick data
out of the enormous stream of data that our intelligence and
law enforcement services have available to them. In his
testimony, Michael Leiter described the difficulty of having
pieces of information rise above the background noise and sort
out how all that is happening.
I just want to summarize what appear to be the major pieces
of derogatory information about Mr. Abdulmutallab. One is that
his father had come in and warned of his radicalization. Second
is an obvious one: He was boarding a flight for the United
States. That puts him into a higher risk profile than if he is
just off someplace. Three, he exhibited troubling, anomalous
passenger characteristics, it appears from public reports: cash
ticket, no luggage, no coat for landing in the winter in
Detroit. Fourth, there was some general threat information out
of that part of the world about al Qaeda in the Arabian
Peninsula, AQAP. And then there was a reference to a Nigerian
in the traffic somewhere, and he was indeed a Nigerian and
boarded his initial flight in Lagos.
It strikes me that the general threat information is not
particularly helpful in identifying Abdulmutallab. The Nigerian
cue applies to every Nigerian. The fact that he was boarding a
flight for the U.S. applies to every passenger boarding a
flight for the U.S. I do not know how significant a single
piece of data--the father having warned of radicalization--is,
and those passenger characteristics would not really have
turned up until check-in. And I do not know that our NCTC
system is designed to play in that quick a timeline or even to
search for passenger characteristics that would seem to be
inconsistent with the nature of the flight.
So when I look at the whole array, if I knew all of those
things, I would be very anxious about having this individual
sitting next to me on a plane, but I do not see any single one
that sets up a very bright flare of concern. It strikes me that
it is the assembly of them that is the key, and it strikes me
that the assembly of them is to a large degree a computer
search, data analysis, algorithmic-type problem because I doubt
we have the staffing to take any one of these pieces of
information and do a human search of that if we had to do one
for every single piece of derogatory information of that level
of risk.
I would like first to hear from each of you, if I could,
briefly, in what way you would ascribe the order of magnitude
of information that we are sifting through every day out of
which these elements would have to be plucked. We will start
with that. What is the order of magnitude? People have said
thousands. You have described the fire hose. How else would you
describe it in terms of the----
Mr. Mueller. Well, certainly for the FBI, both here and
overseas, thousands upon thousands of these pieces of
information come in daily in any number of ways--through
intercepts, through sources, through pieces of information
provided by us to the intelligence community.
Senator Whitehouse. Tens of thousands? Hundreds of
thousands?
Mr. Mueller. It would be hard to--certainly tens of
thousands.
Senator Whitehouse. Certainly tens.
Mr. Mueller. And I will tell you, the way we try to address
this is no counterterrorism leads goes unaddressed. We have had
discussions in the past as to whether or not we need to
maintain the personnel on our Joint Terrorism Task Forces to
address the threat, to which my answer is yes, because it is
tracking down each lead to its end that enables us to discover
other leads that may elevate the concern to the point where an
Abdulmutallab is put on the no-fly list. And, consequently, you
have to sort, you have to prioritize the leads, but the fact of
the matter is in order to prevent terrorist attacks in the
United States, we have to track every lead. And that takes the
personnel on the Joint Terrorism Task Forces; it takes new and
innovative ways to utilize technology. But you are drinking
through a fire hose, and that does not mean that we cannot do a
better job of sorting out the streams that are coming from that
fire hose, prioritizing and making certain we follow up.
Senator Whitehouse. Mr. Kennedy. Ambassador Kennedy.
Mr. Kennedy. Thank you, sir. Almost 8 million individuals
apply for visas every year at American embassies and
consulates, and how we try to deal with that is we first have a
personal interview of the individual by a trained consular
officer who knows the language, should that be required; who
knows the culture or the country; who knows interviewing
techniques; who knows the economic situation of the country,
which might be a motivating factor. And then we take that
information and put that in one side of the consular officer's
brain, and then we send the data checks out to our colleagues
in the intelligence and law enforcement community. We send the
fingerprints out. We run the individual's facial
characteristics against our biometrics. And then we put all
those pieces together, and we say yes or on. And that is a
labor-intensive situation requiring trained professionals, but
we do it because we are the first lines of national defense,
and that is our task. But it is a daunting one.
Senator Whitehouse. And, Mr. Heyman, from DHS' point of
view, what is the volume of the fire hose? What is the order of
magnitude of the information you have to sift through?
Mr. Heyman. The Department screens approximately 1.8
million individuals entering the United States per day.
Senator Whitehouse. Per day.
Mr. Heyman. Per day. Hundreds of thousands of those are
flying in by air. Those individuals were all screened for
admissibility into the United States and for concern about
possible known or suspected terrorists.
Senator Whitehouse. Given that scale of effort that each of
you have described, how significant is the role of computer
search capability in gnawing through that vast amount of data
and collecting or connecting the dots?
Mr. Heyman. Each of those passengers are screened one at a
time. It is not all done at once. So if a flight comes in, you
are screening them 300 passengers at a time. That is often done
in an automated fashion. There are automatic targeting systems
that run through to see if there is a match on the no-fly list,
et cetera.
Let me just make----
Senator Whitehouse. Does the question of cash payment, no
luggage, and no coat ever get caught--first of all, is that
accurate?
Mr. Heyman. I am glad you asked. I was just going----
Senator Whitehouse. How does that trigger?
Mr. Heyman [continuing]. To address that. There is
something called the passenger name record which is transmitted
from travel agencies or carriers to the Department to get
advance notice of who might be on a play coming to the United
States.
The information that is collected that is transmitted is
usually the name, gender, and flight path, so you would have,
whether it is one-way or two-ways or something to that effect.
But the other information that you mentioned, whether it is a
cash transaction, the type of transaction, luggage, those kinds
of things, not necessarily included in the passenger name
record, was not included for this individual, and----
Senator Whitehouse. Are the airlines under any obligation
or do they feel any interest in looking at that not as
representative of the Government, just as carriers who are
potentially putting fellow passengers at risk? Is there a
mechanism by which private carriers--or non-private carriers,
State carriers--do this and then report to you? Or is it----
Mr. Heyman. There is a formal requirement that carriers
transmit passenger name records up to 72 hours prior to a
flight departing for the United States.
Senator Whitehouse. But somebody who is a senior gate
attendant, they have seen a lot of folks, somebody comes to the
flight to check in, they are headed for Detroit, it is the
middle of winter, they have got no coat, they are checking no
luggage, the ticket has been paid in cash, is there any
program--what if you were suspicious and you were that gate
attendant, what would you know to do at that point?
Mr. Heyman. There is a difference between the information
that is transmitted by the carriers for assessment, for
determining whether someone is on the no-fly list. What you are
describing is something we refer to as behavioral detection
observations or anomalies that a gate individual might
determine in the United States. We have BDOs in airports
throughout the United States, not necessarily the case abroad.
Senator Whitehouse. Would it be useful to develop this in a
more robust way with the major airlines that fly in and out so
that this can begin to be evaluated? As far as I can tell, from
what you are saying, the question of the cash purchase, no
luggage, and no coat never entered anybody's calculation ever
until somebody looked back.
Mr. Heyman. That data was not available.
Senator Whitehouse. That data was not available.
Mr. Heyman. And I would say that a cash purchase from
Nigeria is not unusual. But----
Senator Whitehouse. No, none of these elements--
particularly being Nigerian is not unusual. But when you pack
them all together and you have the al Qaeda intercept
mentioning a Nigerian, and you have this person boarding there,
and you have the cash purchase, and you have the no luggage,
and you have the boarding of a flight for the U.S., and you
have the father's warning, it is the failure to assemble the
data that is more significant than overlooking some bright red
flag, it seems to me, and that is my question because that
could be an important tipping piece of data, and if we are not
even in a position to collect it, that appears to me as
something that perhaps could be improved.
Mr. Heyman. I think you are absolutely right. I think the
discussions that we are now having with our international
partners, governance, as well as air carriers----
Senator Whitehouse. As well as carriers.
Mr. Heyman. As well as carriers. We need to look at
questions of is there additional information we should include
in the passenger name record, is there any additional
information we should share, or standards, and this is the kind
of thing that would be addressed through the ICAO process,
which is the international body for standards of aviation
travel.
Senator Whitehouse. OK. Let me yield to the Ranking Member
for a second round of questions, but now that he is back, I
wanted to make the point that I was going to make earlier.
I agree with Senator Sessions about the importance of there
being a rigorous and formal method for making the determination
as to whether a case should proceed in civilian courts or in
military tribunals. And I share his concern if there is not a
process by which that decision gets made at a fairly rigorous
and early time when whatever advantages of either forum are
still available. And I am concerned if there is kind of an ad
hoc or on-the-fly decision that is being made as to which
direction we intend to proceed.
Where I differ from him is that I am not confident that the
military tribunal is, by definition, the better way to go. I am
keenly aware of the history of the success of criminal trials
in terror matters and the repeated failures in the military
tribunal context. I believe that it is incorrect to suggest
that FBI interrogation is sort of a second best, but if we
could get them over to those military tribunal tracks, then we
would have a really good interrogation. The hearings that I
have done on this subject have shown that the FBI-led
interrogation has actually been better than other, what I would
consider to be less professional, and which are certainly more
aggressive methods.
It strikes me that the agents who arrested Mr.
Abdulmutallab probably, pursuant to FBI protocols, treated that
case a little bit differently from a national security and
interrogation point of view than they would have had he been a
bank robber or somebody who had been pursued in a long fraud
investigation and this was the day when the agents were going
to go out and put the cuffs on him.
Do you not react differently to cases that have a national
security and terrorism overtone than to your regular book of
criminal business in terms of making early decisions as to what
type of interrogation is appropriate?
Mr. Mueller. Certainly we do, and that is what the agents
did in this particular case. There were no Miranda warnings
given. They immediately went in when they had the opportunity
to interview him to determine whether--to gain intelligence,
intelligence about whether there was another bomb, whether
there were other co-conspirators, where did he get the bomb.
All of that information without the benefit of--or without the
Miranda warnings.
It had to be done very quickly because of the fact that he
had been injured, was in a hospital, and the window of
opportunity to do this had to be undertaken very quickly. But
the fact remains as well later that evening he was Mirandized,
and he went into the judicial system.
I am not going to opine one way or the other because I do
not think it is my role to necessarily adopt the policy as to
where the person goes. It is other persons at the Department of
Justice and elsewhere. But----
Senator Whitehouse. True, but as the lead implementer of
that policy with respect to your organization, I think it is
important to all of us to get a sense of at what stage that
policy--to what stage that policy has been developed and at
what stage in the arrest proceedings it first gets engaged,
because if you are way down the road one way before the policy
has a chance to kick in, and as a result you lose opportunities
one way or the other, that is a problem, I think, that merits a
solution.
Mr. Mueller. I think everyone wants an opportunity to weigh
in on those decisions earlier rather than later. Yes, I think--
and to the extent that decisions are made elsewhere, I
implement them.
I will tell you that intelligence is absolutely essential
to preventing terrorist attacks, and to the extent that we can
obtain the intelligence to prevent terrorist attacks, we will
prevent terrorist attacks. But by the same token, I would also
say that you cannot forget the end game. You cannot completely
forget the end game as you search for intelligence. And you----
Senator Whitehouse. Either in the military tribunal context
or in a criminal court. Both have very similar----
Mr. Mueller. Right here, principally the FBI is operating
in the United States, and generally it is United States
citizens, although in this case it was not. But I can tell you
I share many of your concerns, but you should be assured that
since September 11th our interest is principally to gain
intelligence to prevent terrorist attacks, and to assure we do
that so that there is a back-up plan to the extent that we can.
Senator Whitehouse. And one final point on Miranda. My
review of this suggests to me that very successful
investigations have been conducted, very successful
interrogations have been conducted, and very significant
intelligence information has been obtained from suspects who
have been Mirandized, and that in some cases Mirandizing a
subject is actually a part of an interrogation plan for that
particular subject. And for that reason, I am not convinced of
the assertion, unless you correct me now, that by its very
nature Mirandizing somebody is a sort of per se inhibition on
our ability to collect intelligence from that individual. In
fact, I can think of specific cases in which Mirandizing
somebody was a specific part of the interrogation plan and
strategy for that individual.
Mr. Mueller. I would agree with that, having seen it happen
many times. On the other hand, there are other occasions where
the person was talking and Mirandizing them turns off the
spigot. And so I think you can argue it both ways.
Senator Whitehouse. My point is for it to be case by case
and for there to be executive judgment and discretion deployed
seems to be the best of both all-or-nothing alternatives.
Senator Sessions.
Senator Sessions. Well, the FBI agents are some of the best
agents in the world. There is just no doubt about it. And they
operate under the constraints and rules that they have been
trained to operate under, one of which is when the defendant is
in custody and he is going to be tried in a civilian trial, he
is given Miranda before he is asked questions, unless there may
be some immediate danger like whether the defendent has a bomb
or a gun. But that is the fundamental way law enforcement is
done. And I think it would be indisputable that you get less
information if you give a Miranda warning than if you do not.
Now, with regard to this specific incident, I have just
been made aware that the Director of National Intelligence, Mr.
Blair, says that he was not made aware that this high-value
target had been Mirandized and somebody had made a decision
about how they are going to be handled and he was going to be
given a lawyer. He did not know about that. Is there such a
thing as a High-Value Detainee Interrogation Group, Mr.
Mueller?
Mr. Mueller. Yes.
Senator Sessions. Well, was that group utilized in this
case?
Mr. Mueller. No, it was not.
Senator Sessions. Well, who made the decision not to do
that? And who made the decision that Miranda and the right to
have an attorney and the right not to speak and all would be
given to this unlawful combatant?
Mr. Mueller. Well, first, with regard to the High-Value
Interrogation Group, that is an entity that is in its formation
stages which brings together expertise from the FBI but also
from other agencies--in other words, expertise in terms of the
particular terrorist to be interrogated, expertise with regard
to the country from whence the person comes, language and the
like, as well as expertise in interrogations. And we have
utilized that, as the administrative architecture is being
built, as an opportunity to bring together those components for
interrogations.
In this particular case, it happened very quickly. There
was no time to get a follow-up group in there. If one had had
the opportunity over a period of time, we may well have had a
specialized group do the interrogation.
As to the second question, as to determinations that was
done, my understanding is determinations were done in
consultation with the Department of Justice and others in the
administration prior to the agents going back in later that
evening to interview them.
Senator Sessions. Well, is this an Assistant United States
Attorney in Detroit or is it some----
Mr. Mueller. No. It is above that. Above that. I hate to
get into that because I am not fully familiar with all who
talked to whom on the afternoon, but I do know it was not made
necessarily at the local level.
Senator Sessions. But you were not informed and asked this
question.
Mr. Mueller. I may have been. I just cannot recall.
Senator Sessions. Well, you earlier said you did not know
when I asked you about it. You did not know who did or----
Mr. Mueller. I thought you asked whether I had been
informed of the decision, and I cannot recall whether I had
been informed of the decision.
Senator Sessions. Were you asked to give your opinion on
the matter?
Mr. Mueller. No.
Senator Sessions. Well, apparently neither was Mr. Blair or
Secretary Gates. This is, I think, a matter of national
security since Abdulmutallab is associated with al Qaeda with
whom we are at war. Was he asked his opinion about how the
interrogation should be conducted?
Mr. Mueller. I do not know, but I can tell you very senior
people in the FBI had input on the decision.
Senator Sessions. And is there some protocol that--well,
what is this High-Value Detainee Interrogation Group? Shouldn't
they have been activated as part of this? And in the future,
shouldn't they be activated immediately upon such an event as
this?
Mr. Mueller. Yes, but quite often one of the reasons that
we are putting it together is to identify potential persons
that may come into our custody. In this particular case, you
would have to put the group together with some expertise in
Nigeria and some expertise in this particular area of the
world, which as it relates--after we learned, after we did the
initial interrogation, that it was Yemen. And so you have to
put together the expertise to do the thorough interrogation to
support----
Senator Sessions. Well, I would agree with that, but that
was not done. Somebody made a decision that this case would be
tried in civilian court, that they would be given Miranda. And
isn't it a fact that after the Miranda was given, they were
told they had a right to a lawyer and did not have to make a
statement, they stopped talking, the individual stopped
talking?
Mr. Mueller. He did.
Senator Sessions. That is not unusual. That is the normal
case of things. So this was a bad mistake, in my view. Who in
the Department of Justice that you know of was at least
involved in this discussion? Now, I know you do not want to
talk about that, but I think I have a right to ask. I am asking
you what knowledge you have about anybody in the operational
lines of the Department of Justice who had input into this
decision, not the details but----
Mr. Mueller. I would be happy to discuss that with you, but
I do believe I have to go through the Department of Justice to
get approval to do that.
Senator Sessions. Well, Mr. Attorney General Holder, has
already made clear his presumption that these cases would be
tried in civilian court, which I think was a big error. It
baffles me, and I am concerned about it. Sooner or later we are
going to need to know how this happened, because one of the
things that we do in oversight is to find out what happens in
the real world. I mean, you have these lists and this list, and
why didn't it quite come together? Well, one of the things that
we have is a High-Value Detainee Interrogation Group who had
expertise in language and culture and al Qaeda, and apparently
we had--whatever FBI agent we were lucky enough to get
responding to this emergency and a decision was made without
this expertise being called upon.
Mr. Mueller. We actually had very qualified members of the
Joint Terrorism Task Force who were called upon to do it and
some of our best agents.
Senator Sessions. You are not saying that those agents made
the decision. You are saying the decision was made in United
States Attorney's Office or the U.S. Department of Justice,
Attorney General Holder's unit, somewhere in that chain of
command--which is not improper. I mean, normally a prosecutor
makes a decision on a lot of these issues if they have the
opportunity to be engaged on it. But it seems to go against the
idea of gaining intelligence.
Mr. Mueller. In this particular case, the consultation
could not occur as fast as the decision needed to be made as to
whether or not you take the opportunity to interview him for
intelligence purposes. The individual was at the hospital about
to undergo treatment, and there was a limited window of
opportunity to obtain the intelligence that the agents felt
they needed to obtain to determine more aspects of what had
happened and spent some time with him. And, consequently, on
this particular occasion--and I am using this particular
occasion--there was not the opportunity to do the type of
consultation that you suggest and recommend.
Senator Sessions. Well, I do not agree that the hospital
has anything to do with it. He was in our custody. He was not
in a life-and-death situation. I believe those agents talked to
somebody. I want to know who they talked to and who said we are
going to give Miranda, go ahead and give it. I do not believe--
if they were initially doing a discussion without it, I do not
think they would have changed----
Mr. Mueller. Sir, he was not given Miranda at the outset.
They had an intelligence interview----
Senator Sessions. Your agents did not do so. They saw it--
which is contrary to the normal policy. When he is in custody,
he should be given Miranda. I see a lady shaking her head
behind you. When you bring somebody into custody and you ask
them a question, you have to give me Miranda except under
extraordinary circumstances. So they did not do it then.
Mr. Mueller. They did not Mirandize him, no.
Senator Sessions. At some point somebody said now is the
time to do it. You cannot give us any more information than you
have given about who said so?
Mr. Mueller. It has to come through the Department of
Justice. As you are well aware, this is going to be the subject
of a suppression hearing down the road, and, again, I do
believe information on what decisions were made when should
more appropriately come from the Department of Justice.
Senator Sessions. Well, before I leave, I will be more
generous. The questions that you have been given by the IG
report on the exigent letters, isn't it true that when the
Inspector General's preliminary report came out on the exigent
letter issue--it was released back in March of 2007--you
addressed the press openly; you answered questions, you came
before the Congress and answered questions. You accepted
responsibility and you announced a number of reforms, one of
which was you stopped using exigent letters altogether. Is that
right?
Mr. Mueller. That is accurate, sir.
Senator Sessions. And is there anything really new in this
final report over what was brought up before?
Mr. Mueller. There is more detail that had not been
provided in earlier reports in terms of the actions that were
taken or not taken. So there was some new, but I will tell you
that we have tried to keep Congress abreast with periodic
briefings on the findings as we know them from the IG and have
addressed the issues that are raised by the IG in this latest
report.
Senator Sessions. I have an impression--but you correct me
if I am wrong--that when the PATRIOT Act--this is all part of
the PATRIOT Act legislation, exigent letters.
Mr. Mueller. In some part.
Senator Sessions. Or some of the post-9/11 legislation.
There was a failure in Washington to immediately through
regulations, training--it is kind of hard to stop everything
you are doing and train everybody immediately when something
happens, and it was not a deliberate attempt to subvert the law
or a deliberate attempt to deny people rights. It was a lack of
maybe discipline and education as part of your agents, and that
when this was brought to your attention, you put an end to it
and have handled it in a correct way ever since.
Mr. Mueller. I believe that is accurate, sir. Certainly
nobody intended to subvert the law. We, I, did not put into
place the requisite machinery to assure that we dotted the i's
and we crossed the t's and assured that we handled
appropriately the issuance of national security letters during
that period of time. And as you indicate, the last exigent
letter was issued in 2006. And as I quoted from the IG report,
I believe the IG believes that we have correctly addressed the
problem and did so some time ago.
Senator Sessions. Well, it was an error that should not
have occurred, but if anybody has run a big organization, they
know how hard it is sometimes to get information down to the
lowest levels. But I think the FBI, one of its strengths is
that it is pretty good at that kind of thing, although this
time you messed up.
Thank you.
Senator Whitehouse. I thank the distinguished Ranking
Member.
The record of this hearing will remain open for a week, and
I would hope and urge that the witnesses who have promised to
provide various materials during the course of this hearing
would make it available during the period that the record of
the hearing is actually open. So if you could do that, I would
appreciate it.
I would close by echoing Senator Sessions' concern that we
be clearer on the protocol and the deployment of the protocol
for how and when the decision gets made between a military
tribunal and a criminal court. I come at it from a different
perspective in the sense that I disagree with him that the
military tribunal is the right answer in every case; I disagree
with him that Mirandizing people is the wrong answer in every
case, and have further concerns about, frankly, legislators
making that decision rather than the executive branch of
Government. But however that plays out, it should play out in a
way that, from a protocol point of view, makes those decisions
at the right time by the right people with the right
information and in a time to gather the right intelligence.
So I thank the Ranking Member for coming back to explore
that further, and the hearing is concluded.
[Whereupon, at 12:53 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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