Federal News Service - Hearing of the Crime, Terrorism, and Homeland Security Subcommittee of the House Judiciary Committee - Transcript

Federal News Service

HEADLINE: HEARING OF THE CRIME, TERRORISM, AND HOMELAND SECURITY SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE

SUBJECT: RECOMMENDATIONS OF THE 9/11 COMMISSION

CHAIRED BY: REPRESENTATIVE HOWARD COBLE (R-NC)

WITNESSES: CHRISTOPHER A. KOJM, DEPUTY EXECUTIVE DIRECTOR, 9/11 COMMISSION; JOHN S. PISTOLE, EXECUTIVE ASSISTANT DIRECTOR FOR COUNTERINTELLIGENCE AND COUNTERTERRORISM, FBI; JOHN O. BRENNAN, DIRECTOR, TERRORIST THREAT INTEGRATION CENTER; GREG NOJEIM, DEPUTY DIRECTOR, ACLU

LOCATION: 2141 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.

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REP. BOBBY SCOTT (D-VA): Thank you very much, Mr. Chairman. And thank you for holding the hearing on the 9/11 commission report recommendations which fall under the jurisdiction of this subcommittee.

The commission's report represents a reasonable blueprint for what must be done to better secure our nation against terrorist attack. I'm p leased to see that the commission strongly reaffirmed that securing America does not and must not require sacrificing our civil liberties. Indeed, the commission confirmed that we can be safe and free. Otherwise, we run the risk of doing to ourselves what the terrorists were seeking to do, destroying or eroding our freedoms upon which this country was founded.

I believe that we can implement the substance of all of the recommendations of the commission, although we should develop them in a manner which maximizes the strength of all of our agencies to contribute their best in the fight against terrorism. But as those agencies address the threat or terrorism, we must not diminish their ability to fulfill their traditional missions, and we must not sacrifice our civil liberties. And this is especially true with law enforcement agencies.

We should also be mindful that the investigation of the 9/11 attacks reveal that we had gathered plenty of information on the hijackers, which if used properly could have stopped most of them, if not all of them. Accordingly, it appears that our intelligence- gathering system may have worked reasonably well. It is the analysis and use function that failed us. And while we consider new ways of analyzing, collecting and sharing intelligence across the intelligence community, we have to consider how those techniques affect constitutionally-based standards of domestic law enforcement. This is particularly important when we consider that the report calls for a further relaxation of the traditional wall of separation between foreign and domestic intelligence gathering. The standards for foreign intelligence are significantly lower than the standards for domestic intelligence. And although we must permit the appropriate sharing of intelligence across the intelligence spectrum, we must not allow foreign intelligence gathering techniques and uses to be applied against Americans at home.

Now, it is important to note, Mr. Chairman, that at last week's hearing with the Constitution Subcommittee and the Administrative Law Subcommittee one of the commissioners indicated that the recommendations on new powers were intended to apply to terrorism cases and not just generally. And I think that's important, because when we passed the USA Patriot Act the new powers were not restricted to terrorism cases.

The report recommends that Congress better organize its oversight in intelligence and counterintelligence functions by and consolidating the oversight into a single entity in each chamber. Now, coordination of oversight functions by various committees with jurisdiction over Homeland Security is vitally important. We must provide, however, weakening or watering down the oversight function. The different committees in Congress have different areas of expertise. One oversight committee could not possibly be expected to have expertise in constitutional law and international relations and health issues covered by the Centers for Disease Control. We need to take advantage of the expertise on all of our committees and subcommittees.

So I look forward to the testimony by witnesses on how we might best proceed with implementing the recommendations of the 9/11 commission to ensure that we are putting forth our best effort to prevent and address terrorist threats against this country. And I look forward to working with you, Mr. Chairman, as we implement the recommendations which fall under the jurisdiction of this subcommittee. I yield back.

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REP. SCOTT (?): Thank you.

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REP. SCOTT: Thank you, Mr. Chairman.

You know, when we talk a bout reorganization, there's a difference between just reorganizing things and actually improving things, and especially when reorganization brings with it some inefficiencies. Just mention the fact that some people didn't know their counterparts. When you reorganize, nobody's going to know anybody.

Exactly what information was not gathered under the present system that if you reorganize all the boxes would have been gathered, and what could have been done with it under a new organization that could not be done under the present organization, if people would just do their jobs better?

MR. KOJM: Mr. Scott, let me begin. First of all, thank you for the question. We on the commission do appreciate that changes have been made since 9/11, and that they have been important changes, largely we believe in the right direction. But we believe that change has not been sufficient. We still are dealing with Cold War institutions, and the national security threat we face today is fundamentally different from any we faced in the previous two generations. And so we believe that the institutions of government must reorganize.

Two stories, briefly. We caught a glimpse --

REP. SCOTT: Wait. Let me just stop you-just reorganizing. Sometimes we have a problem, and you don't like the status quo, the suggestion is therefore you must agree with the proposed change. Sometimes the proposed change isn't any better than the status quo. My question is how is the proposed change going to make-what is the proposed structure going to do better, necessarily, than the old structure, particularly when you have people knowing each other a little bit on this side, and if you can just improve the way they're doing their jobs, will that do a better job than reorganizing everything?

MR. KOJM: Mr. Scott, fundamentally, we believe the answer to that question is no. Good people are working together and working together better, but they are still hampered by, we believe, bad structures, and we believe the risks for the nation are greater if we do not change than the risks that always accompany periods of change and transition.

Simply, one story from 9/11 that we find powerful is of Kuala Lumpur where, in January of 2000, we saw two future hijackers. We caught a glimpse of them. The CIA did a very good job tracking those people. The trail was lost in Bangkok. Ultimately, those two hijackers came to the United States. That information never was passed to the FBI until August of 2001. We could have made a significant difference, and we believe it is certainly possible that we could have disrupted that plot had there been better information sharing.

REP. SCOTT: What would have happened to the information under the new structure?

MR. KOJM: Under the new structure, under the National Counterterrorism Center, the FBI and CIA would be living together, sharing this information on a daily basis; there would be a quarterback in charge. So when the trail was lost in Bangkok, there would be someone who knew it was lost and would give an order to make sure that the case was followed; that the case was managed; and that the case was not dropped as occurred in the 9/11 story.

REP. SCOTT: And that means everything goes into the TTAC (sic)? Is that --

MR. KOJM: Well, this would be the National Counterterrorism Center that we believe needs to build on the good foundation that was started with the creation of TTAC (sic) that Mr. Brennan had.

REP. SCOTT: What would happen to TTAC-TTIC, I'm sorry-under this new structure?

MR. KOJM: Well, I think Mr. Brennan's words are apt. It is a good foundation, but a foundation is not the same as the house. We believe that the head of the National Counterterrorism Center needs people assigned to him, not detailed to him. He needs tasking authority; he needs to conduct strategic analysis; he needs to conduct warning; he needs to have more power over the analysis of information; and he needs a counterpart who plans joint intelligence operations under the leadership of the head of the National Counterterrorism Center.

REP. SCOTT: Mr. Brennan, do you want to comment on that?

MR. BRENNAN: I agree with some of the things that Chris said, but I don't think that structural change would have made a difference as far as that information that he's referring to as far as Malaysia was concerned. Having a quarterback in charge of those different elements doesn't mean that that quarterback is going to know every single bit of data that resides within the terrorism arena, and there are terabytes of data. I think what's most important is to have an information-sharing architecture and system that will allow that information to get into the appropriate databases that could be then pulsed by FBI, CIA, and other officers as appropriate. I happen to be, again, a proponent of some reform, but I don't think it would have addressed the issue that you raised as far as-or that Chris raised there.

REP. SCOTT: Thank you, Mr. Chairman.

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REP. SCOTT: Thank you, Mr. Chairman. I want to thank Mr. Nojeim for pointing out the difference in the investigation pursuant to the Levy Guidelines where you have to actually be investigating some kind of lead or crime before you start infiltrating organizations and conducting them under the free Levy Guidelines where you just snoop around and infiltrate groups just to gather information on people. And that is obviously a stark difference.

One of the questions I had is on the kind of flow chart where the National Counterterrorism Center is under the National Intelligence Director. It's on page 413 of the report. It seems to me that the National Counterterrorism Center really ought to be serving as a staff of the director, otherwise things may get to the center, and they would have to go back up or go back down. At some point, a CIA agent who has some information has to give it to somebody, and it has to filter through the process so that an FBI agent can use that information.

Now, I understand that we're gathering enough information, but I kind of view this as kind of the Where's Waldo puzzle, where if somebody in that puzzle, you show a little picture of Waldo, somebody shows you the picture, there he is, it's obvious. But in the whole picture, trying to find him may take you a long time.

Now, my question is, with all the information coming to one person, will they be deluged with so much information that they will essentially be useless? And, Mr. Brennan, in TTIC, are you running into that, where you get all the information, if somebody would just point it out to you, which of the 20,000 e-mails is actually important, it would be obvious to you what to do, but if somebody is sitting at a desk and runs 20,000 e-mails, what do you do with the information?

MR. BRENNAN: Yes, Mr. Scott. That's why the information has to be put in some type of information system architecture and database that can be accessed and pulsed as a result of searches that are done. Right now in TTIC, we have access to all FBI information coming in from the field, all CIA information that's coming in from the field, on a real time basis. So, you have to apply the analytic tools and the computer tools, in order to access that information because there's just voluminous amounts of information that comes in on a daily basis. People keep talking about information sharing, and it's not sufficient just for me to share information with Mr. Pistole, we need, in the government, you need to make sure that the special agent in New York City, or the case officer over in Africa, or a State Department officer in Europe has access to information as appropriate. And that requires a tremendous engineering of that process.

REP. SCOTT: Will the new proposal make things better or worse?

MR. BRENNAN: We are on a glide path right now to do this in order to access the information right now within TTIC. We have 180 officers from all throughout the government who are able to access this information, but I don't see how this, what they're calling for, is going to allow us to do that on its own. There's a recommendation in here on information sharing that talks about incentives for information sharing, and that's one of the issues that I take objection to. You can't incentivize information sharing, you have to institutionalize it, and you have to have an enforcement mechanism, and a compliance measurement in order to make sure that that happens.

REP. SCOTT: I have a lot more questions. But, go ahead.

MR. KOJM: Mr. Scott, thank you for letting me just respond briefly to Mr. Brennan. One of the incentives is precisely what Mr. Brennan outlines, a new architecture for information sharing. And I couldn't agree with him more in the importance of a system that allows just the kind of work that analysts need to do. That's one of the incentives that needs to be built into the system. One of the things we found in our study is that even when the FBI and CIA put people in each others' centers, and detail them there, that alone was not enough to have information shared. We have to get the systems right and, therefore, I agree with Mr. Brennan.

REP. SCOTT: Mr. Nojeim, they're talking about taking the wall between CIA information gathered under the very casual foreign intelligence gathering system, and FBI, which is limited, probable cause and other kinds of barriers. Is there any limit to the amount of information that ought to be shared between the CIA and the FBI, particularly when they're working in joint operations?

MR. NOJEIM: I think I would look at it a little bit differently. The situation that we have now is one where, if an agent believes that a person is involved in a crime, but they don't have probable cause of crime, they can go around the Fourth Amendment's probable cause of crime requirement, and conduct the wiretap, or the physical search of a home with the use of intelligence authorities. That's what happened in the PATRIOT Act in section 218. We think that that situation needs to be fixed somehow. It's not necessary to re-erect a wall to fix it, but it is necessary to ensure that when the government is looking for crime, and it's doing a very intrusive search, that it have probable cause of crime, as found by a federal judge.

REP. SCOTT: Can I ask a quick follow up question? At the last hearing we heard these new powers and information sharing was aimed at terrorism, not at general law enforcement, if you're talking about general law enforcement and using foreign intelligence techniques to conduct what is essentially a criminal investigation, should we just limit these new powers to terrorism, so that we know what we're talking about, not just general, run of the mill crime?

MR. NOJEIM: Some of the new powers in the PATRIOT Act were limited to terrorism, and some were not. For example, the secret searches, the sneak and peek searches, those are for all searches, not just for searches involving allegations of terrorism. We think that there should be truth in advertising, that when a bill is sold as an anti-terrorism tool, that it be used as an anti-terrorism tool.

MR. PISTOLE: Mr. Scott, if I could just comment also, sir. On the issue of the wire taps, in any use of a wiretap, whether it's under the criminal, Title III laws, or under the court surveillance, the FISA Act, in each and every instance there is an application made to a court, and a court establishes that, yes, there is justifiable probable cause that a wiretap should be granted.

REP. SCOTT: But, probable cause of what under FISA?

MR. PISTOLE: Under FISA it's establishment that there's either a foreign power, or a terrorist nexus in that.

REP. SCOTT: And no allegation of crime is needed, just that you've got an agent of a foreign government, and you're curious as to what's going on?

MR. PISTOLE: No, that there is a relationship between that individual that we're trying to establish additional information about, that that person has engaged in something that is contrary to the national security of the United States, and under that --

REP. SCOTT: Which could be a trade deal? A trade deal?

MR. PISTOLE: There are laws against certain exports on trade items, if that's what you're talking about. Obviously, the foreign intelligence collection that the FBI does transcends counter- terrorism, they're also responsible for counter-intelligence, and there's a lot of issues there that involve no crimes.

REP. SCOTT: And the question is that you can get foreign intelligence wiretaps without any allegation of a crime, and the question, as Mr. Nojeim has suggested, that if you're actually running a criminal investigation, but don't have probable cause, you can run the investigation under the foreign intelligence gathering standard, get all the information, and then if you find something, then you can hand it over to the FBI?

MR. PISTOLE: Well, the safeguards that are in effect on that are the Office of Intelligence Policy Review, OIPR, the Department of Justice.

REP. SCOTT: At the present there is a wall, you can't get it over there. You can't get it over there, so there's no incentive to do it if this wall is erected, that we're talking about taking down.

MR. PISTOLE: That's what the PATRIOT Act did, it eliminated the wall. For example, in New York, if there is an agent, an FBI agent who is investigating the Blind Sheik, for example, that agent would have to open either an intelligence or a criminal investigation on the Blind Sheik, this is pre-9/11. There could be a separate parallel investigation, either criminal or intelligence, that would be conducted but the two could not share that information.

What the PATRIOT Act did, in a FISA court of review decision, coupled with the AG guidelines, what that did was allow that information to be shared, which goes to the national security of the United States. That's all we're trying to do, is making sure that the people of the United States are free from terrorist attacks, that we're doing everything humanly possible to address that. If we pursue it under criminal sanctions, that's one thing, we can lock somebody up. If there are not criminal sanctions, then we can still collect on national security matters.

REP. SCOTT: Mr. Chairman, I don't want to belabor the point, but as Mr. Nojeim has indicated, we'll have some truth in advertising. You've discussed a terrorism situation, but you could say the same thing if you trip over some information in an investigation that had nothing to do with terrorism, and you trip over a crime, or you are looking for the crime, and you can use the information by gathering it under the foreign intelligence standards, which are very casual, and give it over to the FBI, information that they could not have gotten otherwise.

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REP. SCOTT: Thank you, Mr. Chairman.

Mr. Nojeim, under Section 215, after the Department of Justice has made an assertion that the information is needed for a terrorism investigation, does a judge have any discretion on issuing the warrant?

MR. NOJEIM: Under the statute the assertion is enough.

REP. SCOTT: And the judge has no --

MR. NOJEIM: The judge has no discretion, he has a rubber stamp.

REP. SCOTT: And I'd like to pose a question for the record, Mr. Chairman, and that is we've heard back and forth about which model is better. My question to I guess Mr. Brennan and Mr. Kojm is whether an on-the-ground FBI agent is more likely to actually get the information needed under the T-TIC model or under the NCC model, which model will actually make it more likely that an on-the-ground FBI agent might actually get the important information.

The third question I guess to Mr. Pistole is if you could provide us with the employment diversity of the FBI and if somebody has access to the other agencies I think that would be helpful. I think there were some questions prior to 9/11 and I believe improvements have been made since then so we're better able to do our job.

The other is on the no-fly list exactly what database is being used, when the press reports have T. Kennedy being the name that was on the no-fly list and there must have been thousands if not millions of people whose names are inadvertently on the list, how many hijackers would have actually been stopped by our database and what efforts have been made to prevent it from being overly inclusive.

My question to Mr. Pistole on the FISA wiretaps, does-at the request of the Department of Justice we watered down the requirement that the purpose of the wiretap be foreign intelligence to a significant purpose is foreign intelligence, which invites the question what was the primary purpose of the wiretap to begin with. If it was not, if you're getting a FISA wiretap and it wasn't for foreign intelligence, what was it for?

And once you've gotten the wiretap and then you get the roving wiretap, you can start placing wiretaps and listening to a lot of conversations; without a crime ever being alleged, you're listening to a lot of conversations. And that is information that without a crime, the wiretap is without a crime ever having been alleged, that is information that is what is being turned over to the CIA and FBI and everybody else in town. That is our concern that you're listening to a lot of stuff and can use it as a pretense, a pretext, excuse me, for the investigation to begin with.

If the primary purpose was a criminal investigation without probable cause, you can conduct a whole investigation as long as somebody in there is an agent of a foreign government, is that right?

MR. PISTOLE: Well, I think what you touched upon is a fundamental distinction between the criminal wiretap authority under Title III of the Omnibus Crime Control Act of 1968 and the FISA authority, and clearly the protection of national security is at least as significant if not more significant than criminal activity. And as in the event of the 9/11 hijackers, even though there were some minor infractions of law that took place while they were here that had been documented very well by the Commission, it wasn't up until the time that they were actually hijacking the aircraft that there was a clear violation of law. Even the smuggling of the blades onto the planes at that time, as best we can tell, were under the four-inch requirement. So even though they weren't violating the law, we still need the authority to conduct intelligence investigations under the Foreign Intelligence Surveillance Act and the court to ensure that we are preventing future terrorist acts.

And I would state that we have never used a Foreign Intelligence Surveillance Act wiretap as a subterfuge or as a device --

REP. SCOTT: Well, what purpose, if it is not the primary purpose of the wiretap, what is the purpose?

MR. PISTOLE: It's to protect national security from either foreign powers or those who are affiliated with a terrorist organization under the Patriot Act.

REP. SCOTT: So if we added that to the Patriot Act, that wouldn't offend you?

MR. PISTOLE: Add what, sir?

REP. SCOTT: Add that the primary purpose has to be foreign intelligence or national security?

MR. PISTOLE: Well, we've-the Patriot Act, as I said, the significant purpose, if you want to-I'll have to debate the importance of significant or primary, that was done by Congress in --

REP. SCOTT: Well, actually the Congress increased the standard because the Department of Justice asked for "a" purpose, which meant any purpose and the primary purpose could have been something else.

My question is if we limit the use of FISA wiretaps to foreign intelligence and national security as the only purposes you can be getting the wiretap for, would that offend you?

MR. PISTOLE: Well, that's generally the situation now. If you're thinking of a specific example that I'm missing, then I may have a problem with that.

REP. SCOTT: The specific example you're missing is a pretext for running an investigation without probable cause.

MR. PISTOLE: Which we don't do. We still need a level of probable cause to obtain a FISA court --

REP. SCOTT: So I'm hearing that you would not be offended if we restricted the use of FISA to what FISA is supposed to be there for?

MR. PISTOLE: Absolutely not because that's what we use it for.