Dm B1 Ashcroft Fdr- Team 6 Questions For Ashcroft 195

TEAM 6 QUESTIONS FOR ATTORNEY GENERAL JOHN ASHCROFT (What follows are questions that are not included in the questions that we understand Dan already intends to ask about issues such as Ashcroft's involvement in the immediate response and his actions with respect to foreign nationals in the United States. We are interested in the answers to many of these questions as well.)

I. Top Priority Questions (Le., questions for which his perspective is unique and required) A. Factual/Chronological Questions You becarfte^ttorney General a few short months-after the Cole Bombing. What were you briefed on regarding responsibiUfy^ftfrthe Cole Bombing when you assumed office? Did you receive any speetafbrieftngs^egarding the al Qaeda organization and its potential threat tp^US interests when you~~a&SMmed office? From whom and when? What did you understand to be the threat from al Qaeda^o the U.S. at that time? Did you take any specific action regarding this threat in the monms^ading up to 9/11? •

The volume of threats rose to an extraordinary level during the spring and summer of 2001. To what extent were you involved and paiQiiyale-ia-the relevant Principals'/Small GFegyraectingo during that period? What information did you receive about the increased "chatter" during this period and who provided it to you? What, if anything, did you do in response to this information? Did you take any action or provide any direction to the FBI regarding what actions it should take in response to the heightened threat level? If so, did you provide that direction verbally or in writing and to whom was it provided?

•

Do you recall wriaTtrtfeaXcirculars and advisories the Principals directed-ftrbe sent out to the FAA, Customs, Coast GuardpINS^ state and local authorities, and others during the spring/summer 2001 threat period? Did you provide any-advice or direction as to what informatio^T^hrnM-he^disseminated and to whidfjagencies it should be given? Did you or your staff provide counsel as to what should or should not be said in any such advisories?

•

Were you aware of the search for Khalid Almihdhar and Nawaf Alhazmi in the United States prior to 9/11 ? If so, how did you learn about it and what action did you take in response to this information? The search for Khalid Almihdhar and Nawaf Alhazmi in the United States prior to 9/11 has been heavily criticized because it was severely constrained by the perceived wall between intelligence and criminal investigations. Did your office get involved in any discussions whether the search could be conducted by criminal agents or whether the information had to remain solely on the intel side of the watt? Were you aware of the existence of the so-called wall between intelligence and criminal functions prior to 9/11?

If so, did you undertake any action to redefine the wall prior to 9/11? There were numerous complaints that the Attorney General Guidelines pre-9/11 unfairly hindered the FBI's ability to investigate potential terrorists, including the stringent limits on preliminary inquiries. Did you undertake any review of these rules prior to 9/11? During the period after Director Louis Freeh left the FBI and before Director Mueller assumed control, who did you view to be running the FBI and who was setting its counterterrorism priorities? What role, if any, did the Department of Justice - and you in particular - play in leading the Bureau during this period of increased threats? What did you know about how the FBI was responding to these threats? Did you undertake any review of the FBI's counterterrorism policies prior to 9/11? In light of the high threat level over the course of the Spring and Summer, how much time were you spending on counterterrorism issues? Director Mueller was nominated by the President on July 5, 2001 and confirmed on August 2, 2001. How much interaction did you have with Mueller during the summer of 2001 and what did that interaction consist of? To what extent does the Department set priorities and give strategic direction for the FBI's various law enforcement and investigative programs? Did you have any discussions with or provide any directibn^to the FBI prior to 9/11 regarding its respective priorities? Ifsoi what direction dicTyou give it and what action did it take in response? In the months prior to September 11, what budget requests did the FBI submit to support its counterterrorism mission and what was the Department's response? Did the Department agree with the requests and the priorities as defined by the FBI? Were there any particular disagreements with the FBI request and if so, what were they and how were they handled? Immediately following September 11, what directions did you give your subordinates with respect to pulling together the legislative proposal that eventually became the USA PATRIOT Act and how quickly did you do this? Who provided you advice as to what changes were needed in the laws and how best to accomplish the necessary changes? Did^QLC^rovide any advice as to whether the proposed changes posed any constitutional impediments? j

"/]

It has been reported that certain Saudi citizens were permitted to leave the United States shortly after 9/11 [on September 16?]. Who made the decision to permit them to leave? Were they questioned by the FBI before they left? Is there any indication based upon the extensive factfinding that has taken place since 9/11 that permitting them to leave compromised the government's investigation? Please describe the process by which the Department evaluates cases and provides advice to the President with respect to the determination of whether to deem an individual an "enemy combatant." Has the Department's view on these questions consistently prevailed? Have you provided advice to the President as to whether particular individuals should be prosecuted criminally versus being designated as enemy combatants? What are the primary criteria you would apply to such decisions? The FBI has complained that it has routinely been denied access to detainees held overseas. This has been partly attributed to the fact that the interrogators wish to use "special techniques " that Director Mueller has decided it would be inappropriate for FBI agents to participate in. To what extent, if at all, have you been involved in determining whether and to what extent use of "special techniques " is appropriate for particular detainees? Have you been involved in determining whether FBI personnel should have access to the detainees? Is it in the U.S. government's interest that investigators who have been following and studying these individuals for years, who know a great deal about them, and who are experienced interrogators in their own rights should be precluded from participating in the interrogation process? How do we best ensure that the best people are involved in the interrogation process? B. Operational/Policy Questions""

\w Enforcement and Domestic Intelligence Collection

having law enforcement agencies act as domestic intelligence collectors is a good policy because law enforcement powers, particularly the threat of criminal prosecution, give law enforcement agencies an ability to compel information that intelligence agencies lack. Other experts argue that intelligence collection and law enforcement are very different, and a focus on prosecution and the collection of admissible evidence for trial hampers law enforcement agencies that also collect intelligence. Do you have specific views on the ability of the FBI to perform domestic intelligence collection while also acting as our country's lead federal law enforcement agency? Should the counterterrorism intelligence function be taken out of the FBI? What are the strongest reasons you can give for why the FBI should retain the domestic intelligence function? Is there any point at which you believe the 4th Amendment's constraints counsel for a separate agency that does not have to operate as a law enforcement agency must operate? What are the strongest reasons why we should create

a separate organization to handle this function? As long as there is appropriate information sharing, why isn 't a separate agency the cleanest way to have agencies that focus on what they do best - either law enforcement or intelligence? •

FBI Reforms. Please evaluate the status of the FBI's recent and ongoing reforms to improve its ability to detect, disrupt, and prevent international terrorist attacks against the United States? How will you determine that you are satisfied that the FBI has implemented all the reforms necessary to maximize our capacity to prevent terrorism? Is there any point at which we should say that the FBI has had enough time and opportunity to remake itself into the best possible counterterrorism agency and that it is time to consider other options? To what extent have you been involved in determining how the FBI should reorganize to better address the terrorist threat? Although Director Mueller has announced many intended reforms,many of these^ reforms have vettobeJmDlementedm me field_._Have you set any~3eadlTnes for these reforms to be implemented? If yes, when? If not, ho long are you willing to wait? Which of these reforms do you believe are the most important to improving the U.S. Government's ability to combat threats against the American people?

•

Information Sharing: DOJ-FBI. Please discuss and evaluate the status of information sharing and coordination between main Justice and FBI Headquarters with respect to international terrorism matters before 9/11. What is your sense of how well the various U.S. Attorney Offices coordinated with the FBI Field Offices prior to 9/11? How, if at all, has the level of coordination and information sharing between both Justice and FBI headquarters and field offices changed since 9/11? Are you satisfied with the current level of information sharing between these components? How can it be improved upon? What types of information did you seek from the FBI prior to 9/11 regarding terrorist investigations and prosecutions? Were you satisfied that you were receiving the amount and type of information that you felt was needed for you to properly oversee these efforts? Have you issued any directives to change the amount or type of information that is shared?

•

Information Sharing: DOJ-Intelligence Community. Prior to September 11, how, if at all, did the Department of Justice coordinate and share information pertaining to international terrorism matters with members of the intelligence community (i.e., CIA, NSA, DoD, etc.)? How did such coordination take place? Were you satisfied with the level of Justice involvement in preparing for and responding to potential terrorist threats? How has the Department's interaction with these agencies changed since 9/11? Did you provide any guidance to the FBI or other DOJ components regarding the types of information that could or could not be shared with other members of the intelligence community? Did you have any substantive dealings with other members of the intelligence community regarding information sharing prior to 9/11? What about post 9/11 ? What, if any, constraints on information sharing do you believe there should be

among the relevant members of the 1C? Or should there essentially be one central repository of information with equal access by those investigating terrorists activities? •

New Anti-Terrorism Legal Authorities. The USA PATRIOT Act has given the government new powers to combat terrorism but, as you know, it has also caused concerns among some citizens. One area of concern is whether special powers intended to be used to fight terrorism, such as FISA surveillance under the "significant purpose" standard, could be misused in non-terrorism law enforcement investigations. [An analogy here is the RICO statute, which was intended to combat organized crime but came to be widely used for everything from business crimes to abortion protests.] •

Do you believe these concerns have any merit?

•

If not, what internal Justice Department and FBI procedures ensure that special anti-terrorism powers will not be misused?

[I would not: ask the following three questions because 1 do not believe he will have much of value to say and there are more important things to address.] •

Information Sharing: DOJ-State/Local Law Enforcement What role, if any. has the Department of Justice played in facilitating the sharing of terrorism-related information with state and local law enforcement authorities both before and after September 11? Has the Department's role changed in this regard since 9/11?

•

Terrorist Threat Integration Center. Is the TTIC adequate to ensure "seamless" information sharing between the FBI. the CIA, and other intelligence agencies? What role do you anticipate the Department having in TTIC?

•

Department of Homeland Security. What do you see as the role of DHS in the domestic counterterrorism arena (in contrast to that of the FBI)?

II. Important Questions to Raise if Time Permits (in order of priority) Foreign and Domestic Intelligence Divide. Does the Cold War-era division of authority and operations between domestic and foreign intelligence activities still make sense in the post-9/11 world where multinational fundamentalist terrorist groups, such as al-Qaeda, target U.S. interests both here and abroad, and must be investigated both domestically and abroad? And given that the FBI and CIA must both operate overseas to combat this threat, is additional policy guidance necessary to deconflict their roles in that environment?

•

USA PATRIOT Act Sunset Provisions: A number of provisions of the PATRIOT Act will "sunset" in December 2005 if Congress does not act to extend them or make them

permanent (such as section 215, the FIS A business records provision, and section 218, the "significant purpose" standard for FISA surveillance or searches).

•

•

•

If these provisions are allowed to sunset, how significantly will it affect the Government's ability to combat terrorism?

•

Are certain of the sunset provisions more important than others in terms of obtaining congressional extension?

•

If section 218 is allowed to sunset and the standard for FISA goes back to the old "primary purpose" standard, does the FISA Court of Review opinion provide adequate authority for the Government to continue to combat terrorism effectively?

Domestic Intelligence Collection and the Constitution: The USA PATRIOT Act (sec. 218) and the FISA Court of Review opinion now make it possible for FISA electronic surveillance and clandestine physical searches to be used in any investigation in which the government certifies to the FISA Court that obtaining foreign intelligence information is "a significant purpose" of the surveillance or search. A U.S. person can be the subject of the surveillance or search if he or she is suspected to be an "agent of a foreign power." Information obtained in the search or seizure can now be used to criminally prosecute the subject, but the FISA application process does not require the same level of "probable cause" that the Fourth Amendment requires. •

The Supreme Court has not addressed this issue - do you have any concerns as to whether the current laws and practices satisfy constitutional requirements?

•

Now that FISA-obtained information can be more freely used in criminal prosecutions, a federal district court or court of appeals could disagree with the FISA Review Court and interpret the FISA statute, as amended by the PATRIOT Act, more restrictively. What impact would such a ruling have on counterterrorism efforts within that district or circuit?

Administrative Subpoenas: The President has said that Congress should pass a statute giving the FBI an administrative subpoena power in anti-terrorism investigations, similar to the administrative subpoena power the FBI and/or the DBA has in some kinds of drug and health care fraud investigations. The FBI already has authority to issue "National Security Letters" in terrorism investigations to obtain three categories of information telephone billing information, consumer credit information, and financial institution information (now broadly defined to include casinos, pawnshops, travel agents, vehicle sales, loan and finance companies, and other kinds of personal financial records). •

In your view is the existing NSL authority inadequate and is it advisable that the FBI also be given administrative subpoena power?

What kind and level of approval should be required for an FBI administrative subpoena - internal FBI approval only (as is the case for NSLs); approval by a Department of Justice attorney (as for grand jury subpoenas); or some kind of judicial approval (as with FISA Court approval under section 215 of the USA PATRIOT Act)?

Would the proposed administrative subpoena power be even broader than the power under section 215 of the USA PATRIOT Act to obtain records from businesses, libraries, etc. - which has been controversial although reportedly has not yet been used - in that no prior judicial approval would be required for an administrative subpoena, while section 215 requires prior approval by the FISA Court? NSLs and Grand Jury Subpoenas: Under current law the recipient of an FBI "National Security Letter" request for information is prohibited from disclosing anything about the letter to third parties, under penalty of criminal prosecution, but the FBI has no legal means of enforcing an NSL if a recipient refuses to comply. With a federal grand jury subpoena, in contrast, the government can readily enforce the subpoena through a judicial enforcement proceeding, but the law generally does not permit the government to impose a confidentiality requirement on the recipient. •

Now that both of these tools are being used in terrorism investigations, is there a need to make the applicable legal rules more consistent?

•

If so what changes do you recommend?

Resources and Domestic Intelligence Collection: With respect to domestic intelligence collection to combat terrorism, some experts have asserted that the need for additional resources may be greater than the need for additional legal authorities at this time. •

How do you assess the need for additional resources at this time, both at the Department of Justice and at the FBI?

•

Can you identify specific functions within the Justice Department and FBI where additional resources would make the most difference - for example, technology and computer systems; linguists and translation capability; or recruitment and training of intelligence analysts?

TEAM 6 QUESTIONS FOR ATTORNEY GENERAL JOHN ASHCROFT (What follows are questions that are not included in the questions that we understand Dan already intends to ask about issues such as Ashcroft's involvement in the immediate response and his actions with respect to foreign nationals in the United States. We are interested in the answers to many of these questions as well.)

I. Top Priority Questions (Le., questions for which his perspective is unique and required) A. Factual/Chronological Questions •

The volume of threats rose to an extraordinary level during the spring and summer of 2001. What meetings id the NSC convene during this period? To what extent were you involved and participate in the relevant Principals'/Small Group meetings during that period? What information did you receive about the increased "chatter" during this period and who provided it to you?

•

Do you recall what threat cmmlacsand advisojaeswere produced by the FBI during this period? Do you recall what, if anyrnlrIg?£SeJ^incipals directed to be sent out to the FAA, Customs, Coast Guard, INS^sfate and locaTilirihQrities, and others during the spring/summer 2001 threatperiod? ^

•

Were you aware of the search for Khalid Almihdhar and Nawaf Alhazmi in the United States prior to 9/11 ? If so, how did you learn about it and what action did you take in response to this information?

•

During the period after Director Louis Freeh left the FBI and before Director Mueller assumed control, who did you view to be running the FBI and who was setting its counterterrorism priorities? What role, if any, did the Department of Justice - and you in particular - play in leading the Bureau during this period of increased threats? What did you know about how the FBI was responding to these threats?

•

Director Mueller was nominated by the President on July 5, 2001 and confirmed on August 2, 2001. How much interaction did you have with Mueller during the summer of 2001 and what did that interaction consist of?

•

To what extent does the Department set priorities and give strategic direction for the FBI's various law enforcement and investigative programs?

•

When you became Attorney General, what did you learn about the ability of the FBI to handle national security-related matters? Who briefed you? What were your priorities for the FBI when Director Mueller was confirmed?

•

In the months prior to September 11, what budget requests did the FBI submit to support its counterterrorism mission and what was the Department's response?

•

It has been reported that certain Saudi citizens, including members of Bin Laden's family, were permitted to fly out of the United States in a group shortly after 9/11. Who made the decision to permit them to leave? Were they questioned by the FBI before they left? Is there any indication based upon the extensive factfinding that has taken place since 9/11 that permitting them to leave slow down or otherwise impede the government's investigation?

•

Please describe the process by which the Department evaluates cases and provides advice to the President with respect to the determination of whether to deem an individual an "enemy combatant." Has the Department's view on these questions consistently prevailed?

B. Operational/Policy Questions •

Law Enforcement and Domestic Intelligence Collection. Some experts argue that having law enforcement agencies act as domestic intelligence collectors is a good policy because law enforcement powers, particularly the threat of criminal prosecution, give law enforcement agencies an ability to compel information that intelligence agencies lack. Other experts argue that intelligence collection and law enforcement are very different, and a focus on prosecution and the collection of admissible evidence for trial hampers law enforcement agencies that also collect intelligence. Do you have specific views on the ability of the FBI to perform domestic intelligence collection while also acting as our country's lead federal law enforcement agency? Should the counterterrorism intelligence function be taken out of the FBI?

•

FBI Reforms. Please evaluate the status of the FBI's recent and ongoing reforms to improve its ability to detect, disrupt, and prevent international terrorist attacks against the United States? How will you determine that you are satisfied that the FBI has implemented all the reforms necessary to maximize our capacity to prevent terrorism? Is there any point at which we should say that the FBI has had enough time and opportunity to remake itself into the best possible counterterrorism agency and that it is time to consider other options?

•

Terrorist Threat Integration Center. Is the TTIC adequate to ensure "seamless" information sharing between the FBI, the CIA, and other intelligence agencies? Why wasn't the CTC structure sufficient? What role do you anticipate the Department having in TTIC? What is being done to ensure there are clearly defined areas of responsibility for TTIC, CIA, FBI, and DHS?

•

Information Sharing: DOJ-FBI. Please discuss and evaluate the status of information sharing and coordination between main Justice and FBI Headquarters with respect to international terrorism matters before 9/11. What is your sense of how well the Criminal Division and the national security side of the FBI coordinated prior to 9/11? What is your sense of how well the various U.S. Attorney Offices coordinated with the FBI Field Offices prior to 9/11? How, if at all, has the level of coordination and information

sharing between both Justice and FBI headquarters and field offices changed since 9/11? Are you satisfied with the current level of information sharing between these components? How can it be improved upon? •

Information Sharing: DOJ-Intelligence Community. Prior to September 11, how, if at all, did the Department of Justice coordinate and share information pertaining to international terrorism matters with members of the intelligence community (i.e., CIA, NSA, DoD, etc.)? How did such coordination take place? Were you satisfied with the level of Justice involvement in preparing for and responding to potential terrorist threats? How has the Department's interaction with these agencies changed since 9/11?

•

Information Sharing: DO J-State/Local Law Enforcement. What role, if any, has the Department of Justice played in facilitating the sharing of terrorism-related information with state and local law enforcement authorities both before and after September 11? Has the Department's role changed in this regard since 9/11?

•

Department of Homeland Security. What do you see as the role of DHS in the domestic counterterrorism arena (in contrast to that of the FBI)?

II. Important Questions to Raise if Time Permits (in order of priority) •

Immediately following September 11, what directions did you give your subordinates with respect to pulling together the legislative proposal that eventually became the USA PATRIOT Act and how quickly did you do this?

•

Foreign and Domestic Intelligence Divide. Does the Cold War-era division of authority and operations between domestic and foreign intelligence activities still make sense in the post-9/11 world where multinational fundamentalist terrorist groups, such as al-Qaeda, target U.S. interests both here and abroad, and must be investigated both domestically and abroad? And given that the FBI and CIA must both operate overseas to combat this threat, is additional policy guidance necessary to deconflict their roles in that environment?

•

New Anti-Terrorism Legal Authorities. The USA PATRIOT Act has given the government new powers to combat terrorism but, as you know, it has also caused concerns among some citizens. One area of concern is whether special powers intended to be used to fight terrorism, such as FISA surveillance under the "significant purpose" standard, could be misused in non-terrorism law enforcement investigations. [An analogy here is the RICO statute, which was intended to combat organized crime but came to be widely used for everything from business crimes to abortion protests.] •

Do you believe these concerns have any merit?

•

If not, what internal Justice Department and FBI procedures ensure that special anti-terrorism powers will not be misused?

•

•

•

USA PATRIOT Act Sunset Provisions: A number of provisions of the PATRIOT Act will "sunset" in December 2005 if Congress does not act to extend them or make them permanent (such as section 215, the FISA business records provision, and section 218, the "significant purpose" standard for FISA surveillance or searches). •

If these provisions are allowed to sunset, how significantly will it affect the Government's ability to combat terrorism?

•

Are certain of the sunset provisions more important than others in terms of obtaining congressional extension?

•

If section 218 is allowed to sunset and the standard for FISA goes back to the old "primary purpose" standard, does the FISA Court of Review opinion provide adequate authority for the Government to continue to combat terrorism effectively?

Domestic Intelligence Collection and the Constitution: The USA PATRIOT Act (sec. 218) and the FISA Court of Review opinion now make it possible for FISA electronic surveillance and clandestine physical searches to be used in any investigation in which the government certifies to the FISA Court that obtaining foreign intelligence information is "a significant purpose" of the surveillance or search. A U.S. person can be the subject of the surveillance or search if he or she is suspected to be an "agent of a foreign power." Information obtained in the search or seizure can now be used to criminally prosecute the subject, but the FISA application process does not require the same level of "probable cause" that the Fourth Amendment requires. •

The Supreme Court has not addressed this issue - do you have any concerns as to whether the current laws and practices satisfy constitutional requirements?

•

Now that FISA-obtained information can be more freely used in criminal prosecutions, a federal district court or court of appeals could disagree with the FISA Review Court and interpret the FISA statute, as amended by the PATRIOT Act, more restrictively. What impact would such a ruling have on counterterrorism efforts within that district or circuit?

Resources and Domestic Intelligence Collection: With respect to domestic intelligence collection to combat terrorism, some experts have asserted that the need for additional resources may be greater than the need for additional legal authorities at this time. •

How do you assess the need for additional resources at this time, both at the Department of Justice and at the FBI?

•

Can you identify specific functions within the Justice Department and FBI where additional resources would make the most difference - for example, technology

and computer systems; linguists and translation capability; or recruitment and training of intelligence analysts? •

•

Administrative Subpoenas: The President has said that Congress should pass a statute giving the FBI an administrative subpoena power in anti-terrorism investigations, similar to the administrative subpoena power the FBI has in some kinds of drug and health care fraud investigations. The FBI already has authority to issue "National Security Letters" in terrorism investigations to obtain three categories of information - telephone billing information, consumer credit information, and financial institution information (now broadly defined to include casinos, pawnshops, travel agents, vehicle sales, loan and finance companies, and other kinds of personal financial records). •

Why is the existing NSL authority inadequate and why is it essential that the FBI also be given administrative subpoena power?

•

Would the proposed administrative subpoena power be even broader than the power under section 215 of the USA PATRIOT Act to obtain records from businesses, libraries, etc. - which has been controversial although reportedly has not yet been used - in that no prior judicial approval would be required for an administrative subpoena, while section 215 requires prior approval by the FISA Court?

•

What kind and level of approval should be required for an FBI administrative subpoena - internal FBI approval only (as is the case for NSLs); approval by a Department of Justice attorney (as for grand jury subpoenas); or some kind of judicial approval (as with FISA Court approval under section 215 of the USA PATRIOT Act)?

NSLs and Grand Jury Subpoenas: Under current law the recipient of an FBI "National Security Letter" request for information is prohibited from disclosing anything about the letter to third parties, under penalty of criminal prosecution, but the FBI has no legal means of enforcing an NSL if a recipient refuses to comply. With a federal grand jury subpoena, in contrast, the government can readily enforce the subpoena through a judicial enforcement proceeding, but the law generally does not permit the government to impose a confidentiality requirement on the recipient. •

Now that both of these tools are being used in terrorism investigations, is there a need to make the applicable legal rules more consistent?

•

If so what changes do you recommend?