September 24, 2002 Committee Hearing: FBI Witnesses

Joint House And Senate Select Intelligence Committee
September 24, 2002

 

SPEAKER:
U.S. SENATOR BOB GRAHAM (D-FL), CHAIRMAN

LOCATION: WASHINGTON, D.C.

WITNESSES:

PHOENIX FBI AGENT
FBI HEADQUARTERS SUPERVISOR
MINNEAPOLIS FBI AGENT
MARION BOWMAN, FBI DEPUTY GENERAL COUNSEL

BODY:


SENATE SELECT INTELLIGENCE COMMITTEE AND HOUSE PERMANENT
SELECT INTELLIGENCE COMMITTEE HOLD JOINT HEARING ON
PRE-9/11 FAILURES (FBI WITNESSES, SECOND SESSION)

SEPTEMBER 24, 2002

SPEAKERS:
SENATE INTELLIGENCE COMMITTEE
U.S. SENATOR BOB GRAHAM (D-FL)
CHAIRMAN
U.S. SENATOR CARL LEVIN (D-MI)
U.S. SENATOR JOHN D. ROCKEFELLER IV (D-WV)
U.S. SENATOR DIANE FEINSTEIN (D-CA)
U.S. SENATOR RON WYDEN (D-OR)
U.S. SENATOR RICHARD DURBIN (D-IL)
U.S. SENATOR EVAN BAYH (D-IN)
U.S. SENATOR JOHN EDWARDS (D-NC)
U.S. SENATOR BARBARA MIKULSKI (D-MD)

U.S. SENATOR RICHARD C. SHELBY (R-AL)
RANKING MEMBER
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR JAMES M. INHOFE (R-OK)
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR PAT ROBERTS (R-KS)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR FRED THOMPSON (R-TN)
U.S. SENATOR RICHARD LUGAR (R-IN)

HOUSE INTELLIGENCE COMMITTEE
U.S. REPRESENTATIVE PORTER J. GOSS (R-FL)
CHAIRMAN
U.S. REPRESENTATIVE DOUG BEREUTER (R-NE)
U.S. REPRESENTATIVE MICHAEL N. CASTLE (R-DE)
U.S. REPRESENTATIVE SHERWOOD L. BOEHLERT (R-NY)
U.S. REPRESENTATIVE JIM GIBBONS (R-NV)
U.S. REPRESENTATIVE RAY LAHOOD (R-IL)
U.S. REPRESENTATIVE RANDY "DUKE" CUNNINGHAM (R-CA)
U.S. REPRESENTATIVE PETER HOEKSTRA (R-MI)
U.S. REPRESENTATIVE RICHARD BURR (R-NC)
U.S. REPRESENTATIVE SAXBY CHAMBLISS (R-GA)
U.S. REPRESENTATIVE TERRY EVERETT (R-AL)

U.S. REPRESENTATIVE NANCY PELOSI (D-CA)
RANKING MEMBER
U.S. REPRESENTATIVE SANFORD BISHOP JR. (D-GA)
U.S. REPRESENTATIVE JANE HARMAN (D-CA)
U.S. REPRESENTATIVE GARY CONDIT (D-CA)
U.S. REPRESENTATIVE TIM ROEMER (D-IN)
U.S. REPRESENTATIVE SILVESTRE REYES (D-TX)
U.S. REPRESENTATIVE LEONARD BOSWELL (D-IA)
U.S. REPRESENTATIVE COLLIN PETERSON (D-MN)
U.S. REPRESENTATIVE BUD CRAMER (D-AL)


*


GOSS: The committee will be in order. The room is right, and we appreciate everybody's cooperation. This is a public session, but we are protecting the identify of our three witnesses.

I would say that there are two gentlemen who are not behind the screen I think members are familiar with that have already been sworn. Mr. Bowman is the deputy general counsel of the FBI. Welcome him again. And Mr. Rollins (ph), I think, is known to the committee as the special agent in charge of the FBI's Washington field office. We've had the pleasure of meeting with him previously.

Senator Edwards, your 20 minutes, sir?

EDWARDS: Thank you very much, Mr. Chairman. And I want to thank all the witnesses for being here today and for what you've done and for your testifying.

I want to start with Moussaoui, so I'll start with the Minneapolis agent, if I can. And then later I've got some questions about the Phoenix EC and the Phoenix memo.

What I'd like to do is go back in time to August of 2001 and, sort of, go through what you were thinking and what you were being told from people in Washington. And I took some of this from the earlier testimony that you gave.

You considered this a high priority; fair?

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: And an issue around which a lot of people in your office were focused and concerned; fair?

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: OK. You indicated earlier that besides concern about Moussaoui himself, you were also concerned about the possibility that -- and at that point I assume it was just a possibility -- that he was part of a bigger plan, part of a conspiracy, and that there was a possibility that there were plans, or I think you used the term battle plans, that were under way. Is that fair?

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: As of August of 2001.

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: So you were at that time, when Moussaoui was in custody, thinking to yourself, you and your colleagues, that, "One of the reasons we need this FISA warrant and we need to see what's on his computer, what these various documents show is because of the possibility that this guy's involved in something bigger and very dangerous, even though we have him in custody"; correct?

MINNEAPOLIS FBI AGENT: That's also fair, yes, sir.

EDWARDS: OK. Now, the documents themselves and the computer, I assume that you had those within your control in some place. Is that correct?

MINNEAPOLIS FBI AGENT: They were within the control of the INS.

EDWARDS: OK.

MINNEAPOLIS FBI AGENT: Yes.

EDWARDS: So they were under the control of the government.

MINNEAPOLIS FBI AGENT: Yes.

EDWARDS: OK. So what you were thinking at the time is, "I think this is a very dangerous man. I have great concerns about him. There's a possibility at least that he's involved in a bigger plan, a bigger conspiracy that could be very dangerous to us and to our country. And there's a group of information contained possibly within his computer, possibly within his documents that might tell us whether that's actually true or not." Is that fair?

MINNEAPOLIS FBI AGENT: That's fair, yes.

EDWARDS: OK. Which is one of the reasons that you made it such a high priority to try to get a FISA warrant; correct?

MINNEAPOLIS FBI AGENT: That's correct.

EDWARDS: OK. And obviously you were being aggressive, which I assume is how you were trained and what you felt like you should do under the circumstances.

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: OK. Now, when you went to get the FISA warrant, when you got the response from headquarters and from the legal experts at headquarters, were you being told that, in order to get a FISA warrant, it was necessary that you have evidence, information linking Moussaoui to a known terrorist organization; i.e., one listed by the State Department, one recognized by the FISA court? Is that something that you understood you had to get in order to get the FISA warrant?

MINNEAPOLIS FBI AGENT: Yes.

EDWARDS: OK.

MINNEAPOLIS FBI AGENT: We believed that we needed to identify a -- and the term that was thrown around was "recognized foreign power." And so that was our operational theory, yes.

EDWARDS: So once you requested the FISA warrant in what you considered -- I think you said earlier was a rapidly developing situation, you wanted to move quickly. Once you made the request and you got the response, the response said to you, "I have got to make a link between -- in order to get a FISA I got to make a link between Moussaoui and a recognized terrorist organization, as opposed to just any group of people, any organization engaged in terrorist activities." Is that fair?

MINNEAPOLIS FBI AGENT: Yes.

EDWARDS: OK.

Mr. Bowman, that was not the law in August of 2001, was it, what the agent just said?

BOWMAN: No, sir, that was not the law.

EDWARDS: So he was being told by headquarters -- I assume was your contact, is that correct?

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: He was being told that he had to make a link between Moussaoui and a recognized terrorist organization, either by the State Department or by the FISA court, when in fact all that had to be shown in order to meet that part of the test was that there was a link between Moussaoui and, for example, in this case, the Chechens; correct?

BOWMAN: Between Moussaoui and some organized terrorist group in this case, yes, sir.

EDWARDS: The people who were giving them this description of the law, which was wrong at the time, are those people who work for you?

BOWMAN: No, sir.

EDWARDS: OK. The people who were giving him, the agent, advice about the law that was wrong -- and I might add -- this is to the agent -- the result of that was you spent a significant period of time trying to make a link that in fact the law doesn't require, you now know; correct?

MINNEAPOLIS FBI AGENT: That is correct.

EDWARDS: The people who gave him that advice, can you tell me -- I don't mean by name -- but can you tell me what department they work in?

BOWMAN: I don't have any personal knowledge of that, Senator. The information which came to me had nothing to do with a recognized foreign power. There were straight facts that came to me. I assume it came out of the Terrorism Division, but I don't have any personal knowledge.

EDWARDS: OK.

So that we get this straight -- this is directed to the agent -- you had what you considered an emergent situation, was the way you described it, a potential very serious threat to the country, the possibility of a conspiracy, the possibility of, you talked earlier about, about airplanes and the fuel capacity of airplanes. And I think you mentioned the possibility of a plane being able to reach Washington, D.C. Obviously you were very focused on this potentially -- and in fairness, it was only potential at that point -- potentially dangerous situation.

You made a request hoping to get a quick response. You were told something that we now know is wrong about the law. And you spent some period of time on running around trying to -- what's basically a wild good chase -- trying to establish something that the law did not require, you now know. Is that correct?

MINNEAPOLIS FBI AGENT: That's true to a point. The staff has characterized that we spent up to three weeks just trying to make this definitive link to a recognized terrorist organization. In fact, during that three weeks the entire investigation was evolving. We weren't solely focused on making that one link. We were focused on making the connection between Mr. Moussaoui and the Chechen rebels...

EDWARDS: Sure.

MINNEAPOLIS FBI AGENT: ... and then also making the connection between the Chechen rebels and Al Qaida.

So in general terms, yes, we were focused on looking at making a definitive link to a recognized foreign power. However, there were a couple of steps in there and a couple of collateral activities that spoke to the ultimate end.

EDWARDS: But you were spending -- in fairness, you were spending significant time trying to make this link that we now know the law did not require; fair?

MINNEAPOLIS FBI AGENT: Yes, sir.

EDWARDS: OK.

MINNEAPOLIS FBI AGENT: That's absolutely true.

EDWARDS: And I know that this may not be something -- and this information is all sitting in the possession of the government, and you were just trying to get to it so you can open it and look at it and figure out what it is you need to do with it. Is that fair?

MINNEAPOLIS FBI AGENT: That's true.

EDWARDS: OK. It turns out that when -- and this is information from the public indictment, and please don't comment on anything that any of you would consider outside the realm of what's in the public information.

But we now know that sitting in the briefcase, in the computer, in the information that was in the government's possession in August but that you were not able to get access to -- and one of the things you spent your time doing was chasing this legal requirement that in fact was not there -- in these documents -- and this is from the indictment -- were letters indicating that Moussaoui is a marketing consultant in the United States for Infocus Tech.

Now, Infocus Tech, I think this committee has determined in our public information, is a Malaysian company. Yazid Sufaat is the president of the company. And his name also I think appeared in the documents. And he was known to the CIA as the owner of the Malaysian condominium in which the Al Qaida meeting was held in January of 2000, before the time, of course, that we're talking about -- over a year before -- that was attended by two other hijackers. That was a meeting that others I believe have talked about and have already testified to.

And a name trace would have shown that Sufaat -- a name trace from the FBI, name trace request from the FBI to the CIA would have produced the information and provided a link between Moussaoui and two of what turned out to be the hijackers, a little less, I guess, than a month later.

EDWARDS: Another piece of information in the indictment is that a notebook -- again, these are the documents that are in the government's possession but you can't get to -- a notebook listing German telephone numbers and the name of Ahad Sabet, which is a name used by Ramzi bin al-Shibh, who was recently arrested, I believe the press has reported, as a key conspirator, in Pakistan, as a key conspirator in the September 11th attack, and he, along with three other people, three of the hijackers, were part of a terrorist cell that was formed in Germany in 1998.

We could go on and on. The bottom line is this: There was -- it appears at least from the public information, there were significant data in that stuff that you were trying to get to, his computer and his papers, that would have been useful in your effort to determine whether there was a bigger conspiracy, whether this man you had in custody had contact with others, other known terrorists, others with terrorist connection, and whether there were battle plans being undertaken, but that was not something you were able to do before September the 11th. Is that correct?

MINNEAPOLIS FBI AGENT: We were not able to access the information that we had in our possession prior to September 11th. That is correct.

EDWARDS: OK.

Now, I would like to, if I can, focus now with the Phoenix agent, on the Phoenix memo and the Phoenix EC. Let me go through a group of facts and just get you to respond to it if you can.

There have been some public indications from the FBI that there was no kind of connection of any kind between your memo and the hijackers or the people who were involved in the September 11th attacks. I'm going to go through a series of things.

The FBI, I think, now believes -- and I'm not going to call him by name, because his name is classified -- that one of the individuals mentioned in your memo was in fact an associate of Hani Hanjour, who was the pilot of flight 77 -- the hijacking pilot of flight 77; that there was significant information that Hanjour and this person had ongoing association during the time from 1997 through the year 2000, including information from flight school records and witness statements.

This individual, I believe, at the time you wanted to start an investigation on him, which was May or June, I've forgotten the exact date, you determined he was out of the country. Is that correct?

PHOENIX FBI AGENT: That's correct.

EDWARDS: OK. But he came back, we now know he came back into the country shortly thereafter, during the summer of 2001. Is that correct?

PHOENIX FBI AGENT: Yes.

EDWARDS: OK. During the summer there is also some information that he was training at the same facility that Hanjour was training in Phoenix. Is that correct?

PHOENIX FBI AGENT: Senator, this is still a pending investigative lead that could lead to a prosecution in the Pentbomb case.

EDWARDS: Fair enough. You don't need to say any more.

But let me ask you this. And again, just don't comment on it if it's not appropriate. But the fact that this individual who you wanted to investigate but who was out of the country, and then we now know came back in the summer of 2001, and particularly given his experience level as a pilot and that he was signing up for Cessna low- level flight training, and there's information that he was there with some others, including Hanjour, during the summer of 2001, who were engaged in flight training -- let me just ask you a broad question, without going through the details, which I know you want to keep classified.

Is it possible that this person who we're talking about, who's listed in your memo, is it possible that he was there in the summer of 2001, after he came back into the country, for the purpose of either helping with the training of Hanjour, identifying whether Hanjour was qualified to do what was done on September the 11th? Is that a possibility?

PHOENIX FBI AGENT: It's a possibility and it's an investigative theory that we're looking into.

EDWARDS: OK. Is it possible that he was looking at not just Hanjour, but some of the others that he was associated with during that summer as the more experienced pilot to, for lack of a better term, screen who might be capable of carrying out the September 11th attacks out of that group?

PHOENIX FBI AGENT: Yes, that's possible as well.

EDWARDS: OK. There have been statements -- and I won't read them, some of them have been in response to questions by me and others -- from the FBI in May of this year indicating that there was no connection of any kind between -- actually, before I get to that, let me go back.

When this man who you wanted to investigate and who we now have these various connections with was out of the country and he came back in, did you know he came back in?

PHOENIX FBI AGENT: I didn't. I didn't.

EDWARDS: OK. When you all discovered that this person who you were concerned about and wanted to investigate was outside the country, did you notify anybody who might have identified him coming back in at the State Department, the INS, any of the other government agencies who may have known that he was coming back into the country?

PHOENIX FBI AGENT: No, we didn't, Senator. And the reason for that, if I can follow up on that, is because when we first became aware of the individual, prior to September 11th, he was out of the country. At that time, we did not routinely open up cases on individuals who were out of the country.

In this particular situation it would have been an intelligence- type of investigation and a preliminary inquiry, which would have gave us 90 days to see if the individual was involved in terror activity.

So in as much as he was out of the country, the practice at that time was not to open up a case.

So, therefore, to answer your question, there would be no -- we wouldn't be putting him into a tip-off system or any type of other border crossing system to see if this person was coming back into the country.

EDWARDS: But to put all that back into context of what was happening at the time, when you were involved and you were, as the other agent was, very aggressively pursuing these leads, this was one of a number of individuals that you wanted to investigate, and you determined that he had left the country.

We now know he came back in. None of the people who would have been responsible for identifying him coming back in knew they needed to look for him. Is that fair? Aside from you in the FBI office.

PHOENIX FBI AGENT: Yes, that'd be correct.

EDWARDS: OK. And there's at least a theory -- to use your words, there's at least a theory that this man may have been the person responsible for helping train Hani Hanjour and/or screen which of these pilots were capable of carrying out the attack. We know that now, correct?

PHOENIX FBI AGENT: Post-9/11.

EDWARDS: Correct.

PHOENIX FBI AGENT: Yes.

EDWARDS: The policy that existed at that time for not notifying the other government agencies about somebody like this who you were concerned about and wanted to conduct the investigation on, has that changed since 9/11?

PHOENIX FBI AGENT: I can speak for the Phoenix division. Yes. I mean, if we had a situation like this today, we would be looking and opening up an investigation on the individual in question here. But prior to that we had enough people that were residing in the United States, residing in the Phoenix area that we needed to open up cases on. And prior to 9/11 we just did not open up cases on individuals that we had determined had left the country.

And again, keep in mind, with the attorney general guidelines and so on and so forth that governed those type of investigations that we can get into more detail in closed hearings, this individual would have been characterized as nothing more than a preliminary inquiry because he looked interesting, OK, due to some information that we received from other sources and methods.

So there's no stating that even if we had a full -- or even if we had an investigation -- initiated an investigation on him prior to 9/11, that we would have been able to go any further than the preliminary inquiry stage.

EDWARDS: If you had known -- which you didn't -- that this individual had come back into the country, would you have been monitoring him in the summer of 2001?

PHOENIX FBI AGENT: Yes, we would have been very interested in his presence back in the United States.

EDWARDS: And if you had been monitoring what he was doing in the summer of 2001, the things that you've now determined were going on in the summer of 2001, post-9/11 which you indicated, some of those things presumably you would have observed and seen.

PHOENIX FBI AGENT: Not necessarily. And the reason being, again, I'd like to reiterate, it would be a preliminary inquiry, and I would be limited underneath the attorney general guidelines what I could do to investigate that individual, OK. And that doesn't mean that I would be able to find the things that I think that you're getting about this guy during that preliminary inquiry stage.

EDWARDS: But monitoring, knowing what you knew about him at the time you wrote your memo, is that something you would have wanted to do, monitor his whereabouts, monitor his interaction with others? And we now know that included interaction with Hani Hanjour.

PHOENIX FBI AGENT: Yes.

EDWARDS: Is that fair?

PHOENIX FBI AGENT: Yes, it would have been something I would have wanted to do.

EDWARDS: OK. And if you had that authority and had been able to do that, you presumably would have seen some of these things that went on in the summer of 2001.

PHOENIX FBI AGENT: It's a possibility, yes.

EDWARDS: OK.

GOSS: Senator, may I...

EDWARDS: I see that my time is up, Mr. Chairman. I thank the witnesses very much, and I thank the chair.

GOSS: And I think the senator for good questions.

Mr. Cramer?

CRAMER: Thank you, Mr. Chairman.

I want to thank the witnesses that are here today. I have two field agents here, a headquarters agent, a lawyer and a supervisor, as well, as I understand it. I want to pick back up on where my colleague, Mr. Castle, was when he left his question time. I want to talk about the resources that you had available to you and, practically speaking, how you used those resources.

Then I want to ask you to walk me through, even though to a certain extent you've done that already, is certain ways that you communicated.

For example, and I'll start with the Phoenix agent here, if I could, when you sent your memo, your EC to headquarters, how many different people -- I don't want names, but how many different people did you send that memo to?

PHOENIX FBI AGENT: Six individuals at headquarters.

CRAMER: And the way your communication system works, do you know if all of those received the memo?

PHOENIX FBI AGENT: I personally do not know if they all received it, the way the system works.

CRAMER: Did you hear from any of those individuals?

PHOENIX FBI AGENT: No.

CRAMER: All right. Do you determine yourself in the field office who you send it to? In other words, is that called uploading, you decide who to send it to?

PHOENIX FBI AGENT: Yes, I decide who to put on the attention line of my communications, yes.

CRAMER: And you can block as well, you can decide to send it to only one person and not to share it with other individuals as well?

PHOENIX FBI AGENT: No, that's not my intention. If I put somebody on there that I want it to go to, I want it to get to that person and only those persons. So I'm not -- you know, I don't try to block anybody from getting anything.

CRAMER: All right. All right. And did you expect to hear from those six individuals?

PHOENIX FBI AGENT: Well, this is a question that I've been asked before. I sent this communication as a routine electronic communication because there was no immediate action required on it. There was no terrorist threat information contained in the electronic communication. And I just wanted to send it to them for their consideration.

Prior to my sending it, though, I did contract a senior FBI analyst, and I said, "Hey, these are my concerns, my suspicions. Who do you recommend I send this to?" And this particular analyst gave me the names of the individuals who are listed on the EC.

CRAMER: All right. And now, if I could come to the headquarters agent now, could I ask you to -- you came into this particular unit when?

FBI HEADQUARTERS SUPERVISOR: I came into this unit in approximately mid-May of 2001.

CRAMER: Which you have 15 years experience...

FBI HEADQUARTERS SUPERVISOR: That's correct.

CRAMER: ... both in the field and at headquarters as well.

FBI HEADQUARTERS SUPERVISOR: Correct.

CRAMER: Could you comment in some detail on the state of technology as you found it, particularly there at headquarters?

FBI HEADQUARTERS SUPERVISOR: If I could, I'll go back. When an EC is sent from the field to headquarters, a lead is set to a particular unit at headquarters. It will not be set to an individual.

The attention line is once the communication gets into the building theoretically it would be brought to the attention of those people. But in terms of it serving as an electronic means of providing it to them, that does not work that way.

CRAMER: All right. And then who determines once it comes into the building? Our concern is -- and we've had an excellent summary from Eleanor Hill and the staff before you were made available to us today. And as you know, we've had prior opportunities to get into these matters. But what I'm concerned about is the culture at FBI and how you communicate, why certain people get certain messages. Is that a resource problem? Does resource mean people? Does resource mean technology? What does it mean?

And as I absorb it from the summaries that I've had available to me, the communication in this case, the EC from the Phoenix agent, went to the weakest link at headquarters, and then a person there determines where it goes from there.

FBI HEADQUARTERS SUPERVISOR: It did not necessary go to the weakest link. The way it would take place within headquarters is that the lead would arrive there, it would be given to a particular person as a lead. It would be set to an individual.

In this case, it was set to the IOS, an intelligence operations specialist. Those are the people that do the work. That's where the rubber meets the road in terms of headquarters handling a specific lead sent from the field.

CRAMER: All right. And then, you're in the RDU Unit, right?

FBI HEADQUARTERS SUPERVISOR: That's correct.

CRAMER: And that's an operational unit?

FBI HEADQUARTERS SUPERVISOR: Correct, the RFU is an operational unit.

CRAMER: And the UBL Unit?

FBI HEADQUARTERS SUPERVISOR: Is a second operational unit.

CRAMER: All right. And then the analysis unit is a separate unit, correct?

FBI HEADQUARTERS SUPERVISOR: The operational units have what we would call investigative operations specialists. Those are tactile analysts. Those are analysts that work specific case issues. They are the people that handle leads that headquarters needs to handle. They are the people that write the FISA packages. They're the people who are moving specific cases forward.

Apart from those IOSs, you have a second group of analysts known as intelligence research specialists. Those are IRSs. They are not within the operational groups. They are in a separate -- at the time, pre-9/11, they were in a separate division. Those are the people that would be expected to do strategic type analysis.

CRAMER: And how is information routed to those individuals before 9/11, before we reviewed what happened and...

FBI HEADQUARTERS SUPERVISOR: Sure.

CRAMER: ... what we could do differently?

FBI HEADQUARTERS SUPERVISOR: The field could -- could have sent it directly to the IRSs. They could have sent it directly to the division that was responsible for strategic analysis. Or, in this case, and in the case of Phoenix as I remember it and I see it, is that the lead was set for the operational group, the Counter-Terrorism Division into the operational units within the Counter-Terrorism Division. And then it would have been for those IOSs, or for the supervisors to recognize that there might be a need for strategic analysis, and then to move it to the strategic analytical group.

That could be done electronically, by reproducing another electronic communication in setting a specific lead for the strategic analysts. Or it could have been done via an e-mail or a telephone call, and just walking a hard copy to them.

CRAMER: All right. In the case of the Phoenix EC, your EC, the IOS, who decides which IOS gets that memo? Or how is that decided? What's the process?

FBI HEADQUARTERS SUPERVISOR: It's done based on area of responsibility. So if a particular analyst is responsible for a particular field division or a particular subject matter, then the individual who is going into the computer would recognize that this particular IOS has responsibilities for this program area. Or it might be a case number. It might be that all Phoenix communications are handled by this particular IOS. So that lead would then have been sent to the particular analyst that was responsible for the case or the program matter.

So the attention line is not necessarily significant. It could be that the wrong person was put on the attention line, in which case, the individual setting that weed would have moved it to the proper IOS.

CRAMER: Our information is that the -- in this case the EC was assigned to a particular IOS because that was the first name on the list.

FBI HEADQUARTERS SUPERVISOR: I think that she also -- why exactly it was set to her I'm not exactly sure. But I think it was also that she had some of the program responsibilities that was addressed within that EC.

CRAMER: All right. If we could, back to the Phoenix agent then, your EC as well went to the UBL Unit, and you never heard from them. Is that correct?

PHOENIX FBI AGENT: No, that's correct.

Senator, if I can make the point or -- sir, the reason I went to the UBLU unit and the RFU unit is because of the nature of the subject under investigation. We couldn't put him into a particular category. So the decision that I made, after conferring with the person I contacted at headquarters was, "Let's send it to both units: the Osama bin Laden Unit, and the Radical Fundamentalism Unit.

CRAMER: And were you aware, prior to 9/11, that headquarters had closed the lead and that they were not taking any additional actions at the time, based on your communication?

PHOENIX FBI AGENT: No, I was not.

CRAMER: All right.

FBI HEADQUARTERS SUPERVISOR: If I could speak to that, the lead is not stated as closed.

FBI HEADQUARTERS SUPERVISOR: The lead has stated that they will reconvene on this matter at a later time. Those operational specialists handled the immediate actionable items that were before them. And then, what they wanted to do was to reflect to Phoenix division -- in my mind, what they wanted to do was to reflect to the Phoenix division that they had received the lead and that they were looking at it, they were aware of it, and they were going to act on it at a later date.

CRAMER: The New York agents interviewed stated that the Phoenix EC did not resonate with them and that they found it speculative. Why do you think that is? Why don't you think they took seriously a memo like this? Was that because they were the leading counterterrorism office and Phoenix was more or less an island, as you've stated it, out there?

PHOENIX FBI AGENT: Well, sir, I can't speak for why my colleagues thought the way they did when they received that. I don't know why they did. I've seen other reasons why they claim they didn't want to take action on it to include that they had seen other people coming in for training for Osama bin Laden. I wished they would have taken a look at it because it would have been nice to know.

CRAMER: But to this day, you don't know why they didn't respond to it.

PHOENIX FBI AGENT: No, I don't.

CRAMER: How about headquarters?

FBI HEADQUARTERS SUPERVISOR: I'm sorry, I do not know why.

CRAMER: All right. And this is for Phoenix as well as headquarters. We're made aware now of an astounding summary of information about terrorist groups -- reports of terrorist groups -- that were planning to use airplanes as weapons. Were those reports available to you in Phoenix? Were you aware of those? Is that partially why you responded to write this summary of information that you were trying to pass up the line that was ignored?

PHOENIX FBI AGENT: I wasn't aware of all of the situations that you discussed, sir. I did have an interest in Islamic extremists using or attacking the civil aviation industry due to previous investigations I had worked on, if that answers your question.

CRAMER: All right. And to the headquarters agent, did you see or hear about the Phoenix EC priori to 9/11? Did you yourself have any experience with that?

FBI HEADQUARTERS SUPERVISOR: I have no recollection of ever reading that communication. It was not brought to my attention before 9/11, and when it was brought to my attention post-9/11, that was the first time that I really tuned in on it.

CRAMER: But you were one of the six listed that the memo was addressed to. Is that correct?

FBI HEADQUARTERS SUPERVISOR: My name was on the attention line.

CRAMER: All right. And how today would that be handled differently?

FBI HEADQUARTERS SUPERVISOR: I'm not sure if that would be handled differently today in terms of a name appearing on an attention line. I can tell you that based upon my position, that my name is on hundreds, if not thousands of documents in that building that will probably not be brought to my attention.

CRAMER: All right. If I could, I'd like to get you to comment about technology and this process because we're talking about communication. We're talking about names of people in a system that responds to that, and I want to know how the technology figures into that. I understand from the headquarters agent -- from a summary of information about your statements in the past -- that you found the technology inadequate, that you found it not very useful. Would you give me more specifics and tell me how you think that has affected the way communication occurs, if it has affected that?

FBI HEADQUARTERS SUPERVISOR: The computers, the systems in our building, are very cumbersome. I have heard from talking to analysts, for example, that on a given day you can search a name or a subject within ACS and get a set of results. The next day or a second analyst could go into the system and request the same information and get a completely different set of results. I cannot explain that.

My experience comes primarily from what I am told by the supervisors and the analysts that work for me. Another very significant piece that really needs to be brought to the attention of this committee is that the counterterrorism division within FBI is a part of the intelligence community. The counterterrorism community -- the intelligence community, primarily works in a classification level at a TS level, or in the case of CIA, we'll frequently put UMENT (ph) on communications. Our systems do not go to that level of classification. Our computer system is only at a secret level.

So communications coming into our building from NSA, from CIA, cannot be integrated into our existing databases. So if an analyst is working say on a subject in the Phoenix division and they run that person's name through our databases, they will not retrieve information on that person that other agencies may also have. It's required of them to get up, walk over to a different set of -- or a different computer that has access to a different database and search that name in that database, and the two databases will never come together and be integrated. So it's a setup for failure in terms of keeping a strategic picture of what we're up against.

CRAMER: Well, I happen to be on the Appropriations Committee as well, and I'm on the Commerce, Justice, State Appropriations Subcommittee, and we listen to the FBI every year. I'm an old prosecutor and I want to give you the tools that you need in order to do the job that we want you to do. But we ask every year, "What do you need in terms of technology? Is this a money issue? Is it just a technology overload issue? Is the agency so subdivided that you're having a hard time getting a handle on that?"

And honestly, I can't read between the lines as to how -- now, this may not be something for you answer here today, but I'm trying to understand from the user point-of-view what technology you have, what you don't have and how that might play into this.

The trilogy system that you made reference to, is it anticipated that that will help reorganize to a certain extent the way communications occur?

FBI HEADQUARTERS SUPERVISOR: I do not have the expertise to speak to that.

CRAMER: All right. Now, if I could because time is limited, we talked or it was brought up earlier that there's 68,000 outstanding or unassigned counterterrorism leads in the FBI's electronic automated case system.

CRAMER: And that that dates back to 1995. Are we making any progress? What are we doing to improve that? That to me sounds intolerable.

FBI HEADQUARTERS SUPERVISOR: I have tried to take that on in terms of looking at that problem from both the UBL and the RFU units' standpoint. We're getting through that system now. I think we need to make it very clear, though, because there is 68,000 leads outstanding at that point, that does not mean that those leads were not handled. Frequently what's happened is you have a duplication of a lead.

For example, a lead will be set for FBI headquarters to both the counterterrorism division and the UBL unit. Well, the operational unit that would cover that lead is the UBL unit. They would maybe clear that lead out. But it would remain in the system from counterterrorism division's lead bucket. So even though the lead is shown in the computer as not covered by the counterterrorism division, it is covered by the operational unit. So there is a lot of duplication in that. That's one.

Two is, as I've said in my earlier testimony, the system is very cumbersome and people, unfortunately, have just become very frustrated with it to the point where they have somewhat given up.

CRAMER: They have no confidence in it.

FBI HEADQUARTERS SUPERVISOR: They have no confidence...

CRAMER: They're working around it is what it sounds like to me.

FBI HEADQUARTERS SUPERVISOR: That's exactly the case, sir.

CRAMER: And I would assume that leads are falling through the cracks.

FBI HEADQUARTERS SUPERVISOR: We hope not. What will frequently happen, for example, is even though a field division sets a lead to headquarters and ACS, they're also e-mailing that communication to the particular FBI headquarters SSA. So they're getting it and working on it via the e-mail, but not necessarily within the ACS system.

CRAMER: My time is almost up, but I do want to work in one more question and this is on the Moussaoui investigation.

You said at headquarters that this was a priority and that you considered Moussaoui to be a threat. Did you alert other field offices to the matter in order to determine whether there were similar cases in other field offices?

FBI HEADQUARTERS SUPERVISOR: I can tell you that a September 4 teletype was written from headquarters. It was sent to to FBI field divisions and it was sent to elements of the intelligence community. It was not set to numerous other field divisions, and that's just the nature of how the FBI operated in a pre-9/11 environment; namely, that we were investigation-driven.

The investigation was in Minneapolis. It was in Oklahoma City. As leads developed that would have included other field divisions, then it would have opened, and we would have started to move the investigation out to other divisions. But in a pre-9/11 environment, we were clearly an investigation-driven agency, and unless a particular field division needed to see it, they would not.

CRAMER: Which has to change.

Thank you, Mr. Chairman.

GOSS: Thank you very much, Mr. Cramer.

Senator Hatch, the floor is yours for 20 minutes.

HATCH: Thank you, Mr. Chairman.

I'd like to direct some questions to Mr. Bowman and Mr. Rolince. And, of course, if any of you would care to comment, just raise your hands and I'll be happy to have you do it.

In the wake of September 11 incident, Attorney General Ashcroft worked closely with Congress to help formulate the Patriot Act, which has provided the law enforcement community with the necessary tools and resources that I felt were long overdue.

Among other things, the act has enhanced the ability of law enforcement and intelligence authorities to share information and to coordinate their antiterrorism efforts. The act has updated our laws relating to electronic surveillance. We know now that e-mail, cellular telephones and the Internet were the principal tools used by the terrorists to coordinate their deadly attacks.

The sad fact, however, is that the bulk of the proposals that were incorporated into the Patriot Act had been requested by the Department of Justice for years, but had languished in Congress because we were unable to muster the collective political will to enact them into law. Now, I am concerned that there are additional necessary legislative reforms that we here in Congress should be doing everything in our power to make into law.

And Mr. Bowman and Mr. Rolince, I am very interested in your views on these subjects.

Senators Kyl and Schumer have identified a problem with FISA, the so-called lone wolf problem, that I agree is a serious problem and needs to be addressed. We held a hearing on July 31, 2002 to examine this issue, and I certainly hope and expect this legislation would become law this year because it does enjoy bipartisan support and it would be helpful to you. Do you agree with that?

BOWMAN: Yes, sir, I do agree with that. On July 31 I testified on that very matter and submitted testimony which explained why the lone wolf has become a modern issue in terrorism. Senators Feinstein, Kyl and DeWine and I had quite a dialog on it on July 31.

The bottom line to it is, sir, there is testimony before your committee and written testimony that you can look at, and I'd be happy to repeat any of it, but I don't want to waste your time.

I think that it is not numbers' wise a huge problem at the moment, but is certainly a problem we've seen growing over the last few years.

HATCH: OK. Mr. Rolince?

ROLINCE: Thank you, Senator, if I could address that from an operational standpoint.

This has been recognized for the better part of a year, year and a half, and we specifically had unit chiefs, such as the one before you and a prior UBL chief, bring over the former head of OIPR and all of her attorneys to address the problem because what we were doing was putting agents in a position to try to fit people into a group into which they did not necessarily belong.

ROLINCE: And the last thing that any of us ever want to see happen is people standing in front of a FISA court judge and raise their right hand and swear to facts that they either do not believe are true, or are being counseled are not sufficient, which goes back to the Moussaoui issue; agent of a foreign power, not just a foreign power. Could you prove him to be an agent.

So when Senators Kyl and Schumer, in my personal view, they hit the nail right on the head. That's exactly one of the things that we need to be looking at.

HATCH: In addition, I believe there are other reforms that we in Congress ought to enact to assist law enforcement and the intelligence community in their efforts to combat terrorists.

For example, although the Patriot Act enhanced the ability of federal law enforcement and intelligence authorities to share information with one another, I understand that statutory constraints on the authority of federal officials to share information with their state and local counterparts remain, and that these constraints applied information obtained through grand jury investigations, wire taps, FISAs, as well as educational records, visa and consumer information.

Now, it seems to me that in order to succeed in this war on terrorism, it is critical that we have close cooperation in and between state and local and federal officials, as well. And in your view, to existing laws limit your ability to share important information with state and local authorities.

ROLINCE: I think there are some limitations here, Senator, which are important.

The amendments to the FISA or to the Patriot Act on grand jury and Title 3 information runs to federal officers which was a great help, and I don't want to diminish what a significant change that was for us. But it does not allow us to get that kind of information to the 650,000 state and local authorities that are out there.

The rules are slightly different, depending on what type of information you're talking about. FISA information is not included in that kind of a restriction. There are some other restrictions that go into it. And one of the things that the attorney general has been looking into and developing a process for is the procedures under which we can get classified information to state and locals to help them with their eyes on target.

HATCH: Well, don't similar limitations or restrictions apply to the information you're permitted to share with your international counterparts...

ROLINCE: Yes sir.

HATCH: ... who are cooperating and assisting our national efforts to combat terrorism?

ROLINCE: Yes, sir. There are some limitations there. The same limitations apply for the grand jury and Title 3 information. There are some speed bumps on other things. FISA, for example, if it's a U.S. person, at least, we have to share with a foreign power, we have to get the permission of the attorney general. We have to make sure that they agree to protect the information that we give them and so forth.

HATCH: Another concern I have relates to administrative subpoenas. Isn't it the case that the federal law enforcement officials currently have the authority to issue administrative subpoenas to investigate cases involving federal health offenses, child abuse and child pornography, all of which are important and very appropriate. However, I have to say that you don't have the same authority with respect to terrorism investigations.

Now, doesn't it make sense to expand this authority to terrorism cases as well if you're going to have that authority for health care offenses, child abuse and child pornography?

ROLINCE: Absolutely. The answer is absolutely, Senator. We have just -- locally here in the Washington field office is a great example -- moved two entire squads to go after criminal enterprises. They are supervised by individuals who formerly ran violent crime bank robbery squads and drug squads. The first request they brought forward was that we try to move down the road to get an administrative subpoena, simply because it's faster and it's more efficient.

An assistant special agent charged in a field office can and does sign those on a regular basis for the kinds of crimes that you just described. And yet, to get that same information within a counterterrorism/counterintelligence investigation, you can get it, but you either go via a grand jury subpoena or a national security letter, both of which, although effective, are less efficient. We can get it much more quickly with an administrative subpoena, and we certainly would like that.

HATCH: Well, as one of the prime authors of the Patriot Act, I'm not finding fault with the Patriot Act. What I'm trying to point out is that we wish we could have done better for you and that these matters should be done, but sometimes get involved in some of the politics around here rather than doing what's best for the American people.

Since September 11, there's been a growing concern about the risk of a serious cyber-attack, particularly one against our infrastructure which could have devastating consequences. And although the Patriot Act included several important provisions to improve our nation's cyber-security, in my view, it did not go far enough.

Just last week I offered an amendment to the homeland security bill, which among other things, would give communications providers and law enforcement greater flexibility when dealing with emergency situations where there is a risk of serious bodily injury or death. Specifically, the amendment creates a good-faith exception that would allow communications providers to disclose communications to a government entity, such as a hospital or a law enforcement agency, in an emergency situation involving the danger of death or serious bodily harm.

And it seems to me that if somebody wants to bomb an elementary school but does not mention when such an attack will occur, a communications provider should be able to disclose that information immediately and not worry about whether the danger is imminent.

HATCH: In such a case where a communications provider believes in good faith that the emergency exists, don't we want the provider to act quickly without the fear of liability?

ROLINCE: Yes, Senator. I think that's a very important point.

As we all know now, there's been an extremely large number of Internet communications which have been relevant to the terrorism investigations. We have been working closely with ISPs all over the country, the big and the small, and there have been any number of the ISPs who have been bending over backwards trying to find ways to help us within the law. And it's obvious in some cases that they feel very constrained on what they can do. It's also obvious that they are trying very hard to do the right thing. And I think your proposal would go a long ways towards eliminating the fears that they have in trying to do the right thing.

HATCH: And in protecting the American people.

ROLINCE: Absolutely, sir.

HATCH: Well, the bottom line is that I believe, in addition to examining what intelligence failures occurred leading up to September 11, we in Congress need to do all we can in our power to give our law enforcement and intelligence agents the tools and resources that they need to protect us from further terrorist attack. And I hope that that is part of this review process. I hope the Congress will act expeditiously to enact these very important reforms. But let me just shift here for a minute.

The staff statement details chronological intelligence reporting of foreign nationals with Middle Eastern terrorist ties seeking aviation training in the United States. I think I've counted at least 12 or 13 bits of information, classified information indicating that our law enforcement and intelligence communities had some idea about the possibility of using aviation or planes. The reports go back to the early 1980s, even during the Reagan administration, and continue right up to the present time.

Now, as the staff statement notes, this suspicious activity spurred FBI headquarters in 1999 to request 24 field offices to scrutinize Islamic students from an unidentified target country who were engaged in aviation training in these offices' jurisdictions. The FBI's international terrorism analytic unit, in coordination with the INS, was to consolidate the information obtained by the field offices. However, the project was never completed because the field offices did not follow through.

Mr. Chairman, I think this is one of the most serious and disturbing sections of the staff report. And I compliment the joint inquiry staff for bringing these facts to light. And I think there's a lot of blame that can go around to everybody, and some of it might rest right here in Congress.

One of the justifications set forth as to why the field offices neglected their duties relates to the Buckley Amendment. Now, it's my understanding that prior to the enactment of the Patriot Act, the Buckley Amendment limited the disclosure of educational records to third parties.

Under the Patriot Act, the attorney general or his designee may now seek access to educational records that are relevant to an authorized investigation or prosecution of a terrorism-related offense or an act of domestic or international terrorism. But it's most unfortunate if this legal requirement impeded law enforcement's efforts to complete this critical project.

Now, Mr. Rolince or Mr. Bowman, in your view, did the state of the law in 1999, indeed, make it difficult for field offices to complete this critical mission; and that is before the Patriot Act came into being?

ROLINCE: Senator, I think the answer to your question goes in a lot of different directions; both to resources and to our inability to effectively carry out our duties.

The Federal Education Rights and Privacy Act and the Buckley Amendment certainly stood out there and regulated -- passed by I believe your predecessors back in about '74 -- the kinds of information that the FBI could, in fact, get from a college campus. And the reason it's important is if you look into the numbers, you don't hear much dialogue about what happens if you follow up with the Phoenix EC.

There are, according to the numbers provided to me by the FAA, 108 flight centers analogous to Amberyl (ph) University in this country that are accredited and for which we would have to get a grand jury subpoena to go beyond the name and the address of the student, and you'd only get the address if that was a matter of public record. There are 1,675 flight centers, there are in excess of 69,000 certified ground instructors and in excess of 82,000 certified flight instructors in this country. That, in fact, is the universe.

I have been to the local law enforcement on the college campuses and asked them quite frankly, "If we came and knocked on your door asking about individuals on whom we did not have pending investigations, what would the response have been?" Assuming you can get past the profile issue -- and I'll assume that somebody's smart could have written something that would have been accepted by everyone -- and they basically said to me, "You'll get name and address. And if you want more, you have to come back with a federal grand jury subpoena because of that law and that amendment."

I then asked three separate attorney general-convened joint terrorism task forces around the country in different regions -- in Denver, in Washington D.C. and in Atlanta -- just to the attorneys in attendance, "How many of you would be willing to give a federal grand jury subpoena to an FBI agent to access records of an individual on whom we do not have an investigation?" In all three sessions, among hundreds of people, one hand went up.

So the practicality and the reality of implementing the Phoenix recommendations are, quite simply, if you shut down the entire bin Laden program -- lock, stock and barrel shut it down -- touch base with each of those individuals that I talked about, assume you get wholesale cooperation -- they give you everything they have -- the mathematics works out to a 17-month project.

HATCH: Well, let me mention one other thing.

The Phoenix memo includes suspicions of terrorist activity that were based in part on ethnicity. Now, while some may disagree, it seems to me that a general fear of being accused of improper racial profiling may have had a chilling effect and caused law enforcement agents in this instance, or perhaps in others, to be reticent in their investigations. Indeed, I understand that the intelligence operations specialists who reviewed the Phoenix memo expressed such concerns. Now, haven't similar concerns been voiced within the FBI and other contexts as well?

ROLINCE: I think you only need to go back to the millennium to get a sense of how the FBI would have reacted if we'd pushed that out the front door. There was a proposal on the table to interview every subject of every full and every preliminary inquiry investigation within the UBL program once Ressam came across the border and we were concerned about follow-on events for Y2K.

ROLINCE: That met with overwhelming resistance by the SACs in the field for a lot of different reasons, one of which is we would be hounded unmercifully over the profiling issue. And we pared it back to a listing of individuals and cases and circumstances that everyone could, in fact, agree with.

The reality is if you read the communication, it doesn't suggest profiling. It, in fact, suggests going out and trying to gather a list of everybody from anywhere that's coming in to take that training. Practically speaking, that would not be practical. At some point, you have to hone it probably to the 60 or so countries that have been identified as having an Al Qaida presence. But at some point in time, if you come down to Middle Eastern males between the ages of 21 and 41 and if you can define it as to those who went to the camps or not, some would call that a profile. I wouldn't disagree.

HATCH: Well, and that's been working against us in this particular case, that you're unable to watch males between those age groups -- Middle Eastern males.

ROLINCE: If you go back to the Marine Corps barracks' bombing, up through the annex, the embassy, Khobar Towers, Dar el-Salam, Nairobi -- there is a consistency in certain traits, and I know we're struggling with this whole issue of profiling or common characteristics, call it what you will, but those are the facts.

HATCH: Well, legislation introduced by others in this Congress proposes to ban racial profiling and prohibit law enforcement agencies from relying to any degree on race, ethnicity or national origin. Now, do any of you share my concern that such so-called racial profiling legislation could affect the FBI's ability to vigorously pursue leads that are based, at least in part, on ethnicity? And do you deny that that was definitely a part of the problem here in these cases?

BOWMAN: Yes, sir, I think you're absolutely right. If that legislation were passed and I were asked for legal advice on what to do, I would have to follow the legislation as would the special agents.

HATCH: No matter what would happen to our country.

BOWMAN: No matter what the result is, yes, sir.

Our agents are -- and you've heard it today -- our agents are extremely cognizant of the law and they are very concerned about not going beyond it, and the laws that are passed are the ones that they are going to follow.

HATCH: And they were in these cases.

BOWMAN: Yes, sir.

HATCH: And this arose in these cases.

BOWMAN: Yes, sir.

HATCH: And they were afraid to go out and do anything about it and they were reticent about it.

BOWMAN: That's absolutely correct, and the issue still persists.

HATCH: In May of this year, Attorney General Ashcroft announced revised investigative guidelines that are intended to enable the FBI to take a more proactive approach to prevent and detect terrorism and other crimes before they occur. Among other things, the new guidelines permit agents to engage in online research on the Internet to employ commercial data-mining services when necessary to investigate terrorists and to access public places that are open to citizens.

Now, isn't it the case that prior to these guideline provisions, agents were restricted from surfing the Internet to determine whether there are sites that address subjects such as how to manufacture explosives?

My time's about up, so let me add one other part to this.

Weren't FBI agents who investigated the kidnapping and murder of Daniel Pearl forced to obtain information from the Wall Street Journal employees who were able to gather information using a relatively simple data-mining service because the existing guidelines restricted the agents from gathering such information? And under the old guidelines, weren't there situations where the FBI was hindered in its ability to pursue legitimate investigations because of a fear of investigating criminal activity occurring under the guise of political and religious activity?

So without revealing any sensitive law enforcement information, can you provide some examples of why it is necessary for agents to enter public places or events for intelligence and investigative purposes? And why you should be able to surf the Internet? And why you should be able to overcome some of these limitations?

ROLINCE: I think you hit the nail on the head for much of this, Senator.

The reasons for some of those restrictions are historical. They go back to events of the '60s and '70s. The restrictions which were put on back in the '70s were intended to try to prevent abuses in the future. They focused on events and processes that have long since been changed.

The fact of the matter is everybody in the world knows what the weaknesses of our system are as far as being able to penetrate it, as far as being able to take advantage of it, whether it is for terrorist or criminal purposes. And if we cannot put the agents where the action is, then we're never going to be able to fully investigate many situations.

The fact is we do have to put agents in open spaces. We do have to put them where we expect to find terrorists and criminals.

HATCH: My time is up, Mr. Chairman.

GOSS: Thank you, Senator.

Chairman Graham?

GRAHAM: Thank you, Mr. Chairman.

This first question is for all three of the panelists.

To your knowledge, did anyone in the FBI, either at field or headquarters level, see the interrelationship between the Moussaoui case, the Phoenix communication, the possible presence of Midhar and Hasmi in the United States and the flood of warnings about possible attacks against U.S. interests in the United States, potentially using airplanes as weapons of mass destruction? All of that was happening within the spring and summer of 2001. Did anybody see the interconnections of those events?

FBI HEADQUARTERS SUPERVISOR: Senator, I'll address that from the headquarters standpoint first, and the answer to that is no. The connection was not made, and I think that goes to a number of issues.

FBI HEADQUARTERS SUPERVISOR: One being that just the volume of information that is consistently being acted upon at both the headquarters and the field level. The consistent threats that are varied in nature; everything from cars and boats and everything else that we consistently see. The volume of work that is handled by the people on a day in and day out basis, it's extremely difficult for individuals to keep these matters connected and to see everything and to make these connections in their head.

And again, I think that speaks to two key issues that I've tried to emphasize here today of a systemic nature; and that is there's a lack of analytical resources and technology. And I think in the case in which you just stated, in terms of making these correlations and connections, our weaknesses in both those areas need to be fixed.

GRAHAM: Either of the two agents have any comments on that question?

Yes, Mr. Rolince?

ROLINCE: As we noted in a prior hearing, Senator, I think it's critical that we keep this in the context of what was going on at the time. And yes, the staff report, which was very thorough, talked to a number of different instances wherein the use of an airplane or the commandeering of an airplane was, in fact, mentioned.

I had an analyst go back to January 1, 2001 and pull up the threats disseminated within the FBI's web site up through September 10 at the secret level: 216 different threats, six of which mentioned airport, airline and airlines, 3 percent of what came in at the secret level in '01 went to that issue.

What my colleague I think is saying, and I think we all agree with, is that we literally have every possible kind of threat you can imagine coming in day in and day out. And when the next attack comes, I have no doubt but that we're going to be able to go back into the body of threat information and find indicators and talked to it with some degree of specificity.

GRAHAM: My second question is, assuming that this may not be commercial airlines, it may be cargo containers on maritime vessels or other forms of threats, that living in the environment of a large volume of information and the necessity to try to glean from that what is most important and relevant, have there been any changes in the personnel, the technology, the investigative approach which, in your opinion, would have changed the answer that you just gave, if the circumstance were today and not the spring and summer of 2001?

FBI HEADQUARTERS SUPERVISOR: From the headquarters perspective, I think that the director is clearly moving in the right direction on that; and namely that the analysts are coming on board to begin to look at these issues, and I think that that strategic analytical group is beginning to get their arms around issues similar to what you're suggesting.

I think the technology problems, though, to be quite frank, they're still there. I don't think they're any better. Again, the analytical resource is coming together, but the technology is still a major gap.

GRAHAM: Any other comments on that question?

Thank you, Mr. Chairman.

CHAIRMAN: Thanks very much, Mr. Chairman.

Ms. Pelosi?

PELOSI: Mr. Chairman, with your permission, I would like to yield my five minutes to the distinguished gentleman from Minnesota at the time he comes up in the questioning process. Being a pilot, and as I say, close to this issue in Minnesota, I want Mr. Peterson to have my five minutes at that time.

Thank you.

CHAIRMAN: Thank you, Ms. Pelosi.

Senator Shelby?

SHELBY: Thank you. Thank you, Mr. Chairman.

I'd like to direct my questions to the FBI agent at headquarters.

We've gone through this before, but when FBI Minneapolis contacted headquarters for a FISA, what date was that, if you recall?

FBI HEADQUARTERS SUPERVISOR: To the best of my recollection, I think we're looking around August 21.

SHELBY: And what was your concern, again, regarding their request for a FISA at that time?

FBI HEADQUARTERS SUPERVISOR: We didn't have concern that they had a need for a FISA. There was clearly, in our minds, a need to get into that computer and get to his belongings.

SHELBY: The computer.

FBI HEADQUARTERS SUPERVISOR: And his belongings.

SHELBY: But didn't they have to have some kind of a search warrant, a FISA, or a criminal search warrant to get into it?

FBI HEADQUARTERS SUPERVISOR: They could have...

SHELBY: Is that theme...

FBI HEADQUARTERS SUPERVISOR: The theme that quickly materialized was one of a tactical type decision; whether to go towards a criminal search warrant or whether to go to a FISA search warrant.

SHELBY: Did you advise them what to do?

FBI HEADQUARTERS SUPERVISOR: We put our heads together within the operational unit and came up with what we believed to be the proper way to go after that.

SHELBY: Were you the head of the unit?

FBI HEADQUARTERS SUPERVISOR: Yes, I was.

SHELBY: OK, go ahead, sir.

FBI HEADQUARTERS SUPERVISOR: I think it was the collective opinion of myself and the supervisor who was handling that case that we did not see a probable cause for obtaining a criminal warrant. But obviously, we're not attorneys, and I do not believe that the supervisor that was handling this matter in particular was an attorney, so we elevated that up to the national security law unit within headquarters. And we asked that the Minneapolis division bring it back to their own chief division counsel to try to do a collaborative-type effort to make the best decision.

SHELBY: Excuse me a minute. What kind of time frame are you talking about as you kicked it upstairs and then kicked it back to the FBI headquarters in Minneapolis?

FBI HEADQUARTERS SUPERVISOR: I think it was a fairly quick movement. I would say within a day we had pretty much...

SHELBY: A day? You call that a quick movement, something that's of that importance?

FBI HEADQUARTERS SUPERVISOR: In terms of getting the answers and getting the people to put their heads together, I think it moved pretty quickly.

SHELBY: So the answer was no on the FISA, is that correct?

FBI HEADQUARTERS SUPERVISOR: No, that's not correct.

SHELBY: Well, correct the record then.

FBI HEADQUARTERS SUPERVISOR: OK. The decision that we came to in the operational unit and within NSLU, if I could speak for them, was that FISA was the way to proceed, and I think that was substantiated by the CDC in Minneapolis also.

SHELBY: Did the FBI in Minneapolis then proceed under the FISA and then come back to you for a clearance or whatever you do -- or permission under a FISA?

FBI HEADQUARTERS SUPERVISOR: Right. In terms of the strategy that was employed, we moved forward to attempt to acquire a FISA search warrant.

SHELBY: Did the Justice Department, on your recommendation, present an application for a FISA to the FISA court?

FBI HEADQUARTERS SUPERVISOR: No application was presented to the Department of Justice.

SHELBY: Why not?

FBI HEADQUARTERS SUPERVISOR: A decision was made that the probable cause standards of FISA were not met.

SHELBY: And when you say a decision was made and you were in charge, was that ultimately your decision?

FBI HEADQUARTERS SUPERVISOR: It's a collaborate effort with the National Security Law Unit.

SHELBY: Did you notify then Minneapolis of some problems they might have had with the FISA application?

FBI HEADQUARTERS SUPERVISOR: It was voiced to Minneapolis that we were having problems with the foreign power issue of the FISA application. And I think it's important to note that the FISA process never really ends. You know, we were looking at that FISA process continually, right up until September 10. But, obviously, there came a time when we started to move towards a deportation.

SHELBY: But the clock was ticking. This started in August, and on September 10, you were still fooling around with it -- or maybe fooling around is not the proper word -- you were still grappling with it, is that correct, at FBI headquarters?

FBI HEADQUARTERS SUPERVISOR: It's not uncommon to grapple with the FISA.

SHELBY: I didn't ask you if it was uncommon. I asked you, were you still grappling with it?

FBI HEADQUARTERS SUPERVISOR: Yes, we were still trying to get to the foreign power issue.

SHELBY: What happened on the morning of the 11th of September? Did Minneapolis FBI contact headquarters again for a FISA or a criminal warrant after the Trade Towers were hit?

FBI HEADQUARTERS SUPERVISOR: I was contacted by an individual in the Minneapolis division who asked that they be allowed to go forward in an attempt to acquire a criminal warrant.

SHELBY: A criminal warrant against Moussaoui or a warrant to search the laptop?

FBI HEADQUARTERS SUPERVISOR: To search both the laptop and his other belongings?

SHELBY: Did you turn that down?

FBI HEADQUARTERS SUPERVISOR: No.

SHELBY: Did you approve it?

FBI HEADQUARTERS SUPERVISOR: I told Minneapolis in no uncertain terms they should go forward immediately.

SHELBY: Well, we've been told -- and I don't know if this is correct or not -- that FBI headquarters turned it down -- turned the application again for a search warrant down on the morning of the 11th after the Trade Towers were hit, and a federal judge in Minneapolis issued the necessary warrant to search the laptop. Is that right?

FBI HEADQUARTERS SUPERVISOR: That's not accurate.

SHELBY: Well, explain what is accurate.

FBI HEADQUARTERS SUPERVISOR: I will if I could.

SHELBY: Go ahead.

FBI HEADQUARTERS SUPERVISOR: I received a phone call almost immediately 9:50 in the morning or whatever from an assistant special agent in charge in Minneapolis who I knew, and he said to me, "We would like to go forward with that." I said, "Absolutely, go forward." And that point, in my mind, you know, all bets were off.

SHELBY: And this is the morning of the 11th you're speaking of?

FBI HEADQUARTERS SUPERVISOR: That's correct.

At that point, Minneapolis went forward and approached the U.S. attorney's office in Minneapolis and acquired the search warrant. And you know, obviously, significant probable cause was added to their warrant in the fact that three airplanes had smashed into buildings and a fourth airplane that was hijacked had crashed in Pennsylvania.

SHELBY: I know my time is up. Could you just briefly tell us what was found in the laptop? Can you do that?

FBI HEADQUARTERS SUPERVISOR: I think that's...

GOSS: Mr. Nomeus (ph), do you want to give us guidance on that?

NOMEUS (ph): I think the concern is that since that happened after September 11 or on September 11, and deals with evidence in a criminal case, we would not...

SHELBY: OK, we won't go there then.

GOSS: Senator, could you hold that for a closed session?

SHELBY: I will hold it for the special hearing.

Thank you, Mr. Chairman.

CHAIRMAN: Thanks very much.

Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

First, let me thank all five of you for your service to our country. We appreciate it very, very much.

A number of things have come out of this hearing today, reinforced some things that I think we probably already knew, but let me just mention a couple.

One is that we have saddled the FBI with a communications system that is broken. No corporation in this country would tolerate it. It is shameful. And from your testimony it appears that we still have a long, long, long way to go to fix it. That certainly has to be a top priority of this Congress and a top priority of the FBI. It's unfair to you; it's unfair to the country.

Second, testimony has reinforced how difficult it is, I think, for the FBI to, when it has to, get out of the case mode. I started my career as a county prosecutor. I have some familiarity with this area as many on this committee do. You're trying to make a case. You're focused on whether you have the evidence to make the case. You know, when the Phoenix memo came in, it seems it clearly had new information.

DEWINE: It mentions some things that, in hindsight, look very, very tantalizing; very, very interesting. It's a product, I would say, obviously to the Phoenix agent -- of some very imaginative, creative, good work, good analysis -- the type thing that needs to be done and needs to be rewarded in our system. Your field office didn't seem to think that, however, that it added very much to what it already knew. And I suspect that was due because they were looking at it as a case; did this help them make a case? But they failed to see, obviously, the big picture.

My question to the three of you is, is it ever feasible to really expect the FBI agents who have been trained historically to look at cases to look at things from an intelligence point of view? Can the FBI really do preventive intelligence? Let me start with the Phoenix agent.

PHOENIX FBI AGENT: Yes, I think we can, and I think we have demonstrated that since our very inception. I believe, you know, just point to the examples during the Cold War, the FBI's counterintelligence mission during the Cold War and the effectiveness that we had against the Soviets.

DEWINE: You disagree with the premise then?

PHOENIX FBI AGENT: Yes, I do disagree with the premise then?

DEWINE: OK.

PHOENIX FBI AGENT: But what I do think is, we need more resources, more agents, more analysts, more support persons to attack this problem. I personally feel -- it's my opinion that we cannot do everything that we are mandated to do, both criminally and from an intelligence point of view, and do it all well.

DEWINE: Good point. FBI headquarters?

FBI HEADQUARTERS SUPERVISOR: Clearly, I think that we're up for the mission. I'll echo my colleague's sentiments. I think it comes down to redirecting resources. I think, clearly, analysis is going to be a big piece of it, and then a bigger piece is training. The training issue is one that headquarters has to grab the bull by the horns right now and get our people trained to look at these issues from a national perspective, from a strategic perspective.

DEWINE: The Minneapolis agent?

MINNEAPOLIS FBI AGENT: Sir, I think we're absolutely up to the task. The type of people that are recruited into the FBI are people that are multifaceted and people that look beyond just what's happening in their own backyard, as evidenced by the way we attacked the problem in Minneapolis.

We were interested in exploiting the information that we had in the government's possession because we thought it might speak to either a larger conspiracy or ongoing cases that were already proceeding in other divisions in the FBI. We were clearly focused on the bigger picture, and we're not with this myopic look at a single case or a single criminal act.

So absolutely we're up to the task, and I think that's going on in field divisions right now. I think it can happen to a greater degree and much more effectively. But the type of people that are working these cases are the people that have clearly an international focus.

DEWINE: Well, I think your testimonies been very helpful today. I think your answer just a moment ago, all three of you, was very helpful. You've listed a number of things that, frankly, fall outside of your responsibility. They go to things such as resources that go back to our responsibilities, and I hope Congress will heed your advice.

Thank you, Mr. Chairman.

GOSS: Thank you, Senator.

Senator Levin?

LEVIN: Thank you, Mr. Chairman.

First, I have two requests of our chairmen before I ask my questions. One is I would request that there be a redaction and then a release publicly of both the Phoenix memo and the Minneapolis documents. I made a request many, many months ago, back in May or June, for the public release after redaction to protect sources and methods.

The letter I got back from the FBI was that they hoped to do this at some point in the not-too-distant future. It is still not done. It is an essential part of our investigation, I believe, that the documents with proper redaction be released publicly. Without that, accountability is less likely. So I would ask the chairs to take that under consideration.

Secondly, I'd like to highlight a portion in the staff report this morning on page 23 where, near the bottom of the page, it says that a CIA officer, detailed to FBI headquarters, learned of the Moussaoui investigation from CTC in the third week of August. The officer was alarmed about Moussaoui for several reasons. Those reasons are stunning quotes, if I can put it that way, from documents which I can't see any reason not to be released. And I would hope that the chairs and the vice chairs would get together and see whether or not we cannot get the disclosure of those quotes from the documents referred to.

When the CIA's stations were advised of the known facts -- that's the next line -- all I can tell you is that the reference there are to specific decisions, findings made by that officer which were directly relevant to this investigation into these events. So I would ask that our chairs if they would consider that request as well.

GOSS: That request has, in fact, already been made and it is a work in process. I'm not sure how it is going to come out, but you'll be advised.

LEVIN: And the first one as well?

GOSS: Yes, sir, both of those.

LEVIN: Thank you.

Third, now the questions. This would be for our headquarters agent.

The Phoenix FBI agent recommended that FBI headquarters, quote "...should discuss the concerns raised by the agent in the Phoenix memorandum with other elements of the U.S. intelligence community, and task the community for any information that supports Phoenix suspicions."

I gather that was not done. Is that correct? And if so, why not? Briefly.

FBI HEADQUARTERS SUPERVISOR: I've learned, obviously post-9/11, of some of the actions that were taken both by the field and by the analysts. In fact, it's my understanding that our Phoenix division had, in fact, discussed a number of the subjects -- in fact, maybe all of them -- and maybe my colleague could comment on this also.

FBI HEADQUARTERS SUPERVISOR: With the CIA and at a couple of meetings, the issue of the infiltration of the airline industry by terrorist subjects was discussed.

LEVIN: All right. So, therefore, you're saying that the headquarters, your unit, did, in fact, discuss the concerns raised by the agent with the intelligence community? Is that what you're saying? You acted on that request?

FBI HEADQUARTERS SUPERVISOR: No, I am not. I'm saying...

LEVIN: Why did you not act on that request?

FBI HEADQUARTERS SUPERVISOR: I can't answer that except to speak to what I learned post-9/11.

LEVIN: All right. Well, that doesn't then answer the question. You don't know why you didn't act on that request at the time, is that the answer to the question?

FBI HEADQUARTERS SUPERVISOR: That's correct.

LEVIN: Now the next question then relates to the Minneapolis issue, which is here you've got -- to go back to Phoenix. In the case of Phoenix, you've got an agent here who requests specifically that these concerns be shared with the intelligence community. You did not act on that request, without -- you know inexplicably. Now we've got another similar situation in Minneapolis. But here, apparently, the Minneapolis division did notify the CIA's Counterterrorist Center, the CTC. And according to Ms. Rowley, was, in her words, "chastised" for making the direct notification without the approval of the FBI.

Now, let me ask our Minneapolis agent. Do you know if that statement of Ms. Rowley is true?

MINNEAPOLIS FBI AGENT: That is true, sir.

LEVIN: All right. This, to me, goes to the heart of...

MINNEAPOLIS FBI AGENT: Excuse me, if I may, qualify that a little bit.

It's true to a point. The word "chastised" is, perhaps, a little prejudicial here. I did receive a communication from a supervisor at FBI headquarters that indicated his preference would be that we contact FBI headquarters to coordinate any intelligence-sharing with CIA headquarters. He indicated to me that the information flowed better when they were communicating headquarters-to-headquarters, and I know that has been longstanding preference of FBI headquarters.

LEVIN: Did you or she consider that to be a reprimand in sorts -- a correction of a previous action?

MINNEAPOLIS FBI AGENT: It seemed to me to be a direction from FBI headquarters to cease and desist.

LEVIN: Cease and desist.

FBI HEADQUARTERS SUPERVISOR: I'd like to speak to that, if I could.

LEVIN: I'm out of time, and I wanted to just -- I think I'm out of time.

GOSS: You are out of time, but you...

FBI HEADQUARTERS SUPERVISOR: Could I respond to that?

GOSS: I yield you an additional minute because you took a minute on administrative manners, which are a benefit to all of us. So if you'd like the additional minute, it's your choice, sir.

LEVIN: Thank you.

If you could do that in 30 seconds that'll give me 30 seconds for my last question.

FBI HEADQUARTERS SUPERVISOR: I can; and namely the supervisor who was handling that matter is the person who is going to be the affiant on the FISA. That individual has to be aware of everything that is going on in that case, and communications cannot be kind of going around him. The reality of it is is things do work much better when they go through headquarters.

There was no effort to hinder in any manner communications between CIA and FBI. In fact, I can tell you from firsthand experience in my conversations with CIA and with our FBI representative at CIA during that time frame that there was exceptional flow of information back and forth.

LEVIN: This is a very quick question, last 20 seconds.

It's one thing where there is reticence on the part of agents, where there is legal barriers to take certain actions. But where there's no barriers that's where we get into trouble, it seems to me. That's where I have difficult understanding the failures to act.

One of the great failures here had to do with the FISA warrant and what is the standard for getting a FISA warrant and the so-called foreign power provision, which you viewed or was told, was a barrier, erroneously, by the legal division at FBI. Apparently, it was established by Senator Edwards -- it was erroneous.

Now, my question is this -- I read the law, it's clearly erroneous. You don't have to have a foreign power. You have a foreign terrorist group. That's enough for a FISA agent under the law as it existed at that...

FBI HEADQUARTERS SUPERVISOR: The foreign power with regard to a FISA in a terrorism case would be a terrorist organization.

LEVIN: Exactly right. You don't need a foreign power; terrorist organization is enough. And yet, this was not pursued because it was -- you were told that you had to prove there was a foreign power connection.

FBI HEADQUARTERS SUPERVISOR: No, that's not accurate.

LEVIN: All right. If that's not correct, fine. I'll let Senator Edwards' Q&A answer that.

My question is this; apparently, there was an acknowledgment that there was a misinterpretation of the law, OK? How many FISA requests were not made based on that misinterpretation of law, in addition to the one that we're talking about here? That's a very specific numerical question.

How many requests were not made based on the misinterpretation which was acknowledged or explored by Senator Edwards?

ROLINCE (?): I'll very briefly answer that, if I may, Mr. Chairman.

I don't know of any other instance in which something like this came up. But I don't think, Senator, that Senator Edwards' questions got quite to what you were focused on there.

The fact of the matter is that the agent of a foreign power is something that is not defined in the statute but it is addressed in the legislative history, which we have to follow because that is where we get an explanation of it. An agent of a foreign power in the legislative history describes a knowing member of a group or organization and puts an onus on the government to prove that there is a nexus that exists between that individual and the organization which would make it likely that that individual would do the bidding of the foreign power. That is the stretch that we weren't able to get to.

LEVIN: Thank you.

FBI HEADQUARTERS SUPERVISOR: Mr. Chairman, if I may, I think that's absolutely essential because there seems to be a disconnect between whether or not we did not get the FISA because we could not connect him to a foreign power. We did not get the FISA because the decision came out, in consultation with OGC, that we could not plead him as an agent of that foreign power.

LEVIN: If I could put in the record the definitions of foreign power in 50 U.S. Code Section 1801 (a); foreign power is defined as including in Subsection (4) a group engaged in international terrorism or activities in preparation therefore.

ROLINCE: No disagreement, but we have to prove he's an agent of that foreign power.

LEVIN: Of that group.

ROLINCE: Right, and what's where we were lacking. That's where we were lacking, that he was an agent of that group.

FBI HEADQUARTERS SUPERVISOR (?): If I could, this is a very significant issue and one that we should probably take up in a closed session. it needs to be explored because this is a problem that we're going to face many times now in the future, and this issue of how to get at these so-called lone wolves needs to be addressed.

GOSS: Thank you very much.

We will do that. We have, in plain text up here, what Senator Levin has just held up. It's in our briefing books, and we are reading it, obviously, as laymen not as operatives in the field or people having to deal with it. Obviously, this needs more dialogue, and we will arrange to have it in a freer atmosphere for those of us who have to deal with this stuff. I think your suggestion is excellent.

We will proceed now to Mr. Roemer.

ROEMER: Thank you, Mr. Chairman.

Mr. Chairman, I want to, first of all, thank and also commend particularly the agents from Phoenix and Minneapolis. As we look back on the horrors of September 11, we find that going back to Minneapolis and Phoenix, there were, in fact, field agents out there that found clues that could have brought more attention to these matters that piece together important ingredients and evidence in the case that may significantly help us down the line. So I want to thank you for your hard work and successful work in some ways.

Given your experience in the field, given your assessment of the threat, given your knowledge of where Al Qaida may operate successfully in this country -- first of all, the Phoenix agent -- how likely is it that we're going to be hit again? And when do you think that may take place?

PHOENIX FBI AGENT: This would be purely speculative on my part.

ROEMER: That's all I'm asking.

PHOENIX FBI AGENT: I believe that, first of all, the watershed event for the international terrorism community took place on February 26, 1993. And I wish had these type of hearings back then to address that threat because I believe that that was the first page of a new chapter in American history.

I believe that the enemy is here, is ingrained in our communities and is willing to strike to again. I couldn't tell you when. I believe that we are making some headway and having some success with disrupting his activities in the country, as is evidenced with what took place a couple of days ago in Buffalo and elsewhere around the country. But to give you a timeframe...

ROEMER: On a scale of 1 to 10, Phoenix agent, how likely do you think a hit from some of these terrorist groups might be, 10 being very likely?

PHOENIX FBI AGENT: I would say it would be low right now. I would say one because of our offensive efforts post-9/11.

ROEMER: That's in country or from outside the country?

PHOENIX FBI AGENT: I can only speak for inside the country, and that's my opinion.

ROEMER: Minneapolis agent?

MINNEAPOLIS FBI AGENT: Sir, I'm unfortunately not prepared to answer you question because circumstances concerning my assignment have changed significantly since my involvement in this case. I don't have current information or access to the current information because of my present assignment. And for me to speculate would be completely out of step.

ROEMER: I appreciate your honesty. And again, I appreciate the hard work that you did prior to this.

But coming back to the Phoenix agent, I want to say that from our testimony from Eleanor Hill, she quotes a New York FBI personnel who found your Phoenix memo, quote, "speculative, but not necessarily significant." I, on the opposite hand, find it significant because it was speculative. You almost laid out the case for a strategic analyst that piecing together different threat assessments and different clues coming in that this might well happen at some point in the future, but that it could be happening in other places in the country.

We're told that five intelligence research specialists -- strategic analysts were transferred from the analytical unit to the operational unit. And in the opinion of one interviewee in the strategic analytical capability of the FBI against Al Qaida, that it was "gutted" quote/unquote.

Do you have any comment on the state of the strategic analyst prior to 9/11?

PHOENIX FBI AGENT: I don't have any information concerning what took place at headquarters in terms of the downsizing and transferring of people. But as I testified earlier, we in the field -- I, in particular, can speak for myself -- saw a decreased amount of analytical material that came out of headquarters that could assist somebody like myself in Arizona.

ROEMER: I hope that we're dealing with that both from a training and a resource capability now, looking into the future as well, too.

Finally, FBI headquarters agent, you said in response to a question from Mr. Cramer that your name was on the Phoenix memo to headquarters, but you did not recall seeing it. Is that correct?

FBI HEADQUARTERS SUPERVISOR:: That's accurate. I do not believe I ever saw that communication. In fact, I think your investigators that this committee has investigating this matter has confirmed that the best they could.

ROEMER: I'm not so much going to try to grill you on whether or not you recall seeing it, not reading it or passing it on. What you said afterwards concerns me about the system a little bit more. You said that you still do not see some things with your name on it. Sometimes that could amount into the hundreds of memos or documents going through FBI headquarters. So if there is another Phoenix-type memo coming through, you may not see it. And maybe there are three or four other names on that memo, but I want to be reassured that three or four of those people, including you, would see it this time and be able to act on it.

Are we going to fix the system so that those four or five names or six names in this instance -- how many were on it -- that they are seeing it, reading, and responding to the field offices?

FBI HEADQUARTERS SUPERVISOR: That's a fix that comes with technology and resources.

ROEMER: So it's not fixed?

FBI HEADQUARTERS SUPERVISOR: It is not fixed. Nor to say though, and I think this has to be clear, is that nor do I need to see everything.

FBI HEADQUARTERS SUPERVISOR: As an individual, I cannot possibly see and consume every piece of paper. Unfortunately, there's a culture in the FBI where names go on "Attention" lines; that that's not necessarily necessary. I think it needs to be focused on program responsibilities or cases and field division responsibilities. Just because of my position, they tend to put my name on that communication. I myself do not necessarily need to see it, nor could I possibly take on all of those pieces of communication with my name on it.

ROEMER: I would just hope they'd take your name off it and the people that would have their name on it would be reading it and responding to it.

Thank you, Mr. Chairman.

GOSS: Thank you, Mr.Roemer.

Mr. Peterson, you have 10 minutes, sir.

PETERSON: Thank you, Mr. Chairman.

I want to thank Ms. Pelosi for her kindness in giving us some time. We in Minnesota are probably, as you expect, a little more focused on some of this -- what we're talking about today in other places. And I want to commend the agent from Minneapolis and all the other people. We're proud of the work that you do, and you folks did a great amount of work and a very good piece of work on this issue. And I want to thank all of you for what you do for your country.

Now, having said that, I want to bring up a couple things that keep coming up. I want to try to sort through this sequence a little bit.

I just heard this again today and I wanted for the Minneapolis FBI agent to clarify this. Somebody brought up to me during the break that the flight school had called the FBI office in Minneapolis two or three times before they got a response. This has been printed before, and as I understand it, that's not the case.

Are you familiar with what happened during that time sequence?

MINNEAPOLIS FBI AGENT: I am not at all aware of any prior telephone calls. I've heard that also in the past. We've been unable to confirm that in Minneapolis.

PETERSON: So as far as you know, the first call...

MINNEAPOLIS FBI AGENT: Yes, sir. The first call was August 15. That happened about one o'clock in the afternoon. And immediately following that call, the agent hung up the phone, came into my office and the intelligence case was opened.

PETERSON: Right. I just wanted to get that on the record. That's as I understood it.

Also, in Ms. Hill's statement today she says that the supervisory agent in Minneapolis told the joint inquiry staff that the FBI headquarters had suggested that Moussaoui be put under surveillance, but the Minneapolis office didn't have enough agents to do that. It wasn't too long after this all happened that he was arrested because he was an INS violation. But is that true? Was there a decision made where they couldn't put him under surveillance because there weren't enough people? And that raises a question of how much of a priority this was, in some people's minds?

MINNEAPOLIS FBI AGENT: That statement is partially true. The decision on whether or not we were going to put Mr. Moussaoui under surveillance rested with me, and I made the decision that he was going to be arrested because we had a violation.

The INS was participating as a full member of our joint terrorism task force. My background in the criminal arena suggests that when a violation occurs and you can stop further or potential criminal activity, you act on that. So that's exactly what I instructed the agents to do. If we had the possibility of arresting him, we were going to arrest him. If we needed to surveil him, we certainly could have instituted a surveillance plan.

PETERSON: That was really never an issue.

MINNEAPOLIS FBI AGENT: It was not appropriate to do in this case.

PETERSON: Now, on this whole issue of trying to get at his computer and his effects, I understand that initially you were looking for a criminal search warrant.

MINNEAPOLIS FBI AGENT: The initial telephone call that I made to the radical fundamentalist unit was to request a notification to the Department of Justice's Office of Intelligence Policy Review to grant us concurrence to walk across the street to the United States Attorney's office and discuss the possibility of a criminal warrant. That was not to say that we were committed to getting a criminal warrant because, as the FBI headquarters agent has mentioned, the feeling of FBI headquarters was we had not yet reached the threshold of probable cause to obtain a criminal warrant. I don't disagree with that assessment.

And when the information came to light that we would be better suited to pursue the FISA warrant because it granted us greater options, or a larger number of options in the future, it was very clear that that was the right decision -- pursue it as a FISA matter, and that's the way we went.

PETERSON: Now, there was some concern about that if you went through the criminal process and were turned down that it would jeopardize your FISA request, too, as I understand it.

MINNEAPOLIS FBI AGENT: Yes, sir.

PETERSON: We've got some indication that there -- I guess this was asked earlier -- that there was some kind of adversarial relationship between Minneapolis and headquarters -- that there had been some issues before in these areas. And, apparently, both of you gentlemen weren't there long enough to be aware of that.

Mr. Rolince, do you know, would that have been a factor in all of this? And we also have the reprimand that Colleen Rowley talked about. Was there some kind of problem between Minneapolis and headquarters that affected this?

ROLINCE: No, it absolutely should not have been a factor. If there had been a prior disagreement between the supervisor and my colleagues' unit and any agent in Minneapolis, it certainly had not been raised with management within the international terrorism operation section prior to that. So I would take it to mean that if there were some issue, it wasn't very significant because nobody brought it to anyone's attention to do anything about it.

The second part of your question -- I think it's important to understand that you don't want 11,000 agents in the FBI picking up the phone calling back to CIA or INS or the State Department or any other headquarters in Washington with their leads. There is a rational, logical reason why leads come into headquarters. There's a headquarters-to-headquarters dialogue and the answer goes back out.

In this instance, at that time, there was a memorandum of understanding between the FBI and the CIA that that is exactly how we would handle inquiries from the field. It's more effective. It's more efficient. And it's the way our counterparts in Washington want it to work.

PETERSON: There was also some information that the headquarters didn't think that the people in Minneapolis understood the FISA process. And the people in Minneapolis were very frustrated, I think, in the way this whole -- they really were frantic to try to get at this stuff.

How are people in the field trained on FISA? Are they only trained at Quantico? Or do they get updated on court decisions and legal changes? Now, as an agent in the field, are you trained on this at all?

MINNEAPOLIS FBI AGENT: I had received no training on the FISA process prior to this incident. My background had been as a domestic terrorism investigator, and I had received some fairly extensive training on the attorney general guidelines and matters related to domestic terrorism. FISA problem -- or the FISA Act is not often, if ever, invoked in domestic terrorism matters. So personally I had not had any.

However, there were other agents on my squad. The agent who was assigned as the case agent in this matter and an agent who was assigned to the parallel criminal case, post-September 11, who had received some in-service training from Quantico, in addition to the on-the-job training and training from the supervisor that preceded me in how to handle the FISA matters.

So there was an understanding of the FISA process in Minneapolis by this specific case agent, as evidenced by the fact that this case agent had a couple of prior FISAs and had been through the process before.

PHOENIX FBI AGENT (?): Sir, if I could address that issue as well. I have been working counterterrorism matters for approximately 13 years. And during the course of my career, I've been to several in-services at Quantico that give us updated training on the FISA process; how to put together the packages, what's needed to make them successful.

Most recently I was at a FISA in-service just right after 9/11 where we addressed some FISA issues as well. So I have had the benefit of having that training. And the training is available and has been put on by our national security law unit.

PETERSON: I know there was a lot of frustration in the Minneapolis office. I stopped by there shortly after 9/11 and so forth.

Was there every any attempt by anybody in Minneapolis to go above the radical fundamentalist unit, to try to jump over them and try to get somebody at a higher level to listen to what you were talking about?

MINNEAPOLIS FBI AGENT: I took the information, as I mentioned earlier, to my immediate supervisor, who was an assistant special agent in charge. He also happened to be acting as the special agent in charge of the office. So there were some internal concerns, or really some demographic things that were happening within the Minneapolis office at the time this matter was underway.

We did not have a special agent in charge of the office. So we had an acting special agent in charge acting in his stead, or her stead. We did not have a full-time supervisor on this squad. I was acting as the supervisor in the absence of someone who had recently been promoted. So the networks that are established by those management personnel that are normally in those key positions would definitely have come to play, or could have come to play had the circumstances been a little bit different.

When I took the information up to my assistant special agent in charge, I provided him with a list of the names of the people who were supervising the radical fundamentalists unit and, in fact, the people who were supervising the international terrorism operation section. And I am unprepared to speak to you today as to why those telephone calls were not made. I requested that they would be made.

FBI HEADQUARTERS SUPERVISOR: As the chief of the unit at the time, I want it very clear, probably in my own defense here, that I was not made aware of the issues in terms of Minneapolis' frustration with regard to this process. I think that clearly there was some miscommunciation. I think some of the frustration was driven by that miscommunication. And obviously, in hindsight, I very much would have wanted a phone call and, unfortunately, that did not take place.

ROLINCE: If I could take just 30 seconds on that because I think it's critical to understand that on a regular basis, field offices around the country, SACs visit the office. They're on the fax, they're are on the phone, they're are on the e-mail. It's a regular occurrence to lobby for your FISA to get it moved up in terms of priority or to make an appointment with OIPR to debate the issues and the merits of your FISA.

And that's something, as you look for things you can do better, we clearly in the FBI are looking for things we can do better, and encouraging that dialog is certainly one of them. We should not have chief division counsels who are peripheral to an issue where you're desperate. The chief division counsel in all 56 field offices, and this is a problem we've identified from years ago, needs to be a player within the FISA realm. Their forte, their expertise for years has been Title III, and there has been a reluctance to jump on and get educated and be part of this process. Instead, they defer to NLSU, which overburdens the people at headquarters.

So it's something that the bureau's recognized and we need to continually promote, and it has to happen in order to make it a more effective system.

PETERSON: Thank you, Mr. Chairman.

GOSS: Thank you, Mr. Peterson.

Before I go to Senator Mikulski, it has been brought to my attention that we have two other distinguished visitors, Senator Shelby's wife, Annette and my wife, Mariel, are here. We welcome them also and appreciate your patience with us.

Senator Mikulski?

MIKULSKI: Thank you very much, Mr. Chairman.

First, to the men testifying, and really to the men and women that you represent, know that I believe -- as this United States senator, I have tremendous respect for you, and I have tremendous respect for what you do every day. You know, while the rest of us are eating Thanksgiving dinner or opening Christmas presents, you're out there in the field, and you've missed many a family event -- and all of the things that we know go into it. And I believe from just the testimony that we've heard that the agents in the field and the field offices were really doing their job.

MIKULSKI: And to the Phoenix agent, your rebuke of Congress is well taken. I accept the validity of that rebuke. I'm not one of the ones who ragged on you or made you public or whatever. But I think that statement was well taken. And for this committee to have effective oversight and to expect the cooperation of the agencies, we need to make sure that we protect you while we're asking you to protect us. So I think that statement of yours was very well presented. It was presented in an in an excellent forthright way, and I appreciate it.

PHOENIX FBI AGENT: Thank you.

MIKULSKI: I want to go to really solutions. Much of our inquiry has been kind of looking back. I'd like to look ahead.

And with three men who had incredible responsibility during this time and who I'm sure have agonized day after day, memo after memo, what could have been done differently, I'd like to ask you to share with the committee what you think would be the top three things you think the Congress should do or your agency should do to really improve our situation and to make sure this kind of gaps and so on would never happen again.

And if you could just go down the line because I was looking at the issue of a smoking gun. There isn't a smoking gun. Are there systemic issues? Yes. So if we look at the systematic issues, then what are the solutions?

PHOENIX FBI AGENT: Thank you Senator.

Speaking for Phoenix; the top three things that I would like to see -- and number one I think that's most imperative is additional resources applied throughout the intelligence community. With our analytical capability, there should be one place established where raw intelligence from the field, both from overseas and within the United States from all of the different intelligence agencies that are out there collecting, gets dumped an analyzed and looked at, and raw material put into analytical product and gets disseminated to the officers in the field.

The second thing is the need for more investigators here in the United States within the FBI. We talk about this in our squad areas every day. We cannot continue to do the number things that we are charged with doing with the number of agents we have. Eleven thousand agents, when you think about it, for a country of close to 300 million is amazing. When you look at cities like New York who have 35,000 plus police officers trying to protect their citizens, certainly I think we need more agents to do the job.

And third is, we need to increase our technical capabilities, our information flow. I mean, in direct reference to my memorandum, we should have a capability to wash and then re-wash visa applicants through the U.S. intelligence community databases to see if any body that's applying for visas to come into this country are known to the U.S. intelligence community as being involved with terrorists organizations. And not to mention, as we've heard time and again today, better information, technology for us in the FBI so we can communicate with each other more effectively.

MIKULSKI: Thank you.

Would the agent who handled Moussaoui go next? And then we'll wind up with headquarters.

MINNEAPOLIS FBI AGENT: Ma'am, I would reiterate a lot of the things that he said.

Technology, certainly, I think is something that we have languished well behind the business community. It was mentioned that no business in America would operate with a system like we have. I would argue that very few private citizens in America would be satisfied with the system that we're operating with. Technology clearly is a high, high priority on my list.

The resources; to include the analytical resources, albeit training of those analysts and the recruitment and retention of personnel at really all ranks of the FBI. That would probably be my second point.

And finally, is the training issue itself. We have a tremendous number of agents who are very, very capable in the disciplines that we're already trained in. However, a lot of them since September 11, 2001 have now been transferred to an arena that they have never been exposed to before, or the initial training that they had fell short of things that were occurring, you know -- or the world as it was prior to September 11, 2001, or no real sensitivity to the issues that are related to counterterrorism.

So additional in-service training and training of the agents who have been reassigned, in addition to the agents who are already assigned to this type of mission really needs to be a priority.

MIKULSKI: My time is almost up, but they will let me finish.

FBI HEADQUARTERS SUPERVISOR: From headquarters standpoint, I'm gong to go back to my two main themes in terms of what I see as systemic problems and clearly they've been hit on, the technology number one.

The FBI is a member of the intelligence community. We have to be able to communicate with them. We have to be able to have databases that can be integrated with them. And right now, we do not. It's a major problem. It's a major problem for our analysts.

Number two, analytical resources at headquarters that you've heard this throughout today's testimony. From a tactical standpoint, we have outstanding tactical analysts that do a phenomenal job day in and day out. Unfortunately, from a strategic analytical standpoint, the resources are woefully inadequate.

Finally, from a real operational standpoint, I think we need to have a hard look at foreign students in our universities. And I can't get into more than that in this setting, but I think it's an issue that we need to address in a closed session.

MIKULSKI: Well, thank you. My time is up, but thank you very much.

GOSS: That is an issue that has come to the attention of the appropriate oversight committees. I'm sure it'll continue to be.

Senator Feintein?

FEINSTEIN: Thank you very much, Mr. Chairman.

And that is an issue that we did have hearings on in the Technology and Terrorism Subcommittee of Judiciary and, as a matter of fact, part of the Visa Reform and Border Security Act deals with tightening the myriad of loopholes that exist in the foreign student program. If you have any other recommendations, I for one as the chair of that Subcommittee, would love to have them because we're going to be holding an oversight on progress with respect to terrorism in that area.

But I wanted to ask you, Mr. Bowman, if I might, this question; just quickly following up on Senator Levin's question.

As I understand it then, the FBI's national security lawyers essentially used the wrong standard of designated group, ergo Chechen, not on the list, ergo not designated rather than any group. And some three weeks was taken in that endeavor. And then, I think Senator Levin asked the question, "Well, how many other FISA requests went through the same thing?" Is the answer, there was no other FISA? This was the only FISA request that happened to encounter that kind of false standard?

BOWMAN: Two different parts of your question, Senator.

First of all, no one in the national security law arena said that the Chechen's were not a power that could qualify as a foreign power under the FISA statute. The issue that came to us was whether there was any foreign power to which you could attach Moussaoui, and we did not see that.

The second part of your question was whether there are others who have been given an erroneous standard, whether there were other FISAs that did come to us because there was an erroneous standard. I don't know what I don't know. This is the only time that I have heard that advice was actually given that you don't have a foreign power because there isn't a recognized one. That certainly is not what we train them to...

FEINSTEIN: Just a suggestion, it might be well to take a look and see if there are others. It would be interesting to know.

I wanted to make an observation and see if the agents couldn't comment on the observation.

The Phoenix memo essentially happened during the month of July. I remember that month very well because we in the Senate were having hearings. The intelligence, so called chatter, was at a high.

FEINSTEIN: The anticipation was that the United States was going to experience either here or abroad on our interests or our people some kind of attack. There was a real sense of alert and I think other members of the committee shared this sense, as well. And I think it was well-known out there.

Now, into this comes this memo, and I've read it several times, which is thorough, which is well-documented, which contains good investigative leads. Additionally, from an intelligence perspective, UBL and that organization had been, we learned, on the front burner, the highest administrative priority since about 1999. And yet, the memo, which went up to then at least five different people, it didn't apparently strike anybody with any sense of urgency to take another look. Despite what everybody says, I find that interesting.

And my question to you is, other than a strategic analytic unit, which I understand the Phoenix agent is a substantial lacking in the FBI today, other than that, did you have any strong feeling, because you've said you felt like you were kind of an isolated person in Phoenix, to just get it on the desk of the FBI director, get to it to somewhere else because you had done a lot of work on this memo. This wasn't just, you know, off-the-cuff. This was a substantial research, a lot of expertise, there was a lot of history in a lot of the names and various pilots' names and that kind of thing that were mentioned.

So is FBI protocol such that if you have within yourself as an agent a real belief that I have something important and it doesn't get a response, can't you simply go above that chain of command and get it on the desk of the heads of the agencies?

PHOENIX FBI AGENT: Well, Senator, to answer your question, I refer you back to the communication. I sent it in routine. And the reason why I sent it in routine was because I did not see at that time any immediate action required. There was no immediate threat information required in there. Basically, what I wanted was an analytical product. I wanted this discussed with the intelligence community. I wanted to see if my hunches were correct.

But I'm also a realist. I understand that the people at FBI headquarters are terribly over worked and under staffed, and they have been for years. And at the time that I'm sending this in, having worked this stuff for 13 years and watched the unit in action over these years, I knew that this was going to be at the bottom of the pile, so to speak, because they were dealing with real-time threats, real-time issues, trying to render fugitives back to the United States from overseas for justice. And again, it's a resource issue.

FEINSTEIN: Did you know of the intelligence that was circulating? Did you know that Osama bin Laden and Al Qaida were in the high priority intelligence in the administration all across the board ?

PHOENIX FBI AGENT: I knew they were, ma'am. I had just gotten back to work in international terrorism. I had been detailed for several months to work in arson investigation in the Phoenix area. And multi task force arson investigation that involved the destruction and burning down of numerous homes in high-dollar areas in the Phoenix metro area. And we believed at the time that these were taking place that they could be ego terrorists. I was a senior counterterrorism agent assigned to the squad and my command made a decision to assign me to work on that matter.

After spending approximately six months on that -- I worked that from December 2000 through May-June 2001 -- I got back to working my international terrorism cases. So I wasn't in the loop on all of the chatter that you refer to concerning the intelligence chatter and what-not. But after getting back into the case and recognizing the things that I point out in the communication, that's what led me to write it and send it up the food chain.

FEINSTEIN: Thank you.

GOSS: Thank you.

Senator Rockefeller?

ROCKEFELLER: Thank you, Mr. Chairman.

I echo Barbara Mikulski's statements about all of you, and everybody said five, I'll say six because there's another gentleman sitting over there. You work hard and the nation appreciates it.

We all make mistakes. We're all overwhelmed. But when you're overwhelmed, the consequences are greater than when we're overwhelmed. And so, I want to start off by asking questions of the Minneapolis agent.

The FBI was suggesting that Moussaoui be put under surveillance. That's what you told the joint inquiry staff.

ROCKEFELLER: But you'd said in your own testimony that you didn't have enough agents, didn't have enough people.

MINNEAPOLIS FBI AGENT: Well, that's partially true. We would have made those people available had we though there was a viable option.

ROCKEFELLER: Right. I'm getting to that.

Now, I had, until you spoke just a moment ago, thought that you were an FBI criminal investigator, and I'm sorry I didn't know that most of your career has been spent in working with terrorism.

Moussaoui had a French passport problem. And I'm trying to figure out how it works through your mind that a French passport expiration problem means that we need to pursue him in terms of holding him to account for that, as opposed to a surveillance problem where he's already been attached and identified with wanting to fly the kinds of airplanes that are large and can do extraordinary things, and has no previous experience in that, and, therefore, has been identified potentially as a terrorist. Then, why wouldn't surveillance rise clearly as the priority that you would choose?

MINNEAPOLIS FBI AGENT: The reason that I made the decision that I did -- and I'll just take it back one step -- I have spent most of my career in the criminal arena, not in counterterrorism. My counterterrorism experience was about the last year prior to my assignment in this capacity that brings me before you today.

What we were attempting to do -- the information that we obtained initially to open the intelligence case was that this person was particularly suspicious. There was no specific allegation of any criminal activity. But as we developed the case, we found out, first of all, he had this visa waiver pilot program violation. He was in the United States longer than he should have been, which gave us the opportunity to arrest him and arrest his behavior because I didn't want him to get any additional time in a flight simulator that would allow him to have the knowledge that we could no longer take back from him to operate an aircraft.

This provided us the opportunity to freeze the situation as it was going on right there -- prevent him from gaining the knowledge that he could use at some point in the future. And if, ultimately, we determined all we could do after interviewing him and doing some other investigative steps -- if all we could do is deport him, then we would be sensitized to the fact that he was interested in doing something else, and he could be put in the tip-off system. The appropriate notifications could have been made if he attempted to re-enter the United States. But our focus was on preventing him getting the knowledge that he would have needed.

ROCKEFELLER: Preventing him from getting the specific knowledge which he was engaged in acquiring. But there was a larger background that was apparently there. And I think it's almost like a nub-hub question that I'm asking; how do you make that judgment that somebody has done something which is illegal; therefore, I'm going to pursue my FBI lawyer, criminal investigation, or that there's a hint here of something broader. And rather than just prevent him from being able to go back to that flight school, I'm going to venture out of your very good mold on this and say that we better watch this person in a variety of ways and put him under surveillance?

MINNEAPOLIS FBI AGENT: I think it's important to remember -- at least for me it's important to remember -- the circumstances that were present prior to September 11. We had no real incidents of airplane hijacking that had happened domestically within the proceeding decade. We now have a different perspective that is very, very difficult to go back and forget and not acknowledge. But again, I speak to my criminal background in saying if a violation has occurred and we can take further steps to stop what could speak to a continued violation, we'll act. And those were the circumstances under which I made that decision.

ROCKEFELLER: Thank you. Well, my time is up.

Thank you.

GOSS: Mr. Reyes?

REYES: Thank you, Mr. Chairman.

I've got a couple of areas that I want to question, but I also would like to associate myself with the comments made by members of this committee in thanking you for your work on behalf of this country. We all appreciate that very much.

There are a couple of things that I want to pursue.

First of all, when we talk about the testimony here and when Ms. Hill talks about the CIA officer that was detailed to the FBI Headquarters learned about the Moussaoui investigation and talked about the issue of whether or not the Chechen rebels were recognized foreign power or not in all that context, I'd like to know from the FBI Headquarters agent, what lessons learned have we come away with in this?

In other words, is the FBI putting together a new program to train, perhaps in concert with the general counsel's office, to clear up these kinds of issues, make recommendations for clearing up legislatively some of the areas that need to be clearly redefined or further defined? Is the FBI working on a comprehensive package to do that?

FBI HEADQUARTERS SUPERVISOR: We've raised this issue of this foreign power, and specifically the fact of how Moussaoui somewhat alludes the present legislation. I know Mr. Bowman testified in open session before Senate Judiciary on this.

FBI HEADQUARTERS SUPERVISOR: And I think it's an issue that the FBI clearly recognizes is a significant, significant problem with regard to individuals that we can't fit into that specific foreign power issue, and that needs to be explored more.

REYES: So it was your answer that, yes, the FBI is working on a comprehensive lessons-learned package or what is the FBI doing?

FBI HEADQUARTERS SUPERVISOR: Is the question in terms of a legal fix or is it...

REYES: All of the above. All the things that we've learned so far. We know now that the FBI is stuck in a technology void, in terms of communications and analysis and all of those things.

My question is, are we in a mode of lessons-learned and moving forward, have a checklist of, OK, by such and such a time we're going to make this proposal for this equipment, for this capability, because we're hearing the field agents frantic in terms of...

FBI HEADQUARTERS SUPERVISOR: I'm just not in a position to answer that. I think that's clearly a question for the director.

REYES: So from your level, nothing.

FBI HEADQUARTERS SUPERVISOR: Now, there's clearly reforms underway. We have already addressed getting analytical resources in the door, and that's going forward. Clearly, we're trying to improve our means of communication with CIA and others. I don't want to indicate in any manner, though, that it was bad. I think the relationship with CIA has been excellent in the last few years. And I'm speaking as a person who's been in this program for 13 years. It's been very good. Could it be better? Yes, it could be better. I think the technology will fix some of that.

REYES: All right. For the Phoenix agent, you stated that the '99 incident aboard the U.S. domestic flight increased your suspicions about aviation-related terrorism. Can you elaborate on the incident and why you thought it was significant?

PHOENIX FBI AGENT: On November 19, 1999 two individuals that originated their flight from the Phoenix metropolitan area were acting suspiciously on an America West Airlines flight bound for Washington, D.C. The plane put down in Columbus, Ohio because the flight attendants suspected or observed one of the individuals play with the cockpit door of the plane while it was in flight. The individuals were detained at Columbus, interviewed by the Columbus, Ohio Police Department, FBI Cincinnati, and subsequently released after their interviews, and they were allowed to proceed on their trip. They were heading to Washington attend a conference that was being put on by the Saudi Arabian Royal -- well, the embassy.

The individuals, within a day or two of them being released, in conjunction with the Council for American Islamic Relations in Washington, made a statement accusing the police department, the FBI and America West Airlines of racially profiling them. And they actually were broadcast on CNN and other TV news networks around the country.

I can't get into the specifics concerning either of those individuals; both are pending intelligence investigations. I can address further details on both of those guys in a closed hearing.

REYES: OK. But the off-shoot of that was -- did anybody pursue an investigation or drop the...

PHOENIX FBI AGENT: In a post-9/11 world, I went back and looked at that as possibly being some sort of dry run, and it's currently under investigation. And again, I can get into specific details on that in closed hearing.

REYES: OK. And the last thing I want to say very quickly is, if it was significant, you didn't include it in your communication.

PHOENIX FBI AGENT: Good question, you know. I can't account for why I didn't include that in there. It's a good question. I can't answer that, sir.

REYES: Thank you, Mr. Chairman.

GOSS: Mr. Chambliss?

CHAMBLISS: Thank you, Mr. Chairman.

And again, let me associate myself with Senator Mikulski's remarks over there. You folks do an unbelievable job in spite of what did happen on September 11. And we don't tell you enough how much we appreciate you.

Also my subcommittee, as you know, did a report dated July 17 that was somewhat critical of some of the acts of the FBI, and I want to tell you that the criticism was given in a vein that we were glad it was accepted in, and that was in a positive way. I appreciate the reaction of Director Mueller and the bureau with respect to the criticisms that were made in there, and it appears that changes are being made in a positive way, and I'm very glad to see that.

My question initially is directed to you, the Minneapolis agent. I want to pick up where Senator Rockefeller left off there, because I'm a little puzzled by this, too.

The mindset of the FBI at that point in time is where our criticism in our report was directed; and that is that the mindset was more of an investigate and prosecute mindset versus a disrupt and interrupt. If this was such a priority matter -- and I hear from you, as well as the headquarters' agent that that was the case; the Moussaoui case was a matter of very much priority -- I don't understand why your reaction would have been -- if we can arrest him on what really was a fairly minor violation -- why you would do that as opposed to putting him under surveillance in hopes that you might pick up on something down the road. That seems to be a much better action to have taken. Now, I realize it's easier for me to sit here today and say that, but I'm just wondering why that would have been your mindset at that time.

And let me ask the follow-on in your answer if you would just address this: If that situation would occur today, has the mindset at the FBI changed to more of a disrupt and interrupt as opposed to an investigate and prosecute so that your reaction might have been different today with respect to the Moussaoui incident regarding whether or not to arrest him or whether put him under surveillance?

MINNEAPOLIS FBI AGENT: Well, respectfully, sir, I believe that the policy that we took that day or the practice we took that day to arrest him was designed to disrupt and interrupt any further actions that he could do in furtherance of his plan, and that was why the decision was made. The focus was never to arrest him merely to prosecute him or deport him from the country on the visa waiver violation. It was to arrest the suspicious activity that was reported to us by the flight school and to allow us the time, while he was in administrative detention, to further develop any additional information we could about what plan he was up to.

My thinking was in the mode of interrupting and disrupting what I thought was a potential plot based on the very, very limited information we had prior to making that decision.

MINNEAPOLIS FBI AGENT: And the information we had was prior to really going too far into the case.

CHAMBLISS: To the headquarters' agent, is there ever any situation where, when you receive information like the Phoenix EC, where you've got -- in my state, for example, we've got 159 counties, we've got FBI headquarters in Atlanta and we've got several field offices out there, but really you don't have the manpower to go into all 159 counties and check every flight school -- is there such a relationship with -- well, between the FBI and local law enforcement officials, like the 159 sheriffs in Georgia, where you could have simply called on those sheriffs to go check flight schools? And I'm asking this more for the future, as opposed to what happened there. But is there some kind of relationship there that you all have with those folks that you could get that kind of assistance?

FBI HEADQUARTERS SUPERVISOR: Speaking from my time in the field and having run a terrorism task force in the field fairly recently, that's what you strive for. The supervisors in the field, working with their management and also with the agents on the squad, they're looking to build those relationships. And, yes, we do want that to be available to us. And I think clearly the director has made that perfectly clear. We want to rely and work with the locals and to be able to react much quicker in the future on terrorism-type matters, utilizing that resource.

CHAMBLISS: Well, I would hope that to be the case, and I'm not getting very positive feedback from our local law enforcement officials about an improvement in the relationship with the FBI. But I hope there's a real effort that is being made there to make sure that that relationship is doing nothing but getting strengthened and that the sharing of information between the FBI and our local law enforcement officials is getting better and better.

Thank you, Mr. Chairman.

GOSS: Thank you, Mr. Chambliss.

Senator Roberts?

ROBERTS: Yes, thank you, Mr. Chairman.

I was just telling Senator DeWine I was going to associate myself with his very wise remarks. But I want to do that and that of Senator Mikulski. As Congressman Chambliss has indicated, as usual, she has hit the nail on the head. And I also want to associate with the previous remarks of the last couple of hearings by Senator Kyl, who has expressed concern about procedure, public hearings, a lack of focus on the very challenges that have been really prioritized I think so well by Senator Mikulski, but I'm not going to get into that today.

All of you witnesses have stated -- and I wrote this down -- when Senator Mikulski said, "All right, let's quit looking in the past and playing gotcha, and let's look in the future in terms of not problems, but challenges. What do you need?" And you responded that you have a tremendous need for all-source -- some kind of all-source analytical center, which I think is understandable.

You addressed the technology gap within the FBI, as compared to our other intelligence community agencies. You emphasized the training, retention and recruiting -- we should have it reverse order -- of analysts. And that you certainly need better analytical resources.

So I think we all agree you need strategic analytical ability and better predictive warning analysis.

But my question is, is that your mission? It wasn't. Most of the questions you're getting, which are very specific; what did you know, when did you know it, what relationship did this have to 9/11 -- what I call the "gotcha" questions, and I'm not trying to perjure them -- well, I am a little bit, but, you know, we'll leave that alone. But you didn't have that mission.

And my question now, who has the responsibility in terms of a foreign threat? Is that the FBI? Is that the CIA? Is that the DIA? Certainly, it's the DIA in Afghanistan. Certainly, a foreign threat is still CIA. We'll have those people in a public hearing as of Thursday. And I don't know if you'd like to answer that or not in terms of your specific mission. How do we coordinate and find out who is really responsible in terms of the specific mission for the analytical capability that we should have? And that may be above your pay grade, and mine.

FBI HEADQUARTERS SUPERVISOR: Mr. Rolince, maybe you'd want to take a shot at that one.

ROLINCE: I think the mission has expanded, and I think that goes to the heart of the resources. I'm not going to keep pounding on that because I think everybody has it. But the FBI still believes that we can, will and should be the primary responders to acts of terrorism directed against this country, either internally or in terms of our ability to deploy overseas -- Dar el-Salam, Nairobi, Khobar Towers and the whole litany. We want to continue to do that, and we would hope that the American people and the Congress would have the confidence in our ability to do that.

In terms of the document exploitation that you talk about, in Afghanistan that mission has not changed. We view that as force protection, followed by immediate threat to this country, followed by whatever intelligence we glean from within that system.

And I would just like to make the one point that I don't think has been made but should be made for the record, prevention is not a new job on for the FBI. Not only has every mission statement led with prevention, but I would submit, now that we know about what the Ramzi Yousefs of this world do -- the 14 we've indicted in Khobar Towers, the original World Trade Center bombers, those convicted in the Africa embassy bombings -- those are clear-cut law enforcement acts of prevention. Those people were going to kill Americans, there's no doubt in our mind. Look what Ramzi Yousef's plan was. If we don't continue to pursue and aggressively utilize the law enforcement tool of being able to apprehend, render, try and convict these individuals, we lose a big part of prevention. And we'd like to stay in the business.

ROBERTS: I have another question that is in reference to the Catch 22 that I think you face, and that everybody faces when they get questions from a committee like this with what I will refer to again as a "gotcha question," either by elite or by specific information in regards that leads to a question that's more, especially in a public hearing, or even a classified hearing. There'll be some specific piece of information that's rather incendiary that will lead to a headline.

You can't really respond because if you respond in full context, pointing out that there is no relevance in regards to a smoking gun on 9/11, which seems to be the effort or at least the insinuation, you can't do that because it's classified and you'll reveal a source, and you simply are stuck. We have been trying to figure out how on Earth that could be presented in a way that would be non-classified.

And so, about every second foggy night, we have something like in the Washington Post, it came out a day ahead of the interim report that was issued -- no, it was on the hijacking report issued by the professional staff. I was in Kansas. And I didn't get a copy of this. My staff didn't get a copy of this. But it was in the Washington Post the day before. And about every -- as I say, about every Tuesday or every Thursday we have one of these.

How is your morale situation, the FBI, when this comes out again and again and again and you can't respond? It's like when you have a fire department, you call the fire department, the house is on fire. We're arguing as to whether the truck made the wrong turn or tied the hose to the wrong, you know, fire plug. And we're having an investigation when there's a fire. You're fighting a damn war. How is your morale situation down there?

FIB HEADQUARTERS SUPERVISOR: I'd like to speak to that if I could. These agencies -- the FBI, the CIA -- the fuel of these agencies is morale. And unfortunately, we've been fairly demoralized and in course of a lot of the reporting that's going out there and our inability to fight back for lack of a better word.

Again, I think I said it in my testimony, the bureau has some of the best analysts in the community. Unfortunately, they're tactical analysts, and not strategic analysts. I think the bureau agents are the hardest working people out there. That needs to be said; it needs to be recognized.

September 11 was an incredibly tragic event, but it wasn't based on laziness. It was based on inadequate resources, and I think my colleague summed it up in saying that we need to stay in this business, we can do this job, just give us the tools we need.

ROBERTS: Well, my time is expired, Mr. Chairman.

I would point out a year ago last July there was a hearing -- Senator Shelby, Senator Stevens, Senator Warner and our appropriate ranking members where we invited 46 federal agencies in and said, "Are you ready?" -- this before 9/11 -- "What's your mission, what do you really do and who's in charge?" Everybody said they were in charge. Now, that's 80 federal agencies? We had at that time in the Senate 14 subcommittees and committees that allegedly had jurisdiction. Now, between the House and Senate, it's 88.

You talk about a need for streamlining and cooperation and some degree of direction, it's the United States Congress it seems to me that bears part of this responsibility. I don't speak for other members. I apologize to you. I think you're doing a great job, and I think some of this has been tremendously unnecessary and counterproductive, and you tell your people down there there are some people on the Intelligence Committee that do believe in you.

Thank you, Mr. Chairman.

FBI HEADQUARTERS SUPERVISOR: Very much appreciate it, Senator.

GOSS: Thank you, Senator.

Senator Graham?

GRAHAM: Well, I want to associate myself with the last remarks of Senator Roberts. There certainly is tremendous recognition by the members of this committee of the importance of your responsibility and the professionalism with which it is discharged. And I don't want this hearing, which has focused on some specific events, to distort that broader appreciation. In that regard, let me just ask a question.

I'm speaking particularly to the Phoenix and Minneapolis agents. You performed with a personal standard of exceptional vision and aggressiveness and creativity? Have you received any rewards or recognition to date for your service on this particular issue?

PHOENIX FBI AGENT: Well, sir, I don't expect that. I get paid by the American people to do this job and I view it as part of my job. I get a salary and that's reward enough, and it's reward enough to work for the agency. Now, that may sound cliche or hoaky, but I sincerely believe that. I'm doing my job and I really don't believe I need any additional extra recognition for doing it.

MINNEAPOLIS FBI AGENT: I agree with those remarks, and part of the reward that we're reaping, I believe, is the opportunity to come here and tell you our story and tell you where we think the intelligence has broken down and what the United States Congress can do to perhaps help us do our mission. Were it not for this forum, I wouldn't have that opportunity. And so, we don't need any sort of monetary recognition, any sort of pat on the back. We are, in fact, doing the job that we signed on to do, and we appreciate the opportunity to do it.

GRAHAM: Well, I would admire your modesty but I am a believer that one of the things that motivates people is recognition and reward for beyond-the-call-of-duty performance, and I would suggest that you and others of your colleagues, who might not be as well-known as the two of you, have, in fact, performed in such a manner, and there ought to be some method by which that is recognized, and, therefore, presented as a role model of conduct for others to aspire to.

GRAHAM: In the staff memo relative to Phoenix there is this sentence: "The Phoenix SA believes that al-Hajj established an Osama bin Laden support network in Arizona while he was living there, and that this network is still in place."

To the Phoenix agent, do you agree with that sentence?

PHOENIX FBI AGENT: When I made that comment, Senator, it's speculative, and I based it on historical investigation, some of which I can't get involved in in this open session, and I'd prefer to address it in closed session.

GRAHAM: Well, the chair may be announcing our desire to have such a closed session, and I would just alert that I'll be pursuing that question should we do so.

On the issue of the Minneapolis office going directly to the CIA or other intelligence agencies requesting assistance or providing information, Mr. Rolince, you indicated that there was good reason for not encouraging that kind of behavior. But in the context of the Phoenix memo, where one of the specific requests made by the agent was, quote, "Headquarters should discuss the Phoenix theories with the intelligence community," that was one of the recommendations not followed. Wouldn't that create a sense in the field that if they believed the situation is sufficiently urgent that they might have to take the situation into their hands and go directly to an intelligence agency?

ROLINCE: If they had asked the headquarters, "Can we raise this issue with the CTC?" -- in fact, the person that it was raised with was an FBI agent, ironically -- and were turned down, then I would have no objection whatsoever to them moving it and escalating it.

GRAHAM: Is the "them" in this case the Phoenix or the Minneapolis or both?

ROLINCE: Minneapolis. But I wouldn't take the Phoenix EC. One example of something that should have been done, and to be perfectly honest with you, one of the great frustrations in that it talks about airlines; we have FAA people in the unit. It takes about intelligence; we have CIA people. It talks about visas; there are State Department people and Immigration people in that unit. And that information should have been shared, if only for FYI purposes, with all those people at our headquarters. And it wasn't done and should have been done.

GRAHAM: It was indicated that the example of the FISA issue, whether there was confusion as to the legal standard, that it may have been that Moussaoui was a singular exception. No other examples come to mind.

Are there any other examples that come to mind analogous to the Phoenix communique where they made a specific request that information be shared with intelligence when that request was not adhered to?

ROLINCE: In the three and a half years I was there, I can think of none. And I think part of the reason for that is, what did not happen there was the dialogue, the travel back, the e-mails, the phone calls, the coordinating meetings with OIPR that are done on a regular basis day in and day out. So what we generally do precludes that kind of instance from happening. And had, perhaps, those dialogues, visits, et cetera, taken place, we could have gotten to the heart of the issue, which was; is it an agent of foreign power or is it foreign power that we're stumbling over here?

But at the end of the day, we did bring back every single person from Minneapolis relevant to the situation, the Office of General Counsel and the substantive unit. We spent six hours, went through every single line of every single e-mail. And then, I turned to my colleague and said, "What do you think?" And the deputy general counsel said, "It's not there."

GRAHAM: And what date was that meeting?

ROLINCE: The last week of November, first week of -- I'm sorry -- last week of October, first week of November. I've seen two different dates. It's either the 30th or the 1st.

GRAHAM: This is 2001.

ROLINCE: This is post-9/11, 2001, yes.

GOSS: Senator Shelby?

SHELBY: Thank you, Mr. Chairman.

I do want to take a minute, as others, and say publicly that I, too, appreciate what the bureau has done historically and in recent times. But to overlook some of the other problems which are deep, deep problems not just in the bureau, but in the intelligence community, all the agencies, we'd be less than candid in this hearing, we would be less than honest with the American people. There are a lot of things that are right with the bureau, but there are a lot of things that are wrong, I believe, and I think a lot of people share that and I believe most of the American people share that.

We want to support the bureau. We should first support you with resources, and there has been a shortfall in certain areas. We've talked about that. We should support agents like the special agent and others in Phoenix that had the foresight to put together the Phoenix memo, which was never acted upon. We should support the agents out of the Minneapolis office, one who is seated here with us today, and we will.

But we should never support problems and people who are risk adverse or people who do not train their people well with analytical skills in the bureau or anywhere else, or do not train them to share information. I think we're cheating the American people. We're cheating the security of the future.

With that in mind, I'll tell you, this is my eighth year and final year on the committee -- three more months, I suppose. And I think the FBI is very important in the role you do. And I want to personally commend you, sir, and also the woman lawyer who came down, Ms. Rowley, for her candor in dealing with the Moussaoui case.

SHELBY: To the FBI agent from Phoenix, when you sent the information we call the Phoenix memo to Headquarters, did you ever check on that memo? Did you ever call yourself or send a message to see what happened to all that work you did?

PHOENIX FBI AGENT: No I did not.

SHELBY: Why didn't you not?

PHOENIX FBI AGENT: Because I was in the middle of the investigation itself, and that was just one portion of it.

SHELBY: You were into the investigation itself in Phoenix. Now this was before the 11th -- I'm speaking of the 11th of September.

PHOENIX FBI AGENT: Yes.

SHELBY: Was your memo dated July 10?

PHOENIX FBI AGENT: July 10, 2001.

SHELBY: So from July 10 to September 11, and I suppose up to now, you never checked with FBI headquarters to see if they acted on your memo regarding your concern about the flight school?

PHOENIX FBI AGENT: No I didn't, Senator. And the reason being is, I sent it in routine. And generally a routine communication...

SHELBY: You thought it was routine, but it wasn't. It turned out not to be routine.

PHOENIX FBI AGENT: Hindsight, sir, is always 20/20.

SHELBY: Well, that's the way we learn,. though, from post- mortums, don't we?

PHOENIX FBI AGENT: I understand. But I sent it routine. And generally, when you send a routine communication in, you're giving the receiver 90 days to look at your product. And at the end of 90 days, if I hadn't heard anything, I would have been picking up the phone saying, "Hey, did you get it?" You know, querying ACS to see if somebody acted upon it. But again, pre-9/11...

SHELBY: Sir, excuse me. I just have so much time.

PHOENIX FBI AGENT: Sure.

SHELBY: Did you think it was not important? Is that what routine means?

PHOENIX FBI AGENT: No, it's...

SHELBY: OK, what do you mean by routine? How do you define it?

PHOENIX FBI AGENT: That there was no direct threat information in there. I didn't have any information in there saying a bomb was going to go off at X-hour.

SHELBY: No specificity then?

PHOENIX FBI AGENT: Yes.

SHELBY: But concern?

PHOENIX FBI AGENT: Concern, yes.

SHELBY: To the agent from Minneapolis, I believe this question was asked earlier. When you made the arrest, you know, you had reason to believe that a law had been broken, an immigration law or something. Is that correct?

MINNEAPOLIS FBI AGENT: Yes, sir.

SHELBY: Did you consider putting the agent under surveillance and elected not to for a lack of resources or other things?

MINNEAPOLIS FBI AGENT: No, sir. It was not for lack of resources.

SHELBY: Was it just your judgment that that was the thing to do?

MINNEAPOLIS FBI AGENT: Yes, sir. My judgment was to attempt to interrupt this.

SHELBY: OK. Had you, prior to that date, when you arrested him and after you'd had the inquiry regarding the flight school in Minneapolis, had you known or had you been informed that there had been threats out there starting in '95 with the Filipino situation, where there was evidence that people could use -- would use airplanes as weapons? Did you know that?

MINNEAPOLIS FBI AGENT: I did not know that at the time.

SHELBY: Did you know about the French apprehending -- I believe someone was from Algeria -- a French Algerian citizen that was going to try to crash a plane they hijacked into the Eiffel Tower using it as a weapon?

MINNEAPOLIS FBI AGENT: I did not know that, sir.

SHELBY: You didn't know any of that? You had not heard any of that.

MINNEAPOLIS FBI AGENT: That is correct.

SHELBY: So without any background on that, you arrested the man based on your best judgment. Is that correct?

MINNEAPOLIS FBI AGENT: Yes, sir.

SHELBY: I know my time is up, but one last question. The FISA situation, very important. Were any of you trained when you were going to the FBI school at Quantico regarding the specificity that was required by FISAs or later?

MINNEAPOLIS FBI AGENT: No, sir, I was not during initial agent training.

SHELBY: Were you, sir, from Phoenix?

PHOENIX FBI AGENT: Not during initial agent training.

SHELBY: Were you later trained?

PHOENIX FBI AGENT: Yes. I'd been through many in-services regarding FISA.

SHELBY: Is the FISA training now at Quantico part of the curriculum? And if not, why not, sir? FBI Headquarters.

FBI HEADQUARTERS SUPERVISOR: I know that we're having a very serious look at the training at Quantico. The present leadership in the counterterrorism division -- he's taken it upon himself to personally look at that issue real hard. He has directed Quantico to provide all the necessary training required of new agents, supervisors, all the way up the food chain.

SHELBY: Lastly, would you agree that there has been confusion in the FBI ranks to what the requirements -- the criteria for FISA was?

FBI HEADQUARTERS SUPERVISOR: I think that it's a tough issue. I think we rely on our national security law unit for guidance, and I don't think that confusion exists in the national security law unit.

SHELBY: It didn't exist on September 11 and before then?

FBI HEADQUARTERS SUPERVISOR: I do not believe so, no.

SHELBY: Thank you, Mr. Chairman.

GOSS: Thank you.

There is light at the end of the tunnel, and it's growing very bright. There is a couple of administrative matters and a couple of members who had to leave asked me to do some sweep up questions. Frankly, they've been pretty well taken care of by Senator Shelby and Senator Graham. I had a couple of observations I'd like to make briefly.

The first question was to the Headquarters supervisor. You have people sitting on either side of you, who brought forward to you, presumably one desk at one time, two dots that could have been connected by you. And the question was, were you able to connect those dots and take them outside of their individual case areas and see if there was something bigger here? And if not, is there some procedural change or systemic change or some other way that that kind of thing can be accelerated in the future?

FBI HEADQUARTERS SUPERVISOR: I think the connecting the dots issue, we could "what if" it to death. I think clearly the connect the dots issue comes down to analytical resources and technology. I don't think one individual could keep this all in his head, could not possibly be aware of it, all the various threats that were out there, all of the ongoing investigations. It is just impossible for an individual to deal with that. So I think in terms of the future, I think it goes right to the systemic problems that this committee is fully aware of; sufficient strategic analysts and technology fixes.

GOSS: And the certainty that all this material will flow to those resources?

FBI HEADQUARTERS SUPERVISOR: Absolutely. And that's multi- agency in nature, not just the bureaus.

GOSS: Absolutely, and I think it's multi-agency and I think it's multilevel government at these days, too. That's another subject of the vertical integration down to the local and state level as well, which I think is a factor. Do you disagree with that?

FIB HEADQUARTERS SUPERVISOR: No, I do not.

GOSS: Another question I had by Mr. Boehlert of New York. He had two. The first was, and I think it's been answered, the routine aspect of the memo from Phoenix was primarily because of no immediate urgency, I take it. It was a matter of concern, but routine connotes this is not an urgency, it's not an immediate matter, this is a matter that deserves deliberation but in the normal course of events.

Was that you assessment?

FBI HEADQUARTERS SUPERVISOR: That's correct.

GOSS: And is that a fair description?

FBI HEADQUARTERS SUPERVISOR: Yes, it is.

GOSS: And there was nothing in your background or any other dots that you could connect at the time that raised anything beyond the level of routine. You created an innovative approach, you did something others had not done, but you did not think it had any further urgency than just this is worth looking at?

FBI HEADQUARTERS SUPERVISOR: That's correct.

GOSS: Thank you, sir.

With regard to the Moussaoui matter, and if this is getting into an area that we shouldn't go, Mr. Nomeus (ph), please say so. Mr. Boehlert wanted to know why if it was understood that Mr. Moussaoui was out of status that he wasn't deported in mid-August?

NOMEUS (ph): Because we were working with the Immigration and Naturalization Service, and had one of their agents assigned to our task force. We had a little more latitude in what we could do given the circumstances of the case. As we came to understand it, there was no mandate by the INS for immediate deportation. There was the opportunity to do so, but there was no mandate. And they agreed to defer deportation while we conducted our investigation to determine whether or not this was part of a larger conspiracy or whether or not this was a single actor who was just up to some sort of curious activity.

GOSS: Well, I think that's a very good answer, and it's one I would have encouraged. I'm looking at it from the intelligence point of view. As long as there's no immediate danger from this guy if he's under some kind of surveillance, it seems to me that the right thing to do is to determine whether or not he's going to lead you somewhere, and that's the right kind of investigative technique.

If he's already broken a law, however, and is a threat then it seems to me that some kind of enforcement ought to take place. And I'm glad that those calculations seem to go on. Have I described that accurately?

NOMEUS (ph): Absolutely.

GOSS: Thank you.

On the administrative side -- Mr. Nomeus (ph), you should listen to this -- I understand that the press has given us a number of requests for the staff statement that we originally had, which we suppressed until we got this matter sorted out. And now, that we have different instructions from the court on what we can and cannot do, staff will be going through the appropriate vetting procedures with the Department of Justice and the prosecution and so forth to make sure that the statement is OK. And the press needs to be advised that these are normal vetting procedures, and we will, therefore, not have that material for them today.

The next issue is administrative. The committee will convene again at 10:00 a.m. on Thursday of this week to hear testimony in open session from a senior FBI and a senior CIA counterterrorist official. One each.

It is the intent at this time to consider a closed session in the afternoon, witnesses being available, and it appears some of those witnesses may be before us now. We will ask staff to work that out to see if we can accommodate your schedules because, as you have heard, some of the questions and, indeed, some of your answers, have suggested that we go into closed sessions.

I tend to believe, following up on the gentleman dealing with the Moussaoui matter, that there is an opportunity there and it is worth the time, because I feel there is a very good learning curve for us on what your problems are in closed session as we get into these details. So if you can be available, I think it would be helpful.

The last thing I wanted to say -- I do want to associate myself with Senator Roberts' remarks, and I feel that in a particular way. I say that as a person who has been looking very closely at world events and trying to understand our capabilities to deal with threats and the nature of threats in our country for eight years. And I will tell you I didn't do any better on September 11, 2001 than anybody else.

So I have a little concern about how clear hindsight actually is when we get into some of these things, when we tend to focus back, because we, of course, have the advantage of knowing what happened. Now we can figure what went wrong. It's a very different circumstance.

So I accept Senator Roberts' remarks and I want to go back to the gentleman who's representing the Phoenix matter here. And I'm quoting from your statement and your concern about your publicity. And I believe your statement is, "I believe Al Qaida would consider me a terrorist target and want to kill me." And I accept that and that adds a lot of extra burden, I think, on us up here who have a responsibility to deal with these things properly.

But I need to also tell you something that we all have to understand in this country, in my view, is that just being American is enough for Al Qaida to kill you, and I don't think we understand that lesson yet in this country. And it's up to all of us here to make sure that we; a) understand it here; and b) never let it happen, and we want to join you in that fight.

I think your words, "I feel" -- and I'm quoting you, "I feel in this regard Congress has personally failed me as an FBI special agent and as an American." That is an extraordinarily harsh indictment. I think it is very understandable from your position, and certainly it is something that we take to heart. And I think it is an area that calls for further consideration down the road and I believe that we'll get it in a follow-on of some type to this commission's work. I'm relatively sure there will be a follow-on.

GOSS: I think a strong reason for that follow-on is exactly the oversight of Congress -- how did Congress do in its oversight responsibilities -- because that is a big function that we have.

So I think that that statement that you have made is not going to go unnoticed not only by this group, because we've certainly have noticed it, but by the next group to come. And I think it's a very important observation of how Congress can do its advocacy and oversight as wisely as possible on behalf of the American people and all of the things we're trying to do.

FBI ARIZONA AGENT: Thank you.

GOSS: And the last point I wanted to make was with regard to the supervisor statement which is to me a very chilling statement.

"I have also witnessed firsthand a dedicated group of counterterrorism professionals that have been routinely overwhelmed by large case loads, and continual crisis management. They also confront the daily frustrations posed by limited resources, especially within our analytical ranks, and inadequate technology."

Well, that's just about everything. So if we haven't gotten the message up here, and your leadership hasn't got the message that we've got these kinds of problems, then we have a disconnect that needs attention. And I urge you to do everything you can with your leadership, and I include the gentleman outside the screen as well, to make sure the needs are known.

And I have heard so many times the frustration of the screen of OMB and so forth and that, "We can't really tell you what we want -- we do this with the Defense Department, with the generals and the admirals, who would like to tell us what they can, but can only tell us what they're allowed to tell us." It doesn't do us any good if we don't understand the problem.

You're helping us understand the problem. I urge you to make your case to leadership, for them to make their case to OMB, so we all get on the same track and have a greater capability.

Having said all that, I thank you very much. You're great Americans and God bless you all.

We are adjourned.

Now, before you move, the room has to be cleared. I want to thank all our guests and visitors and press for being here. We will clear the room and then we will be finished.

END

NOTES:
[????] - Indicates Speaker Unknown
[--] - Indicates could not make out what was being said.[off mike] - Indicates could not make out what was being said.

 

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