Dm B1 Ashcroft Fdr- Team 6 Questions For Larry Thompson 188

TEAM 6 QUESTIONS FOR LARRY THOMPSON Bio: Mr. Thompson was confirmed by the U.S. Senate as Deputy Attorney General on May 10, 2001. In March 2002, John Ashcroft named Thompson to lead the National Security Coordination Council which works to ensure seamless coordination of all functions of the Department relating to national security, particularly its efforts to combat terrorism. From 1982-1986, he served as the U.S. Attorney for the Northern District of Georgia.

A. Factual/Chronological Questions Pre-9/11 •

Prior to your confirmation hearings and then later once you started in your position as Deputy Attorney General (DAG), what briefings or background information was provided to you about the terrorist threat to the United States and the DOJ's and FBI's strategy and capacity to prevent terrorism here? When did you first become aware of the existence of al-Qa'ida? When did you first learn of Usama bin Laden? What was the context? What was your view of the FBI's ability to detect, prevent and disrupt terrorism in the United States when you started as DAG? Did you have any particular concerns about this? If so, what did you do about these concerns? Was this issue on your radar at all? [We may want to tell him that Ashcroft was very frank with us about his views of the FBI's abilities pre-9/11.]

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What was your role in overseeing the FBI's and the DOJ's counterterrorism efforts? How often did you meet with senior FBI officials to monitor the FBI's counterterrorism program? Did you interact with any of the U.S. Attorneys on counterterrorism matters?

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Outside of the FBI, was the Department, including the US Attorneys Offices, doing all it could to assist in the effort to prevent terrorist attacks in the U.S.?

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The volume of threats rose to an extraordinary level during the spring and summer of 2001. What meetings did the NSC convene during this period? To what extent were you involved and participate in the relevant NSC meetings during that period? What information did you receive about the increased "chatter" during this period andAwho provided it to you? Did you take any action as a result of this knowledge? Do you recall what threat circulars and advisories were produced by the FBI during this period? Do you recall what, if anything, ttie Principals directed to be sent out to the FAA, Customs, Coast Guard, INS, state and local authorities, and others during the spring/summer 2001 threat period?

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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 yo'uyiew to be running the FBI and who was settingjts 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?

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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?

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To what extent does the Department set priorities and give strategic direction for the y FBI's various law enforcement and investigative programs? What jole does the DAG play in this? ^y "\ What were your and John Ash

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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?

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Sometime before July 11, 2001, you asked David Kris to look into the implications of declaring war on terrorists. [Show Routing slip dated 7/11/2001 from Kris to Thompson.] Please discuss the background to this request. What had happened or what did you know that led to this request? What did you do with the information Mr. Kris provided you? Did you discuss this further with him or with anyone else? What action did you take?

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As you discussed during your testimony before the Commission, on August 6, 2001, you sent a memorandum to several people within DOJ and the FBI regarding intelligence sharing. Ptease^diseasswiat led you to send this memorandum and how you became aware of the problems you were trying to address. In your view, why was information sharing so difficult that such a memorandum requiring disclosure to the Criminal Division was necessary? What changes were you able to identify during the short window between the memo and September 11th, if any?

9/11 and Post-911 •

Please describe in detail where you were, what happened, and what you did on 9/11. \i

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 factfmding that h^s taken place since 9/11 that permitting them to leave slowdown or otherwise impede the government's investigation? • What actions did you and the Department take iiHh^immediate aftermath (i.e., prior to passage of the USA PATRIOT ACT) to address legaT^afflers such as the "Wall"? •Please describe the process by which the Department evaluates cases and provides advice t o 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?

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In March, 2002, you were named by John Ashcroft to lead the National Security Coordination Council. What was this entity and what did you do with it?

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During a speech you gave in October of last year to the American Board of Criminal Lawyers, you said that following 9/11 you "started and led our homeland security effort until Tom Ridge arrived and got started." Please describe this in greater detail - what did you do, who did you report to, what specific issues or problems did you try to address, and how successful were you?

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What role did you play in the creation of the Anti-Terrorism Advisory Councils (ATACs) in the Offices of U.S. Attorneys around the country? Please describe what they are designed to do and how effective they are in your estimation.

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We have learned that you were involved in the Department's motion before the Foreign Intelligence Surveillance Court to share the "raw take" from the FBI's FISA searches and surveillances with the NS A and CIA. Please describe the background to this and why the FISC's Order was significant.

B. Operational/Policy Questions 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 would 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? What do you think accounts for the failure of prior reforms? Information Sharing. During your testimony before the Commission on December 8, 2003, you stated that you witnessed "grave deficiencies in the ability of intelligence officials and law enforcement officials to share information with each other, which hampered the Department of Justice's ability to take action to defend the nation against terrorist attacks." The following paragraphs raise questions about information sharing in particular contexts:

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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?

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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? How can it be improved upon?

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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? How can it be improved upon?

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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)?

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Terrorist Threat Integration Center. In your view, is the TTIC adequate to ensure "seamless" information sharing between the FBI, the CIA, and other intelligence agencies? Why wasn't the CIA's 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?

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? 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?

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Legal Authorities

Enemy Combatant Status. During a speech you gave last October to the American Board of Criminal Lawyers you said that the "authorities under which we deal with terrorism . . . should not be unbridled." In your view, has the administration's use of enemy combatant status crossed this line? The Wall. Please describe your understanding of the genesis and development of the Wall. Post-9/11, the conventional wisdom seems to be that the Wall was unnecessary and not legally required. What was your view at the time of the Wall and the policies and procedures that were created to maintain it? What was the view of others in the Department? Do you know how this led to the separation within the FBI of the criminal agents from the intelligence agents? •

What was your reaction to what you have read about how FBI Headquarters and the Minneapolis field office handled the effort to get a warrant to search Moussaoui's belongings prior 9/11?

FISA Process, Problems. Please describe your role, if any, in the FISA application process during your tenure there. Were you aware of the problems with dozens of applications that surfaced during the summer of 2000? Please discuss them and what was done about them. Were the remedies (i.e.,Jhe_Vj£o£d_sj3rocedures) to these problems adequate? •

What is your understandingpf-ftan Townsend's role at OIPR and why was she fired from her position,as Chief Counsel? c^vv-^T 7^^^, V_

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AG Guidelines. Please describe any other consideration that was given to amending the Attorney General Guidelines during your tenure there. Prior to 9/11, the FBI could not randomly collect publicly available information (e.g., from the Internet or attending a public rally). AG Ashcroft recently amended these rules. Please share your thoughts about the changes and what your sense of what the views of the Department were during your tenure. 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.]

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Do you believe these concerns have any merit?

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

USA PATRIOT Act Sunset Provisions: As you know, 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). •

You have expressed need for an independent commission to conduct a thorough review of these authorities and to publicly debate the merits of making some provisions permanent. Please tell us more about the need you perceive in this area.

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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?

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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 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).

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

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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?

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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?

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If so what changes do you recommend?