Fo B5 Public Hearing 4-13-04 Fdr- Tab 7- Suggested Questions For John Ashcroft 743
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SUGGESTED QUESTIONS FOR JOHN ASHCROFT Designated Commissioners: Richard Ben-Veniste and James Thompson 1. Your understanding of the terrorist threat when you assumed office. During the years prior to your becoming Attorney General in early 2001, the United States suffered a dramatic series of terrorist attacks, beginning with the first World Trade Center bombing in 1993, continuing through the 1996 Khobar Towers attack, the 1998 East African embassy bombings, and the October 2000 attack on the U.S.S. Cole. •
At the time you assumed office, what was your assessment of the seriousness of the terrorist threat facing this country? Where did terrorism rank among your priority areas of attention when you assumed office?
•
According to your biography on the official Department of Justice website, you pledged to renew the war on drugs, reduce the incidence of gun violence and combat discrimination upon your confirmation by the Senate. You testified in May 9, 2001 before the Senate Appropriations Committee on department efforts to combat terrorism, but you did not list counterterrorism as one of the Department's goals and objectives for preparing the FY 2003 budget dated May 10, 2001. Is there a discrepancy here? Where did you see counterterrorism fitting into the Department's budget priorities?
•
Did FBI Director Louis Freeh brief you on terrorism and the FBI's counterterrorism mission when you first took office? What did he tell you about the nature of the terrorist threat at that time?
•
The United States Attorney's Office for the Southern District of New York was heavily involved in investigating and prosecuting al Qaeda terrorism during the late 1990s - when you assumed office did you seek input from the U.S. Attorneys' Offices around the country on recommendations as to priorities and resource allocation at the Justice Department?
•
As with any new administration, you appointed new personnel to key policy positions within the Justice Department. Was experience on counterterrorism a consideration as you chose appointees?
•
In your first view months in office, did you meet with any officials from the National Security Council, the Central Intelligence Agency, or any other agency or department to discuss terrorism? Were you ever briefed by the FBI's Assistant Director for Counterterrorism Division on terrorism before July 2001?
•
Prior to July 2001, did you meet with any officials from the National Security Council, the Central Intelligence Agency, or any other agency or department to
discuss terrorism? Were you ever briefed by the FBI's Assistant Director for Counterterrorism Division on terrorism before July 2001? 2. Briefings and consultations on terrorism with Clinton administration officials. We have heard testimony from Clinton administration officials that at the time they left office they considered foreign terrorists, and particularly al Qaeda, to be the number one threat to national security. •
When you first took office did you have any briefings with outgoing Clinton administration officials such as Attorney General Reno at which terrorism was discussed? What was said? How was the threat described?
3. Your involvement in terrorism issues during the summer of 2001. A few months after you were confirmed as Attorney General, the U.S. intelligence community began receiving an unusually large amount of information from various sources indicating a major terrorist attack might be coming. Concern was especially high in early July. •
What knowledge, if any, did you have of the heightened threat level in the summer of 2001?
•
Did you direct that any steps be taken, at the Justice Department or at the FBI, to respond to the heightened threat level?
•
What were the steps you directed?
•
When FBI Director Louis Freeh resigned May 1, 2001, he thanked Attorney General Reno for her support to the FBI, "particularly in our expanded efforts to combat cyber-crime, terrorism, and international organized crime." Did Director Freeh ever communicate anything to you about the need for continued support of the FBI's "expanded efforts" to combat terrorism?
•
What contact did you have with Thomas Pickard when he was Acting Director of the FBI? Did you meet with him more or less frequently than you met with Director Freeh? Was the threat of terrorist attack discussed at these briefings? Did he or others at the FBI request your assistance with the FBI's counterterrorism program?
•
Did you understand that efforts were underway in the summer of 2001 to expand the FBI's ability to combat terrorism? What was being done at the FBI to accomplish that goal?
•
Did the FBI request additional funding for its counterterrorism program in the budget process taking place over the summer of 2001? Did you reject this request? What programs did you consider more deserving of increased funding?
•
On July 26, 2001, CBS News report stated that you had flown a chartered government jet to Missouri the previous weekend. The report states that you were flying a chartered jet, rather than a commercial flight, because of an FBI "threat assessment." Both you and the FBI declined to describe the nature of the threat to CBS News. What was the nature of that threat assessment? Did it relate to terrorism?
•
During the summer of 2001, did you take any action, or direct that any action be taken, either at the Justice Department or at the FBI in response to heightened threats of a possible terrorist attack on the U.S?
4. Warnings in the summer of 2001 and lessons learned. We now know that there were specific cases in the summer of 2001 that involved information that was not elevated prior to the attacks. The staff statement this afternoon highlights the failed search for al Hazmi and al Mihdhar and the Moussaoui case. •
What steps have you taken to ensure that relevant information about potential terrorist threats, at whatever level within the FBI, is properly disseminated and acted upon?
•
Are the systems that are now in place adequate, or does more work need to be done? Where can further improvements be made?
•
What about information technology and computer systems - how much progress has the FBI made in this area since 9/11? Are you confident that everything possible, within reason, is being done, and being done as quickly as possible to address deficiencies at the FBI?
•
What are your conclusions about why there was not more recognition prior to 9/11 of the possibility that there could be a serious terrorist attack within the U.S.? Do you believe that not enough information was collected, analyzed, and disseminated?
•
Do you any of your conclusions suggest the need for a more focused federal government agency to be responsible for counterterrorism investigations inside the U.S.?
•
In your view, are the roles and missions of the FBI, CIA, and Department of Homeland Security sufficiently distinct and rationalized so that government counterterrorism efforts are both efficient and effective?
6. FBI Reform. We have devoted a great deal of attention to reform efforts that are currently underway at the FBI. We know that the FBI is working hard to improve its counterterrorism intelligence collection and analysis capabilities. We know that it is
working to improve its information technology and its ability to disseminate terrorism information. We also know that Director Mueller has made fighting terrorism and preventing terrorist attacks the number one priority of the FBI. •
What has been your involvement in the reform efforts at the FBI? Are you supervising or reviewing those efforts?
•
Some say Director Mueller has shifted the FBI away from a reactive, lawenforcement approach to terrorism toward a proactive, intelligence-oriented approach. Do you agree with that assessment?
•
How much progress has been made, and how much remains to be done? What are the areas that require the greatest attention and resources? What performance measures are you using?
•
Should there be more involvement and direction by Main Justice in the FBI's counterterrorism programs? Have you made any changes in management or reporting to increase the involvement of the Justice Department?
•
Do you have any concerns that the other missions of the FBI, in particular investigation of complex white collar crime, will suffer under the current priorities of the FBI? How do you satisfy yourself that the right balance is being struck?
•
FBI agents are usually generalists who rotate through different squads and assignments - do you think this aspect of the FBI's culture provides sufficient opportunity for agents to develop expertise in counterterrorism?
•
The FBI is largely divided between agents and support personnel. Some of those support personnel, particularly analysts and translators, play a crucial role in counterterrorism. Are internal changes needed to recognize the importance of those roles and to attract and retain the best people for those critical roles?
•
Are you aware of any areas at the FBI where resources are inadequate to respond to the increasing threat of terrorism? For instance, do you believe the FBI has enough translators in Arabic and Middle Eastern languages? If not, what is being done to address the problem and how long will it take to resolve it?
•
Does the FBI have enough analysts working on counterterrorism? If not, what is being done to address the problem and how long will it take to resolve it?
•
Do you believe there are "cultural issues" that should be addressed at the FBI to improve its ability to prevent terrorist attacks? Do you think the FBI has too much of a law enforcement focus that makes it difficult for it to collect and share intelligence?
•
How can we be sure that the FBI will retain its focus on the prevention of terrorism in light of its other important responsibilities? Do we need a domestic intelligence collection agency that is focused solely on terrorism as its permanent mission?
7. Legal Authorities. You have been a strong advocate of the USA PATRIOT Act and have stated strongly your belief that it is essential to successfully fighting terrorism. Some of the most important provisions of that law will "sunset" in 2005 if Congress does not act to extend them. •
Are there any provisions in the PATRIOT Act that are particularly important to the war against terrorism that should not be allowed to sunset in 2005? Which ones? What will be the consequence if they are not reenacted? How have these provisions been used over the last two years?
•
One of the changes made by the PATRIOT Act was the elimination of the socalled "wall" between intelligence collection under the Foreign Intelligence Surveillance Act of 1978 ("FISA") and criminal prosecutors. The provisions of the Act that eliminated the "wall" requirement [sections 218 and 504] will "sunset" in 2005 [see section 224]. How important is it that Congress act to make those provisions permanent?
8. FISA. The USA PATRIOT Act (sec. 218) and the FISA Court of Review opinion now make it possible for FISA electronic surveillance and 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 there is evidence that he or she is an "agent of a foreign power." Information obtained in the FISA surveillance or search could be used to criminally prosecute the subject, even though FISA does not have the same standards and procedures as the Title III criminal wiretap statute. •
The Supreme Court has not addressed this issue - do you have any concerns as to whether the current laws and practices satisfy constitutional requirements?
•
Another area of concern is whether special powers intended to be used to fight terrorism, such as FISA surveillance under the PATRIOT Act "significant purpose" standard, could end up being used 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? Is there anything to prevent this from occurring?
9. Attorney General Guidelines. You implemented new Attorney General Guidelines that increase the ability of FBI agents to take certain investigative steps in terrorism investigations, such as accessing publicly available information about individuals from the Internet or other sources and conducting surveillance of persons engaging in religious and political activities (so long as those activities are not the sole basis for investigative actions). •
How effective have these changes been? How can the public be assured that individual liberties will not be compromised in the name of fighting terrorism?
10. Enemy Combatants. An area of great controversy has been the detention of U.S. citizens as unlawful enemy combatants. •
What is the process by which the Justice 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? Do you have any concerns about future use - and potential abuse - of this extraordinary action?
11. Administrative Law Subpoena. The President has said that Congress should pass a statute giving the FBI administrative subpoena power in terrorism 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? Why is it essential that the FBI also be given administrative subpoena power?
•
Would the proposed administrative subpoena power be even broader than the controversial power under section 215 of the USA PATRIOT Act to obtain records from businesses, libraries, etc. -- in that no prior judicial approval would be required for an administrative subpoena, while section 215 requires prior approval by the FISA Court?
12. The MI-5 issue. Some experts argue that law enforcement agencies are better versed in the legal and constitutional provisions that apply to collecting information about citizens. Some point out 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. •
What are your views on the advantages and disadvantages of assigning a domestic intelligence counterterrorism function to a new agency that does not have law enforcement authority and arrest power?
•
Are there reasons why a law enforcement agency can be more effective in performing this function? Is there potential for abuse of law enforcement powers that will increase as more domestic intelligence collection efforts are undertaken?
•
What do you think about the idea of creating a separate entity - but still within the Department of Justice and subordinate to the Attorney General - with responsibility for the counterterrorism and domestic intelligence mission currently assigned to the FBI?
•
What do you think of creating a "service within a service" at the FBI with a separate career track and chain of command for personnel working on counterterrorism?
9-11 Detainees. Shortly after September 11, both the INS and FBI sent out written policy statements mandating that aliens on the INS custody list - the so-called "9-11 detainees" - would be held without bond until they were cleared of terrorist connections by the FBI and other agencies. In all, some 768 of these detainees were subject to this "hold until cleared policy." According to the Justice Department Inspector General, the average amount of time they were detained was 80 days. It is our understanding that, eventually, most of the 768 were cleared of having any connection with terrorism. •
Did you set the "hold until cleared" policy applied to the 9-11 detainees? If so, when and under what circumstances did you set this policy? Why did you never put it in writing?
•
Were you aware that the 9-11 detainees were being detained for extended periods without being cleared? If so, when did you learn this and what did you do about it?
•
Please tell us as precisely as you can in open hearing what counterterrorism, intelligence, and law enforcement benefit was derived from the arrests of the 9-11 detainees? [Note: The Commission has requested, but not yet received, this information from the Department of Justice.}
•
The Justice Department Inspector General recommended a number of things to improve the government's response to any future terror attack by, for example, reducing the number of aliens arrested for little or no connection to terrorism. What has Justice done to implement the IG's recommendations in the event of a
future attack on U.S. soil, and specifically, what has Justice done to reduce the likelihood that aliens will be detained based on some "undetermined interest" by the FBI? Risk Management. One criticism of the Department of Justice since 9-11 has been that it pushed the development of programs - CONDOR and NSEERS, for example - with little apparent counterterrorism benefit, but significant cost, including cost to U.S. foreign relations and economic strength. •
Does the Deparment believe it is appropriate to use risk management analysis with regard to the terrorist threat? Do you think there are ways to use risk management practices in deciding on law enforcement priorities?
•
If so, how does the Department justify a program that checks 130,000 requests for visas with no denials on terrorism grounds?
Immigration Law Enforcement. Just prior to the creation of the Department of Homeland Security, you acted to delegate legal authority to enforce immigration law to the FBI. We understand that the FBI has proposed setting up a team of 20 lawyers for the purpose of pursuing immigration law enforcement. •
Why did you delegate to the FBI legal authority to enforce administrative immigration laws?
•
How do you envision the FBI interacting with DHS agents and lawyers with regard to immigration law enforcement in the event of another terror attack here in the U.S.? What will be the role of each agency?
•
Will FBI agents make administrative, immigration-related arrests? What would be the role of FBI immigration lawyers?
Terrorist Travel. Our hearings in January underscored the importance of terrorist mobility issues. •
Does the FBI have any unit focused on investigating terrorist travel facilitators?
Saudi Flights. Shortly after 9/11, several flights containing Saudi nationals left the United States. •
Were you aware of their departure? Could you explain steps taken to ensure that persons of investigative interest were not being allowed to leave this country?
•
Did the FBI report to you or anyone at the Justice Department before the flights departed? Did you report to anyone at the White House on this matter?
At the time you assumed office, what was your assessment of the seriousness of the terrorist threat facing this country? Where did terrorism rank among your priority areas of attention when you assumed office?
•
According to your biography on the official Department of Justice website, you pledged to renew the war on drugs, reduce the incidence of gun violence and combat discrimination upon your confirmation by the Senate. You testified in May 9, 2001 before the Senate Appropriations Committee on department efforts to combat terrorism, but you did not list counterterrorism as one of the Department's goals and objectives for preparing the FY 2003 budget dated May 10, 2001. Is there a discrepancy here? Where did you see counterterrorism fitting into the Department's budget priorities?
•
Did FBI Director Louis Freeh brief you on terrorism and the FBI's counterterrorism mission when you first took office? What did he tell you about the nature of the terrorist threat at that time?
•
The United States Attorney's Office for the Southern District of New York was heavily involved in investigating and prosecuting al Qaeda terrorism during the late 1990s - when you assumed office did you seek input from the U.S. Attorneys' Offices around the country on recommendations as to priorities and resource allocation at the Justice Department?
•
As with any new administration, you appointed new personnel to key policy positions within the Justice Department. Was experience on counterterrorism a consideration as you chose appointees?
•
In your first view months in office, did you meet with any officials from the National Security Council, the Central Intelligence Agency, or any other agency or department to discuss terrorism? Were you ever briefed by the FBI's Assistant Director for Counterterrorism Division on terrorism before July 2001?
•
Prior to July 2001, did you meet with any officials from the National Security Council, the Central Intelligence Agency, or any other agency or department to
discuss terrorism? Were you ever briefed by the FBI's Assistant Director for Counterterrorism Division on terrorism before July 2001? 2. Briefings and consultations on terrorism with Clinton administration officials. We have heard testimony from Clinton administration officials that at the time they left office they considered foreign terrorists, and particularly al Qaeda, to be the number one threat to national security. •
When you first took office did you have any briefings with outgoing Clinton administration officials such as Attorney General Reno at which terrorism was discussed? What was said? How was the threat described?
3. Your involvement in terrorism issues during the summer of 2001. A few months after you were confirmed as Attorney General, the U.S. intelligence community began receiving an unusually large amount of information from various sources indicating a major terrorist attack might be coming. Concern was especially high in early July. •
What knowledge, if any, did you have of the heightened threat level in the summer of 2001?
•
Did you direct that any steps be taken, at the Justice Department or at the FBI, to respond to the heightened threat level?
•
What were the steps you directed?
•
When FBI Director Louis Freeh resigned May 1, 2001, he thanked Attorney General Reno for her support to the FBI, "particularly in our expanded efforts to combat cyber-crime, terrorism, and international organized crime." Did Director Freeh ever communicate anything to you about the need for continued support of the FBI's "expanded efforts" to combat terrorism?
•
What contact did you have with Thomas Pickard when he was Acting Director of the FBI? Did you meet with him more or less frequently than you met with Director Freeh? Was the threat of terrorist attack discussed at these briefings? Did he or others at the FBI request your assistance with the FBI's counterterrorism program?
•
Did you understand that efforts were underway in the summer of 2001 to expand the FBI's ability to combat terrorism? What was being done at the FBI to accomplish that goal?
•
Did the FBI request additional funding for its counterterrorism program in the budget process taking place over the summer of 2001? Did you reject this request? What programs did you consider more deserving of increased funding?
•
On July 26, 2001, CBS News report stated that you had flown a chartered government jet to Missouri the previous weekend. The report states that you were flying a chartered jet, rather than a commercial flight, because of an FBI "threat assessment." Both you and the FBI declined to describe the nature of the threat to CBS News. What was the nature of that threat assessment? Did it relate to terrorism?
•
During the summer of 2001, did you take any action, or direct that any action be taken, either at the Justice Department or at the FBI in response to heightened threats of a possible terrorist attack on the U.S?
4. Warnings in the summer of 2001 and lessons learned. We now know that there were specific cases in the summer of 2001 that involved information that was not elevated prior to the attacks. The staff statement this afternoon highlights the failed search for al Hazmi and al Mihdhar and the Moussaoui case. •
What steps have you taken to ensure that relevant information about potential terrorist threats, at whatever level within the FBI, is properly disseminated and acted upon?
•
Are the systems that are now in place adequate, or does more work need to be done? Where can further improvements be made?
•
What about information technology and computer systems - how much progress has the FBI made in this area since 9/11? Are you confident that everything possible, within reason, is being done, and being done as quickly as possible to address deficiencies at the FBI?
•
What are your conclusions about why there was not more recognition prior to 9/11 of the possibility that there could be a serious terrorist attack within the U.S.? Do you believe that not enough information was collected, analyzed, and disseminated?
•
Do you any of your conclusions suggest the need for a more focused federal government agency to be responsible for counterterrorism investigations inside the U.S.?
•
In your view, are the roles and missions of the FBI, CIA, and Department of Homeland Security sufficiently distinct and rationalized so that government counterterrorism efforts are both efficient and effective?
6. FBI Reform. We have devoted a great deal of attention to reform efforts that are currently underway at the FBI. We know that the FBI is working hard to improve its counterterrorism intelligence collection and analysis capabilities. We know that it is
working to improve its information technology and its ability to disseminate terrorism information. We also know that Director Mueller has made fighting terrorism and preventing terrorist attacks the number one priority of the FBI. •
What has been your involvement in the reform efforts at the FBI? Are you supervising or reviewing those efforts?
•
Some say Director Mueller has shifted the FBI away from a reactive, lawenforcement approach to terrorism toward a proactive, intelligence-oriented approach. Do you agree with that assessment?
•
How much progress has been made, and how much remains to be done? What are the areas that require the greatest attention and resources? What performance measures are you using?
•
Should there be more involvement and direction by Main Justice in the FBI's counterterrorism programs? Have you made any changes in management or reporting to increase the involvement of the Justice Department?
•
Do you have any concerns that the other missions of the FBI, in particular investigation of complex white collar crime, will suffer under the current priorities of the FBI? How do you satisfy yourself that the right balance is being struck?
•
FBI agents are usually generalists who rotate through different squads and assignments - do you think this aspect of the FBI's culture provides sufficient opportunity for agents to develop expertise in counterterrorism?
•
The FBI is largely divided between agents and support personnel. Some of those support personnel, particularly analysts and translators, play a crucial role in counterterrorism. Are internal changes needed to recognize the importance of those roles and to attract and retain the best people for those critical roles?
•
Are you aware of any areas at the FBI where resources are inadequate to respond to the increasing threat of terrorism? For instance, do you believe the FBI has enough translators in Arabic and Middle Eastern languages? If not, what is being done to address the problem and how long will it take to resolve it?
•
Does the FBI have enough analysts working on counterterrorism? If not, what is being done to address the problem and how long will it take to resolve it?
•
Do you believe there are "cultural issues" that should be addressed at the FBI to improve its ability to prevent terrorist attacks? Do you think the FBI has too much of a law enforcement focus that makes it difficult for it to collect and share intelligence?
•
How can we be sure that the FBI will retain its focus on the prevention of terrorism in light of its other important responsibilities? Do we need a domestic intelligence collection agency that is focused solely on terrorism as its permanent mission?
7. Legal Authorities. You have been a strong advocate of the USA PATRIOT Act and have stated strongly your belief that it is essential to successfully fighting terrorism. Some of the most important provisions of that law will "sunset" in 2005 if Congress does not act to extend them. •
Are there any provisions in the PATRIOT Act that are particularly important to the war against terrorism that should not be allowed to sunset in 2005? Which ones? What will be the consequence if they are not reenacted? How have these provisions been used over the last two years?
•
One of the changes made by the PATRIOT Act was the elimination of the socalled "wall" between intelligence collection under the Foreign Intelligence Surveillance Act of 1978 ("FISA") and criminal prosecutors. The provisions of the Act that eliminated the "wall" requirement [sections 218 and 504] will "sunset" in 2005 [see section 224]. How important is it that Congress act to make those provisions permanent?
8. FISA. The USA PATRIOT Act (sec. 218) and the FISA Court of Review opinion now make it possible for FISA electronic surveillance and 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 there is evidence that he or she is an "agent of a foreign power." Information obtained in the FISA surveillance or search could be used to criminally prosecute the subject, even though FISA does not have the same standards and procedures as the Title III criminal wiretap statute. •
The Supreme Court has not addressed this issue - do you have any concerns as to whether the current laws and practices satisfy constitutional requirements?
•
Another area of concern is whether special powers intended to be used to fight terrorism, such as FISA surveillance under the PATRIOT Act "significant purpose" standard, could end up being used 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? Is there anything to prevent this from occurring?
9. Attorney General Guidelines. You implemented new Attorney General Guidelines that increase the ability of FBI agents to take certain investigative steps in terrorism investigations, such as accessing publicly available information about individuals from the Internet or other sources and conducting surveillance of persons engaging in religious and political activities (so long as those activities are not the sole basis for investigative actions). •
How effective have these changes been? How can the public be assured that individual liberties will not be compromised in the name of fighting terrorism?
10. Enemy Combatants. An area of great controversy has been the detention of U.S. citizens as unlawful enemy combatants. •
What is the process by which the Justice 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? Do you have any concerns about future use - and potential abuse - of this extraordinary action?
11. Administrative Law Subpoena. The President has said that Congress should pass a statute giving the FBI administrative subpoena power in terrorism 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? Why is it essential that the FBI also be given administrative subpoena power?
•
Would the proposed administrative subpoena power be even broader than the controversial power under section 215 of the USA PATRIOT Act to obtain records from businesses, libraries, etc. -- in that no prior judicial approval would be required for an administrative subpoena, while section 215 requires prior approval by the FISA Court?
12. The MI-5 issue. Some experts argue that law enforcement agencies are better versed in the legal and constitutional provisions that apply to collecting information about citizens. Some point out 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. •
What are your views on the advantages and disadvantages of assigning a domestic intelligence counterterrorism function to a new agency that does not have law enforcement authority and arrest power?
•
Are there reasons why a law enforcement agency can be more effective in performing this function? Is there potential for abuse of law enforcement powers that will increase as more domestic intelligence collection efforts are undertaken?
•
What do you think about the idea of creating a separate entity - but still within the Department of Justice and subordinate to the Attorney General - with responsibility for the counterterrorism and domestic intelligence mission currently assigned to the FBI?
•
What do you think of creating a "service within a service" at the FBI with a separate career track and chain of command for personnel working on counterterrorism?
9-11 Detainees. Shortly after September 11, both the INS and FBI sent out written policy statements mandating that aliens on the INS custody list - the so-called "9-11 detainees" - would be held without bond until they were cleared of terrorist connections by the FBI and other agencies. In all, some 768 of these detainees were subject to this "hold until cleared policy." According to the Justice Department Inspector General, the average amount of time they were detained was 80 days. It is our understanding that, eventually, most of the 768 were cleared of having any connection with terrorism. •
Did you set the "hold until cleared" policy applied to the 9-11 detainees? If so, when and under what circumstances did you set this policy? Why did you never put it in writing?
•
Were you aware that the 9-11 detainees were being detained for extended periods without being cleared? If so, when did you learn this and what did you do about it?
•
Please tell us as precisely as you can in open hearing what counterterrorism, intelligence, and law enforcement benefit was derived from the arrests of the 9-11 detainees? [Note: The Commission has requested, but not yet received, this information from the Department of Justice.}
•
The Justice Department Inspector General recommended a number of things to improve the government's response to any future terror attack by, for example, reducing the number of aliens arrested for little or no connection to terrorism. What has Justice done to implement the IG's recommendations in the event of a
future attack on U.S. soil, and specifically, what has Justice done to reduce the likelihood that aliens will be detained based on some "undetermined interest" by the FBI? Risk Management. One criticism of the Department of Justice since 9-11 has been that it pushed the development of programs - CONDOR and NSEERS, for example - with little apparent counterterrorism benefit, but significant cost, including cost to U.S. foreign relations and economic strength. •
Does the Deparment believe it is appropriate to use risk management analysis with regard to the terrorist threat? Do you think there are ways to use risk management practices in deciding on law enforcement priorities?
•
If so, how does the Department justify a program that checks 130,000 requests for visas with no denials on terrorism grounds?
Immigration Law Enforcement. Just prior to the creation of the Department of Homeland Security, you acted to delegate legal authority to enforce immigration law to the FBI. We understand that the FBI has proposed setting up a team of 20 lawyers for the purpose of pursuing immigration law enforcement. •
Why did you delegate to the FBI legal authority to enforce administrative immigration laws?
•
How do you envision the FBI interacting with DHS agents and lawyers with regard to immigration law enforcement in the event of another terror attack here in the U.S.? What will be the role of each agency?
•
Will FBI agents make administrative, immigration-related arrests? What would be the role of FBI immigration lawyers?
Terrorist Travel. Our hearings in January underscored the importance of terrorist mobility issues. •
Does the FBI have any unit focused on investigating terrorist travel facilitators?
Saudi Flights. Shortly after 9/11, several flights containing Saudi nationals left the United States. •
Were you aware of their departure? Could you explain steps taken to ensure that persons of investigative interest were not being allowed to leave this country?
•
Did the FBI report to you or anyone at the Justice Department before the flights departed? Did you report to anyone at the White House on this matter?
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