[Senate Hearing 111-598]
[From the U.S. Government Publishing Office]
S. Hrg. 111-598
THE STATE OF AVIATION SECURITY:
IS OUR CURRENT SYSTEM CAPABLE
OF MEETING THE THREAT?
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JANUARY 20, 2010
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas,
JOHN F. KERRY, Massachusetts Ranking
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JIM DeMINT, South Carolina
MARIA CANTWELL, Washington JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas GEORGE S. LeMIEUX, Florida
CLAIRE McCASKILL, Missouri JOHNNY ISAKSON, Georgia
AMY KLOBUCHAR, Minnesota DAVID VITTER, Louisiana
TOM UDALL, New Mexico SAM BROWNBACK, Kansas
MARK WARNER, Virginia MIKE JOHANNS, Nebraska
MARK BEGICH, Alaska
Ellen L. Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce H. Andrews, General Counsel
Ann Begeman, Acting Republican Staff Director
Nick Rossi, Republican Chief Counsel
Brian M. Hendricks, Republican General Counsel
C O N T E N T S
----------
Page
Hearing held on January 20, 2010................................. 1
Statement of Senator Rockefeller................................. 1
Statement of Senator Hutchison................................... 5
Prepared statement........................................... 6
Statement of Senator Dorgan...................................... 8
Statement of Senator DeMint...................................... 9
Statement of Senator Lautenberg.................................. 11
Statement of Senator Thune....................................... 12
Prepared statement........................................... 13
Statement of Senator Begich...................................... 35
Statement of Senator Snowe....................................... 43
Prepared statement........................................... 47
Statement of Senator Klobuchar................................... 48
Statement of Senator LeMieux..................................... 51
Statement of Senator Ensign...................................... 53
Statement of Senator Cantwell.................................... 55
Witnesses
Hon. Janet Napolitano, Secretary, U.S. Department of Homeland
Security....................................................... 14
Prepared statement........................................... 16
Hon. Michael E. Leiter, Director, National Counterterrorism
Center......................................................... 21
Prepared statement........................................... 24
Hon. Lee Hamilton, Co-Chair, National Security Preparedness
Group, Bipartisan Policy Center, and former Vice Chairman,
National Commission on Terrorist Attacks upon the United States
(9/11 Commission).............................................. 25
Prepared statement........................................... 27
Hon. Tom Kean, Co-Chair, National Security Preparedness Group,
Bipartisan Policy Center, and former Chairman, National
Commission on Terrorist Attacks upon the United States (9/11
Commission).................................................... 31
Prepared statement........................................... 27
Appendix
American Civil Liberties Union (Michael W. Macleod-Ball, Acting
Director, Washington Legislative Office and Christopher
Calabrese, Legislative Counsel), prepared statement............ 67
Response to written questions submitted to Hon. Michael E. Leiter
by:
Hon. Mark Warner............................................. 73
Hon. Mark Begich............................................. 73
Hon. Kay Bailey Hutchison.................................... 74
Hon. Olympia J. Snowe........................................ 75
Response to written questions submitted to Hon. Janet Napolitano
by:
Hon. John D. Rockefeller IV.................................. 76
Hon. Bill Nelson............................................. 77
Hon. Frank R. Lautenberg..................................... 77
Hon. Mark Warner............................................. 78
Hon. Mark Begich............................................. 80
Hon. Kay Bailey Hutchison.................................... 81
Hon. Olympia J. Snowe........................................ 83
Hon. Johnny Isakson.......................................... 85
Hon. David Vitter............................................ 86
Response to written questions submitted to Hon. Lee Hamilton and
Hon. Tom Kean by:
Hon. Frank R. Lautenberg..................................... 90
Hon. Mark Warner............................................. 90
Hon. Mark Begich............................................. 90
Hon. John Ensign............................................. 91
THE STATE OF AVIATION SECURITY:
IS OUR CURRENT SYSTEM CAPABLE OF MEETING THE THREAT?
----------
WEDNESDAY, JANUARY 20, 2010
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to the notice, at 2:30 p.m. in
room SR-253, Russell Senate Office Building, Hon. John D.
Rockefeller IV, Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
U.S. SENATOR FROM WEST VIRGINIA
The Chairman. This hearing will come to order.
I want to thank our witnesses for coming today. There are
other hearings on this matter, and I'm really glad of it. Some
of you are going to have to do a lot of traveling to a lot of
committees, but I'm really glad of that, too. People need to
hear from you. And, in fact, you look a long way off.
Secretary Napolitano, I welcome you back to the Committee.
I think that you have one of the hardest jobs in America; maybe
second or third hardest. The President wins on that. You and
Mike can fight out who's second and who's third. I think you
are doing a terrific job that--I think your--you personally are
underappreciated. I think your department is underfunded. And I
think this instant may help us solve that underfunding problem.
Your problem doesn't have to be solved. As I told you before,
as the hearing, just a few moments ago, started, as far as I'm
concerned, you wear four stars on each shoulder.
Director Leiter, this is the first time circumstances have
combined to have you testifying before the Commerce Committee.
You're a very lucky man. As Chairman of the Intelligence
Committee, I had the pleasure of working with you on matters
relating to intelligence reform. And, as you know, I expressed
my feelings then, how impressed I was at the job that you were
doing then and you are doing now.
We've had a very serious problem. There's the question of
accountability; that's a hard thing to solve. It's also
sometimes not a wise thing to solve in the first few minutes in
public. Sometimes it's good to know what you're talking about
before you get into that.
And I know my colleagues will recognize your tremendous,
profound expertise in understanding what it takes to meet our
responsibilities. So, I am very grateful that you are here
before our committee, and that you serve as you do.
I know that you've been working around the clock. I've been
a Governor, but I don't think even that comes even close to the
pressure that both of you--a Cabinet Secretary, NCTC, et
cetera--that what--what that amounts to in the way of pressure,
sleeplessness, trying to find out how we can do better. That's
the purpose of this hearing.
We're going to stay on this subject most of this year.
We're going to get it right. This is a very serious thing that
happened. The fact that nobody was killed and nobody was
particularly injured, except perhaps the perpetrator and one or
two others in a minor way, belies the fact that, had things
gone according to the way they were meant to, 289 people would
have died 20 minutes outside of Detroit. I tend to think of it
in terms of what I just said, as opposed to the fact that
nothing happened, and I think that's the way you look at it,
too.
Lee Hamilton and Tom Kean, you are welcome anywhere,
anytime, and you're an asset to the Nation, both of you. Maybe
you're just one person; I don't know.
[Laughter.]
The Chairman. But, you have brought more wisdom and
challenged us in more ways. I asked each of you to be tough on
us in your questioning--answer to questions, or matters that
you want to raise, because this is the time for us to hear
clearly from those who have watched wisely from the outside,
but really on the inside. Thank you, again, for coming.
OK. So, the Christmas terror attack told us that we need to
further harden our defenses and evaluate if we're doing
everything we can to meet an evolving al-Qaeda terrorist threat
or perhaps non-al-Qaeda terrorist threats. Domestic problems,
discontent, all of the instability that rules throughout our
country, fear--throughout the world--the fear, the
hopelessness, all of this combines to produce exactly the wrong
kind of people doing exactly the wrong kinds of things, but
they think it's for the right reason. And if they seek
martyrdom, it's pretty hard to argue and win them over.
The threat to America is real and we have to get it
absolutely right. And our problem, of course, is that we have
to get it right 100 percent of the time. Their problem is, they
have to get it right once. And it's not fair. But, that's the
world we live in, and that's what we need to deal with on this
committee, as well as other committees.
A man with a bomb was able to board a plane headed for
America. So, it's obvious and clear that our system failed.
Cannot be disputed. I know that, every day, countless unsung
American heroes are working in your agencies, working 17-hour
days, 7 days-a-week, and going through every scrap of
information. People have no idea--it's actually--it's
classified--people have no idea of the amount of information
that comes in each day to the various intelligence agencies.
And you get the brunt of it, Director Leiter.
And so, the question is, how do you pick one thing from
another? And the answer is that it seems to be impossible, and
that can't be the answer; the answer is: We've got to get it
right.
How come this guy had--got a visa? How did he get a visa?
How come it was his--what he said--what his father told to the
American Embassy was not considered a clarion call? Potential
answer: All those things come in all the time. Other potential
answer is: We should have hearkened to that and responded to
that and made sure that he never got on an airplane.
So, I tremendously value--I'm still on the Intelligence
Committee, and I still do--the people that work so hard to try
to get it right. Seven men and women of the CIA recently killed
in Afghanistan. They don't make it home.
So, while we have a responsibility to be frank about where
we've fallen short, we must also honor their service. I want
that to be very, very clear. We can do that by building on the
progress that we've made since the 9/11 attacks, with an eye
toward making smart and specific improvements that keep us
safe. Easy to say, hard to do.
Nine years ago, our intelligence agencies did not even
share information, largely because they could not, by law.
First bill that we passed, ``Yes, CIA and FBI, you can talk to
each other.'' Stunning. Less than a decade ago. And their
information systems weren't interoperable. Part of that's true
still today. And because they would not, agencies too often
preferred to stovepipe information rather than share it. That
was the past. How much is that of the present? We will talk.
Since then, as Mr. Leiter will testify, we have made
enormous strides. Today, our systems and practices are far
superior to those that were--allowed 19 men to execute the
global plan to commit the horrific acts of 9/11. But, we're not
fail-safe; we haven't gotten there yet.
And yet, just weeks ago, our system still allowed a
terrorist to board flight 5--253 with sophisticated explosives.
This was a grave and multilayered failure. The intelligence
community did not piece together clues about this man's
connections to terrorism; clues that were available, including
from his father. It's my general impression it's--it doesn't
fall within the habit of Islamic behavior, for a father to go
in and, in a sense, give up his son, or even more, for us then
to ignore it, that being such a unique and stunning thing for a
father to do.
The State Department and the Department of Homeland
Security allowed this man to board the airplane with a valid
U.S. visa. The Brits hadn't given him one a couple years
before. We gave him one that lasts for 2 years. And the
international airport screening that we depend on did not
detect this man was carrying a potentially devastating
explosive device.
One of my questions, Madam Secretary, is going to be about
the meeting that you take off for tomorrow, the 21st and the
22nd, with Europeans. How do we--in this tiny, tiny, little
world, how can somebody just pass through Amsterdam without any
American eyes alighting upon him or her or what their situation
might be?
So, we have a responsibility to be brutally honest about
where we have fallen short. We have to do better. And the basic
fact that will drive much of this committee's work in the year
ahead is trying to make it all better. I promise you that. I
promise my colleagues that. We have to do better protecting our
families, safeguarding our communities, and securing our
Nation.
Nobody was injured, nobody was killed. Not in my head.
Malfunctioned, 252 would have died. So, this is at the top of
our agenda for this year, bringing the attention, the
resources, and the leadership needed to provide an improvement
in our citizens' safety and security. This committee intends to
continue asking the tough questions to shape the policies that
guide transportation security in all of its modes. And by that
I mean our port security, our chemical security, our
cybersecurity. And the list goes on. We have oversight of that
here. Have we exercised it sufficiently? Perhaps not.
Today's hearing on aviation security represents an
opportunity to bring to the table key issues that demand all of
our attention. And I want to invite my colleagues to bring
their new ideas as we work together to develop concrete
solutions that advance our security efforts and make us safer.
Let me end with five suggestions, some key solutions I
believe we can and must seriously consider:
Requiring U.S.-bound aircraft and international airports to
meet more rigorous security requirements and not letting our
cumbersome international negotiating, as a process, slow us
down. Is that possible? According to international protocol, it
is not. It has to be possible. We cannot talk this thing to
death. We are a tiny little globe, interlocked.
Two, engaging a major new effort to develop and deploy
advanced imaging technologies, which means more money, more
accuracy, and getting serious about stopping any programs that
do not work. So, then we have the question of civil liberties
versus national security. Forever a problem; forever, rightly,
a problem. But, we cannot tread lightly on what we do on
national security.
Three, improving and, in some cases, mandating better
information-sharing among TSA intelligence agencies and even
commercial airlines. I invited an airline to be at this hearing
today. They declined. They declined. I was not happy. And I
don't know what that tells us, but it tells us that we're all
in this together, and everybody has to do their part, and
nobody has a safe haven. We need to do more to establish the
partnership between government and the private sector when it
comes to security.
Four, making the watch list more accurate on the one hand,
and more dynamic on the other. Expanding the universe of people
who receive secondary screening. I'm a believer in that.
Reevaluating our screening criteria. And then doing something
called ``educating the public'' in advance about what may
become more stringent scrutiny at airports. Our public
understands this very well. They've been through the beginning
of TSA. They've been through shoe bomber and taking off the
shoes. Have they liked it? No. Have they complied with it? Yes.
Because they understand what the stakes are. So, we need
partnership with the flying public also.
And finally, number five, requiring coordination between
the valuable resources we have at our embassies, especially our
regional security offices, and the TSA to identify threats
emanating from overseas airports. Believe it or not, this is
not always happening today. And it did not happen in this case.
This is not an exhaustive list, but it's something to start
with.
All of this obviously is going to require raising new
revenues. That's always a problem in the U.S. Senate. But,
doing nothing is not an option. I don't know how you improve
security. I don't know how you put in better machinery. I don't
know how you get to the WBIs--not just 40, but the 900 you want
by 2014--without more money, more training for our security
people.
So, the need is clear and transparent. The way is hard and
difficult. But, it is our obligation.
I look forward to our witnesses' testimony as we work
together and make our transportation system as safe as
possible.
Just--Madam Vice Chair, if I can just say that I'm sure
that our colleagues all know that Erroll Southers withdrew his
name for head of TSA today. And our national security system
has lost a skilled law enforcement officer who had needed
expertise and leadership qualities, because of--I would call it
``political games,'' but, I'm not going to--I'll just scratch
that from the record. Anyway, it's a real shame. It's a real
shame. So, now we've got to go out and find another one, and
vet them in the way that Americans can, which takes a long
time. We don't have a long time. I'm confident that the
President will very quickly nominate a new candidate to run
TSA, and I'm committed to seeing that that person gets through
the process.
I thank you, and I thank my colleagues for their patience.
And I turn now to Senator Hutchison, for her opening
statement.
STATEMENT OF HON. KAY BAILEY HUTCHISON,
U.S. SENATOR FROM TEXAS
Senator Hutchison. Thank you, Mr. Chairman.
Mr. Chairman, I would just say that I believe there were
legitimate concerns about Mr. Southers, and I think those
concerns deserved to be investigated. So, I hope that we can
move forward with a new nominee, because we certainly need an
experienced person in that position. But, it also needs to be a
person who would assure the respect of the people in the agency
to have the authority to assure that the agency is doing its
job.
I do think that every one of the witnesses have done a lot
to try to put America in a place where we can be more secure. I
think the members of the 9/11 Commission certainly have given
many volunteer hours to give advice, early on, after 9/11. And
I think the members of our administration, as well, are working
very hard. No one disputes that you are doing everything that
you know to do. But, I think now we need to look at what has
happened and learn from that. We need to go forward in a
constructive way.
The plot that unfolded on Christmas Day just shows that the
defense of our homeland from terrorists is dependent on
information collection and sharing, intelligence analysis, and
the vigilance of our security personnel, and that none of these
can be effective without the others. And if there is anything
that we have learned from the experience that happened in my
home state at Fort Hood, and then this one, on its heels, it's
that we're not sharing enough. And what the Chairman said
about, after 9/11, saying, ``Oh, yes, our intelligence agencies
can actually talk to each other,'' that is a very small first
step. And we need to perfect that, and quickly.
The President's own initial review has concluded that, if
our intelligence analysts had pieced together the information
at their disposal about the attempted bomber, there would have
been sufficient grounds to place him on the terrorist watch
list, perhaps averting what happened.
Going forward, I think that we need to look at several
things:
We need to look at expanding the number of known or
suspected terrorists and their associates who are placed on
screening lists even though, in the short term, this may result
in more mistaken matches.
Number two, I think we need to expedite the adoption of
programs that will aid the process, such as the complete
implementation of the Secure Flight Program, which will take
the ultimate screening responsibility away from air carriers
and place it completely within the TSA, which has more access
to intelligence than private airlines, making our screening
efforts more effective. Progress on that program has been
positive of late, but we need to move faster, if we can.
And number three, I think it is very important that we
better synthesize intelligence data, especially in relation to
associates of known terrorists or those who may be connected to
potential terrorist threats.
Since 9/11, we have been in a new era of conflict. However,
recently we have seen a series of disturbing changes in our
fundamental mission of how we deal with terrorists and
terrorist threats--most starkly, in the decision to bring the
perpetrators of the 9/11 attacks to New York for civil trials
in our courts and the closing of Guantanamo Bay.
Mr. Chairman, this country and its leaders need to remember
that we are at war with terrorists and extremists who mean us
harm. This is not a war of traditional means, and should not be
dealt with through the civil process. We should have an
approach that is committed to more vigilance and flexibility
and enables our intelligence and security personnel to utilize
all the tools at their disposal for the purposes of eliminating
the threat to this Nation.
So, this is not a blame game, but it is, I hope, an
opportunity for us to talk to you, for you to talk to us, and
for all of us to come to the conclusion that we must be more
vigilant in pursuing the people who wish to do us harm. And
even in today's newspaper, they are talking about recruiting
more Americans for these terrorist activities in Yemen, and
they are focusing on blond hair and blue eyes so that it is not
someone who would raise flags.
So, we've got a problem that we need to confront together,
and I hope that we can learn from our hearing, from the hearing
you had this morning, and that we can have the confidence that
we're all going on the same track.
Thank you, Mr. Chairman.
[The prepared statement of Senator Hutchison follows:]
Prepared Statement of Hon. Kay Bailey Hutchison, U.S. Senator from
Texas
Mr. Chairman, thank you for calling this hearing. The Christmas Day
terrorism incident is a bleak reminder of the ever-evolving nature of
terrorist threats against the United States.
The plot highlights the fact that the defense of our homeland from
terrorists is highly dependent on information collection and sharing,
intelligence analysis, and the vigilance of our security personnel, and
that none of these can be fully effective without the others. The
Transportation Security Administration (TSA), Department of Homeland
Security (DHS) and other critical Federal Agencies have very difficult
tasks, but they must do a better job of gathering, identifying and
properly utilizing all intelligence information.
The President's own initial review has concluded that, if our
intelligence analysts had pieced together the information at their
disposal about the attempted bomber, there would have been sufficient
grounds to place him on the terrorist watchlist--perhaps averting his
attack.
As it stands, we owe a large debt of gratitude to the brave and
conscientious passengers and crew members of Flight 253, who subdued
the would-be bomber.
But, we should not need to rely on the heroism of airline
passengers to keep us safe. We have a complex and multi-layered
aviation security system and many of the threats against our
transportation system can best be addressed through effective security
policies and the use of advanced technology. However, it is just a
basic fact that no technology is a silver bullet and all technologies
have their limitations. They are simply one of many obstacles a would-
be terrorist must account for.
Moving forward, the TSA needs to bolster existing layers of
security, and that means fostering effective and innovative
technologies and deploying them rapidly. It will also likely mean
expanding the number of known or suspected terrorists and their
associates who are placed on screening lists, even though--in the short
term--this may result in more mistaken matches.
We need to expedite the adoption of programs that will aid the
process, such as the complete implementation of the Secure Flight
program, which will take the ultimate screening responsibility away
from air carriers and place it with the TSA, which has access to more
intelligence than private airlines, making our screening efforts more
effective. Progress on that program has been very positive as of late,
but if we can move faster, we should.
In addition, the Administration needs to be more assertive on an
international level with foreign nations that serve as gateways to our
country. We need to tighten aviation security rules and procedures
without unnecessarily impeding air travel domestically and
internationally.
Finally, and most importantly, we need to better synthesize
intelligence data, especially in relation to `associates' of known
terrorists or those who may be connected to potential terrorist
threats.
I think we all appreciate the difficult job our intelligence
community has deciphering meaningful information from the proverbial
`noise,' but I believe we can and should do better. All our security
tools and watchlists are only as good as our intelligence collection
and our analysis of that intelligence as a whole.
Since 9/11, we have been in a new era of conflict. However,
recently, we have seen a series of disturbing changes in our
fundamental mission of how we deal with terrorists and terrorist
threats--most starkly in the decision to bring the perpetrators of the
9/11 attacks to New York for civil trial.
Mr. Chairman, this country and its leaders need to remember we are
at war with terrorists and extremists who mean us harm. We need to be
acting like it and responding accordingly through our policies. This is
not a war of traditional means and should not be dealt with through
civil process and understanding. This war calls for a novel approach
that allows us to be more vigilant, flexible, and enables our
intelligence and security personnel to utilize all the tools at their
disposal for the purposes of eliminating the threat posed to this
Nation.
Thank you, I look forward to the testimony.
The Chairman. Thank you, Madam Vice Chairman.
And I'd just say to our members that I want the following
Senators, who I've spoken to, to make statements, each 5
minutes or less. And I hope that others will understand. These
are the people who are chairmen and ranking on the relevant
subcommittees.
So, I want to start with Senator Dorgan, and then I want
Senator DeMint, then I want Senator Lautenberg, and then I want
Senator Thune to make statements.
So, we'll start with Senator Dorgan. And I hope others will
understand.
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Mr. Chairman, thank you. I'll try to be
very brief.
You know, this is one of those very important issues in
which failure is not an option. And we had, on Christmas Day,
something that was near-tragic for a lot of passengers on that
airline. And fortunately, the terrorist attack that day failed
to achieve the objective.
But, what I want to understand is a couple things. Number
one, I think there was a screening failure. The question is,
what do we do to--what do we need to do to better screen
passengers, balancing it with privacy and so on? And the second
is the intelligence failures. What has caused the intelligence
failures, especially inasmuch as we put together a DNI to end
stovepiping and so on, and clearly that didn't happen here.
Harry Truman, famously, had the sign, ``The buck stops
here.'' The question with all of this, for me, is, where does
the buck stop with respect to these failures?
And I want to just hypothecate. If we were thinking forward
here, and it's today, and we have some information about a
couple of weeks from now, and it's a father of a young Nigerian
that comes to our intelligence community overseas, and says,
``Look, my son is engaged with some bad people. I'm worried
about what he might or might not do.'' He is then put on a
watch list, but not on a No Fly List. Nobody checks to see that
he has an open visa and cancels the visa. So, here's someone
whose father thinks, apparently, he's a potential terrorist or
something of that nature, and he's put on a watch list, but,
again, not on a No Fly List, and continues an open visa, and
there are three intercepts in the next few weeks or so. Two of
the--one of them is that a man with the first two names of this
person has volunteered for some coming operation; that was an
intelligence intercept, I understand. Another intercept would
be a Nigerian man being groomed for an operation. And the first
intercept actually used the first two names of this young man.
The third intercept, in December, mentioned some type of
operation on December 25. And then a young man shows up and
pays cash for an airline ticket to go from Ghana to--as I
understand it--to Amsterdam, to Detroit, and then shows up and
boards the plane with no luggage.
So, this isn't looking for a needle in a haystack; this is
looking for a big old needle right in the middle of our hand.
And the question is, would we see it next time? Because we
didn't see it this time. And that is, in my judgment, an
unbelievable failure. So, the question is, Where does the buck
stop? Who's accountable for that? Because that--it is one thing
to say the system failed. But, we're not talking just about
systems; we're talking about people who manage and operate the
systems, and who have to be accountable for making sure the
systems work. Because failure is not an option. And we have
constantly, as all of us know, dealt with the last issue--the
last issue of the box-cutter, the last issue of the shoe bomb,
the last issue of liquid containers, the last issue of sewing
plastic explosives in the underwear. It is constantly the last
issue. But, much more important than that, in this case, is the
question of, How did we miss so many circumstances, where you
actually have a name, and a father describing a son, and a
circumstance with three intercepts that talk about a day and
the name, and No Fly Lists that aren't coordinated with watch
lists, and visa--open visas that aren't coordinated with a
watch list? You know, something just doesn't add up at all. So,
and I think--my hope is that through this hearing we can
understand, What doesn't add up, why doesn't it add up, and
where does the buck stop? That's what's important.
So, two issues: How do we better screen? What kind of
screening is necessary? What does it cost? How intrusive is it?
All of those issues are things we have to talk about. And then,
second, what about this unbelievable--to me--issue of
intelligence?
I say all of that without denigrating you all. This is a
tough job. But, still, I think you and us need to understand
what failed and who failed and who's accountable.
The Chairman. Thank you, Senator Dorgan.
Senator DeMint.
STATEMENT OF HON. JIM DeMINT,
U.S. SENATOR FROM SOUTH CAROLINA
Senator DeMint. Thank you, Mr. Chairman.
I want to thank Chairman Dorgan for his work in airline
safety. You've been a real proponent for many months, long
before Christmas, to improve airline safety, and your expertise
will be missed.
I want to make a couple of points. I appreciate all the
witnesses being here today.
First, I'd like to talk about the Transportation Security
Administration. And anytime we implement any change in Homeland
Security, TSA, anything related to that, the first question
needs to be, how will it improve security? And I've been very
concerned, as the Secretary knows, that the Administration has
a priority of subjecting our TSA security officers to a
collective bargaining regime. No one has yet to give any
security reason why collective bargaining should be adopted.
Employees are not mistreated. We will not add any flexibility
or any benefit. It's clearly a political agenda. And frankly,
for me, even though I appreciate what the President has lately
been saying, and what has come out of Homeland Security--those
things have been encouraging--it's hard for me to take
commitments to security seriously as long as forcing TSA into
collective bargaining is a priority, because it makes no sense.
Last month, I asked the Secretary how collective bargaining
at TSA will improve security. Her answer was that the two
weren't mutually exclusive. Her answer was not that it would
improve security. And I think anytime when the Secretary of
Homeland Security can't tell us how a change in homeland
security is going to improve security, it should stop us all in
our tracks.
Our security agents now are free to join a union, and the
union can advocate on their behalf. But, we all know that
collective bargaining is very different; it creates a third-
party structure to which our security system has to answer to.
Collective bargaining will impose a 19th-century industrial
personnel management model to a 21st-century information age
threat.
The threat we see in the aviation sector is a creative and
nimble threat. These are words the President has used. Our
response needs to be nimble and creative. We need to
continually improve what we do at TSA. The men and women who
protect the aviation sector need to be able to respond quickly
to change--to change in the counterterrorism tactics so that we
can thwart the tactics of our adversaries and protect
passengers. And they need to be able to do it without having to
get signoff from the labor unions. The Secret Service, Coast
Guard, the military, the FBI--they realized this long ago, and
they prohibit collective bargaining.
Let's not be fooled by some of the arguments that we hear,
that collective bargaining works in other areas of homeland
security. The most immediate past director of Customs and
Border Protection is on record saying that collective
bargaining made it much more difficult for him to do his job.
He had to negotiate staffing policy with labor unions and had
to discuss security policy with the unions that was better kept
internal.
Quite simply, our security policy needs to be focused on
improving security. It can't be subjected to a union middleman.
The only concern career professionals at TSA should have when
responding to a terrorist threat is, ``What best meets the
threat?'' Not ``What best meets the needs of a labor union.''
Let me shift focus just a minute to talk about a couple of
other things:
One is behavioral targeting. In addition to not going
backward with this idea of collective bargaining for TSA, where
it has been prohibited, we need a more modern approach to
screening. The behavioral screening approach used by the
Israelis provides a good model, and it's something that we
should take a closer look at. TSA continues to focus on keeping
bad things off of airplanes. The Israelis, for example, focus
on keeping bad people off of airplanes. Terrorists will always
find a weapon, whether it be in a bottle of alcohol purchased
at a duty-free store or two strategically placed laptop
batteries. If we focus on things instead of terrorists, we're
going to lose this war.
To be clear, I'm referring to assessing an individual's
behavior, to separate the terrorist from the traveler.
Additional random screening will never be as successful as
targeting the bad guys. Behavioral profiling is a vital and
common sense tool to increase security that we could use more
effectively. And I hope we can talk a little bit about that
today.
Just one other point, Mr. Chairman, on visas. The Christmas
bomber highlighted the need for across-the-board reform of the
visa process. We need to make it faster and easier to revoke
visas. Traveling to the United States is a privilege; it's not
a right. Currently, unless the applicant comes from a country
designated as a sponsor of terrorism, the information threshold
required for denying a visa may be too high. This issue needs
to be addressed quickly for both immigrant and nonimmigrant
visas. America can be a safe and welcoming nation at the same
time. We do not have to sacrifice security for expediency.
I am also concerned that when security advisory opinions
have been requested, some types of visas have actually been
issued before all of the relevant intelligence agencies have
had a opportunity to respond. Security has to be a priority,
and policies that discourage information-sharing and weaken
security must be changed. If we want to enhance security, we
have to collect, analyze, and quickly act on that information.
The American people deserve to know why this terrorist was not
added to the No Fly List and what we intend to do to keep
terrorists not only from getting visas, but from gaining access
to our country altogether.
Thank you, Mr. Chairman.
The Chairman. Thank you.
And Senator Lautenberg.
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman.
If I might just take a moment to say that we have an
outstanding group of witnesses at our--at the table, but I am
particularly pleased to see former Governor Kean, from New
Jersey, and Lee Hamilton, who co-chaired the 9/11 Commission
Report. And it was a major piece of work in response to the
worst attack ever on our country. We're glad to see them here.
During--the incident over Detroit wasn't the only urgent
wake-up call about a major lapse in our national aviation
security network that has been recently revealed. During what
was supposedly a period of heightened aviation security at an
airport--Newark Liberty Airport--that lies within the 2-mile
stretch deemed to be the most the most at-risk place for
terrorism--that's by the FBI--a man was able to break through
security by walking unchallenged into Terminal C of Newark
Airport. This breach of security was intentional and shockingly
easy. The inexcusable breach occurred when a TSA guard turned
his back for a moment and a watching individual took the
opportunity to dash under a security tape, into the airport,
completely unchecked and unscreened. Without a vigilant
traveler's alert to the TSA, we would never have known that the
breach occurred.
And even after TSA was alerted, it took 2 hours for them to
alert law enforcement people--the police there--to verify the
breach on videotape and to take action. Two hours. When a
potential terrorist could have been conspiring, with a plan or
a weapon, to bring down an airplane. Two hours. When a
potential terrorist could have been bird-dogging for a bigger
plot.
And while the motives of the man behind the Newark breach
may seem benign, this incident was not just as it was
portrayed, a playful reunion. The result was a major security
breach that shut down an entire terminal of a major airport for
more than 6 hours and delaying more than 16,000 people from
getting to their families, friends, or final destination. It
caused over 100 flight delays and 27 flight cancellations.
And since 2002, DHS has spent $1 billion on technology to
screen passengers coming into an airport terminal. But, all of
that screening technology is useless if someone can just walk
in through an exit without being noticed. This exit at Newark
Airport had security cameras operated by TSA. But, the
principal camera had been broken for almost a week. TSA knew
about the broken camera and failed to report it.
The cameras weren't the only things that broke down; there
was a complete communications breakdown between TSA and its
partners on the ground, the Port Authority and Continental
Airlines. Fortunately, the Continental Airlines camera nearby
was effectively recording during this time. TSA still failed to
notify the Port Authority police of this breach.
And we can be sure that terrorists are--observe actively
the kind--this kind of a free passage for plans that they may
have.
A security breach of this nature is a matter of national
security and needs to be treated that way. And that's why I'm
taking action today to introduce legislation to close the
dangerously--the dangerous security gaps exposed by the breach
at Newark Airport.
My legislation mandates that all airport terminal
checkpoints and exits have working security cameras. It will
require sufficient personnel at secure area exits. If someone
purposely breaches airport security, under my bill they will
face serious consequence; not, as is suggested, a $500 fine,
which is nothing more than a tap on the wrist that makes a joke
out of the security structure. I'm going to be working with DOJ
and DHS to make sure the Federal Government gets involved in
enforcing the law and handling major aviation security breaches
instead of ceding this responsibility to State or local
authorities.
The incidents at Newark and Detroit exposed fundamental
weaknesses in our aviation security system. And if we learn
from these events and treat them with the seriousness they
deserve, I'm confident that we can say to all Americans who
want to fly, ``You're safe as safe can be made.''
And with that, I thank you, Mr. Chairman.
The Chairman. Thank you, Senator Lautenberg.
Senator Thune.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you Mr. Chairman. I want to thank you
and Senator Hutchison for holding this very important hearing.
And I also thank our panelists for being here today, and
would echo what's been said about Congressman Hamilton and
Governor Kean, and your good work, and we appreciate the many
contributions that you have made in looking carefully at this
in great detail, making recommendations about how to do a
better job.
I do have to say that I think the initial reaction to this,
that the system worked, could not have been more wrong. And it
seems, to me at least, that there were significant breakdowns
and failures in the system, and those need to be corrected or
this is going to happen again. And I think the people on Flight
253, and the crew, can be very thankful that the explosive
failed to detonate. But, that doesn't, for a minute, suggest
that there aren't going to be other efforts made, by those who
would want to kill Americans, to somehow get into our system
and have access to Americans and airplanes and other forms of
transportation that they can use to try and kill and disrupt
and damage America and our interests.
So, we need to get this fixed. One of the things that I
appreciate both Congressman Hamilton and Governor Kean have had
to say is that we do have to recognize that one of the greatest
threats that we face in this country, when it comes to air
travel, is public complacency, particularly following the
stepped-up security protocols following 9/11. I appreciate that
you recognize that in your testimony.
I think we all have to figure out where the intelligence
and other human errors occur that failed to stop Mr.
Abdulmutallab from entering the United States. It's pretty
clear that there was a failure when it comes to sharing
intelligence, a failure when it comes to analyzing
intelligence.
I share the observation of the Senator from South Carolina,
that the focus of this effort really needs to be on terrorists.
I'm interested in hearing, Secretary Napolitano, from you,
and from Mr. Leiter, about what's being done to adjust the
process by which names are added to the No Fly and Selectee
Lists, and what, if any, technological barriers exist when it
comes to subjecting airline flights to the larger subset of the
TIDE database, the 550,000 names, because clearly there has got
to be a better job when it comes to screening and identifying
people who are already on these lists, and making sure that
they're not getting this kind of access.
The other issue I'd be interested in hearing about is how
often there have been suspended flights into the United States
due to insufficient security standards that are employed by
foreign countries. I know we have TSA people that are looking
at those, but, it seems, to me at least, that is another area
where there were serious breakdowns in the process this time
around.
So, I appreciate the hearing, Mr. Chairman. I'm anxious to
hear from our witnesses.
This is a critically important issue, and we need to do
everything we can to double down our efforts to make sure that
these types of incidents don't happen again in the future.
Thank you.
[The prepared statement of Senator Thune follows:]
Prepared Statement of Hon. John Thune, U.S. Senator from South Dakota
Mr. Chairman and Ranking Member Hutchison, I appreciate you calling
today's hearing and I appreciate the panel of witnesses that have
joined us today to talk about a very serious matter.
Without question, the 289 passengers and crew of Flight 253 have
much to be thankful for as a result of the failed detonation of
explosives on Christmas Day. However, the events that resulted in Mr.
Abdulmutallab being permitted to fly into the U.S. have sparked a very
serious discussion both here in the United States and across the globe
when it comes to passenger safety and security.
As I noted last fall when this committee held a hearing regarding
the TSA, the greatest threat that we face as a country when it comes to
air travel, is public complacency following the stepped up security
protocols following 9/11, I was pleased to see that both Congressman
Hamilton and Governor Kean noted such in their testimony.
While it is clear that intelligence and other human errors failed
to stop Mr. Abdulmutallab from entering the United States, I will keep
my remarks brief in the interest of hearing from our witnesses and
asking questions following their remarks. Thank you Mr. Chairman.
The Chairman. Thank you, Senator Thune.
I want to both explain and apologize to our witnesses. We
do this--and there are a number of people, in addition to those
who spoke here on the dais, who want to say things. We can't.
What we would traditionally do is, we have the relevant
Subcommittee Chair and Ranking Members say a word. You, in
turn, have to listen to that. But, on the other hand, they made
some pretty good points.
So, I would now call on Secretary Napolitano. We welcome
your statement.
STATEMENT OF HON. JANET NAPOLITANO, SECRETARY,
U.S. DEPARTMENT OF HOMELAND SECURITY
Secretary Napolitano. Well, thank you, Chairman
Rockefeller, Senator Hutchison, members of the Committee, for
the opportunity to testify on the terrorist attack aboard
Northwest Flight 253 on Christmas.
I am pleased to be here today with Director Leiter, with
Governor Kean, and with Representative Hamilton.
Now, as President Obama has made clear, this Administration
is determined to find and to fix the vulnerabilities in our
systems that allowed this attack to occur on Christmas Day.
Our country's efforts against terrorism include the actions
of the Department of Homeland Security and many other agencies,
as well as those of our international allies. So, I'd like to
focus my statement, Mr. Chairman, on the DHS role within these
larger efforts.
First, by and large, DHS is a consumer of the United States
Government's Consolidated Terrorist Watch List which we use to
help keep potential terrorists from boarding flights and to
identify travelers who should undergo additional screening.
Within the United States, DHS performs physical screening at
airport checkpoints and provides further in-flight security
measures. Outside of the United States, we must work with
foreign governments and airlines to advise them on which
passengers may prove a threat and require security measures for
flights bound for the United States. As you know, TSA does not
screen people or baggage at international airports.
Now, regarding the Christmas Day attack, Umar Farouk
Abdulmutallab should never have been able to board a U.S.-bound
plane with explosives on his person. The interagency process to
fix these vulnerabilities, highlighted by this attack, is well
underway. And as a consumer of terrorist watch list
information, DHS welcomes the opportunity offered by this
process to contribute to improving our Federal Government's
ability to connect and assimilate intelligence. And we are
working with the NCTC, with the OD&I, and others to do that.
We're also focused on improving aviation screening and
expanding international partnerships to guard against a similar
type of attack. I believe several of the members have made
inquiry about that.
So, I have submitted a longer written statement describing
these various programs that work to keep terrorists from
boarding planes, and ask that it be put in the record.
In terms of the DHS role in this case, the bottom line is
this: He was not on the No Fly List, which would have flagged
him to be prevented from boarding; nor was he on the Selectee
List, which would have flagged him for secondary screening in
Amsterdam by the Dutch. Furthermore, the physical screening
performed by foreign authorities at airports in Nigeria and in
the Netherlands failed to detect the explosives on his body.
Now, immediately after the attack, DHS responded quickly.
And let me pause here a moment.
Senator Thune, I think you have quoted my words back to me
exactly, ``The situation worked,'' an unfortunate phrase that
was inaccurate, and for which I apologize. But, I'd like for
your understanding in context, because, while it was a failure
that he was allowed to get on this plane, it was a failure that
we did not know that he had these intentions. Once this
incident occurred, the following operational activities took
place, conducted through the leadership of the TSA:
First, we directed the FAA to alert all 128 flights from
Europe bound for the United States of the situation. We
increased security measures at domestic airports. We
implemented enhanced screening for all international flights
coming to the United States. And we reached out to state and
local law enforcement, air carriers, international partners,
and relevant agencies, to provide them with the information
they needed on the ground.
Now, we have outlined, in our report to the President, five
areas of action that correspond very well with what the members
have commented on in their statements:
First, as this incident underscores, aviation security is
increasingly an international responsibility. That's why I
dispatched Deputy Secretary Lute and other top DHS officials on
a multicontinent tour, to meet with our international
counterparts on these measures. Tonight, I will travel to Spain
to meet with my European counterparts tomorrow to work on
strengthening international security and standards for
aviation, including information-sharing between countries,
technology, and other issues.
Second, DHS has created a partnership with the Department
of Energy and its national labs to use their scientific
expertise to improve screening technology at domestic airports.
And it goes to a point you were making, Senator Dorgan.
Third, DHS will move forward in deploying enhanced
screening technologies, like advanced imaging technology and
explosive trace detection machines, to improve our ability to
detect the kind of explosives used in the Christmas Day attack.
We currently have 40 of these machines deployed in the United
States. We intend to deploy at least 450 more this year.
Fourth, we will strengthen the capacity of aviation law
enforcement, including the Federal Air Marshal Service. I would
include here, as well, that we intend to increase other law
enforcement techniques, as well, including behavior detection
officers at our airports.
And finally, DHS will work with our interagency partners to
reevaluate and modify the way the terrorist watch list is
created, including how names are added to the No Fly and
Selectee Lists.
I'm very glad to be working with my colleague Director
Leiter, Admiral Blair, with whom I was with this morning, in
addition to the members of this committee who have done so much
to improve our national intelligence and commerce apparatus as
we deal with these issues.
And I'm also very grateful to the men and women of the
Department of Homeland Security. They work hard every day,
every week, to keep this country safe against terrorist
attacks. And that is work that is ongoing and that, while I
cannot ever guarantee--and I will not to this committee or any
committee--that we will never have another attack by someone
like an Umar Farouk Abdulmutallab, I can tell you this, that
our department is working every day, in every way we can think
of, to keep the American people safe.
[The prepared statement of Secretary Napolitano follows:]
Prepared Statement of Hon. Janet Napolitano, Secretary,
U.S. Department of Homeland Security
Chairman Rockefeller, Senator Hutchison, and members of the
Committee: Thank you for this opportunity to testify on the attempted
terrorist attack on Northwest Flight 253.
The attempted attack on December 25 was a powerful illustration
that terrorists will go to great lengths to defeat the security
measures that have been put in place since September 11, 2001. This
Administration is determined to thwart those plans and disrupt,
dismantle and defeat terrorist networks by employing multiple layers of
defense that work in concert with one another to secure our country.
This is an effort that involves not just DHS, but many other Federal
agencies and the international community as well.
As our part in this effort, DHS is a consumer of the U.S.
Government's consolidated terrorist watchlist, which we use to help
keep potential terrorists off flights within, over or bound for the
United States and to identify travelers that require additional
screening. We work with foreign governments, Interpol, and air carriers
to strengthen global air travel security by advising them on security
measures and on which passengers may prove a threat. We also work with
air carriers and airport authorities to perform physical screening at
TSA checkpoints and to provide security measures in flight.
Immediately following the December 25 attack, DHS took swift action
at airports across the country and around the world. These steps
included enhancing screening for individuals flying to the United
States; increasing the presence of law enforcement and explosives
detection canine teams at air ports, and of air marshals in flight; and
directing the FAA to notify the 128 flights already inbound from Europe
about the situation. Nonetheless, Umar Farouk Abdulmutallab should
never have been able to board a U.S.-bound plane with the explosive
PETN on his person. As President Obama has made clear, this
Administration is determined to find and fix the vulnerabilities in our
systems that allowed this breach to occur.
Agencies across the Federal Government have worked quickly to
address what went wrong in the Abdulmutallab case. The effort to solve
these problems is well underway, with cooperation among DHS, the
Department of State, the Department of Justice, the Intelligence
Community, and our international allies, among others. As a consumer of
terrorist watchlist information, the Department of Homeland Security
welcomes the opportunity to contribute to the dialogue on improving the
Federal Government's ability to connect and assimilate intelligence. We
are also focused on improving aviation screening and expanding our
international partnerships to guard against a similar type of attack
occurring again. To those ends, today I want to describe the role that
DHS currently performs in aviation security, how DHS responded in the
immediate aftermath of the attempted Christmas Day attack, and how we
are moving forward to further bolster aviation security.
DHS' Role in Multiple Layers of Defense
Since 9/11, the U.S. Government has employed multiple layers of
defense across several departments to secure the aviation sector and
ensure the safety of the traveling public. Different Federal agencies
bear different responsibilities, while other countries and the private
sector--especially the air carriers themselves--also have important
roles to play.
DHS oversees several programs to prevent individuals with terrorist
ties from boarding flights that are headed to, within, or traveling
over the United States or, in appropriate cases, to identify them for
additional screening. Specifically, DHS uses information held in the
Terrorist Screening Data base (TSDB), a resource managed by the
Terrorist Screening Center (TSC), as well as other information provided
through the Intelligence Community to screen individuals; operates the
travel authorization program for people who are traveling to the United
States under the Visa Waiver Program (VWP); \1\ and works with foreign
governments, international and regional organizations, and airlines to
design and implement improved security standards worldwide. This
includes routine checks against Interpol databases on wanted persons
and lost or stolen passports on all international travelers arriving in
the United States. The Department also performs checkpoint screenings
at airports in the United States.
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\1\ The 35 countries in the Visa Waiver Program are: Andorra,
Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark,
Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy,
Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the
Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore,
Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the
United Kingdom (for the U.K., only citizens with an unrestricted right
of permanent abode in the U.K. are eligible for VWP travel
authorizations).
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To provide a sense of the scale of our operations, every day, U.S.
Customs and Border Protection (CBP) processes 1.2 million travelers
seeking to enter the United States by land, air or sea; the
Transportation Security Administration (TSA) screens 1.8 million
travelers at domestic airports; and DHS receives advanced passenger
information from carriers operating in 245 international airports that
are the last point of departure for flights to the United States,
accounting for about 1,600 to 1,800 flights per day. Ensuring that DHS
employees and all relevant Federal officials are armed with
intelligence and information is critical to the success of these
efforts.
Safeguards for Visas and Travel
One of the first layers of defense in securing air travel consists
of safeguards to prevent dangerous people from obtaining visas, travel
authorizations and boarding passes. To apply for entry to the United
States prior to boarding flights bound for the U.S. or arriving at a
U.S. port of entry, most foreign nationals need visas--issued by a U.S.
embassy or consulate--or, if traveling under a Visa Waiver Program
country, travel authorizations issued through the Electronic System for
Travel Authorization (ESTA).\2\
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\2\ Exceptions would be citizens of countries under other visa
waiver authority such as the Western Hemisphere Travel Initiative or
the separate visa waiver program for Guam and the Commonwealth of the
Northern Mariana Islands, or those granted individual waivers of the
visa requirement under the immigration laws.
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Issuing visas is the responsibility of the Department of State. At
embassies and consulates where it is operational, the Visa Security
Program positions personnel of U.S. Immigration and Customs Enforcement
(ICE) to assist State Department personnel in identifying visa
applicants who may present a security threat. For individuals traveling
under the VWP, DHS operates ESTA, a web-based system through which
individuals must apply for travel authorization prior to traveling to
the United States. These systems examine an individual's information to
assess whether he or she could pose a risk to the United States or its
citizens, including possible links to terrorism. Without presenting a
valid authorization to travel to the United States at the airport of
departure, a foreign national is not able to board a U.S.-bound flight.
The Department also works with other Federal agencies and our
foreign partners to try to prevent possible terrorists from obtaining
boarding passes. These include the application of the No-Fly List and
the implementation of Secure Flight program, which I explain below.
Pre-departure Screening
As another layer of defense, DHS conducts pre-departure passenger
screening in partnership with the airline industry and foreign
governments in order to prevent known or suspected terrorists from
boarding a plane bound for the United States or, as appropriate, to
identify them for additional screening. DHS uses TSDB data, managed by
the Terrorist Screening Center that is administered by the FBI, to
determine who may board, who requires further screening and
investigation, who should not be admitted, or who should be referred to
appropriate law enforcement personnel.
Specifically, to help make these determinations, DHS uses the No-
Fly List and the Selectee List, two important subsets within the TSDB.
Individuals on the No-Fly List should not receive a boarding pass for a
flight to, from, over, or within the United States. Individuals on the
Selectee List must go through additional security measures, including a
full-body pat-down and a full physical examination of personal effects.
Through the Secure Flight Program, the Department is making an
important change to the process of matching passenger identities
against the No-Fly List and Selectee List, and fulfilling an important
recommendation of the 9/11 Commission. Previously, responsibility for
checking passenger manifests against these lists rested with the air
carriers themselves. Under the Secure Flight program, DHS began to
transfer this responsibility to TSA in 2009, and the transition is
targeted for completion by the end of this year. In addition to
creating a more consistent matching process for all domestic and
international travel to the United States and strengthening the
effectiveness of redress in preventing misidentifications, Secure
Flight will flag potential watchlist matches and immediately trigger
law enforcement notification and coordination.
As an additional layer of security, DHS also uses the Passenger
Name Record (PNR), the Advanced Passenger Information System (APIS),
and the Immigration Advisory Program (IAP) to assess a passenger's
level of risk and, when necessary, flag them for further inspection.
PNR data, obtained from the airline reservations systems, contains
various elements, which may include optional information on itinerary,
co-travelers, changes to the reservation, and payment information. PNR
data is evaluated against ``targeting rules'' that are based on law
enforcement data, intelligence and past case experience. A PIS data,
which carriers are required to provide to DHS at least 30 minutes
before a flight, contains important identifying information that may
not be included in PNR data, including verified identity and travel
document information such as a traveler's date of birth, citizenship,
and travel document number. DHS screens APIS information on
international flights to or from the United States against the TSDB, as
well as against criminal history information, records of lost or stolen
passports, and prior immigration or customs violations. APIS is also
connected to Interpol's lost and stolen passport database for routine
queries on all inbound international travelers.
Another layer in the screening process is the Immigration Advisory
Program (IAP). The CBP officers stationed overseas under the IAP
program at nine airports in seven countries receive referrals from CBP
screening against the TSDB, of which the No Fly list is a subset. IAP
officers can make ``no board'' recommendations to carriers and host
governments regarding passengers bound for the United States who may
constitute security risks, but do not have the authority to arrest,
detain, or prevent passengers from boarding planes.
Checkpoint Screenings and In-flight Security
The third layer of defense for air travel in which DHS plays a role
is the screening of passengers and their baggage. TSA screens
passengers and baggage at airports in the United States, but not in
other countries. When a traveler at a foreign airport is physically
screened, that screening is conducted by the foreign government, air
carriers, or the respective airport authority.
Domestically, TSA employs a layered approach to security, which
includes measures both seen and unseen by travelers. The 48,000
Transportation Security Officers at hundreds of airports across the
country screen passengers and their baggage using advanced technology
x-ray systems, walk-through metal detectors, explosive trace detection
equipment, trained canines, vapor trace machines that detect liquid
explosives, Advanced Imaging Technology, full-body pat-downs,
explosives detection systems, Bomb Appraisal Officers, and Behavior
Detection Officers--both at the checkpoint and throughout the airport.
Through programs such as the Aviation Direct Access Screening Program,
TSA also uses random and unpredictable measures to enhance security
throughout the airport perimeter and in limited access areas of
airports. The $1 billion in Recovery Act funds provided to TSA for
checkpoint and checked baggage screening technology have enabled TSA to
greatly accelerate deployment of these critical tools to keep
passengers safe.
In an effort to enhance international screening standards, TSA
conducts security assessments in accordance with security standards
established by the International Civil Aviation Organization (ICAO) at
more than 300 foreign airports, which include foreign airports from
which flights operate directly to the United States and all airports
from which U.S. air carriers operate. If an airport does not meet these
standards, TSA works with the host government to rectify the
deficiencies and raise airport security to an acceptable level.
Ultimately, it is the foreign government that must work to address
these security issues. In long-term circumstances of non-compliance
with international standards, TSA may recommend suspension of flight
service from these airports to the United States. In addition, TSA
inspects all U.S. and foreign air carriers that fly to the United
States from each airport to ensure compliance with TSA standards and
directives. Should air carrier security deficiencies exist, TSA works
with the air carrier to raise compliance to an acceptable level. If an
airport is located within one of the 35 VWP countries, DHS conducts
additional audits and inspections as part of the statutorily mandated
VWP designation and review process.
In terms of in-flight security, Federal Air Marshals (FAM) are
deployed on high-risk domestic and international flights where
international partners allow FAMs to enter their country on U.S.-
flagged carriers. Thousands more volunteer pilots serve as armed,
deputized Federal Flight Deck Officers. Additionally, armed law
enforcement officers from Federal, state, local, and tribal law
enforcement agencies that have a need to fly armed provide a force
multiplier on many flights.
DHS Response to the Christmas Day Attack
The facts of the Christmas Day attempted bombing are well
established and were relayed in the report on the incident that the
President released on January 7, 2010. On December 16, 2009, Umar
Farouk Abdulmutallab, a Nigerian national, purchased a round-trip
ticket from Lagos, Nigeria to Detroit. Abdulmutallab went through
physical security screening conducted by foreign airport personnel at
Murtala Muhammed International Airport in Lagos on December 24 prior to
boarding a flight to Amsterdam Airport Schiphol. This physical
screening included an x-ray of his carry-on luggage and his passing
through a walk-through metal detector. Abdulmutallab went through
additional physical screening, conducted by Dutch authorities, when
transiting through Amsterdam to Northwest Flight 253 to Detroit, and
presented a valid U.S. visa. Abdulmutallab was not on the No Fly or
Selectee Lists. Accordingly, the carrier was not alerted to prevent him
from boarding the flight or additional physical screening, nor did the
IAP officer advise Dutch authorities of any concerns. As with all
passengers traveling on that flight, and similar to all other
international flights arriving in the United States, CBP evaluated
Abdulmutallab's information while the flight was en route to conduct a
preliminary assessment of his admissibility and to determine whether
there were requirements for additional inspection. During this
assessment, CBP noted that there was a record that had been received
from the Department of State, which indicated possible extremist ties.
It did not indicate that he had been found to be a threat, or that his
visa had been revoked. CBP officers in Detroit were prepared to meet
Abdulmutallab upon his arrival for further interview and inspection.
The attack on board the flight failed in no small part due to the brave
actions of the crew and passengers aboard the plane.
Immediate DHS Response
Following the first reports of an attempted terrorist attack on
Northwest Flight 253 on December 25, DHS immediately put in place
additional security measures. TSA directed the Federal Aviation
Administration to apprise 128 U.S.-bound international flights from
Europe of the attempted attack and to ask them to maintain heightened
vigilance on their flights. Increased security measures were put in
place at domestic airports, including additional explosive detection
canine teams, state and local law enforcement, expanded presence of
Behavior Detection Officers, and enhanced screening. That evening, DHS
issued a security directive for all international flights to the U.S.,
which mandated enhanced screening prior to departure and additional
security measures during flight.
From the first hours following the attempted attack, I worked
closely with the President, Assistant to the President for Homeland
Security and Counterterrorism John Brennan, senior Department
leadership, and agencies across the Federal Government. I communicated
with international partners, Members of Congress, state and local
leadership and the aviation industry and met with national security
experts on counterterrorism and aviation security. The results of these
communications culminated in two reports to the President: one on New
Year's Eve and the second on January 2, 2010.
One of our most important conclusions was that it is now clearer
than ever that air travel security is an international responsibility.
Indeed, passengers from 17 countries were aboard Flight 253.
Accordingly, DHS has embarked upon an aggressive international program
designed to raise international standards for airports and air safety.
On January 3, 2010, I dispatched Deputy Secretary Jane Holl Lute and
Assistant Secretary for Policy David Heyman to Africa, Asia, Europe,
the Middle East, Australia, and South America to meet with
international leadership on aviation security. In these meetings, they
reviewed security procedures and technology being used to screen
passengers on U.S.-bound flights and worked on ways to bolster our
collective tactics for defeating terrorists. This afternoon, I am
traveling to Spain to meet with my European Union counterparts in the
first of a series of global meetings intended to bring about broad
consensus on new, stronger, and more consistent international aviation
security standards and procedures.
In addition to these efforts, the Department has been in close
contact with Congress, our international partners, the aviation
industry and state and local officials across the country since the
afternoon of the attempted attack. On December 25, the Department
issued a joint bulletin with the FBI to state and local law enforcement
throughout the nation; conducted calls with major airlines and the Air
Transport Association; distributed the FBI-DHS joint bulletin to all
Homeland Security Advisors, regional fusion center directors and Major
City Homeland Security Points of Contact in the country; and notified
foreign air carriers with flights to and from the United States of the
additional security requirements. DHS has maintained close contact with
all of these partners since the attempted attack, and will continue to
do so.
On January 3, TSA issued a new Security Directive, effective on
January 4, which includes long-term, sustainable security measures
developed in consultation with law enforcement officials and our
domestic and international partners. Because effective aviation
security must begin beyond our borders, this Security Directive
mandates that every individual flying into the U.S. from anywhere in
the world traveling from or through nations that are state sponsors of
terrorism \3\ or other countries of interest will be required to go
through enhanced screening. The directive also increases the use of
enhanced screening technologies and mandates threat-based and random
additional screening for passengers on U.S. bound international
flights. These measures are being implemented with extraordinary
cooperation from our global aviation partners.
---------------------------------------------------------------------------
\3\ The State Department currently lists Cuba, Iran, Sudan, and
Syria as state sponsors of terrorism.
---------------------------------------------------------------------------
Steps Forward to Improve Aviation Security
While these immediate steps helped strengthen our security posture
to face current threats to our country, as President Obama has made
clear, we need to take additional actions to address the systemic
vulnerabilities highlighted by this failed attack. On January 7, I
joined Assistant to the President for Counterterrorism and Homeland
Security John Brennan to announce five recommendations DHS made to the
President as a result of the security reviews ordered by President
Obama. At the President's direction, DHS will pursue these five
objectives to enhance the protection of air travel from acts of
terrorism.
First, DHS will work with our interagency partners to re-evaluate
and modify the criteria and process used to create terrorist watchlist,
including adjusting the process by which names are added to the No-Fly
and Selectee Lists. The Department's ability to prevent terrorists from
boarding flights to the United States depends upon these lists and the
criteria used to create them. As an entity that is primarily a consumer
of this intelligence and the operator of programs that rely on these
lists, the Department will work closely with our partners in the
Intelligence Community to make clear the kind of information DHS needs
from the watchlist system.
Second, DHS will establish a partnership on aviation security with
the Department of Energy and its National Laboratories in order to use
their expertise to bolster our security. This new partnership will work
to develop new and more effective technologies that deter and disrupt
known threats, as well as anticipate and protect against new ways that
terrorists could seek to board an aircraft with dangerous materials.
Third, DHS will accelerate deployment of Advanced Imaging
Technology to provide capabilities to identify materials such as those
used in the attempted December 25 attack, and we will encourage foreign
aviation security authorities to do the same. TSA currently has 40
machines deployed at nineteen airports throughout the United States,
and plans to deploy at least 450 additional units in 2010. DHS will
also seek to increase our assets in the area of explosives-trained
canines, explosives detection equipment, and other security personnel.
Fourth, DHS will strengthen the presence and capacity of aviation
law enforcement. As an interim measure, we will deploy law enforcement
officers from across DHS to serve as Federal Air Marshals to increase
security aboard U.S.-flag carriers' international flights. At the same
time, we will maintain the current tempo of operations to support high-
risk domestic flights, as we look to longer-term solutions to enhance
the training and workforce of the Federal Air Marshal Service.
Fifth, as mentioned earlier, DHS will work with international
partners to strengthen international security measures and standards
for aviation security. Much of our success in ensuring that terrorists
do not board flights to the United States is dependent on what happens
in foreign airports and the commitments of our foreign partners to
enhance security--not just for Americans, but also for their nationals
traveling to this country.
In all of these action areas to bolster aviation security, we are
moving forward with a dedication to safeguard the privacy and rights of
travelers.
Conclusion
The attempted attack on Christmas Day serves as a stark reminder
that terrorists motivated by violent extremist beliefs are determined
to attack the United States. President Obama has made clear that we
will be unrelenting in using every element of our national power in our
efforts around the world to disrupt, dismantle, and defeat al-Qaeda and
other violent extremists.
While we address the circumstances behind this specific incident,
we must also recognize the evolving threats posed by terrorists, and
take action to ensure that our defenses continue to evolve in order to
defeat them. We live in a world of ever-changing risks, and we must
move as aggressively as possible both to find and fix security flaws
and anticipate future vulnerabilities in all sectors. President Obama
has clearly communicated the urgency of this task, and the American
people rightfully expect swift action. DHS and our Federal partners are
moving quickly to provide just that.
I wish I could close by giving you a 100 percent guarantee that no
terrorist, ever, will try to take down a plane or attack us in some
other fashion. I cannot give you such a guarantee; that is not the
nature of the world we live in, nor of the threats that we face. What I
can give you, however, is the 100 percent commitment of myself, DHS
leadership, and the entire DHS enterprise to do everything we can to
minimize the risk of terrorist attacks.
Chairman Rockefeller, Senator Hutchison and members of the
Committee: Thank you for this opportunity to testify. I can now answer
your questions.
The Chairman. Thank you, Madam Secretary.
And now Director Leiter.
STATEMENT OF HON. MICHAEL E. LEITER, DIRECTOR, NATIONAL
COUNTERTERRORISM CENTER
Mr. Leiter. Mr. Chairman, Senator Hutchison, members of the
Committee, thank you.
Needless to say, I wish that my introduction to this
committee were under a very different set of circumstances than
they are today.
I'm honored to appear also with Secretary Napolitano,
Governor Kean, Congressman Hamilton.
But, I also want to say that I am honored to appear--I
know, in our audience today, in the gallery, are members of the
families of the victims of 9/11. And I want to make a personal
pledge to them, on behalf of myself and also the members of
NCTC and the counterterrorism community, to continue to do all
that we can to honor their family members' memory by trying to
keep the scourge of terrorism from touching others.
I want to start with an assertion which I hope is as
crystal clear as Secretary Napolitano's was. Umar Farouk
Abdulmutallab should not have stepped on a plane on Christmas
Day. The system failed--the counterterrorism system failed. And
I, along with other leaders, have told the President that. I'm
here to tell you that. And I'm here to tell the American people
that. And I think, most importantly, that we are determined to
do better.
The Director of National Intelligence and I have both been
tasked by the President to look at how we can improve those
elements of analysis, of collection, of information-sharing,
and watch-listing, that obviously need to be repaired.
I'd like to quickly run down some of the events that led to
the Christmas Day attack. And although I can't go into great
depth in an open session, I think it's important to make some
points, because, frankly, there are no shortage of inaccuracies
in the media that have been reported.
But, I want to start, first, by debunking what has become
conventional wisdom among some, that this is the same failure
that occurred on 9/11. It is not. And that is not to suggest
that it is not potentially tragic, but it is to highlight,
because, unlike 9/11, where there was a failure to share
information the U.S. Government had, that is not what occurred
in this case. And, obviously, any prescription for repairing
the failings has to know what caused the failings in the first
place.
I would open also by saying this is all the more
frustrating to me because the intelligence community and NCTC
did identify many of the things that led up to this attack, but
we very much failed in the last tactical mile of associating
some of the plotting that we saw with this individual, Umar
Farouk.
Throughout 2009, in the fall, in front of other Members of
Congress, we spoke to the growing danger posed by al-Qaeda in
the Arabian Peninsula, and, in particular, the danger posed by
European and Western recruits that they might have for plotting
against the homeland. And although we didn't know it at the
time, we were concerned about operations on Christmas. But,
again, we did not connect that with Abdulmutallab. And we also
warned about the type of explosive that Abdulmutallab used, and
the ways in which it might prove a challenge to screening,
which, of course, manifested itself on Christmas Day.
But, again, despite these pieces that we did connect, we
simply did not make the final connections, and we failed in
doing so, the last tactical mile linking this individual to
this plot.
We did, in fact, have the information from his father about
his concern he expressed, with his son going to Yemen, and that
he had come under the influence of religious extremists, and
that he was not returning home. And we had other streams of
information from other intelligence channels. So, we ended up
with a partial name, an indication of a Nigerian. But, no piece
of intelligence brought that together, nor did my analysts or
my organization or I bring that together.
As a result, although Mr. Abdulmutallab was, in fact,
entered as a known and suspected terrorist, into what is known
as the Terrorist Identities Datamart Environment--that list of
550,000 I believe Senator Thune referred to--he was not watch-
listed, because this information was not connected to him. And
hence, he also was not placed on the No Fly or Selectee Lists.
Had all of the information that was available to the U.S.
been linked together to this one individual, he would have
undoubtedly been watch-listed, and therefore, he would have
been on the visa screening list and the border inspection list.
And I want to read this verbatim, because it's a--it's an
important point. ``Whether he would have been placed on either
the No Fly or Selectee List, again, based on the existing
standards of 2008 and 2009, would have been determined by the
strength of the analytic judgment about exactly who he was and
what he was doing.'' And, as I'd like to note quite clearly,
one of the lessons that we have learned, and the President has
tasked us to do, is to review these watch-listing standards in
a way that they are as flexible and as nimble as the enemy we
face.
Finally--and I hope I have made clear that I do not wish to
make excuses for what we didn't do right. We didn't do things
right, and we didn't do things well. I do want to note the
context for some of these failings.
Each day, NCTC receives and reviews literally thousands of
pieces of counterterrorism intelligence. Although the exact
number is classified, it is well over 5,000 pieces of terrorism
data, with more than 5,000 names each day. We put on the watch
list more than 350 individuals a day. And we look at more than
30 or 40 specific plots every day. So, although I undoubtedly
admit we must do better, the multidimensional and varied nature
of this threat means that even intelligence is not a silver
bullet; it is one part of a multilayer set of defenses,
including technology, international cooperation, and screening,
that we must combine.
Briefly--and, of course, I'll--I'm happy to take more
questions on this--we are trying to improve this situation as
quickly as we can, pursuant to the President's directive of
January 7. In line with the President's conclusions and his
direction, we're moving in, really, five broad areas:
First, as a number of you have noted, we're examining the
``No Fly List'' standards. Frankly, the pressure over the past
8 years has never been to put more people on the ``No Fly
List,'' it has been just the opposite. We have to look at what
those standards are and ensure that we are, again, flexible
enough to have individuals, either ``Selectees'' or ``No
Flys,'' regardless of whether or not we have specific
intelligence about their involvement in operations.
Second, although we saw the growing threat in Yemen, we--
and I include myself in that ``we''--and the DNI, did not
adequately move resources to address that threat. We were
simply more focused on the threats that we saw within Yemen,
and the threat outside was not addressed quickly enough with
additional resources. We need to do that, and that has already
been done, to some extent.
Third, we have to move away a bit from a names-based system
of tracking threats. It's fairly easy--and I think we're quite
good, as proved in many cases in 2009--to tracking threats when
we know a name and we know what the plot is. But, it's much,
much harder, and we have to do a better job of pursuing small,
discrete pieces of data that don't automatically add up to a
threat. That is our challenge, and we are trying to do that
now.
Fourth, we are making sure that we assign priority for
tracking of threats as they come in. And we have done that
quite well, again, when the threat is of a high profile and
something we understand fully. We have to assign that same
level of responsibility when we also are not sure what the
threat is.
And finally, we have to make sure, again, that the records
within our watch lists are enhanced, to the extent they can.
This is certainly a matter of technology, and technology
applies to all of the areas I've already discussed. But, it is
also simply a matter of having enough people to put their eyes
on these records and make the connections that will help keep
the Nation safe.
Although I would strongly echo what Secretary Napolitano
noted, that none of this will guarantee security. But, it must
be used to perfect the system to the greatest extent possible.
Thank you. And I look forward to working with the
Committee.
[The prepared statement of Mr. Leiter follows:]
Prepared Statement Hon. Michael E. Leiter, Director,
National Counterterrorism Center
Chairman Rockefeller, Ranking Member Hutchison, and members of the
Committee on Commerce, Science and Transportation: Thank you for your
invitation to appear before the Committee to discuss the events leading
up to the attempted terrorist attack on Christmas Day and the
improvements the National Counterterrorism Center and the Intelligence
Community have underway to fix deficiencies.
It is my privilege to be accompanied by Janet Napolitano, Secretary
of Homeland Security.
The attempted terrorist attack on Christmas Day did not succeed,
but, as one of several recent attacks against the United States
inspired by jihadist ideology or directed by al Qa'ida and its
affiliates, it reminds us that our mission to protect Americans is
unending.
Let's start with this clear assertion: Umar Farouk Abdulmutallab
should not have stepped on that plane. The counterterrorism system
failed and we told the President we are determined to do better.
Within the Intelligence Community we had strategic intelligence
that al Qa'ida in the Arabian Peninsula (AQAP) had the intention of
taking action against the United States prior to the failed attack on
December 25, but, we did not direct more resources against AQAP, nor
insist that the watchlisting criteria be adjusted prior to the event.
In addition, the Intelligence Community analysts who were working hard
on immediate threats to Americans in Yemen did not understand the
fragments of intelligence on what turned out later to be Mr.
Abdulmutallab, so they did not push him onto the terrorist watchlist.
We are taking a fresh and penetrating look at strengthening both
human and technical performance and do what we have to do in all areas.
Director of National Intelligence Blair and I have specifically been
tasked by the President to improve and manage work in four areas:
Immediately reaffirm and clarify roles and responsibilities of
the counterterrorism analytic components of the IC in
synchronizing, correlating, and analyzing all sources of
intelligence related to terrorism.
Accelerate information technology enhancements, to include
knowledge discovery, database integration, cross-database
searches, and the ability to correlate biographic information
with terrorism-related intelligence.
Take further steps to enhance the rigor and raise the standard
of tradecraft of intelligence analysis, especially analysis
designed to uncover and prevent terrorist plots.
Ensure resources are properly aligned with issues highlighted
in strategic warning analysis.
Additionally, NCTC has been tasked by the President to do the
following:
Establish and resource appropriately a process to prioritize
and to pursue thoroughly and exhaustively terrorism threat
threads, to include the identification of appropriate follow-up
action by the intelligence, law enforcement, and homeland
security communities.
Establish a dedicated capability responsible for enhancing
record information on possible terrorists in the Terrorist
Identities Datamart Environment for watchlisting purposes.
The Events Leading Up to the Christmas Day Attack
I will now briefly discuss some of the details of the bombing
attempt and what we missed. As the President has said, this was not--
like in 2001--a failure to collect or share intelligence; rather it was
a failure to connect, integrate, and understand the intelligence we
had.
Although NCTC and the Intelligence Community had long warned of the
threat posed by al Qa'ida in the Arabian Peninsula, we did not
correlate the specific information that would have been required to
help keep Abdulmutallab off that Northwest Airlines flight.
More specifically, the Intelligence Community highlighted the
growing threat to U.S. and Western interests in the region posed by
AQAP, whose precursor elements attacked our embassy in Sana'a in 2008.
Our analysis focused on AQAP's plans to strike U.S. targets in Yemen,
but it also noted--increasingly in the Fall of 2009--the possibility of
targeting the United States. We had analyzed the information that this
group was working with an individual who we now know was the individual
involved in the Christmas attack.
In addition, the Intelligence Community warned repeatedly of the
type of explosive device used by Abdulmutallab and the ways in which it
might prove a challenge to screening. Of course, at the Amsterdam
airport, Abdulmutallab was subjected to the same screening as other
passengers--he passed through a metal detector, which didn't detect the
explosives that were sewn into his clothes.
As I have noted, despite our successes in identifying the overall
themes that described the plot we failed to make the final
connections--the ``last tactical mile''--linking Abdulmutallab's
identity to the plot. We had the information that came from his father
that he was concerned about his son going to Yemen, coming under the
influence of unknown religious extremists, and that he was not going to
return home. We also had other streams of information coming from
intelligence channels that provided pieces of the story. We had a
partial name, an indication of a Nigerian, but there was nothing that
brought it all together--nor did we do so in our analysis.
As a result, although Mr. Abdulmutallab was identified as a known
or suspected terrorist and entered into the Terrorist Identities
Datamart Environment (TIDE)--and this information was in turn widely
available throughout the Intelligence Community--the derogatory
information associated with him did not meet the existing policy
standards--those first adopted in the summer of 2008 and ultimately
promulgated in February 2009--for him to be ``watchlisted,'' let alone
placed on the No Fly List or Selectee lists.
Had all of the information the U.S. had available, fragmentary and
otherwise, been linked together, his name would have undoubtedly been
entered on the Terrorist Screening Data base which is exported to the
Department of State and the Department of Homeland Security. Whether he
would have been placed on either the No Fly or Selectee list--again
based on the existing standards--would have been determined by the
strength of the analytic judgment. One of the clear lessons the U.S.
Government has learned and which the Intelligence Community will
support is the need to modify the standards for inclusion on such
lists.
In hindsight, the intelligence we had can be assessed with a high
degree of confidence to describe Mr. Abdulmutallab as a likely
operative of AQAP. But without making excuses for what we did not do, I
think it critical that we at least note the context in which this
failure occurred: Each day NCTC receives literally thousands of pieces
of intelligence information from around the world, reviews literally
thousands of different names, and places more than 350 people a day on
the watchlist--virtually all based on far more damning information than
that associated with Mr. Abdulmutallab prior to Christmas Day. Although
we must and will do better, we must also recognize that not all of the
pieces rise above the noise level.
The men and women of the National Counterterrorism Center and the
Intelligence Community are committed to fighting terrorism at home and
abroad and will seek every opportunity to better our analytical
tradecraft, more aggressively pursue those that plan and perpetrate
acts of terrorism, and effectively enhance the criteria used to keep
known or suspected terrorists out of the United States.
The Chairman. Thank you, Director Leiter.
Now the Honorable Lee Hamilton.
STATEMENT OF HON. LEE HAMILTON, CO-CHAIR, NATIONAL SECURITY
PREPAREDNESS GROUP, BIPARTISAN POLICY CENTER, AND FORMER VICE
CHAIRMAN, NATIONAL
COMMISSION ON TERRORIST ATTACKS UPON THE
UNITED STATES (9/11 COMMISSION)
Mr. Hamilton. Chairman Rockefeller, Senator Hutchison,
members of the Committee, Secretary Napolitano, and Director
Leiter, Tom and I, of course, are delighted to be with you.
And I think we are eternally grateful to the Members of the
U.S. Senate for the way in which they have followed up the
implementation of the recommendations of the 9/11 Commission.
The actions of the Senate, over a period of several years now,
have just been exceedingly good, from our standpoint.
My remarks will be, I hope, very brief and on target. They
will be directed principally to the questions of intelligence
and not so much to commerce.
I was gratified to hear from a number of you, as you spoke,
about the necessity of the--recognizing that the threat is real
and we have to reject complacency and recognize that that
threat is genuine. I think many of you emphasized that in your
remarks.
Tom and I appear here today as members of the National
Security Preparedness Group, which is a successor to the 9/11
Commission. It's made up of a number of people, evenly divided
between Republicans and Democrats. I think their names are
familiar to you; they're in the written testimony.
In the years since the passage of the Intelligence Reform
and Terrorism Prevention Act which created the Director of
National Intelligence and the National Counterterrorism Center,
it is our view that the U.S. Government has made significant
positive strides to correct the shortfalls that were obvious on
September 11. But, obviously we've seen, from the incidents at
Fort Hood and the skies above Detroit, there is a lot of work
to be done.
The DNI has been hobbled by disputes over its size, its
mission, and its authority. Nonetheless, the determination of
the terrorists to attack the homeland remains unabated,
demonstrated by these events, and, from our point of view,
understands the critical importance for creating and supporting
the DNI and the NCTC. It is imperative that the DNI and the
NCTC be successful in their vital and very complex missions
that they have been asked to undertake for the country.
We note with approval, as Director Leiter said a moment
ago, while other failures did occur, apparently the Christmas
attack was not a repeat of the failures to share information
that were evident on 9/11. That suggests to us that progress
has certainly been made and that agencies and analysts are
sharing critical information.
In an age when we are collecting more information than ever
before, the real challenge, it seems to us, is, how do you
understand, manage, and integrate vast amounts of information?
It's really a problem of data management. We need better
management of the data. And, of course, we have to look to the
state-of-the-art technology to help us better sort through
massive amounts of information to ensure the right people are
seeing it time to make a difference.
The greatest single challenge that arises from this
incident, in our view, is the urgent need to strengthen the
analytic process. We are pleased that the President has asked
the DNI to look at this issue, and he is certainly properly
situated in the community to assume a leadership role in that
respect.
Another lesson that emerged from the Christmas attack
reminded us of 9/11. We repeatedly said that one of the
problems there that--was, no one was in charge. Well, in a
sense, that's what's happened here. The intelligence community
is designated as ``in charge'' of running down all the leads
associated with a particular threat. We welcome redoubled
efforts to assure that responsibility for investigating leads
on potential threats are assigned, pursued, and acted upon
immediately and aggressively.
We need to do a better job of judging the sources of
potential attacks. We are seriously behind the curve when, as
the Director said a moment ago, we were not sufficiently aware
of a possible attack on the United States from Yemen.
The final point I want to make is that one of the things
that has always concerned me about intelligence is that, though
I think the intelligence community does a very good job, I
don't think they do as good a job as they should on longer-term
threats. It's quite understandable that they should concentrate
on the near-term. But, I think this is--this incident is an
example of it, so heavily concentrated on Iraq and Afghanistan
and Pakistan, for reasons that are obvious to all of us, that
we kind of did not see, or at least did not see sufficiently,
the kind of attack that could come to us from Yemen; a longer-
term perspective. And I think the intelligence community must
learn not only to focus on the immediate threats, but also
threats that are developing, as they were in Yemen.
I'd turn to Governor Kean.
[The prepared statement of Congressman Hamilton and
Governor Tom Kean follows:]
Prepared Statement of Congressman Lee Hamilton
and Governor Tom Kean, Bipartisan Policy Center
I. Introduction
We are very happy to appear before you today. As Chairman of the
Intelligence Committee Senator Rockefeller made numerous contributions
to our national security and we are glad to be back with you again.
Today, we are appearing in our capacity as Co-Chairmen of the
Bipartisan Policy Center's National Security Preparedness Group (NSPG),
a successor to the 9/11 Commission. Drawing on a strong roster of
national security professionals, the NSPG works as an independent,
bipartisan group to monitor the implementation of the 9/11 Commission's
recommendations and address other emerging national security issues.
NSPG includes the following membership:
Mr. Peter Bergen, CNN National Security Analyst and Author,
Schwartz Senior Fellow at the New America Foundation.
Dr. Bruce Hoffman, Georgetown University terrorism
specialist.
The Honorable Dave McCurdy, former Congressman from Oklahoma
and Chairman of the U.S. House Intelligence Committee,
President of the Alliance of Automobile Manufacturers.
The Honorable Edwin Meese III, former U.S. Attorney General,
Ronald Reagan Distinguished Fellow in Public Policy and
Chairman of the Center for Legal and Judicial Studies at The
Heritage Foundation.
The Honorable Tom Ridge, former Governor of Pennsylvania and
U.S. Secretary of Homeland Security, Senior Advisor at Deloitte
Global LLP, Ridge Global.
The Honorable Frances Townsend, former Homeland Security
Advisor and former Deputy National Security Advisor for
Combating Terrorism.
Dr. Stephen Flynn, President, Center for National Policy.
Dr. John Gannon, BAE Systems, former CIA Deputy Director for
Intelligence, Chairman of the National Intelligence Council,
and U.S. House Homeland Security Staff Director.
The Honorable Richard L. Thornburgh, former U.S. Attorney
General, of Counsel at K&L Gates.
The Honorable Jim Turner, former Congressman from Texas and
Ranking Member of the U.S. House Homeland Security Committee,
Arnold and Porter, LLP.
Mr. Lawrence Wright, New Yorker Columnist and Pulitzer Prize
winning author of The Looming Tower: Al Qaeda and the Road to
9/11.
The Honorable E. Spencer Abraham, former U.S. Secretary of
Energy and U.S. Senator from Michigan, The Abraham Group.
Over the course of 2009, our group met with Obama Administration
and former senior officials from the Bush Administration, including:
Director of National Intelligence, Admiral Dennis Blair
(July 2009).
CIA Director Leon Panetta (July 2009).
Secretary of Homeland Security Janet Napolitano (July 2009).
FBI Director Bob Mueller (September 2009).
Former CIA Director Mike Hayden (September 2009).
Former DNI Mike McConnell (September 2009).
We will also meet with Deputy National Security Adviser John
Brennan next week.
We believe the strength of our group will allow us to be a voice on
national security issues and a resource to you and the executive
branch. First and foremost, we are here to help play a constructive
role in support of your work.
* * * * * *
*
Since the 9/11 attacks 8 years ago and the release of our
Commission report 5 years ago, the Federal Government has implemented
many changes in America's homeland security and intelligence apparatus.
As demonstrated by the recent attempted terrorist attack in the
skies over Detroit, the threat remains strong. We must reject
complacency and recognize we still face a serious threat from
organizations like Al-Qaeda. Al-Qaeda's core is still active,
individuals are still being radicalized in Western countries and
motivated to commit violence, and homegrown lone actors are still a
risk. As our colleague Bruce Hoffman observed, ``al Qaeda is on the
march, not on the run.'' This is not a reason for panic but for a
concerted, comprehensive effort.
Recently the 5 year anniversary of the Intelligence Reform and
Terrorism Prevention Act passed and in recent months our group has been
studying the implementation of the 9/11 Commission's recommendations,
especially the state of intelligence reform, and new threats to our
national security. Many of the findings in that report hold true today
and can help guide our response to the attacks at Fort Hood and on
Christmas Day.
Intelligence Coordination and Management
At their core, the problems evident on September 11, 2001, were
about the failures and obstacles to sharing information among the
Federal partners charged with protecting the country. And even if that
information had been made available, there was no one in the Federal
Government charged with fusing together intelligence derived from
multiple foreign and domestic sources.
To facilitate information-sharing and to create an entity whose job
it would be to connect the dots, the bipartisan 9/11 Commission
recommended, and the Congress and the President established, a Director
of National Intelligence (DNI) and a National Counterterrorism Center
(NCTC).
The DNI would be charged with breaking down bureaucratic, cultural,
technological, and policy barriers to the sharing of information among
Federal agencies and the NCTC would be the hub, the ``primary
organization in the U.S. Government for analyzing and integrating all
intelligence.'' The idea was for the DNI to ensure information-sharing
so the NCTC could access and assess all available relevant information
and then connect disparate pieces of threat information to aid in
preventing future attacks.
In the 5-years since the passage of the Intelligence Reform and
Terrorism Prevention Act, the U.S. Government has made significant
strides to correct the shortfalls and mistakes evident on September 11,
2001. But as we've seen from the recent terrorist incidents at Fort
Hood and in the skies above Detroit, there is still work to be done.
The DNI has been hobbled by endless disputes over its size,
mission, and authority. Nonetheless, the determination of the terrorist
to attack the homeland remains unabated as demonstrated by these events
and underscores the critical need for creating the DNI and the NCTC. It
is imperative that the DNI and the NCTC to be successful in the vital
missions they have been asked to undertake for the country.
We welcome the President's recent review of the Christmas attack
and we should continue to study this incident and the attack at Fort
Hood so we can apply their lessons to making the country safer. Here
are some of our preliminary observations:
Information sharing and Connecting the Dots. The 9/11
Commission found that the biggest impediment to all-source
analysis--to a greater likelihood of connecting the dots--is
human or systemic resistance to sharing information whether
collected outside the U.S. or inside the U.S. bearing on
threats pertaining to international terrorists. We recommended
providing incentives for sharing information within the
Intelligence Community. We note with approval that, while other
failures did occur, apparently the Christmas attack was not a
repeat of the failures to share information that were evident
on 9/11. That suggests to us that progress has been made and
that agencies and analysts are sharing critical information.
However, it is not clear whether the NSA intercepted
conversations referenced in news reports were widely shared.
The incident points out two additional challenges that need to
be addressed:
Rather than a failure to share information, the
Intelligence Community is awash with data. In an age when
we are collecting more information than ever before, the
real challenge is how do you understand, manage, and
integrate vast amount of information. The DNI needs to
develop ways of dealing with intelligence information
overload. At the same time, we need to do a better job of
pushing information to the right people within the
Intelligence Community. We welcome President Obama's order
to distribute intelligence reports more quickly and widely.
We need better management of the data and to look to
technology to help us better sort through massive amounts
of information to ensure the right people are seeing it in
time to make a difference. The technology we use must be
state-of-the-art, constantly upgraded to quickly put
information together and it must be properly placed
instantaneously so better analysis can occur.
As President Obama said, there was a failure to
connect the dots. With more rigorous analysis, we might
have been able to connect disparate pieces of information
that might have foretold of the Christmas plot. The
greatest single challenge that arises from this incident in
our view is the urgent need to strengthen the analytic
process. We are pleased the President asked the DNI to look
at this issue. The DNI was charged by the Congress in the
Intelligence Reform Act to ensure the highest analytical
standards within the Intelligence Community. The DNI is
properly situated within that Community to assume a
leadership role in applying more rigorous standards to
analytical tradecraft. Congress should also support these
entities by giving the DNI and the NCTC the resources they
need and the ability to recruit and keep the best people.
Designating Someone in Charge. Another lesson from the
Christmas attack is that we need to do a better job of ensuring
that someone within the Intelligence Community is designated as
``in charge'' of running down all leads associated with a
particular threat stream. As John Brennan indicated, we did not
follow up and prioritize the intelligence indicating that al
Qaeda in the Arabian peninsula sought to strike the homeland
because no one intelligence entity or team or task force was
assigned responsibility for doing that follow up investigation.
In our investigation of the 9/11 attacks, we frequently saw
confusion about roles, responsibilities, and missions and we
welcome redoubled efforts to assure that responsibility for
investigating leads on potential threats are assigned, pursued,
and acted upon immediately and aggressively.
We need to do a better job of judging sources of potential
attacks properly. As the President's review has shown, we had a
``strategic sense'' that Al Qaeda in the Arabian Peninsula was
becoming a threat, but ``we didn't know they had progressed to
the point of actually launching individuals here.'' This at
once shows the need for improved collection and better
analysis. We collect a tremendous amount of intelligence and we
need the very best people not only sorting through it for
tactical details, but in a strategic sense asking where the
next attack will come from.
No Sanctuaries. Finding that our attackers on 9/11 benefited
from the time, space, and command structure afforded in
Afghanistan, the 9/11 Commission placed great emphasis on
identifying and prioritizing actual or potential terrorist
sanctuaries. We recommended strategies employing all elements
of national power to keep terrorists insecure and on the run.
We're fortunate that the attack on Christmas emanating from
Yemen did not succeed and this episode reminds us of the need
to identify other potential sanctuaries. As our colleague Bruce
Hoffman observed: ``Al Qaeda is aggressively seeking out,
destabilizing and exploiting failed states and other areas of
lawlessness . . . and over the past year has increased its
activities in places such as Pakistan, Algeria, the Sahel,
Somalia, and of course Yemen.'' The U.S. should take a fresh
look at these areas and deepen our commitment to ensuring al
Qaeda cannot exploit those territories.
The Effectiveness of the Director of National Intelligence
We would like to say a word on the state of intelligence reform and
the effectiveness of the DNI. After 5 years of experience with the new
intelligence system, we are frequently asked, is it working? Our NSPG
has been conducting a review of the Intelligence Reform and Terrorism
Prevention Act and the effectiveness of the DNI and has begun work
intended to help answer this question.
We have more work to do but our preliminary answer is that the DNI
has achieved a meaningful measure of success in its first years--that
has made it worth the inevitable turmoil--but is a work in progress
closer to the beginning of reform than the end.
Some of the successes in the last 5 years include progress on
information-sharing, a joint-duty program, and despite the failures
evident in the Christmas attack, the National Counter Terrorism Center.
Since September 11, 2001, the NCTC and other government agencies have
repeatedly connected the dots and shared information necessary to
defeat terrorist attacks. Improvements have clearly been made although
that sharing is not as prompt and seamless as it should be.
But the DNI and the NCTC need most of all is the unyielding support
of the President and the Congress if those organizations are going to
achieve their role in integrating the Intelligence Community.
We as a country gave the DNI a hard job and a gargantuan to do-
list, including:
Solving systemic and longstanding information-sharing issues
among Intelligence Community entities, especially to break down
the ``wall'' between foreign and ``domestic'' intelligence, and
to create an architecture to enable such sharing;
Serving as the President's Principal Intelligence Advisor;
Developing a national intelligence budget across all
intelligence agencies;
Overseeing billions of dollars of intelligence community
acquisitions;
Improving the quality of intelligence analysis, especially
to guard against ``group-think,'' and to manage an intelligence
process that is inclusive of a variety of view points;
Facilitating a ``culture change'' within the Community by
establishing a joint duty system, modeled on DoD's Goldwater-
Nichols, to enable personnel to rotate assignments within the
intelligence community;
Bringing a mission focus to the IC by creating a group of
Mission Managers ``responsible for all aspects of the
intelligence process to those issues'' and leading centers like
National Counter Terrorism Center and National
Counterproliferation Center.
The DNI was given substantial authorities to accomplish these
missions. The DNI must be the person who drives inter-agency
coordination and integration. We are concerned about the expanding
growth and bureaucracy of the DNI and we urge vigorous reevaluation of
all its functions to assure its leanness. The DNI's authorities must be
exercised with discretion and consideration of the priorities and
sensitivities of other intelligence agencies.
However, to be sure, there are ambiguities in the law. These
ambiguities can contribute to mission confusion and lack of clarity
about lanes in the road. But the burden is on the President to be clear
on who is in charge of the Intelligence Community and where final
authority lies on budget and personnel matters. The President's
leadership is crucial and must be continuing or we run the risk of
mission confusion and decrease the prospect of long and lasting reform
that was recommended after September 11, 2001.
Privacy and Civil Liberties
The balance between security and liberty will always be a part of
the struggle against terrorism. America must not sacrifice one for the
other and must be in the business of protecting freedom and liberty as
well as fighting terrorism. Following the 9/11 Commission
recommendations, the Bush Administration created a Privacy and Civil
Liberties Oversight Board to advise the Executive Branch and oversee
government efforts to defend civil liberties. The board was staffed and
became operational in 2006. In 2007, Congress restructured the Board as
an independent agency outside the White House. Despite early
accusations of undue delay and inadequate funding, the Board held
numerous sessions with national security and homeland security
advisers, the attorney general, and the FBI director, among others, on
terrorist surveillance and other issues arising from intelligence
collection.
However, the Board has been dormant since that time. With massive
capacity to develop data on individuals, the Board has to be the
champion of seeing that collection capabilities do not intrude into
privacy and civil liberties. We continue to believe that the Board
provides critical functions and we urge President Obama to reconstitute
it, quickly appoint its Members, and allow them full access to the
information and the authority to perform to perform this essential
function.
Congressional Oversight
The 9/11 Commission also placed great importance on rigorous
Congressional oversight. This recommendation helped precipitate the
creation of a House Homeland Security Committee and a Senate Homeland
Security and Governmental Affairs Committee. However, enduring
fractured and overlapping committee jurisdictions on both sides of the
hill have left Congressional oversight in a unsatisfactory state. DHS
entities still report to dozens of separate committees hundreds of
times per year, which constitutes a serious drain of time and resources
for senior DHS officials. Further, the jurisdictional melee among the
scores of Congressional committees has led to conflicting and
contradictory tasks and mandates for DHS. Without taking serious
action, we fear this unworkable system could make the country less
safe.
The 9/11 Commission also called Congressional oversight over
intelligence dysfunctional. We made recommendations to strengthen the
oversight committees which were not accepted by the Congress though
some progress has been made. Today we want to emphasize the enormous
importance we attach to rigorous oversight of the intelligence
community. Congressional oversight can help ensure the intelligence
community is operating effectively and help resolve disputes about
conflicting roles and missions. We urge the Congress to take action to
strengthen the oversight capabilities of the intelligence committees.
STATEMENT OF HON. TOM KEAN, CO-CHAIR, NATIONAL
SECURITY PREPAREDNESS GROUP, BIPARTISAN POLICY CENTER, AND
FORMER CHAIRMAN, NATIONAL COMMISSION ON TERRORIST ATTACKS UPON
THE UNITED STATES (9/11 COMMISSION)
Mr. Kean. Thank you, Lee. And thank you, Chairman
Rockefeller, and--I'm sorry--Vice Chair--there. It's on now?
Thank you.
The Chairman. Thank you for being here.
Mr. Kean. Thank you, Mr. Chairman, and I thank you----
The Chairman. I tend to think of you two as founding
fathers.
[Laughter.]
Mr. Kean. Thank you.
But, the--I would mention to the Committee, by the way,
something that Mr. Leiter also said, that it seems remarkable
to me--we have here in the room with us today, again, members
of the people representing the families of 9/11--it is
remarkable to me that all these years after they suffered that
tragedy, that they're here, hearing after hearing, that I talk
to them on the phone all the time, that they have never flagged
one minute in their efforts to make sure that that never, ever
happens to families again. They're a remarkable group of
people, and I just want to commend them to you today.
Senator Hutchison. That's very impressive. That is.
Mr. Kean. Yes.
The--I'd like to say just a word about the effectiveness
of--again, of the DNI. We're frequently asked, Lee and I, both
of us, ``How is it working?'' You know, ``How is it working?''
And so, we've been trying, in our new group, to conduct a
review of the Intelligence Reform and Terrorism Prevention Act,
and see just how effective the DNI is. And we began our work to
try and answer that question.
We have a lot more work to do, obviously, but what we can
see already is that the DNI has achieved a meaningful measure
of success in its first years, has made it, probably,
hopefully, worthwhile--the inevitable turmoil. But, it's a work
in progress, and it's probably closer to beginning of reform
than the end.
Some of the success of the last 5 years include progress on
information-sharing, a joint-duty program, and, despite the
failures evident in this attack we've been talking about on
Christmas, the National Counterterrorism Center.
Since September 11, 2001, the NCTC and other government
agencies have repeatedly connected the dots. And they have, in
the past, shared the information necessary to prevent terrorist
attacks. Improvements have clearly been made, although that
sharing is not as prompt nor as seamless as we would like it to
be.
But, what the DNI and the NCTC need most of all, in our
opinion, is the unyielding support of the President and the
Congress, if those organizations are going to achieve their
role in integrating the intelligence community in preventing
these attacks.
You know, we all gave the DNI a very, very difficult job
and a gargantuan to-do list, and the DNI was given the
substantial authorities to accomplish those missions.
We are concerned about the expanding growth of bureaucracy
of the DNI, and we urge vigorous reevaluations of all its
functions, to assure that it's lean and efficient. The DNI's
authorities must be exercised with discretion and consideration
of the priorities and sensitivities of the other intelligence
agencies that it works with.
However, to be sure, there are still ambiguities--excuse
me--in the law that you passed. These ambiguities can
contribute to mission confusion and sometimes a lack of
clarity, perhaps, in the lanes in the road. But, the burden is
on the President to be clear on who is in charge of the
intelligence community, and where final authority lies on
budget and on personnel matters. Absolutely crucial here is the
President's leadership, or we run the risk of mission confusion
and a decrease in the prospect of long and lasting reform that
was recommended after September 11, 2001.
Let me say just a couple of other matters here before I
close:
The Chairman mentioned, in his opening remarks, the
problems and the balance that always has to occur between civil
liberties and the need to keep ourselves safe. This will always
be part of the struggle against terrorism; we'll face these
decisions all the time. And we can't sacrifice one for the
other. We have to keep both. We are in the business of
protecting freedom and liberty as well as fighting terrorism.
Now, we have recommended a board. This board has been
dominant for a couple of years, and the Congress passed that
legislation. With a massive capacity to develop data on
individuals, this board--civil liberties board--has to be the
champion of seeing that collection capabilities do not
include--do not intrude unnecessarily into privacy and civil
liberties. We continue to believe that that board, that we
recommended and the Congress put into being, has critical
functions and should be established. It doesn't now exist. The
President has not yet appointed the members. So, we urge
President Obama to reconstitute it, quickly appoint its
members, and to allow them full access to the information and
the authority to perform and do this essential function.
Now, you are doing exactly what is required, here in this
room today. Nothing, probably, is as important in this whole
intelligence area than your oversight, Congressional oversight.
And we placed a tremendous amount of importance to that in our
report. I know our recommendations helped make the creation of
a House Homeland Security Committee and a Senate Homeland
Security Committee and Governmental Affairs Committee. However,
there is enduring, fractured, and overlapping committee
jurisdictions. And that's true on both sides of the Hill. And
this has left Congressional oversight, in our opinion, not yet
in a satisfactory place.
DHS entities still report to dozens of separate committees
hundreds of times per year, and that takes, as every Secretary
has told us, a tremendous drain on their time and resources for
their most senior officials.
Furthermore, the additional melee among scores of
Congressional committees has led to conflicting and
contradictory tasks and mandates for DHS.
Now, we worry that unless we work to fix this system, it's
unworkable and it could make this country less safe.
We also called Congressional oversight over intelligence
dysfunctional, at the time of our report. We made
recommendations to strengthen the oversight committees, which
were not accepted by the Congress, although undoubtedly some
progress has been made.
Today, we'd just like to emphasize the tremendous, enormous
importance we attach to rigorous oversight of the intelligence
community. Congressional oversight can help ensure the
intelligence community is operating effectively and help
resolve disputes about conflicting roles and missions when they
occur.
So, we urge you all--the Congress--to take action to
strengthen the oversight capabilities of the intelligence
committees, because we think if you don't oversee intelligence,
nobody does. And we would commend you--commend that task to
you.
Thank you.
The Chairman. Thank you, Governor, very much.
There's no way that I can agree with you more about the
need for oversight. It's really the only instrument that the
legislative branch has. And it--because of its classified
nature, it's reserved, really, to two--for the most part, to
two committees, one in each house. And I do know that over the
last number of years, what--the basic changes that have been
made are, in fact, to take the Intelligence Committee, which
was a so-called ``B committee,'' to make it an ``A
committee''--more budget. And second, it was term-limited. It
was term-limited to 6 years or 8 years, I forget which it was.
But, we got rid of that. So, now members are on permanently, at
the discretion of their respective leaders in their respective
parties in both houses.
A great deal of the experience of the Iraq and Afghan war
were, in fact, trying to bludgeon--you know, I--there are all
kinds of words I could use for it--to try and pry out from the
administrations--both administrations, Republican and
Democrat--who hold on--people think that the Intelligence
Committees own the intelligence, they have the intelligence.
They don't. They only get what the Administration is willing to
give them. And so, sometimes you have to use strong-arm
tactics. Somebody says, ``I need a deputy.'' I said, ``I need
full information.'' I used that tactic once, and it worked. A
DNI got a deputy director because he agreed that he would brief
not just the gang of six, the gang of four, the gang of eight,
and all of that nonsense of earlier years, but the entire
committee. And so, that's the--that doesn't say that we're
getting what we should be or that we're doing what we should be
with what we get, but it does mean, at least, the process is
headed in the right direction. And all of the folks involved--
and I feel very strongly about that.
Let me just--I've already used a lot of time. I'm just
fascinated, Secretary Napolitano, with this concept of
screening watch lists. We've got the TIDE database. We've got
the terrorist screening database. We've got the Selectee--
that's--the first is 550, the second is 430 individuals. And
then we go to the Selectee, 14,000; and the No Fly, 3,400.
My question and my frustration is--and, Director Leiter, I
think that you said that there was movement to restrict even
further the No Fly List. I think you said that.
Mr. Leiter. Prior to December 25----
The Chairman. Yes.
Mr. Leiter.--we experienced----
The Chairman. But, see, that's so wrong. I don't understand
why, for example--with this Farouk, Abdulmutallab, why is it
that he can get on a list, which comes back from the State
Department and goes to--it's classified, but I know where it
is. And so, it's not possible to say that there is not some
cause for doubt about him as a person, but he doesn't end up on
any list that means anything. So, he just cruises right on
through, gets his 2-year visa, Lagos, Amsterdam, Detroit, no
problem; 2-year visa. I don't understand--well, the question I
want to ask is, Do you think that there is--Secretary
Napolitano, particularly--both of you--that there is--that
there's a false sort of division of databases and groups that
you move from one to another?
You know, my instinct, just as an individual citizen, is
that the ``No Fly List'' ought to be a whole lot larger. Why do
we make the assumption that, because somebody's on the--you
know, the terrorist screening database list, et cetera, that
that doesn't--that's, you know--and they're determined--NCTC
and the--conjunction with the FBI--they determine they're known
or reasonably suspected terrorists, but they can still fly. And
they're not even on the ``Selectee List,'' much less the ``No
Fly List.'' I don't understand those divisions. Should they be
rethought, in view of what happened on Christmas, or do you
think I'm overreacting?
Secretary Napolitano. Mr. Chairman, first of all, that is
an integral part of the review and the actions that the
President has directed, that that entire set of processes and
protocols that were set up to move from the larger to the more
specific, in terms of the databases, be relooked at, in light
of what happened on December 25, and in light of what could
happen in the future. So, it shouldn't just be reactive, but
also proactive.
As I said before, you know, the CBP looks at the--and these
are protocols that have been in existence for a number of
years--but they look at the----
The Chairman. You'd better explain----
Secretary Napolitano.--No Fly List.
The Chairman.--``CBP'' to us.
Secretary Napolitano. Customs and Border Protection.
They look at the ``No Fly List'' and the ``Selectee List,''
in terms of what happens internationally. That, too, is
something that may need to be reexamined. But, I think the real
heart of your question goes to the watch list, their systems,
their creation overall. And let me defer to Director Leiter on
that.
Mr. Leiter. Mr. Chairman, the basic question, should the
distinctions and differences be reevaluated? The simple answer
is, ``Absolutely. Yes.'' And that's what the President has
directed, and we want to.
I will say, there is an enormous variation between
different people on those watch lists. It ranges from the
person who's associated with the financier to the operative.
Now, the standards that have evolved since 9/11--and again,
were promulgated in 2008 and 2009--made us make distinctions
which are readily apparent after 12/25--are distinctions that,
I believe, the Congress and the American people are very
uncomfortable with. And I believe that it would make much more
sense, in light of the reaction we have seen, to have many more
people on the No Fly List or the Selectee List than we do
today.
My only point about the pressure was, I will tell you,
prior to December 25 of this year, the pressure had been, in
fact, in the exact opposite direction. The pressure was to
remove and scrub those No Fly and Selectee Lists and the watch
lists, to inconvenience as few people as possible, and reduce
the number of false positives. That was the pressure under
which we existed, and I am more than happy--and, as the
President has directed us to do, we are going to reevaluate
that, based on the events.
The Chairman. Good.
I'm going to call on, obviously, Senator Kay Bailey
Hutchison. After that will be Senator Dorgan, followed by
Senator Begich, who appears to be missing an opportunity to ask
a question.
STATEMENT OF HON. MARK BEGICH,
U.S. SENATOR FROM ALASKA
Senator Begich. Mr. Chairman, I have to co-chair a hearing
at 4 o'clock.
The Chairman. OK.
Just preside over the Senate?
Senator Begich. No. An actual----
The Chairman. Oh, OK.
Senator Begich.--a real work meeting.
The Chairman. Oh, a real--OK, OK.
[Laughter.]
The Chairman. OK.
The Chairman. Anyway--Senator Hutchison.
Senator Hutchison. Thank you, Mr. Chairman.
I just want to ask one more question along the same lines
as the Chairman's, and that is about the association with the
Yemeni cleric who used to operate out of Maryland. After the
Fort Hood incident, it would seem that there would be a deep
look into everything that might be associated or connected with
that particular cleric. And so, my question is, Why wouldn't
Mr. Abdulmutallab's association with that same cleric have been
enough to get him on the database, to at least have a big
yellow flag, if not a red one?
Mr. Leiter. Absolutely, Senator.
To begin, immediately after Fort Hood--and this is
continuing--we have, in fact, engaged an interagency--CIA, FBI,
National Security Agency, NCTC--scrub of all of Anwar al-
Awlaki, looking at his various contacts, to determine who poses
a threat. What----
Senator Hutchison. And then, would those people that he has
tentacles to, now be put on watch lists? I mean, can we be
assured of that?
Mr. Leiter. Those individuals--it depends. It depends on
the nature of those communications. In some cases, under the
existing standards, were someone to send--you know, communicate
in a way which was completely innocent, it might not put that
person on the No Fly List; it might put that person on a
different layer of the list. And, of course, the list itself,
and being placed on that list cannot be based purely on
protected First Amendment activity. So, there may be some
issues there.
With respect to Mr. Abdulmutallab----
Senator Hutchison. Let me just ask you one----
Mr. Leiter. Of course.
Senator Hutchison.--one thing more, though.
OK, you had the Yemeni connection. And then you had the
man's father, who raised a flag of some kind. Do you have the
capability to merge that kind of information and raise the
level on someone like that?
Mr. Leiter. Absolutely, Senator. And, in fact, the failure
here, and the failure on our part and elsewhere, was not making
that connection. It was not making that connection between what
the father came in and said and other sources of intelligence.
Now, some of those sources of intelligence weren't flagged in a
way that made it more likely that that intelligence would be
connected. So, there were some failings there. But, also, the
basic act of seeing all that intelligence and piecing it
together is what we did not do.
Senator Hutchison. But, let me----
Mr. Leiter. But, undoubtedly, had it been, he could have
been at a higher level of watch list.
Senator Hutchison. OK, let me ask you this, because it goes
back to the first thing that the Chairman said in his opening
statement. Do we have the tools now to communicate, completely
and effectively, without bureaucratic mumbo-jumbo, between
intelligence sources and security forces on the ground, so that
you can put those kinds of different levels of an awareness
together to raise it to a substantial awareness level?
Mr. Leiter. Senator, this is going to be hard to believe,
but probably the single best example, where we go from the most
classified sense of intelligence down to the operator in the
field--and this is true even after 12/25--is, in fact, the
watch list. The problem here was not that that information did
not flow, because it can flow quite easily to the police
officer in the street, to the visa officer, to the Customs and
Border Protection officer. The problem is, we didn't have the
right derogatory information associated with that record. So,
we hadn't connected the intelligence to raise the flag, but the
information could have flowed quite easily.
But, a second piece of your question is, do we have the
systems in place that make it easy to connect those pieces of
data in the first instance? And the answer is, yes, in some
places, and not nearly enough so in others. Some agencies are
far ahead of others, and we still have, clearly, some systems
which are so rudimentary and basic that they're not doing a
good job of that. For example----
Senator Hutchison. OK.
Mr. Leiter.--the State Department's visa system, where,
when they mistype one letter in the name, his visa does not
come up. I consider that a significant weakness in the
technological system that enables effective information-
sharing.
Senator Hutchison. OK. I guess my final question, to try to
just get to the nugget, is, Do you have all of the authority to
do what needs to be done? And I'm not even saying this is easy,
because I know if a father comes in and says, ``I think my son
is someone you should watch,'' maybe that, in itself, by
itself, isn't enough. But, then you have the Yemeni cleric, and
maybe that wasn't quite enough to also matter. But, together,
you've got to be able to say----
Mr. Leiter. Absolutely.
Senator Hutchison.--``OK, put this together, and it's
really big.'' So, do you have the authority--and, Madam
Secretary--do you all have the authority to get to the heart of
this and not have all these constraints and different
bureaucracies and different rules and all of the confusion that
seems to maybe exist sometimes?
Mr. Leiter. Senator, I'll try to be very brief.
I think the basic system structure works. But, there are
four areas which, undoubtedly, we need to focus:
One is technology. The technology is not as advanced as it
needs to be to connect all of these pieces.
Second, in terms of authorities, to make sure that people
are following up in the way they need to follow up. Those
authorities, frankly, to the National Counterterrorism Center,
were purposefully vague, and we are now working with the White
House, through the President's direction, to make sure there is
accountability.
Third, we simply need the people to do it, because you can
have the best Google-like tool in the world; you need the
people to work that watch list and look at that information.
And fourth, I think----
Senator Hutchison. Are you saying we don't have enough
people on the job? Is that----
Mr. Leiter. I think--absolutely. As I tried to make clear,
we did not have enough people to put on this Yemen problem, and
we did not shift people away from other problems quickly
enough. And now, what we've been directed by the President to
do, I think there will be a resource tail to make sure you can
pursue these minute leads in a way that you can have greater
confidence that they will be tracked down and will be connected
exactly the way you and the American people expect and deserve.
Secretary Napolitano. Senator, I--what I would add to that
is--again, the international dimension of this is so very
important. You know, he traversed two international airports,
Lagos and Amsterdam. Every airport--not every airport in the
world operates at the same level of security standards. We also
need, I think, quite frankly, to work more closely on the
international scale, in terms of sharing information about
individuals--who's had a visa revoked, and why, for example.
And so, that is part and parcel of the corrective action that
we are taking.
Senator Hutchison. Thank you.
The Chairman. Thank you very much.
This is--this list, which changes as people come in and go
out, which is what always happens, which is fine--is done in
order of original appearance so that it's fair, although some
may like it more than others.
Senator Dorgan.
Senator Dorgan. Senator Rockefeller, thank you very much.
I am not exactly clear on all of this, so--and I know it's
complicated. I wasn't sure, back in 2002, whether creating the
Department of Homeland Security was the right thing to do. We
put 22 agencies together, in the biggest merger of Federal
agencies since the second world war. Maybe that's the right
thing, but it--we put a lot of different cultures together.
And then the question of DNI; it wasn't clear to me whether
it was very smart to do that. I--although I understood, we had
all these stovepipes sticking up and nobody trying to
coordinate them. So, I understood that wasn't working very
well.
But, as I understand it now, we have--we now have 16
different agencies involved in the intelligence system; eight
agencies involved in the watch-listing process--those eight
agencies in the Terrorist Identities Datamart Environment. Then
we have, I believe, three different agencies involved in
placing individuals on the terrorist screening database. And
only then would Homeland Security come in and make decisions
about placing individuals on either a No Fly List or a Selectee
List. And maybe that's a--maybe that's not exactly correct, but
it seems to me you've got a lot of agencies doing a lot of
different things.
What I don't understand is this. When we created DNI, we
were going to try to deal with these stovepipes. So, what
happens--if you can tell me in an unclassified situation--what
happens when a father comes and says to our intelligence
community, ``Look, I've got a kid out there''--and I've seen
some rumors about what the conversation was, but, ``I've got a
kid out there that's gone wrong. It appears to me there are
some--you ought to have some concerns about some links to
terrorism.'' What happens to that information? Where did it go?
And where was the failure?
Secretary Napolitano. If I might, before--I'm going to----
Senator Dorgan. All right.
Secretary Napolitano.--defer to Mike again, but, there was
something in your question that was not correct, and----
Senator Dorgan. All right.
Secretary Napolitano.--it's that DHS does not create the
Selectee or the No Fly List. We receive the Selectee or the No
Fly List, and that is then used by CBP officials at foreign
airports to advise foreign governments or foreign air carriers,
as the case may be, about particular individuals.
Senator Dorgan. All right.
Secretary Napolitano. I just want to be----
Senator Dorgan. Thank you.
Secretary Napolitano.--clear about that.
Senator Dorgan. Thank you.
Mr. Leiter?
Mr. Leiter. Two things should have happened when that
father came in. One thing happened, one thing did not.
The first thing is, the agency that received that sent a
message back to headquarters, and that message was also
available to NCTC. That's the good. Not so good, it was not
disseminated in a way that it was widely available to the rest
of the intelligence community. Now, I do want to stress, that's
still different from what happened on 9/11; that was simply----
Senator Dorgan. Why was it not disseminated?
Mr. Leiter. It was, fundamentally, the oversight and
mistake of an individual office, and I believe the director--
Director Panetta--Leon Panetta--has already taken steps to
solve that problem.
Senator Dorgan. Was there a process or procedure that was
ignored? Or was it a person that made a mistake? Tell me----
Mr. Leiter. Senator, I'd actually prefer--happy to take it
up with you in some sort of closed session. But, also, I would,
frankly, like to defer to Director Panetta, who can speak more
specifically to the procedures of that agency.
But, the information was somewhat available.
The second thing that should have happened, and did happen,
was, after that meeting, the State Department and the embassy
had a--the country team had a meeting to say, Was this person
someone that they had to be worried about? And they in turn
nominated him to the Terrorist Identities Datamart Environment
at NCTC as a possible terrorist, based on this interview. That
occurred; he was nominated; he was placed on the watch list.
The one thing that did not occur there was, again, when they
checked to see if he had a visa, they misspelled his name, and
hence, did not discover he had a visa.
Senator Dorgan. Yes, they misspelled the last name,
apparently?
Mr. Leiter. Correct.
Senator Dorgan. And so, one of the intercepts--I'm--
understand one of the earlier intercepts actually had his two
first names.
Mr. Leiter. Umar Farouk----
Senator Dorgan. Yes.
Mr. Leiter.--that's correct.
Senator Dorgan. And so, there's a--there's his father;
there's an intercept with two first names that were spelled
correctly; there's an intercept about maybe something December
25; there's an intercept with somebody from Nigeria and a
possible action. And so, we have all these things. I guess I'm
wondering, with all these agencies--sixteen and eight and
three, or whatever--is there somebody that's sitting around,
that--as a result of DNI, that gets rid of stovepipes, and you
bring it in to a desk or a room or some situation room, and
somebody gathers all that and says, ``Aha. I see. This is a
puzzle, and I just got the five pieces. I've put the five
pieces together. And we got a guy out there that's trouble, and
we're going to make damn sure he's not on an airplane''?
Mr. Leiter. Senator, the primary responsibility for doing
that was mine, as the Director of National Counterterrorism
Center, NCTC. Also with responsibility, pursuant to the
President's conclusions, and consistent with past practice, was
the CIA. We both had responsibility to do that, and we didn't
do that. Now----
Senator Dorgan. Well, I understand--from an organization,
and from heading an organization, I understand what you're
saying, and I admire that. But, I'm asking, In the
organization, do you have a group of people who are sitting
there, pulling all that--those pieces together, to say, ``Aha.
Now we see something that's about to happen, and we're going to
take action''?
Mr. Leiter. Senator, two pieces of that. One, I will tell
you that, although I can't speak to it fully in an open
session, part of what you cited in the press reports was, in
fact, discussed in analytic products that we provided to
policymakers concerned with operations. What we did not know,
and what we did not connect, is exactly who and where. So, we
were in fact concerned of an operation, but we hadn't pieced
those pieces together.
But, second, if I may, Senator.
Senator Dorgan. Yes, of course.
Mr. Leiter. One of the reforms that we've already started
to initiate, and which I think is critical and does have some
repercussions in terms of the need for people, is to put
together exactly the teams that I think you imagine. And their
sole job is not to write intelligence for policymakers, but
their sole job is to dig into, in an interagency way, with all
the information, these bits of data, and piece them together
and uncover the plots.
Senator Dorgan. Mr. Chairman, my time is expired.
Let me thank--I have other questions I'm going to submit,
if I might.
And let me also say to you that I see there are other
relatives of the--the victims of the Colgan crash. I want to
mention that they are here, too. And they are at every hearing
that we hold dealing with the issue of safety. And I admire the
passion with which they now serve their country, coming to
these hearings.
The Chairman. Thank you, Senator Dorgan.
And now Senator Lautenberg.
Senator Lautenberg. Thank you very much, Mr. Chairman.
Because we have so many questions that we'd like to ask,
and the time not permitting that, can we be assured, Mr.
Chairman, the record will be kept open and that the witnesses
are instructed to----
The Chairman. Absolutely.
Senator Lautenberg.--respond----
The Chairman. Absolutely.
Senator Lautenberg.--to that?
And I would ask our wonderful witnesses at the table--that
includes all of you, by the way--that the answers be as brief
as possible, rather than questions taking all the time.
But, I want to--the mystery about whether or not someone on
one list doesn't match up with another--I mean, I come out of
the computer business, and so does my colleague here, and, you
know, there are lots of things that we do in the commercial
world that get names identified immediately. If you ever walk
in with a credit card and you're in Paris or Lisbon or
wherever, put your American Express through the slot, and the
answer is--the answer comes back immediately. Now, why,
therefore, isn't the technology available that talks about
those people who are on the No Fly or the terror watch list? I
think it's outrageous to suggest that, you know, multiple
departments are required to check on one another and create an
organization that gets rather cumbersome at its roots.
Mr. Leiter. Senator, if I may, because I must have
misspoke. The lists are coordinated with one another. There is
no disconnect between the lists, except if there has been a
choice that the lists should not match. And what I mean by that
is, if you're in TIDE, we know, if you're in TIDE, whether or
not you're in the next list and whether or not you're No Fly.
And there has been a decision that one does not qualify for the
other. The lists speak to each other and are fully coordinated
with one another.
Senator Lautenberg. Thank you.
Governor Kean, the Detroit bombing attempt raised questions
about who should be on the terror watch list--much of what
we're talking about here--including the No Fly List. But, even
people who pose such a serious threat that they're not allowed
to fly are still able to buy guns in this country. And there's
discouragement of excessive interference or followup--you have
to destroy lists in 36 hours, and you have to respond in 3
hours and all. And here we're talking about something that--
talking about, Worried about a gun? You got an airplane full of
people. There is--in my view--there is no comparison to the two
threats that pose.
Do you support closing the terror gap by giving the
Attorney General the authority to deny gun purchases to people
who are on this list? Just to deny them outright. We've heard
the plea on the other side, said, ``Well, someone could be on
there incorrectly or unfairly.'' Too bad. I don't want to break
the law, and I don't want to invade privacy, but the fact of
the matter is, we ought to be able to access these things, and
err on the side of the safety of the American people. What do
you think?
Mr. Kean. Senator, the Attorney General has asked for that
authority, and I would certainly back him up. But, he should be
given it. I think to allow people on the terrorist watch list
to go in and purchase weapons of any kind is just not very
wise. And as far as the other law goes, the FBI, as we know,
had the Fort Hood shooter under observation, they were looking
at him. What they didn't see was the fact he'd walked into
someplace called ``Guns Galore,'' and bought weapons, because
the law now says the records have to be destroyed within 24
hours; used to be longer than that. I suspect if it were there
longer than that, the FBI might have had that information;
might have connected the dots, and who knows whether or not it
would have been prevented or not. So, I would recommend that
you might look at both those things. And particularly as the--
this Attorney General has asked for--and the previous
Administration also asked for--terrorists should not be allowed
to get weapons.
Senator Lautenberg. Secretary Napolitano, what's the--what
does your department think about closing this loophole, this--
that permits gun purchase? I am leaving the Detroit situation
to the review by my colleagues. I want to focus more on this
relatively narrow area.
Secretary Napolitano. You know, Senator, I'm not sure that
right now I'm prepared to give you an answer on that. I am--
what I am prepared to say is that, look, there are a lot of
things that have to happen to prevent somebody like an Umar
Farouk Mutallab from getting on an airplane. It's a very
layered system. It begins with intel and all of the ways that
Mike has described how the intel works, up to when somebody
shows up at an airport, then all the layers within the airport
itself--some seen, some not seen. It's all of those things
combining together that, done right, and done in a coordinated
fashion, minimize the risk that there will be an attack on
Americans.
Senator Lautenberg. Mr. Chairman, are you going to permit--
--
The Chairman. Yes, we'll continue----
Senator Lautenberg.--a second----
I just want to close by saying there are some 600 million
American--Visa cards around the world. You can go anyplace in
the world and try to buy something, and they know immediately
whether you're eligible.
The Chairman. Yes. And another question that comes from
that is, what is it that airlines can do if they're paid in
cash? I'm convinced there has to be something they can do to
follow up. I don't want an answer to that now.
You have to leave in 10 minutes for Spain--leave here for
Spain. That's what I call----
Secretary Napolitano. Sir, I'll be happy to hang around for
a few more minutes, if I can answer some more questions.
The Chairman. Well, then now you've made a liar out of me
to Senator Snowe.
Mr. Leiter. I'm happy to leave in 10 minutes for Spain, Mr.
Chairman.
[Laughter.]
The Chairman. Oh, you do. OK. All right.
Secretary Napolitano. Mr. Chairman, if I could leave by
4:30, that would be----
The Chairman. That's what I'm talking about. That's called
10 minutes.
Secretary Napolitano. OK.
[Laughter.]
The Chairman. Thirteen.
[Laughter.]
The Chairman. Will you please give me some idea of why,
when you go over there and meet with the Europeans, why--what
hope is there for bringing some sense of rationality between
the practices that we pursue at home, in terms of screening,
machinery, you know, whole-body imaging, which is considered a
civil liberties problem. On the other hand, that's the only
thing which probably would have discovered what this guy had in
his underpants.
What do you sit down and talk with them about? There has
got to be a common system that works around the world, but
you're dealing with separate societies. Some of them are so
pro-civil liberties that they are very lax. On the other hand,
I don't know how any of them could be in Europe, because
they're the ones who've taken most of the pounding.
So, what do you do? I mean, what about the folks at Lagos?
What about the folks at Amsterdam? What about the folks in
less- or well-traveled countries? How do you rationalize the
system? What are you going to do for the next few days?
Secretary Napolitano. First, we're using the December 25
attack as a catalyst. There were passengers from 17 countries
on this plane. This illustrates the international nature of
this problem. And the initial meetings that the Deputy
Secretary held, in the immediate wake of December 25, were
fruitful in a way that some meetings that I'd had over the
course of last year were not. So, we're going to use this
attack as an opportunity to see if we can get agreements made
that we have not been able to get before.
Second----
The Chairman. Like what?
Secretary Napolitano. Like better exchange of information
about passengers. Like standardization of the kinds of
equipment and procedures that will be used in airports on
randomized bases, so the terrorists can't predict what's going
to happen at--one at one time or one at another. Like training
and increase of capacity of law enforcement on the ground in
countries, particularly in airports that may not have the
capacity right now. Like a real outreach and focus on airports
that have the larger percentage of throughput of last points of
departure to the United States. All of that underway.
We'll be meeting with individual countries. We'll be
meeting with groups; i.e., those from the EU. I will be meeting
with ICATA, which is one of the international air travel
associations, on Friday. And we've already been meeting with
ICAO, which is the U.N. air safety, air security branch, which
is located in Canada. We've already been meeting with them.
And our goal, Mr. Chairman, is to say, this is not just a
United States problem. In this century, everybody from around
the world needs the ability to travel and to know that the air
environment is a safe one. So, it's designed to get more
uniform standards, higher standards, increased training
capacity, increased both physical law enforcement and
technology available around the globe.
The Chairman. OK. I thank you.
And I call upon Senator Snowe.
And I thank you for yielding.
STATEMENT OF HON. OLYMPIA J. SNOWE,
U.S. SENATOR FROM MAINE
Senator Snowe. Thank you, Mr. Chairman.
And I thank all of you for being here today.
These are obviously, very key forums for eliciting exactly
what went wrong and what we must do to prevent it in the
future, without question.
As one who has been involved in these issues for many
years, going back into the 1980s, when we were dealing with
aviation security, international airports, and the list goes
on--information-sharing and so on--this all still has a
familiar ring, in terms of rigid stovepipes. And it seems, a
cascading series of failures required passengers on a plane to
stand between a terrorist and a disaster. So, we could have had
a profound consequential event in this country. And I think we
all understand that. But, I certainly hope that somehow the
sense of urgency in our institutions is not sublimated into
bureaucratic quagmires. It's something that we have to be
focused on each and every day. I know there are extraordinary
men and women who serve this country, so I understand that, and
I understand your service and contribution, and I thank you.
And to the tireless efforts of Congressman Hamilton and
Governor Kean, thank you. You've been tenacious and tireless,
as watchdogs and in conducting oversight over this major,
mighty endeavor for this Nation. You have unparalleled insights
and expertise, which I deeply appreciate, and thank you for the
continuity of your service.
And to all the families who are here today, and who have
lost loved ones, they continue to provide extraordinary public
service, even in light of the profound personal grief that they
have had to endure. And that's a tribute to them, and that's
why we're here today, continuing to ask these tough questions,
because this is what it's all about. We've got to get to the
heart of the matter.
Secretary Napolitano, I want to ask you several questions
regarding Umar Farouk so that I'm clear on the relationship
that DHS has, in terms of the information that is gleaned from
such individuals. Now, you said that you're a consumer of
information; DHS is a consumer of information. But, you also
have an analytic branch within the Department of Homeland
Security. Now, was Umar Farouk ever debriefed by the Department
of Homeland Security when he visited the United States and
after he had traveled to Yemen?
Secretary Napolitano. Senator, I think that, in an
unclassified setting, that's probably not a question that I
should answer.
Senator Snowe. OK. So, when Customs and Border Protection
receives a manifest 72 hours before departure, at which point
was it clear that they needed to question him further?
Secretary Napolitano. They receive, 72 hours in advance of
departure, passenger name data, which is different than the
manifest, which has a much more complete set of information.
What they push forward to a foreign airport, where there--where
CBP has personnel--and we don't have personnel at all foreign
airports--but, where we do, they push forward the No Fly and
the Selectee List.
The No Fly List means you advise the carrier, ``That person
should not board a plane.'' Selectee, you advise the foreign
government, ``That person needs to get a secondary screening.''
And the key difference you're getting at, and your question
is getting at, is, Well, what happens--Why was it, when he was
going to get to Detroit, he was going to be in secondary? He
was going to be in secondary when he got to Detroit because he
had been identified as someone, although not on No Fly or
Selectee, but, he was in the larger database that should be
looked at for secondary screening before admission into the
United States.
So, you have one set of things that say, ``Well, should he
be allowed on a plane?'' And the other is, ``Should he be
admitted into the United States?''
Senator Snowe. See, I don't understand that distinction. I
have a really hard time with that.
Secretary Napolitano. Yes, I----
Senator Snowe. I mean, I'm just----
Secretary Napolitano. Yes.
Senator Snowe.--I'm stunned by it, to be honest with you.
If somebody's a threat, they're a threat. I don't know how you
make a distinction between a threat and an aviation threat. I
just don't understand that. And second----
Secretary Napolitano. It----
Senator Snowe.--how was he ever allowed on the plane? You
know, I think that it's a fair presumption--then once that
information has been disseminated--that it has to be evaluated
before anybody gets on the plane. And that's what I don't
understand. And they have that manifest and that information 72
hours prior. And so, to--all of a sudden, they decided that
they needed to question him further and are going to wait----
Secretary Napolitano. No----
Senator Snowe.--til he gets to Detroit?
Secretary Napolitano. Senator, I'll be happy to provide you
with a more detailed briefing, and your staff. But, if I
might--again, 72 hours in advance, they have a passenger name
record. It can be 30 minutes in advance that they get who
actually is boarding a plane, with more information that can be
matched against a variety of databases.
Now, in terms of why he was allowed to get on the plane--if
he had been on the right database,--if he had been on the right
list--forget databases; just take databases out of this
equation--if he had been on the right list, he would not have
been allowed to get on that plane in Amsterdam. The mistake
made here was that he was not on the right list.
Now, what are we doing to fix that? Part of it is improving
the quality and extensiveness of the lists. Part of what we are
doing is looking at how we use the lists themselves.
But, again, since he was coming in from an international
airport, we're not a solo actor, even in that regard, because,
even in that regard, we need cooperation; in this case, from
the Dutch, but it could be from another country, as well.
Senator Snowe. But, what information did you have--that
Customs and Border Protection had--to warrant further
questioning, between the time he boarded the plane in Nigeria
and the time he landed in Detroit?
Secretary Napolitano. By that----
Senator Snowe. Because, that--it's----
Secretary Napolitano. Yes. By that time----
Senator Snowe. I'll make certain assumptions that he was
somehow--we've had more information on him----
Secretary Napolitano. By that----
Senator Snowe.--and he should have been in the database,
and that should have been pulled up.
Secretary Napolitano. I'm sorry. I didn't mean to
interrupt.
Senator Snowe. Yes.
Secretary Napolitano. Apologize.
By that time, he had been matched with the note that had
been issued by the State Department of some concern that he was
associated with an extremist organization. That note, which was
the State Department note, had never been matched up
appropriately with the watch lists and the No Fly List.
Senator Snowe. But, your department can nominate
individuals for the watch list. Is that correct?
Secretary Napolitano. Yes----
Senator Snowe. And for the No Fly List.
Secretary Napolitano. Yes.
Senator Snowe. You have that authority.
Secretary Napolitano. Yes.
Senator Snowe. I mean, you don't create it, but you can
nominate individuals, based on your acquisition information.
And you have a number of analysts. So, clearly, it's a sizable
organization, to also analyze individuals that you may have
debriefed along the way. I think that's important to
understand.
Secretary Napolitano. And, Senator, I think, in terms of
that, we should go into classified. But, let me say this. And
this is an important question for this committee and for the
Senate. Because, as has already been mentioned, there has been,
in the creation of the Department and the creation of the NCTC
and the creation of the DNI, all sorts of overlapping
jurisdictions and authorities and what have you. A question is,
Does the intel and analysis part of DHS do the same thing as
NCTC? Does NCTC do the same thing as others? Are we supposed to
be a redundancy? What is our contribution in the I&A field? And
the fundamental contribution of this I&A, this department's
I&A, is to take information--intel--that has been gathered and
analyzed, and to push that out; push that out operationally
where it needs to go, or push that out, most importantly, or as
importantly, to State and local law enforcement.
So, yes, we have an intel function. Yes, we can nominate.
But, we are not a redundancy. And I don't think we should be a
redundancy with NCTC or DNI. The redundancy here, on the intel
side--and this was explained by John Brennan, in the aftermath,
in the immediate report--the redundancy that was designed in
the system, with respect to this information, was between the
NCTC and CIA.
Senator Snowe. OK. Thank you.
The Chairman. Thank you, Senator Snowe.
Senator Snowe. I'd like to submit my statement.
[The prepared statement of Senator Snowe follows:]
Prepared Statement of Hon. Olympia J. Snowe, U.S. Senator from Maine
Thank you, Mr. Chairman. We are here this afternoon with our
distinguished panelists, including Secretary Napolitano--who is
appearing before us for the second time in 2 months--as well as
Director Leiter, Governor Kean, and Congressman Hamilton to determine
how this egregious breakdown of the security network instituted in the
aftermath of 9/11 occurred, and how such colossal and eminently
preventable failures are avoided in the future. This is nothing less
than the security of our homeland, our people, and our Nation and our
efforts must rise to a level commensurate with both the challenges and
the potentially catastrophic consequences.
Regrettably, it is all too evident that with respect to our
aviation security, we've returned to square one. Despite our best
efforts, inexcusable and systemic breakdowns continue to endanger the
lives of our citizens and those visiting our country. And on Christmas
Day of 2009, after a succession of collapses in security, only a
handful of heroic passengers stood between a terrorist . . . and
disaster.
It is simply unacceptable that the same gaping holes that have
persisted since the tragedy of September 11, 2001, continue to plague
our efforts to mitigate the threat against commercial aviation. Rigid
stovepipes within the various intelligence agencies and the law
enforcement community disturbingly have reappeared and inhibit the
sharing of information. And the requisite and required sense of urgency
in our governmental institutions seems to have been sublimated by
bureaucratic quagmires that preclude proactive steps from being taken.
Indeed, how else can we explain the myriad red flags that were either
missed or ignored?
The passenger, Abdulmutallab, purchased a ticket with cash . . .
did not check any luggage for an international flight . . . had
recently visited Yemen . . . and the Department of Homeland Security
(DHS) knew he was a threat inbound for the U.S. He did not even choose
to bring a coat when traveling to Detroit in December. Each of these
facts should have raised a red flag.
This information, taken together, would have certainly resulted in
a passenger at Dulles or Logan Airport or anywhere else in the country
being taken aside for additional screening at the minimum. Yet, this
individual who was already identified by our intelligence agencies as a
``threat'' was not only allowed to board an aircraft bound for
Amsterdam, but was then permitted to board another aircraft bound for
the United States! Why? Because, according to National Security Adviser
John Brennan, he was not classified as an `aviation threat.' Let me
repeat, he was known as a threat--but not, apparently, classified as an
``aviation threat'' Moreover, DHS knew of this individual's presence on
the flight, but reportedly intended to question him AFTER he landed in
Detroit!
These are astonishing lapses, and they should not have occurred.
Did the intelligence community fail to provide the requisite
information to the Department of Homeland Security in order to place
Abdulmutallab on the ``No-Fly'' List? Yes. And there are zero excuses
for the ongoing problems this country is having with the various
intelligence agencies' systemic breakdowns. At the same time, when does
DHS step forward based on the information they already have and act
independently? Abdulmutallab was denied access when attempting entry
into Britain--the British Home Secretary, Alan Johnson, said ``if you
are on our Watch List, you do not come into our country.''
So why did someone at DHS decide to wait until the ``threat''
arrived in the U.S., rather than provide additional screening in
Amsterdam, or better yet, Nigeria? There are so many lapses, so many
intrinsic failures--that I cannot help but feel after all the billions
we've spent in the last decade erecting this vast security network, it
is remarkable we are still asking the same questions this committee
asked after the tragedy of 9/11. And that is a telling indictment of
the current state of the system that's been created.
Who and what is responsible? As I stated before the Senate in 2004,
I saw firsthand the consequences of a lack of accountability during my
12 years as a member of the House Foreign Affairs International
Operations Subcommittee and as Chair of the International Operations
Subcommittee of the Senate Foreign Relations Committee
Among other issues, it was a lack of accountability that permitted
the radical Egyptian Sheik Rahman, the mastermind of the first World
Trade Center bombing in 1993, to enter and exit the U.S. unimpeded five
times, even after he was put on the State Department's Lookout List in
1987. In 1995 and again after the terrorist attacks of 9/11, I
introduced legislation establishing Terrorist Lookout Committees in our
embassies and consulates abroad--all in an effort to create greater
accountability in the protection of our homeland.
As a senior member of the Select Committee on Intelligence, I am
well aware of our enemies' adaptability--which is all the more reason
our security and intelligence networks cannot afford to be bogged down
in bureaucratic wrangling. We too must be able to adapt rather than
simply react to each threat as it appears. The 9/11 Commission warned
that terrorists constantly analyze our defenses, look for areas where
security is weak, and plan accordingly. We absolutely must look
forward, to prepare for these new threats, while continuing to guard
against current dangers.
Unfortunately, there remain other vulnerabilities that have gone
unaddressed. Unscreened cargo is still loaded onto commercial aircraft,
yet no one can be certain how much is actually screened, and to what
standard--contradicting the Homeland Security's claims that they have
already reached 50 percent screening and will achieve 100 percent by
this August. The uncertainty surrounding air cargo screening is
particularly galling given my work with Senator Hutchison on air cargo
security legislation as far back as 2002.
Additionally, on December 7 of last year, TSA mistakenly published
its security screening manual and protocols on-line, a classified
document that revealed--on the Internet, no less--how to circumvent
security. This incredible gaffe could have provided information to the
Christmas Day bomber and his handlers, information used during his trip
from Nigeria to Detroit.
Another issue of great significance to this committee is the
relationship we have with our international partners with respect to
screening flights bound for the United States from other countries.
According to TSA Director of Global Security Programs Cindy Farkus,
there are fewer than two dozen TSA inspectors around the world
responsible for ensuring that 245 foreign airports are complying with
international security standards. That is an unacceptable deficiency,
considering the Federal Aviation Administration's (FAA) forecast of
more than 150 million passengers flying to or from the United States
this year. Even more troubling is the Government Accountability
Office's conclusion that without frequent visits to each of these
airports on a regular basis, ``security deficiencies . . . may arise
and go undetected and unaddressed.''
In sum, Mr. Chairman, our work begins anew--I am certain Governor
Kean and Congressman Hamilton would agree that, particularly given
their yeoman efforts on the 9/11 Commission and in the intervening
years--we must redouble our efforts to tear down the walls of
bureaucracy that unnecessarily restrict our ability to successfully
protect America. Our constituents, and the nation, deserve nothing
less. Thank you, Mr. Chairman.
The Chairman. I--now Senator Klobuchar, to be followed by
Senator LeMieux and Senator Ensign and Senator Cantwell and
Senator Udall.
Voice. Mr. Chairman?
The Chairman. I want to get one thing straight. Who has to
leave at 4:30?
[Laughter.]
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Could I ask my question, and Senator----
Mr. Hamilton. Mr. Chairman, Governor Kean has a 5 o'clock
train he has to be on, so he has to leave promptly, as well.
Voice. Right.
The Chairman. OK. But, you do not, Mr. Director?
Mr. Leiter. I'm here at your pleasure, Mr. Chairman.
The Chairman. OK. That's good. I thought you'd said you had
to leave. OK.
Senator Klobuchar.
Senator Klobuchar. Thank you.
Secretary Napolitano, just to shift, for 1 minute, here, we
have 17 families in Minnesota that are awaiting children.
They've been to Haiti, they've seen these kids. And I do
appreciate the front-line work that you and Secretary Clinton
have done, and also your granting of humanitarian parole, that
I requested last week. I spent the weekend with some of these
families, as they clutched these photos, and I promised them I
would ask about, not their specific situations, but just what
is happening, in terms of a safe haven? Just the details of how
these kids are going to get to the United States, or get
somewhere safe in Haiti, as they hear reports that the
orphanages, you know, don't have enough water, don't have
enough food, and just--the sooner we can get them over, the
better.
Secretary Napolitano. Yes, Senator Klobuchar, we are
working very closely to get orphans out who need to get out,
who are already qualified for adoption in the United States.
And we will work closely with your office.
But, let me just pause a moment, and say, we have already
removed a number of orphans, already, to the United States, and
some more are coming. That being said--and our heart goes out
to those families, families in other States, and, most
importantly, the orphans themselves.
In a catastrophe the size of Haiti, the number--we have to
now set up a process, beyond that for orphans already
identified with adoptive parents, before other children are
removed, because we are there, really, at the acquiescence of
the Government of Haiti; they have to agree that this----
Senator Klobuchar. I understand.
Secretary Napolitano.--child can be removed, and should be,
to another country for care. So, the State Department is
working with Haiti on that. Secretary Clinton is on that. We
met about this late last night. The Secretary of Health and
Human Services is involved, because when a child is brought
here from Haiti, normally there's a lot of medical and health
attention that needs to be carried out before they can be----
Senator Klobuchar. I understand.
Secretary Napolitano.--delivered. And so----
Senator Klobuchar. Just if--if I could just impress on you
that--I realize some of this is in the hands of the Haitian
government.
Secretary Napolitano. Right.
Senator Klobuchar. I want to say that your staff has been
very helpful today. We've been----
Secretary Napolitano. Good.
Senator Klobuchar.--directly talking to them.
Secretary Napolitano. Right.
Senator Klobuchar. We feel that this--the adoptions we have
are pretty far along in the process, and so we will continue to
get the details. But, I just wanted to impress on you, one, to
thank you for what you're doing, but, two, how important it is
for these families.
I wanted to ask, as I look for solutions to all of this--as
a former prosecutor, I know you this--I know you know this--
it's very easy to, like, look at every detail, and you always
think, later, ``What could we have done differently?'' And you
can always find, when a crime occurs, the changes that need to
be made. But, going forward, the full-body scanners; would that
have prevented this, if he had gone through a full-body scanner
in Amsterdam or one of the other airports?
Secretary Napolitano. There is no doubt, in my view, that
the whole-body imaging, particularly in the current iteration
of the technologies and the technologies we're now working on
with DOE, would be a very clear improvement over any technology
that was used in Schiphol on Christmas.
Senator Klobuchar. OK.
And the timetable here, we're--I think, 450 new ones. We've
got 2,100 airport lanes, I think I read, in our country; 2,500
international flights, that I'm sure you'll be dealing with
tonight, coming in. The timetable of getting these out?
Secretary Napolitano. At least 450, domestically, this
year. We're obviously looking at how to accelerate that. And
then, working internationally to see that they will employ that
kind of technology--which, by itself, by the way--and I can't
emphasize this enough--in and of itself, no one technology, no
one process, no one intel agency is the silver bullet here.
It's----
Senator Klobuchar. Right.
Secretary Napolitano.--layer, layer, layer, layer. It's
good technology with behavior detection officers, with canines,
with explosives detection equipment, with the right watch list,
with the right names on it, and the right intel----
Senator Klobuchar. Got it.
Secretary Napolitano.--behind it. So, as you can see, even
from this hearing, all of these things have a role to play.
It's very layered, and needs to be a layered, process.
Senator Klobuchar. OK. And one last question. On the watch
list, something that I've been looking at, as a member of this
committee for a while, it's my feeling that there are people
that shouldn't be on it, that waste resources; the kid going to
Disneyland, in Minnesota, and who got--continually got
questioned, for years, from the time he was a baby--to people
that should be on it, that aren't. Just how do we go about
this, not only adding people that clearly--I know that's been a
lot of the focus of the questions today--but also looking at
Secure Flight, what's happening with that, what the
implementation date is on that. And finally, working with our
airlines. As you know, this was a Northwest Airlines flight,
now owned by Delta. Northwest Airlines, originally based in
Minnesota. I've talked to their--Richard Anderson, the CEO, at
length. It was their employees and that brave--those brave
passengers that were on the front line that stopped this from
happening. So, they have a big interest in making this work in
the future.
And I'd just encourage you to work with the industry,
because in so many international airports, there is no TSA, so
the airlines are still on the front line.
Secretary Napolitano. Well--right. And the private carriers
are part of the process, too. In fact, I've already met with
them individually, at least U.S.-flag carriers--had several
long conversations with CEO Anderson, among others. They are
going to be part of this solution. Trust me. Secure Flight--
should be basically implemented, domestically, by March of this
year. There are two airlines that may lag by another 30 to 60
days. But, basically, domestically, that's where we are.
Internationally, it will take longer, but we're looking,
basically, at having it implemented--Secure Flight,
internationally--by the end of 2010.
Senator Klobuchar. Thank you very much.
The Chairman. Thank you Senator.
Senator LeMieux.
STATEMENT OF HON. GEORGE S. LeMIEUX,
U.S. SENATOR FROM FLORIDA
Senator LeMieux. Thank you, Mr. Chairman.
I've not had the opportunity to interact and interface with
you folks yet, so I appreciate that opportunity today.
And I know, Madam Secretary, you have to go.
So, let me just ask you a quick question before you have to
take your leave for Spain.
I think it's the belief of the American people that 99.99
percent of the folks who are going through security in this
country pose no threat. And a lot of folks come to me and say,
``We really feel like we're being harassed when we go through
TSA,'' whether it's the child that's getting patted down or the
85-year-old grandmother, who's being patted down. At the same
time, we have these folks, like the Christmas Day bomber, who
made it through security. Do we use--and if this isn't the
right setting for it, I understand--are we using any kind of
predictive modeling, to follow up on what Senator Lautenberg
was talking about, such as what credit card companies do in
their antifraud measures? Do we score people? I mean, we're not
just taking data based upon information. I assume that we use
the good intelligence, the people who are working in Homeland
Security and other agencies, to look for potential threats, and
use computer modeling to say, ``This person is a threat.''
Secretary Napolitano. Senator, we do that. We also employ,
as I've said, a number of things in domestic airports, such as
behavior detection officers. So, that is underway, as well.
But, we also employ random selection. And random selection is
truly random, so that when the 85-year-old grandmother who--
there must be an 85-year-old grandmother who has been pulled
aside in every State in the Union, because I always hear about
the 85-year-old----
Senator LeMieux. There are a lot----
Secretary Napolitano.--grandmother----
Senator LeMieux.--in Florida.
[Laughter.]
Secretary Napolitano. I'm from Arizona. I can appreciate
that.
[Laughter.]
Secretary Napolitano. But, in any event--but, truly random
must mean truly random. And it's also random and differentiated
between airports. So, we will not have the same process in
place in every airport in the United States on any given day.
Senator LeMieux. Well, that makes sense to me. But, I
hope--and you were talking about the travel for international
folks in the future, this kind of clear travel concept--I would
hope that, in the future, there is a way, through biometrics or
other ways, for the average American to be able to--not go
through without any type of screening; that doesn't make any
sense--but for us to focus on the people that we're concerned
with the most, and put most of our energy toward them. That
seems to make more sense to me.
Secretary Napolitano. Senator, if I might, Secure Flight,
which Senator Klobuchar was just referring--that will help a
lot, because that will exchange data that will--that allows us
to remove the false positives----
Senator LeMieux. Right.
Secretary Napolitano.--from the system. Those sorts of
things, as they get implemented--we're not talking about the
needle in a haystack, in a way; it's about the needle among the
needles. And it is not the easiest thing to do in advance. So,
what we want to be able to do is, yes, get the false positives
out of the system so we can focus where we need to focus. These
sorts of things that are underway will help us with that.
Mr. Leiter. And, Senator, if I might add, and I can't go
into depth in an open session, but we do use biometrics for a
number of the levels of screening, both the visa process and
entry into the country. That is a costly endeavor, to integrate
that into all of the screening, and it also poses significant
policy issues regarding the protections of privacy data and
U.S. persons data. So, it's an area that I think will probably
be coming back to committees like this, seeking assistance,
either in terms of resources or legislation, to ensure that we
can, in fact, use this biometric data effectively.
Senator LeMieux. And, Director, you said, a moment ago,
that you are now putting these teams together who will be able
to be responsible for trying to see different issues, and put
the pieces together. I think the American people assume that
that's happening now. I'm new to the Senate, and so I think I
have fresh eyes to look at this. I think the American people
assume that there are rooms of people around this country,
working for the Federal Government in any one of these
agencies, who are looking at all this data, analyzing it, and
making reports and decisions to not let people on planes or
come across borders or get visas. Is that correct?
Mr. Leiter. Senator, it is, except, at the same time that
they were doing that, they also had to write intelligence and
sort of analyze these things and send them up to policymakers.
The purpose of this is to free them from those requirements so
they can focus all of their time with sufficient numbers on
these small bits of data, which, again, in combination, paint a
very damning picture. But, when they come in individually,
surrounded by thousands of other pieces of data, really don't
stand up to the analyst.
Senator LeMieux. For both of you, is there one thing that
we could do which would--and I know nothing would solve the
problem completely; you're never going to be able to ensure
safety 100 percent--but, is there one thing--is it just a full-
body scan? Is there one thing that you think, ``Boy, that would
really make a large difference in making our country safe?''
What's the first thing we should do?
Secretary Napolitano. Senator, I think that one of the
first, if not the first, things we should do is push out the
advanced technology that we know exists, even as we recognize
the next generation of technology is still on its way.
Mr. Leiter. Senator, my real answer is, there isn't one
thing. There really is not one thing that would make a huge
difference here. It is a combination of many little things.
I will say, if I could only have one thing to pick, it
would be to ensure that we do get the international cooperation
we need, especially with our European partners, of providing
the data and doing the screening that we want them to provide
and do. That, otherwise, leaves us with a significant gap,
because we can't cover the entire world. We need their
assistance to protect the country.
Senator LeMieux. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Ensign, before I call on you--Secretary Napolitano,
can you still get to Europe?
Secretary Napolitano. I think Senator Ensign----
The Chairman. I wanted to test you----
Secretary Napolitano.--is the last one here who hasn't had
a chance to ask a question.
STATEMENT OF HON. JOHN ENSIGN,
U.S. SENATOR FROM NEVADA
Senator Ensign. I have one----
Secretary Napolitano. I'd be happy to stay.
Senator Ensign. I have one----
Secretary Napolitano. Yes.
Senator Ensign. OK. Quick question that I'm going to ask
all of you. You can start. This gets to ideology. Do you
believe that there's an ideology of radical Islam that has
anything to do--or that underlies the USS Cole attack, Hasan,
the Christmas Day bomber, 9/11--do you think that this radical
Islam that's out there in the world, that that underlies what's
going on?
Secretary Napolitano. Senator, there is no doubt that there
is a terrorist ideology in this world that is operating, both
internationally and some of it now homegrown, that is
underlying the attacks we're seeing now----
Senator Ensign. That's associated----
Secretary Napolitano.--some of the ones we've seen in the
past.
Senator Ensign.--with radical Islam?
Secretary Napolitano. That is associated--if you want to
call it that, yes.
Senator Ensign. Well, I mean----
Secretary Napolitano. Yes.
Senator Ensign. It is.
Mr. Leiter. Yes. And I don't think I should have my job if
I said anything else.
Secretary Napolitano. Yes. I mean, I think--absolutely.
Mr. Hamilton. Yes.
Senator Ensign. Thank you. The reason I asked that is,
there was actually a report out today on the Fort Hood
incident. And in the 86 pages is--actually, John Lehman--a
member of the 9/11 Commission--former Navy Secretary--talks
about this. I'll quote him, and he says that there's a
reluctance--not a single place, in the 86 pages talking about
Hasan, does it mention anything to do with radical Islam. And
what he says, and I'll quote him, he says, ``It shows you how
deeply entrenched the values of political correctness have
become. It's definitely getting worse, and is now so ingrained
that people no longer smirk when it happens.''
The reason I asked that--we had a hearing in the Homeland
Security Committee, before the Christmas break, about the Fort
Hood incident. And this question was asked about political
correctness. Is it clouding our judgment? Are we afraid to ask
the wrong questions?
This gets back to not religious profiling, not racial
profiling, but terrorist profiling. If there is an ideology
that is underlying what is happening here, we'd better
recognize that, and we'd better call it what it is. We
certainly didn't back away from Nazism as a political ideology.
Well, if radical Islam is what is--they've called for this
jihad against the West--against us, against American values--
we'd better recognize that.
The reason I say that, even, you know, that every young
military officer is required to read ``The Art of War.'' Well,
a big part of the art of war is knowing your enemy. Well, a big
part of the enemy is their ideology; it's their motivation. And
one of the reasons I ask that is because it seems to me that
the Christmas Day bomber, which we know had ties, through this
cleric, to Hasan, and the Fort Hood tragedy that went on, that
it would have seemed to me that, after the Fort Hood incident--
because that took place initially--that if the ideology was the
thing that was driving it, we would focus a lot of our intel on
the ideology with this guy's disseminating information to some
of the people that he's communicating with.
And, Director Leiter, you mentioned something about First
Amendment rights, and I wanted to give you the chance to
clarify it. Abdulmutallab and the cleric, their
communications--is that protected by First Amendment rights, as
far as not getting on a No Fly List, when those conversations
happened overseas?
Mr. Leiter. No, Senator. And I want to make clear that,
prior to 12/25, we weren't--we didn't intercept any
communications between Abdulmutallab and Anwar al-Awlaki, the
cleric to which you're referring.
And my only point on the communication was, certainly
people--you can imagine some conversations people could have
which would be First Amendment and wouldn't justify watch-
listing----
Senator Ensign. But----
Mr. Leiter.--or No Fly.
Senator Ensign.--I just wanted to make sure that if we had
intercepted a conversation between the two of them overseas,
even if it----
Mr. Leiter. Oh, absolutely.
Senator Ensign.--it would never be protected by First
Amendment.
Mr. Leiter. Absolutely not, Senator.
Senator Ensign. OK. I just wanted to ask, because the way
that you said it, it could have been misleading, and----
Mr. Leiter. I apologize.
Senator Ensign.--I wanted to give you----
Mr. Leiter. Senator, can I just add? There is no doubt in
my mind--and we have done everything we can at NCTC to make
quite clear to the American people and to Members of Congress--
that, undoubtedly, underlying the reign of violence that al-
Qaeda has brought, it is inspired by a violent extremist
Islamic ideology, period. That does not mean that Islam is
violent. It does mean----
Senator Ensign. I agree.
Mr. Leiter.--that Islam is extremist.
Senator Ensign. I don't--no, I--listen, I totally agree;
that's why I said, a radical form of Islam that exists in the
world.
Mr. Leiter. OK. As Director of NCTC, I want to be as clear
as possible that----
Senator Ensign. Yes, I agree with you. I agree with you
and, you know, don't want to see discrimination against people
just because they follow the Islamic faith.
The Chairman. Senator Ensign?
Senator Ensign. Yes.
The Chairman. In the--your time is up. It's just barely up,
but Senator Cantwell has a question for Secretary Napolitano,
who should have left 15 minutes ago, but is being generous. I
want to give Senator Cantwell a chance, with your forbearance,
to ask a question.
Senator Ensign. Absolutely.
Could I have 1 minute, right after she just asks this one
quick----
The Chairman. You got it.
Senator Ensign.--question, just because I want to ask each
one of them a----
The Chairman. You got it.
Senator Ensign.--just a yes-or-no question.
The Chairman. You got it.
Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman.
Do I have 5 minutes now? Or----
The Chairman. Yes.
Senator Cantwell. Oh, OK. Thank you. Thank you, Mr.
Chairman.
Secretary Napolitano or Director Leiter, did the U.S.
counterterrorism agencies have any specific negative
information about Mr. Abdulmutallab, prior to his father
alerting the U.S. Embassy in Nigeria?
Secretary Napolitano. Let me ask Director Leiter. I don't
know whether we should answer all of that in open session.
Mr. Leiter. Senator, the--I would be happy to give you an
answer to that in closed session.
Senator Cantwell. Great. Hopefully, I'll see you later and
I'll get that.
My understanding is, from news reports, that his name was
placed on a British version of a watch list. Was that
information shared with the U.S. Government or any--you know,
if so, which agencies received that information and when was it
received?
Mr. Leiter. It was not as--I believe it was not shared and
he was denied a visa for nonterrorist reasons. In my
conversations with my British colleagues, they had no
information involving his association with terrorism prior to
the events of 12/25, or, I should say, no information different
from what we had.
Senator Cantwell. But, he was subsequently put on their
equivalent watch list there, and so, if their--if you didn't
hear from them, isn't there a--some sort of one-to-one
correspondence between the British government and the United
States----
Mr. Leiter. Senator, it is my understanding----
Senator Cantwell.--watch lists?
Mr. Leiter. Senator, it is my understanding that he was
denied a visa. He was not placed on their terrorist watch list.
They--we do exchange information regarding terrorist watch
lists; he was not on that watch list.
Senator Cantwell. You do not believe that he--if an
individual was placed on a watch list in Britain, they should
be placed--that would be sufficient grounds to be on a watch
list--the TIDE list?
Mr. Leiter. Oh, I think there's very good reason, if an
individual is on the British's terrorist watch list, that he
should also be placed on the American terrorist watch list. He
was not on the British terrorist watch list.
Senator Cantwell. OK.
And second, if we had--Secretary Napolitano, you mentioned
cooperation. And I've been very active in the Visa Waiver
Program, saying we should have more conditions on that program.
And so, I know that the current State Department website says,
``To be admitted to the Visa Waiver Program, a country must
meet various security and other measurements required, such as
enhanced law enforcement, security-related data-sharing, and
members are also required to maintain high counterterrorism law
enforcement, border control, and document security standards.''
So, that's the current level by which those 35 countries have
to cooperate with us.
Now, do you think that we need to enhance that? Or do you
think that is the power now to say to those individuals?
Secretary Napolitano. I think what we need to do is make
sure that the standards that have been set forth for Visa
Waiver are enforced on a continuous and continual basis, and,
like all of the standards that have been referred to throughout
this afternoon's session, that we continually refresh them and
make sure they match what we need to match to make sure that
terrorists aren't allowed to travel around the globe.
Senator Cantwell. So, you think that their--I mean, you
mention going there and having this dialogue. My question is,
Do we have enough, with that State Department language there,
to require the cooperation on data-sharing that we need, or do
we need to do more?
Secretary Napolitano. Right now, using the U.K. as an
example, we have very good cooperation on data-sharing. Whether
there are new or additional types of data, or new or additional
types of things that need to be done in this ever-changing
environment, is something that we continually need to challenge
ourselves with.
Senator Cantwell. OK.
And then, the--I'm reading a New York Times article, which
says that after Mr. Abdulmutallab's application to renew his
student visa was rejected, the Secretary said the suspect was
then placed on a watch list.
Secretary Napolitano. I don't know what article you're
referring to.
Senator Cantwell. I'm referring to The New York Times,
December 29, 2009. So, maybe you could----
Secretary Napolitano. You're going to have to help me out.
I don't know what--the context--if you could----
Senator Cantwell. It's about----
Secretary Napolitano.--help me, please.
Senator Cantwell.--Britain's rejected visa renewal for the
suspect, and the fact that he was on it.
So, maybe we can find out what watch list he was on in the
U.K. and whether that information could have been shared with
the United States, or should have been shared with the United
States. My question today was more about the policy
ramifications of--if it wasn't, why shouldn't it be? Why
shouldn't somebody on Britain's list be shared with this?
And I guess, my overall, you know, concern, having been a
member of the Judiciary Committee in 2002, when we had a great
discussion with the FBI after 9/11, and a lot of the questions
and data-sharing information about why FBI agents in Arizona
didn't share information with FBI agents in Minnesota, that the
question is, How far have we come in 8 years on this data-
gathering analytical analysis. I mean, we're spending billions
of dollars in Iraq and Afghanistan. We should not be at a
hearing today, saying we don't have enough analysts or that we
don't know about cloud computing and that information across
various databases can't be shared, that just because you
misspelled somebody's name, information can't come up. All
those are technology solutions that are in the market today,
and so, that shouldn't be our barrier to this issue. And so, I
hope that we will realize that the war on terrorism is an
asymmetrical threat, and that asymmetrical threat means we have
to be a very flat organization with sharing information, and
that that needs to be very robust.
So, I hope we can resolve this question about the British
watch list and whether that information will be shared.
Mr. Leiter. And, Senator, of I may, I fully agree with your
underlying point about sharing with the British. In fact, I
know Secretary Napolitano and I have both engaged with our
British colleagues since to review those very issues, to ensure
that this information is being shared fully, especially because
we see so many links back through the U.K. through so many of
our plots.
Senator Cantwell. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cantwell.
Secretary Napolitano, I'm sort of embarrassed, because you
need to go, and I don't know whether you're being polite----
Secretary Napolitano. I think Senator Ensign wanted----
The Chairman.--and I----
Secretary Napolitano.--to have one more question, and then
I'm going to ask permission please, to leave.
The Chairman. Permission is granted. I mean, you know----
Secretary Napolitano. Yes.
The Chairman. OK. So----
Senator Ensign.
Senator Ensign. Thank you.
You mentioned, before, about when Abdulmutallab came into
this country, that it's a different policy, whether or not he's
allowed into the country versus getting on an airplane. This is
a question, going forward. Is that policy going to be changed?
In other words, it doesn't make any sense to me that somebody
would have to go through secondary screening to get into the
country, but they didn't have to go through secondary screening
to get on an airplane.
Secretary Napolitano. Well, it's the difference between
secondary screened--if there's information about being a threat
to aviation, versus secondary screening because they may have
had some other criminal indicator or some other bad behavior or
what have you. So, it's the difference between, you know, those
two things.
But--to your question, this isn't about labels. It's not
about which list or what list; it's looking at the entirety of
the problem and saying, ``All right. Now, this guy--this
individual was able to get on a plane. He was able to get on a
plane bound for the United States, and get on a plane bound for
the United States with PETN. That should not happen. What
actions do we need to take to make sure that that doesn't
happen again?'' And that's how we're looking at it. Not----
Senator Ensign. Right. The only reason----
Secretary Napolitano. I can go into all the complexities--
--
Senator Ensign. The only reason I----
Secretary Napolitano.--it doesn't really----
Senator Ensign.--bring that up is, he probably wasn't
suspected of some other kind of criminal activity, the reason
he was going through secondary screening--it would be my
guess--the reason he was going through secondary screening in
Detroit, before he got into the country, after he got off the
airplane. That type of a list, you would think, would--should
keep him from getting on the airplane in the first place. In
other words----
Secretary Napolitano. Indeed. Indeed. And----
Senator Ensign. And that's----
Secretary Napolitano.--we have----
Senator Ensign.--all I'm saying. I'm suggesting to you that
you look at that as a policy change.
Secretary Napolitano. Indeed. And, Senator, we have already
made that change. If you are in a State Department database,
and those words are associated with a name, we are now already
pushing that forward in the international environment. I have a
feeling that there will be other changes made as part of this
review, as well.
Senator Ensign. Good.
Thank you for your indulgence, Mr. Chairman.
Secretary Napolitano. Thank you.
Senator Ensign. Thank you for staying, very, very much.
And I have other questions for the panel that I'll submit
for the record.
The Chairman. Thank you, Senator Ensign.
I might say, to all members--and this isn't the end of the
hearing--thank you very much, Madam Secretary--that there's a
7-day period to submit any further questions.
Voice. [Off-mike.]
The Chairman. Yes--oh, absolutely. But, I just wanted to
make that plain now.
And so, Frank, you'd be up.
Senator Lautenberg. Yes, if I might, Mr. Chairman----
The Chairman. I mean, Senator Lautenberg.
Senator Lautenberg.--ask of--since Governor Kean and--
called you ``Lee.'' I can't call you ``Mr. Hamilton.'' Lee, I
have a question that I'd like your view on.
Security cameras are--seem to be an important--not
``seem''--are an important part of the surveillance that's
required to keep people from getting access to secure areas.
And I wonder whether a--you might know, or if anyone knows,
whether all airports have security checks.
Mr. Leiter, do you--would you know that?
Mr. Leiter. Senator, I apologize. I simply don't know if
every----
Senator Lautenberg. OK. No--Lee, would you recommend that
every airport that has commercial traffic have security cameras
at critical access points?
Mr. Hamilton. Yes, I think I would. But, security cameras
raise a lot of questions about privacy. And how you do that,
how you set those security cameras up, and who sees the images,
makes a lot of difference. I think you have to be very alert to
that.
So, I favor security cameras. I think they can be very
careful. But, their use can certainly be abused.
Senator Lautenberg. Yes. I'm just talking about--with
security checkpoints.
Mr. Hamilton. Right.
Senator Lautenberg. That's so--you agree that----
Mr. Hamilton. Yes.
Senator Lautenberg.--it's a valuable tool and we should
have them.
Thanks, Mr. Chairman, you've been very indulgent, and I
appreciate it.
Thanks, to both of you, for your endurance, as well as your
answers.
The Chairman. Well, they're not finished yet.
Senator Lautenberg. Oh, I'm sorry. I didn't mean to preempt
exit.
[Laughter.]
The Chairman. Senator LeMieux, was there any question you
had?
Senator LeMieux. Just a couple of questions.
Director Leiter, after Abdulmutallab was taken off the
plane at some point, he was Mirandized. Do you agree that he
should be Mirandized and treated in that fashion?
Mr. Leiter. Senator, I--this is really a question that I
have to defer to the Department of Justice. Although trained as
a lawyer, exactly when----
Senator LeMieux. You're more than trained as a lawyer. I
think you were the president of the Harvard Law Review and a
clerk for a Supreme Court Justice. And you're about as
accomplished as a lawyer as there is.
Mr. Leiter. I'm starting to feel like maybe I should go
back to that line of work, Senator.
[Laughter.]
Mr. Leiter. But, in all honesty, ultimately, the decision
of when that should be done, or has to be done, clearly has to
be within the ambit of the Department of Justice and the FBI.
I think what is equally clear is the utility of having
interagency discussions prior to that, to inform that decision.
So, again, the decision has to be one of the Attorney General,
but that should be a decision informed by an interagency
discussion, considering all of the Nation's national security
priorities; homeland security and intelligence collection and
the like.
Senator LeMieux. And you're the head of counterterrorism
for the country. You're an advocate for trying to stop this
terrorism before it starts. And certainly, I would think, in
your role, you would want to make sure that someone like
Abdulmutallab would be interviewed, and you could receive as
much information as possible, to help you prevent another
attack.
Mr. Leiter. Yes.
Senator LeMieux. And when someone is given their Miranda
rights, the chance that they're going to give that information
seems to be less likely.
Mr. Leiter. Senator, as a good lawyer and a former
prosecutor, my answer is, it really is fact-specific. And I
simply don't have the sufficient understanding of the facts on
the ground as to when it was or was not appropriate to
Mirandize him. I do think, again, that decision has to be
informed by an interagency discussion, and I can tell you from
having been a prosecutor, there's no shortage of times when you
Mirandize someone and they keep talking.
Senator LeMieux. Sure. But, he's not an American citizen.
He is a person who is fighting a war against our country,
trying to blow up a plane over Detroit. He has none of the
rights of an American citizen. Why does he get afforded the
right of Miranda rights? Why should he?
Mr. Leiter. Senator, I really have to defer to the
Department of Justice on their decision there. I simply have a
different set of interests at that point. I do have a different
set of interests, but that doesn't make the interests of the
Department of Justice any less valid.
Senator LeMieux. I don't want to ask you to speak for them.
But, in your role as the head of counterterrorism for the
country, wouldn't you prefer that he be treated as an enemy
combatant, and that he have the opportunity to be interrogated
so that you could learn information and prevent future attacks?
Mr. Leiter. As the Director of NCTC, I absolutely have an
interest in ensuring that intelligence is collected so it can
be analyzed and put into action. I also do have an interest,
although not the same interest as the Department of Justice,
where it's, I think, even more overriding, of ensuring that
basic laws, constitutional principles, are followed. I'm not
suggesting either one of these paths would not have honored
that. But, I do actually have an enormous interest, as the
Director of NCTC, to make sure that there is a level of trust,
with the Congress and the American people, that any
counterterrorism investigation is being pursued in a lawful,
reasonable manner.
Senator LeMieux. Thank you.
Congressman Hamilton, it seems to me that we still don't
know who's in charge of protecting the homeland. Obviously, the
President of the United States is ultimately responsible, but
we have an Attorney General, we have a Director of
Intelligence, we have the head of the CIA, we have head of the
FBI, we have Director Leiter. I mean, do we still need some
kind of structural change in the U.S. Government so that one
person is responsible and reports to the President as the
ultimate person who is here to protect the country?
Mr. Hamilton. Yes. You have the Intelligence Reform and
Terrorism Prevention Act, and it's been very clear from the
testimony here today that there is, at the very least, a good
bit of ambiguity in that statute as to who has authority. That
statute was very hard to pass, and it is not going to be
amended quickly or soon. So, you're going to be living with it,
and you're going to be--for a while; I don't know how long. And
during that time, the ambiguities are still going to be there.
So, the only person that can make it clear who has the
authority to do what, is the President of the United States.
And I believe that he has to make it very clear who has the
authority within the intelligence community.
Now, I think it was the intent of the Congress to put that
authority in the Director of National Intelligence. But, as
you--if you read that statute, it is not crystal clear. So, I
think there is a heavy burden, given the fact that you're
operating under an ambiguous statute, that the President must
say who has the authority on budget, on personnel, on
coordination, on integration in the intelligence community. And
I don't know who else can do it.
When you have ambiguity in a statute, it is an invitation
to the bureaucracy to struggle, to fight, to protect their
turf. And only the President can clear the deck.
Senator LeMieux. Thank you, Congressman.
Mr. Leiter. Senator, may I add, briefly? And I associate
myself with all of The Very Honorable Lee Hamilton's comments.
I think he's exactly right. But, I would add an additional
layer of complexity here, because the issue to which he was
speaking was really coordination of the intelligence community,
and that intelligence community is just one bit of the larger
national security counterterrorism effort, which obviously
extends to DHS, to the Attorney General, as you've cited, the
Secretary of Defense, the Secretary of State. So, to the extent
that it might be a bridge too far right now to even
significantly modify the Intelligence Reform and Terrorism
Prevention Act with respect to the DNI's authorities and NCTC's
authorities, I would simply add that an even broader reform, I
think, starts to be a bridge much, much too far.
Senator LeMieux. I guess the challenge that we have is
that, at some point, somebody has to be accountable. And when
you know that you're the person in charge--and you've both had
this experience--then you institute a different level of action
and follow-up than if there is a collective group. And if one
person knows that they're responsible for keeping the homeland
safe, whether it's the Secretary or the Attorney General or
some other person, such as the Director of National
Intelligence, the system is going to work differently. Right
now it seems like it's collegial. And it didn't work. And we
should be acting--and I know that you are--as if the plane blew
up.
Mr. Leiter. Senator, I agree fully with what you just said.
I think the President did make clear that the buck stops with
him, ultimately. That's--but, also, in his tasking to the
Director of NCTC, he made clear to give me the responsibility
to ensure a system of follow-up on high--a prioritizing and
follow-up of high-priority threats.
Now, consistent with the statutory language that created
NCTC, I do not have the authority, nor am I seeking it, to
direct the actions to follow up. But, at least we will
establish a system whereby each of these threats, when we
identify threats, can, in fact, be followed up through
appropriate department or agency action, and the results of
that follow-up are reported back to the National Security
Council to ensure that they have the information they need to
further direct action, as necessary.
Senator LeMieux. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Let me just actually ask one quick question and then turn
to Lee Hamilton for a thought.
The--always the first question that the press asks is,
``So, who's going to get fired?''
Voice. Is what?
The Chairman. ``Who's going to get fired?'' In other words,
there has got to be somebody who's accountable. Can't fire the
President. And so, it's like it's the all-consuming answer to
our problems. If somebody's fired, it means that somebody--that
Farouk would have never gotten on an airplane, et cetera. I
don't--I think the question of firing at a high level, if it
places itself squarely in front of somebody because there has
been a clear case of negligence, has to come before the
President of the United States.
To make a--an absurd comparison, but the only one that I
can think of right now, when I was Governor of West Virginia,
the State still controlled liquor, had liquor stores. West
Virginia has had its share of Governors who've done time in
prison and things of this sort. This particular one didn't.
However, our director of liquor took a vacation trip to Wyoming
with a bunch of liquor lobbyists. Now, he's not a high person
in government; he was a--you know, in the cabinet, so to speak.
But, liquor and beer don't really make the first cut. I called
him up in Wyoming and I fired him on the spot. And I never
questioned my own honesty, but you off--you always have to
worry about not just the people who are at the top, but the
people who are down somewhere in the middle, who are making
decisions, who are looking at--who are looking at some of the
cable traffic and the interpretation, who are the analysts or
whatever, and you get into this business of people who've been
there for 20 or 25 years.
And I always compare it to HHS; you come in and you do--you
do Medicare, and you come into the office every morning,
somewhere out in Baltimore, and there are stacks of--big stack
of paper here, big stack of paper here, there's a big stack of
paper here, big stack of paper here. And the question is, Do
you just go from the top down? You come back the next day, and
you do it. And after a number of years, you just wear out and
you start to miss stuff.
And my question to you, Director Leiter, is, Is that on the
minds--I mean, if you've got hundreds of thousands--and I think
the number actually goes a lot higher than that--pieces of
information coming in every day, you are overwhelmed with
hearings, with pressure, with the terrifying nature of the
modern world, and all of a sudden we're discussing Somalia and
Djibouti and Yemen and Kenya, and they're not even in the
Middle East. I don't think Yemen qualifies as that; that's Horn
of Africa. So, that doesn't--that's not Iran, that's not Iraq,
that's not Afghanistan. So, there's overwhelming obsession of
the duties of the day, the responsibilities, what can get up to
you.
I do think it's important that people in your position are
able to look down--have a mechanism for being able to look down
and fire the--find out who has gotten tired, who doesn't really
want to come to work in an area where the Nation's citizens are
at risk. And those folks, if there are--some of them who are
removed quietly--I would say, without a lot of public
attention--it will be understood throughout the entire
intelligence community within 48 hours, maybe worldwide. I
think that's important.
And I think what Senator LeMieux and what a lot of us--you
know, we keep saying, ``Somebody's accountable. Therefore, if
it's not working, somebody ought to get fired.'' And sometimes,
things don't rise to that easy an answer. Because, if you fire
somebody who's way up here--and maybe that person should be
fired, and that's up to the President--but then you've sort of
taken the--you've sort of taken the pressure off of everybody
else. And where a lot of the main work is going on is four or
five levels down, but it's the crucial work. It's the crucial
work. It's the selection of which piece of information took
precedence over what, and they should be placed in this group
or this group, or whatever.
Is this something which--is this--are you aware of this? I
mean, I know you're aware of it; I've just talked about it, and
you've been around a long time. But, I think that kind of thing
is important.
Mr. Leiter. Senator, absolutely. And I hope--and I think he
has--I think the President has had the same thoughts about his
leadership, wondering if we've just been looking at paper, and
not moving it as quickly. And I expect that he can ask that
question. He should ask that question about me, as the Director
of NCTC, decide if that's the case with me.
But, on--in terms of the workforce, it is certainly
something we think about. And I'll tell you that I say
something to every new class of people that come to NCTC. And I
know you've met--you've come out and met many of our analysts,
and you know most of them are 26, 27, 28. And I can tell you
that the reaction to the events of Christmas Day has just been
heartbreaking to many of them. Frankly, heartbreaking to me. I
mean, it--we know that we should have done better. And it is
traumatic, and we were--obviously dodged a bullet and very
lucky that something more tragic did not occur. And it has
been--caused soul-searching for many of us, myself included.
But, at every introduction to the new class of people
coming to NCTC, as they rotate through from different agencies,
I tell them that--at the entrance to our auditorium, there's a
display that we put up on our fifth anniversary, just a month
or two ago, which has the remnants of a flag that was recovered
from the World Trade Center site, a piece of the Pentagon, and
remnants of the steel--twisted steel from the World Trade
Center. And I tell every one of them in those classes, ``The
day that you can no longer walk into this building and look at
that display and say, `I'm going to do everything I can to
protect innocent people from getting killed by terrorists', is
the day that you have to turn in your badge and go find
something else to do.''
And I think that this event will cause some people to have
those thoughts, because the pace is so strenuous, the burnout
is so high, the pressure is so high. But, my belief is, we
fundamentally have the right set of people, that they've been
walking in every day, they've been seeing that display, and
they've been working as hard as humanly possible, in as
cooperative a spirit as possible, to make sure events like
Christmas Day don't happen again.
The Chairman. And I understand that, and I agree with it.
You've left the judgment up to the individuals. And I'm saying,
sometimes the judgment has to come from----
Mr. Leiter. Absolutely, Mr. Chairman. And to be clear, that
is a judgment I----
Mr. Hamilton. Mr. Chairman, let me just add that I'm
certainly for accountability in government. And if a person
clearly did not do their job, they ought to pay a penalty for
that. The immediate problem is to correct the flaws that
happened. This threat is ongoing; they're plotting, right now,
how to get at us. And the urgent task--a prior task to
accountability--is to correct the flaws that have been
discussed here. That's the priority, from my point of view.
Accountability, obviously important. But, correcting the flaw
is more important.
The Chairman. Congressman----
Mr. Hamilton. And incidentally, if I may go back a few
years in history, the Hart-Rudman Commission, we made the
observation that hiring and firing is a national security
issue. I think it was, back then; I think it is, today. One of
the really great weaknesses of our system is that managers like
Director Leiter do not have the power to hire and to fire.
The Chairman. Well, that's pretty well put. And that goes
on the agenda.
Congressman do you have, in closing, any thoughts that have
occurred to you? I know you haven't been around very much, and
don't have much experience, but----
Mr. Hamilton. Well, I've learned a lot this afternoon, in
listening to Director Leiter and Secretary Napolitano, and I've
very much appreciated the opportunity to be with you.
The questions, I might say, from your Senators, have really
been excellent and on the mark.
The only further comment I would make--and this has come up
in the hearing, but not enough emphasis, from my standpoint--
the fundamental problem--and I think that Director Leiter would
agree with me here--is the analytical function. And if you want
to make sure this thing doesn't happen again, many things,
perhaps, have to happen. But, by all odds, it seems to me, the
most important thing that has to happen is, you have to
strengthen this analytical capacity. When you're talking about
connecting the dots, that's what you're really talking about.
We have the most remarkable collection ability, in
producing all of this information, that any government or any
entity could possibly have. But, analysis needs much, much more
emphasis. You've got to have better-trained analysis, you've
got to have--analysts--and more of them. And that would be one
of my impressions from this hearing.
The second impression is that the analysts have to have the
ability to follow up, to pursue a lead and to demand action
against a potential threat.
Senator LeMieux. Mr. Chairman?
The Chairman. Yes?
Senator LeMieux. I just wanted to offer--is that better?
Sorry. Broke the microphone.
You know, we have the finest computing people in the world,
in this country, whether it's Google or other companies. I know
folks in Florida who do unbelievable spinning of trillions of
pieces of data for the private sector. I hope that you feel
like you've got the freedom to reach out to the smartest minds
in America to help you, because I know that they would. And I
don't necessarily mean giving somebody a contract; that's one
thing, and maybe you need to do that. But, just go out to these
people, and have them come in and help you, because, you know,
what Senator Cantwell was talking about with cloud computing
and all the things that we've done--and I assume you have this.
But, whatever else you need, you should go get.
Mr. Leiter. Senator. We absolutely have. We have, over
several years, reached out to the private sector and the
National Labs. We are doing so vigorously again now in response
to this. And if you have particular companies or people that
you think would be particularly useful, I am more than happy to
speak with you and make sure we get those folks inside and see
what our challenges are.
Senator LeMieux. Thank you, Mr. Chairman.
The Chairman. Thank you.
And thank you all, the departed and the present. Thanks for
your patience.
Thanks for you, in the audience, who have suffered, been
through grief.
Thanks for those of you who have just simply come here to
listen and to learn and to act out your citizenship.
This hearing is adjourned.
[Whereupon, at 5:22 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of the American Civil Liberties Union (Michael W.
Macleod-Ball, Acting Director, Washington Legislative Office and
Christopher Calabrese, Legislative Counsel)
Chairman Rockefeller, Ranking Member Hutchison, and members of the
Committee:
The American Civil Liberties Union (ACLU) has more than half a
million members, countless additional activists and supporters, and
fifty-three affiliates nationwide. We are one of the Nation's oldest
and largest organizations advocating in support of individual rights in
the courts and before the executive and legislative branches of
government. In particular, throughout our history, we have been one of
the Nation's pre-eminent advocates in support of privacy and equality.
We write today to express our strong concern over the three substantive
policy changes that are being considered in the wake of the attempted
terror attack on Christmas Day: the wider deployment of whole body
imaging (WBI) devices, the expanded use of terror watch lists and
increased screening of individuals from fourteen so-called nations of
interest. The ACLU believes that each of these technologies greatly
infringe on civil liberties and face serious questions regarding its
efficacy in protecting airline travelers.
The President has already identified a failure of intelligence as
the chief cause of the inability to detect the attempted terror attack
on Christmas Day. As such, the government's response must be directed
to that end. These invasive and unjust airline security techniques
represent a dangerous diversion of resources from the real problem.
This diversion of resources promises serious harm to American's privacy
and civil liberties while failing to deliver significant safety
improvements.
I. Introduction
WBI uses millimeter wave or X-ray technology to produce graphic
images of passengers' bodies, essentially taking a naked picture of air
passengers as they pass through security checkpoints. This technology
is currently deployed at 19 airports and the Department of Homeland
Security (DHS) recently announced the roll out of 300 more machines by
year end.\1\ While initially described as a secondary screening
mechanism, DHS is now stating that WBI will be used for primary
screening of passengers.\2\
---------------------------------------------------------------------------
\1\ Harriet Baskas, Air security: Protection at privacy's expense?
Msnbc.com, January 14, 2010. http://www.msnbc.msn.com/id/34846903/ns/
travel-tips/.
\2\ Paul Giblin and Eric Lipton, New Airport X-Rays Scan Bodies,
Not Just Bags, New York Times, February 24, 2007.
---------------------------------------------------------------------------
Another way of screening passengers is through terror watch lists.
The terror watch lists are a series of lists of names of individuals
suspected of planning or executing terrorist attacks. The master list
is maintained by the Terrorist Screening Center (TSC) and contains more
than one million names.\3\ Subsets of this list include the No Fly list
(barring individuals from air travel) and the Automatic Selectee list
(requiring a secondary screening). The names on this list and the
criteria for placement on these lists are secret.\4\ There is no
process allowing individuals to challenge their placement on a list or
seek removal from a list.
---------------------------------------------------------------------------
\3\ The Federal Bureau of Investigation's Terrorist Watchlist
Nomination Practices, Justice Department, Office of the Inspector
General, Audit Report 09-25, May 2009, pg. 3. http://www.justice.gov/
oig/reports/FBI/a0925/final.pdf.
\4\ Id. at 70.
---------------------------------------------------------------------------
Finally, individuals who were born in, are citizens of, or are
traveling from fourteen nations will receive additional scrutiny under
a policy announced by the U.S. Government after the attempted terror
attack. As of January 19, 2010 these nations are Afghanistan, Algeria,
Cuba, Iran, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia,
Somalia, Sudan, Syria and Yemen.
The ACLU believes that Congress should apply the following two
principles in evaluating any airline security measure:
Efficacy. New security technologies must be genuinely
effective, rather than creating a false sense of security. The
wisdom supporting this principle is obvious: funds to increase
aviation security are limited, and any technique or technology
must work and be substantially better than other alternatives
to deserve some of the limited funds available. It therefore
follows that before Congress invests in technologies or employs
new screening methods, it must demand evidence and testing from
neutral parties that these techniques have a likelihood of
success.
Impact on Civil Liberties. The degree to which a proposed
measure invades privacy should be weighed in the evaluation of
any technology. If there are multiple effective techniques for
safeguarding air travel, the least intrusive technology or
technique should always trump the more invasive technology.
II. Screening Techniques and Technologies Must Be Effective, or they
Should Not be Utilized or Funded
The wider deployment of whole body imaging (WBI) devices, expanded
use of terror watch lists and increased screening of individuals from
fourteen so-called nations of interest each face significant questions
regarding their efficacy in protecting air travelers and combating
terrorism.
Whole Body Imaging
There are no magic solutions or technologies for protecting air
travelers. Ben Wallace, a current member of the British parliament who
advised a research team at QinetiQ, a manufacturer of body screening
devices, has stated that their testing demonstrated that these
screening devices would not have discovered a bomb of the type used on
Christmas day, as they failed to detect low density materials like
powders, liquids and thin plastics.\5\ A current QinetiQ product
manager admitted that even their newest body scan technology probably
would not have detected the underwear bomb.\6\ The British press has
also reported that the British Department for Transport (DfT) and the
British Home Office have already tested the scanners and were not
convinced they would work comprehensively against terrorist threats to
aviation.\7\
---------------------------------------------------------------------------
\5\ Jane Merrick, Are Planned Airport Scanners Just a Scam? The
Independent, January 3, 2010.
\6\ Id.
\7\ Id.
---------------------------------------------------------------------------
In addition we know that al Qaeda has already discovered a way to
work around this technology. In September a suicide bomber stowed a
full pound of high explosives and a detonator inside his rectum, and
attempted to assassinate a Saudi prince by blowing himself up.\8\ While
the attack only slightly wounded the prince, it fully defeated an array
of security measures including metal detectors and palace security. The
bomber spent 30 hours in the close company of the prince's own secret
service agents--all without anyone suspecting a thing. WBI devices--
which do not penetrate the body--would not have detected this device.
---------------------------------------------------------------------------
\8\ Sheila MacVicar , Al Qaeda Bombers Learn from Drug Smugglers,
CBSnews.com, September 28, 2009.
---------------------------------------------------------------------------
The practical obstacles to effective deployment of body scanners
are also considerable. In the United States alone, 43,000 TSA officers
staff numerous security gates at over 450 airports and over 2 million
passengers a day.\9\ To avoid being an ineffective ``Maginot line,''
these $170,000 machines will need to be put in place at all gates in
all airports; otherwise a terrorist could just use an airport gate that
does not have them. Scanner operators struggle constantly with boredom
and inattention when tasked with the monotonous job of scanning
thousands of harmless individuals when day after day, year after year,
no terrorists come through their gate. In addition to the expense of
buying, installing and maintaining these machines, additional personnel
will have to be hired to run them (unless they are shifted from other
security functions, which will degrade those functions).
---------------------------------------------------------------------------
\9\ http://www.tsa.gov/what_we_do/screening/
security_checkpoints.shtm.
---------------------------------------------------------------------------
The efficacy of WBI devices must be weighed against not only their
impact on civil liberties (discussed further below) but also their
impact on the U.S. ability to implement other security measures. Every
dollar spent on these technologies is a dollar that is not spent on
intelligence analysis or other law enforcement activity. The President
has already acknowledged that it was deficiencies in those areas--not
aviation screening--that allowed Umar Farouk Abdulmutallab to board an
airplane.
Watch Lists
The events leading up to the attempted Christmas attack are a
telling indictment of the entire watch list system. In spite of damning
information, including the direct plea of Abdulmutallab's father, and
other intelligence gathered about terrorist activity in Yemen,
Abdulmutallab was not placed into the main Terrorist Screening
Database. We believe that fact can be directly attributed to the
bloated and overbroad nature of the list--now at more than a million
names. \10\ The size of the list creates numerous false positives,
wastes resources and hides the real threats to aviation security. As we
discuss below it also sweeps up many innocent Americans--falsely
labeling them terrorists and providing them with no mechanism for
removing themselves from the list.
---------------------------------------------------------------------------
\10\ DOJ OIG Audit Report 09-25, pg 3. http://www.justice.gov/oig/
reports/FBI/a0925/final.pdf.
---------------------------------------------------------------------------
These problems are not hypothetical. They have real consequences
for law enforcement and safety. An April 2009 report from the Virginia
Fusion Center states
According to 2008 Terrorism Screening Center ground encounter
data, al-Qa'ida was one of the three most frequently
encountered groups in Virginia. In 2007, at least 414
encounters between suspected al-Qa'ida members and law
enforcement or government officials were documented in the
Commonwealth. Although the vast majority of encounters involved
automatic database checks for air travel, a number of subjects
were encountered by law enforcement officers.\11\
---------------------------------------------------------------------------
\11\ Virginia Fusion Center, 2009 Virginia Terrorism Threat
Assessment, March 2009, pg 27.
Every time a law enforcement officer encounters someone on the
terrorist watch list (as determined by a check of the National Crime
Information Center (NCIC) database) they contact the TSC. So in essence
Virginia law enforcement is reporting that there are more than 400 al
Qaeda terrorists in Virginia in a given year. This is difficult to
believe.\12\ In reality most, if not all, of these stops are false
positives, mistakes regarding individuals who should not be on the
list. These false positives can only distract law enforcement from real
dangers.
---------------------------------------------------------------------------
\12\ The report does not state that any of these individuals were
arrested.
---------------------------------------------------------------------------
A 2009 report by the Department of Justice Inspector General found
similarly troubling results. From the summary:
We found that the FBI failed to nominate many subjects in the
terrorism investigations that we sampled, did not nominate many
others in a timely fashion, and did not update or remove
watchlist records as required. Specifically, in 32 of the 216
(15 percent) terrorism investigations we reviewed, 35 subjects
of these investigations were not nominated to the consolidated
terrorist watchlist, contrary to FBI policy. We also found that
78 percent of the initial watchlist nominations we reviewed
were not processed in established FBI time frames.
Additionally, in 67 percent of the cases that we reviewed in
which a watchlist record modification was necessary, we
determined that the FBI case agent primarily assigned to the
case failed to modify the watchlist record when new identifying
information was obtained during the course of the
investigation, as required by FBI policy. Further, in 8 percent
of the closed cases we reviewed, we found that the FBI failed
to remove subjects from the watchlist as required by FBI
policy. Finally, in 72 percent of the closed cases reviewed,
the FBI failed to remove the subject in a timely manner.\13\
---------------------------------------------------------------------------
\13\ DOJ OIG Audit Report 09-25, pg iv-v. http://www.justice.gov/
oig/reports/FBI/a0925/final.pdf
This is only the latest in a long string of government reports
describing the failure of the terror watch lists.\14\ In order to be an
effective tool against terrorism these lists must shrink dramatically
with names limited to only those for whom there is credible evidence of
terrorist ties or activities.
---------------------------------------------------------------------------
\14\ Review of the Terrorist Screening Center (Redacted for Public
Release), Justice Department, Office of the Inspector General, Audit
Report 05-27, June 2005; Review of the Terrorist Screening Center's
Efforts to Support the Secure Flight Program (Redacted for Public
Release), Justice Department, Office of the Inspector General, Audit
Report 05-34, August 2005; Follow-Up Audit of the Terrorist Screening
Center (Redacted for Public Release), Justice Department, Office of the
Inspector General, Audit Report 07-41, September 2007; The Federal
Bureau of Investigation's Terrorist Watchlist Nomination Practices,
Justice Department, Office of the Inspector General, Audit Report 09-
25, May 2009; DHS Challenges in Consolidating Terrorist Watch List
Information, Department of Homeland Security, Office of Inspector
General, OIG-04-31, August 2004; Terrorist Watch Lists Should Be
Consolidated to Promote Better Integration and Sharing, GAO Report to
Congressional Requesters, GAO-03-322, April 2003; Congressional Memo
Regarding Technical Flaws in the Terrorist Watch List, House Committee
on Science and Technology, August 2008.
---------------------------------------------------------------------------
Aviation Screening on the Basis of Nationality
Numerous security experts have already decried the use of race and
national origin as an aviation screening technique.
Noted security expert Bruce Schneier stated recently:
[A]utomatic profiling based on name, nationality, method of
ticket purchase, and so on . . . makes us all less safe. The
problem with automatic profiling is that it doesn't work.
Terrorists can figure out how to beat any profiling system.
Terrorists don't fit a profile and cannot be plucked out of
crowds by computers. They're European, Asian, African,
Hispanic, and Middle Eastern, male and female, young and old.
Umar Farouk Abdul Mutallab was Nigerian. Richard Reid, the shoe
bomber, was British with a Jamaican father. Germaine Lindsay,
one of the 7/7 London bombers, was Afro-Caribbean. Dirty bomb
suspect Jose Padilla was Hispanic-American. The 2002 Bali
terrorists were Indonesian. Timothy McVeigh was a white
American. So was the Unabomber. The Chechen terrorists who blew
up two Russian planes in 2004 were female. Palestinian
terrorists routinely recruit ``clean'' suicide bombers, and
have used unsuspecting Westerners as bomb carriers.
Without an accurate profile, the system can be statistically
demonstrated to be no more effective than random screening.
And, even worse, profiling creates two paths through security:
one with less scrutiny and one with more. And once you do that,
you invite the terrorists to take the path with less scrutiny.
That is, a terrorist group can safely probe any profiling
system and figure out how to beat the profile. And once they
do, they're going to get through airport security with the
minimum level of screening every time.\15\
---------------------------------------------------------------------------
\15\ http://roomfordebate.blogs.nytimes.com/2010/01/04/will-
profiling-make-a-difference/.
Schneier is not alone in this assessment. Philip Baum is the
---------------------------------------------------------------------------
managing director of an aviation security company:
Effective profiling is based on the analysis of the appearance
and behavior of a passenger and an inspection of the traveler's
itinerary and passport; it does not and should not be based on
race, religion, nationality or color of skin. . . .
Equally, the decision to focus on nationals of certain
countries is flawed and backward. Perhaps I, as a British
citizen, should be screened more intensely given that Richard
Reid (a.k.a. ``the Shoebomber'') was a U.K. passport holder and
my guess is there are plenty more radicalized Muslims carrying
similar passports. Has America forgotten the likes of Timothy
McVeigh? It only takes one bad egg and they exist in every
country of the world.\16\
---------------------------------------------------------------------------
\16\ Id.
---------------------------------------------------------------------------
Former Israeli airport security director Rafi Ron:
My experience at Ben Gurion Airport in Tel Aviv has led me to
the conclusion that racial profiling is not effective. The
major attacks at Ben Gurion Airport were carried out by
Japanese terrorists in 1972 and Germans in the 1980s. [They]
did not belong to any expected ethnic group. Richard Reid
[known as the shoe bomber] did not fit a racial profile.
Professionally as well as legally, I oppose the idea of racial
profiling.\17\
---------------------------------------------------------------------------
\17\ Katherine Walsh, Behavior Pattern Recognition and Why Racial
Profiling Doesn't Work, CSO Online, (Feb. 1, 2006), at: http://
www.csoonline.com/article/220787/Behavior_Pattern
_Recognition_and_Why_Racial_Profiling_Doesn_t_Work.
This should be the end of the discussions. Policies that don't work
have no place in aviation security. When they are actively harmful--
wasting resources and making us less safe--they should be stopped as
quickly as possible.
III. The Impact on Privacy and Civil Liberties Must be Weighed in Any
Assessment of Aviation Security Techniques
Each of the three aviation security provisions discussed in these
remarks represents a direct attack on fundamental American values. As
such they raise serious civil liberties concerns.
Whole Body Imaging
WBI technology involves a striking and direct invasion of privacy.
It produces strikingly graphic images of passengers' bodies,
essentially taking a naked picture of air passengers as they pass
through security checkpoints. It is a virtual strip search that reveals
not only our private body parts, but also intimate medical details like
colostomy bags. Many people who wear adult diapers feel they will be
humiliated. That degree of examination amounts to a significant assault
on the essential dignity of passengers. Some people do not mind being
viewed naked but many do and they have a right to have their integrity
honored.
This technology should not be used as part of a routine screening
procedure, but only when the facts and circumstances suggest that it is
the most effective method for a particular individual. And such
technology may be used in place of an intrusive search, such as a strip
search--when there is reasonable suspicion sufficient to support such a
search.
TSA is also touting privacy safeguards including blurring of faces,
the non-retention of images, and the viewing of images only by
screeners in a separate room. Scanners with such protections are
certainly better than those without; however, we are still skeptical of
their suggested safeguards such as obscuring faces and not retaining
images.
Obscuring faces is just a software fix that can be undone as easily
as it is applied. And obscuring faces does not hide the fact that rest
of the body will be vividly displayed. A policy of not retaining images
is a protection that would certainly be a vital step for such a
potentially invasive system, but it is hard to see how this would be
achieved in practice. TSA would almost certainly have to create
exceptions--for collecting evidence of a crime or for evaluation of the
system (such as in the event of another attack) for example--and it is
a short step from there to these images appearing on the Internet.
Intrusive technologies are often introduced very gingerly with all
manner of safeguards and protections, but once the technology is
accepted the protections are stripped away. There are substantial
reasons for skepticism regarding TSA promised protections for WBI
devices. In order for these protections to be credible Congress must
enshrine them in law.
Finally, the TSA should invest in developing other detection
systems that are less invasive, less costly and less damaging to
privacy. For example, ``trace portal detection'' particle detectors
hold the promise of detecting explosives while posing little challenge
to flyers' privacy. A 2002 Homeland Security report urged the
``immediate deployment'' of relatively inexpensive explosive trace
detectors in European airports, as did a 2005 report to Congress, yet
according to a 2006 Associated Press article, these efforts ``were
frustrated inside Homeland Security by `bureaucratic games, a lack of
strategic goals and months-long delays in distributing money Congress
had already approved.'' \18\ Bureaucratic delay and mismanagement
should not be allowed to thwart the development of more effective
explosive detection technologies that do not have the negative privacy
impact of WBI devices.
---------------------------------------------------------------------------
\18\ John Solomon, Bureaucracy Impedes Bomb Detection Work,
Washington Post, Aug. 12, 2006, at: http://www.washingtonpost.com/wp-
dyn/content/article/2006/08/12/AR2006081200
269.html.
---------------------------------------------------------------------------
Watch Lists
The creation of terrorist watch lists--literally labeling
individuals as a terrorist--has enormous civil liberties impact. It
means ongoing and repetitive harassment at all airports--foreign and
domestic, constant extra screening, searches and invasive questions.
For the many innocent individuals on the lists this is humiliating and
infuriating.
For some it is worse. Individuals on the No Fly List are denied a
fundamental right, the right to travel and move about the country
freely. Others are threatened with the loss of their job. Erich
Sherfen, commercial airline pilot and Gulf War veteran, has been
threatened with termination from his job as a pilot because his name
appears on a government watch list, which prevents him from entering
the cockpit.\19\ Sherfen is not the only innocent person placed on a
terror watch list. Others individual who are either on a list or
mistaken for those on the list include a former Assistant Attorney
General, many individuals with the name Robert Johnson, the late
Senator Edward Kennedy and even Nelson Mandela.\20\
---------------------------------------------------------------------------
\19\ Jeanne Meserve, Name on government watch list threatens
pilot's career, CNN.com, August 22, 2008, http://www.cnn.com/2008/US/
08/22/pilot.watch.list/index.html?iref=newssearch.
\20\&& For details on these individuals and many other please see:
http://www.aclu.org/technology-and-liberty/unlikelysuspects.
---------------------------------------------------------------------------
The most recent case--revealed just last week--is that of Mikey
Hicks, an 8 year old boy who has been on the selectee list seemingly
since birth. According to Hicks' family their travel tribulations that
began when Mikey was an infant. When he was 2 years old, the kid was
patted down at airport security. He's now, by all accounts, an
unassuming bespectacled Boy Scout who has been stopped every time he
flies with his family.\21\
---------------------------------------------------------------------------
\21\ Lizette Alvarez, Meet Mikey, 8: U.S. Has Him on Watch List,
New York Times, January 13, 2010.
---------------------------------------------------------------------------
In addition, to stops at the airport watch list information is also
placed in the National Criminal Information Center database. That means
law enforcement routinely run names against the watch lists for matters
as mundane as traffic stops. It's clear that innocent individuals may
be harassed even if they don't attempt to fly.
Nor is there any due process for removing individuals from the
list--there is simply no process for challenging the government's
contention that you are a terrorist. Even people who are mistaken for
those on the list face challenges. A September 2009 report by the
Inspector General of the Department of Homeland Security found that the
process for clearing innocent travelers from the list is a complete
mess.\22\
---------------------------------------------------------------------------
\22\ Effectiveness of the Department of Homeland Security Traveler
Redress Inquiry Program, Department of Homeland Security, Office of the
Inspector General OIG 09-10, September 2009. http://www.dhs.gov/xoig/
assets/mgmtrpts/OIG-09-103r Sep09.pdf.
---------------------------------------------------------------------------
In light of the significant and ongoing harm to innocent Americans
as well as the harm to our national security caused by the diversion of
security resources these watch lists must be substantial reduced in
size and fundamental due process protections imposed. Innocent
travelers must be able to remove themselves from the list both for
their sake and the sake of national security.
Aviation Screening on the Basis of Nationality
This history of the civil rights movement in the 20th and 21st
Century is a long, compelling rejection of the idea that individuals
should be treated differently on the basis of their race or nation of
origin. Because of that, the administration's decision to subject the
citizens of fourteen nations flying to the United States to intensified
screening is deeply troubling. Longstanding constitutional principles
require that no administrative searches, either by technique or
technology, be applied in a discriminatory matter. The ACLU opposes the
categorical use of profiles based on race, religion, ethnicity, or
country of origin. This practice is nothing less than racial profiling.
Such profiling is ineffective and counter to American values.
But the harm that profiling on the basis of national origin does to
civil liberties is not an abstraction--it also has direct impact on
American security interests. These harmful policies have a direct
impact on the Muslim and Arab communities. The Senate Homeland Security
and Government Affairs committee has heard testimony from several
witnesses who cited the growth of Islamophobia and the polarization of
the Muslim community as risk factors that could raise the potential for
extremist violence.\23\ Unfairly focusing suspicion on a vulnerable
community tends to create the very alienation and danger that we need
to avoid.
---------------------------------------------------------------------------
\23\ See for example, Hearing of the Senate Homeland Security and
Governmental Affairs Committee, Violent Islamist Extremism: The
European Experience, (June 27, 2007), particularly the testimony of
Lidewijde Ongering and Marc Sageman, available at: http://
hsgac.senate.gov/public/
index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=9c8ef805-75c8-48c2-
810dd778af31
cca6.
---------------------------------------------------------------------------
Indeed a recent United Kingdom analysis based on hundreds of case
studies of individuals involved in terrorism reportedly identified
``facing marginalization and racism'' as a key vulnerability that could
tend to make an individual receptive to extremist ideology.\24\ The
conclusion supporting tolerance of diversity and protection of civil
liberties was echoed in a National Counterterrorism Center (NCTC) paper
published in August 2008. In exploring why there was less violent
homegrown extremism in the U.S. than the U.K., the authors cited the
diversity of American communities and the greater protection of civil
rights as key factors.\25\
---------------------------------------------------------------------------
\24\ Alan Travis, ``MI5 Report Challenges Views on Terrorism in
Britain,'' The Guardian, (August 20, 2008) at: http://
www.guardian.co.uk/uk/2008/aug/20/uksecurity.terrorism1 and; Alan
Travis, ``The Making of an Extremist,'' The Guardian (Aug. 20, 2008)
at: http://www.guar
dian.co.uk/uk/2008/aug/20/uksecurity.terrorism.
\25\ National Counterterrorism Center Conference Report, Toward a
Domestic Counterradicalization Strategy, (August 2008).
---------------------------------------------------------------------------
At the January 7, 2009 White House briefing regarding the security
failures surrounding the Christmas attack, DHS Secretary Janet
Napolitano raised a question about ``counterradicalization.'' \26\ She
asked, ``How do we communicate better American values and so forth, in
this country but also around the globe?'' Of course the Secretary
should know American values are communicated through U.S. Government
policies, which is why adopting openly discriminatory policies can be
so damaging and counterproductive to our national interests.
---------------------------------------------------------------------------
\26\ Briefing by Homeland Security Secretary Napolitano, Assistant
to the President for Counterterrorism and Homeland Security Brennan,
and Press Secretary Gibbs, 1/7/10, at: http://www.whitehouse.gov/the-
pressoffice/briefing-homeland-security-secretary-napolitano-assis
tant-president-counterterroris.
---------------------------------------------------------------------------
IV. Conclusion
Ultimately security is never absolute and never will be. It is not
wise security policy to spend heavily to protect against one particular
type of plot, when the number of terrorist ideas that can be hatched--
not only against airlines, but also against other targets--is
limitless. The President has identified a failure ``connect the dots''
by intelligence analysts as the main reason that Umar Farouk
Abdulmutallab was able to board a flight to the U.S.\27\ We must not
lose sight of that reality. Limited security dollars should be invested
where they will do the most good and have the best chance of thwarting
attacks. That means investing them in developing competent intelligence
and law enforcement agencies that will identify specific individuals
who represent a danger to air travel and arrest them or deny them a
visa.
---------------------------------------------------------------------------
\27\ Jake Tapper and Sunlen Miller, Obama: Intelligence Community
Failed to ``Connect the Dots'' in a ``Potentially Disastrous Way",
ABCNews.com, January 05, 2010. http://blogs.abcnews.com/politicalpunch/
2010/01/obamaintelligence-community-failed-to-connect-the-dots-in-a-
potentially-disastrous-way.html.
---------------------------------------------------------------------------
Invasive screening mechanisms, enlarging already bloated watch
lists, targeting on the basis of national origin--none of these
approaches go to the heart of what went wrong on Christmas day. Instead
they are a dangerous sideshow--one that harms our civil liberties and
ultimately makes us less safe.
______
Response to Written Questions Submitted by Hon. Mark Warner to
Hon. Michael E. Leiter
Question 1. I understand there is a complex system the intelligence
services and the NCTC use to adjudicate whether or not an individual is
placed on a watch list. Does everyone involved in the system, including
State Consular officers in country, understand the information that
must be supplied in order to add an individual to the No Fly list?
[This answer has been designated ``For Official Business Only'' and
has been provided to Senator Warner.]
Question 2. Please describe the data mining tools available to NCTC
analysts. What commercial search technology is being leveraged? Does
NCTC work with companies such as Google to improve its search
technologies and database managing?
[This answer has been designated ``Classified'' and has been
provided to Senator Warner.]
Question 3. How many intelligence databases relating to terrorism
exist in the U.S. Government? How many are fully integrated?
[This answer has been designated ``Classified'' and has been
provided to Senator Warner.]
Question 4. How are critical pieces of intelligence regarding
threats to the homeland identified? Is it solely dependent on human
input/action?
[This answer has been designated ``For Official Business Only'' and
has been provided to Senator Warner.]
______
Response to Written Questions Submitted by Hon. Mark Begich to
Hon. Michael E. Leiter
Question 1. The suspect in this case had a valid visa to travel the
U.S. Why wasn't Mr. Abdulmutallab's visa revoked, and what are the
criteria by which a visa is revoked?
This answer was forwarded to the Department of State as requested
by NCTC and is answered below:
Answer from the Department of State. In accordance with procedures
in place at the time, upon receiving the information provided, the
consular officer forwarded a Visas Viper report to the National
Counterterrorism Center (NCTC) for a determination regarding whether
the information was sufficient to watchlist Mr.Abdulmutallab. At that
point the intelligence and law enforcement communities determine if
there is sufficient information to list him in the Terrorist Screening
Database. That action would have triggered notification to State. The
State Department as a matter of standard procedure would have
prudentially revoked the visa absent any law enforcement or
intelligence community interest in not doing so, or some other valid
reason (such as waiver of ineligibility approved by the Department of
Homeland Security). In this case, as NCTC did not forward
Abdulmutallab's name and biodata to the Terrorist Screening Center, and
as there was no indication from the information provided to the USG in
Abuja that he posed any immediate threat to the United States, there
was no basis for a prudential revocation of his visa.
In this case, information in the Visas Viper report on Mr.
Abdulmutallab did not meet the minimum derogatory standard to
watchlist. The Department's procedures now require that Visas Viper
cables contain information regarding an applicant's visa status, and it
is our policy to revoke any visa held by the subject of a Visas Viper
cable, absent any law enforcement or intelligence community interest in
not doing so, or some other valid reason (such as waiver of
ineligibility approved by the Department of Homeland Security).
Question 2. What are the criteria by which a visa is revoked?
Answer from the Department of State. Visas may be revoked by a
consular officer abroad or by the Department. A consular officer abroad
may revoke a visa only when he or she has made an actual finding that
the holder is ineligible for a visa. When a consular officer abroad
wishes to revoke a visa in a category that requires a Security Advisory
Opinion (SAO),* the officer must first seek the SAO but may
request it be expedited. The consular officer may also request that the
Department revoke the visa.
---------------------------------------------------------------------------
\*\ The Security Advisory Opinion is the mechanism used by the
Department of State to provide consular officers advice and background
information to adjudicate visa applications abroad in cases of security
or foreign policy interest.
---------------------------------------------------------------------------
The Department has broad discretion and may revoke a visa even if a
ground of ineligibility is merely suspected. The normal process is for
the case to undergo an interagency review first although the Department
sometimes revokes visas without consulting other U.S. Government
agencies. However, interagency coordination offers many benefits,
including giving U.S. Government agencies with law enforcement or
intelligence equities in the case the opportunity to provide input into
the Department of State's decision to revoke or not.
Question 3. Are there any information-sharing barriers that
contributed to the failure to place Mr. Abdulmutallab on the selectee
or No Fly watch list?
[This answer has been designated ``For Official Business Only'' and
has been provided to Senator Begich.]
______
Response to Written Questions Submitted by Hon. Kay Bailey Hutchison to
Hon. Michael E. Leiter
Question 1. While the preliminary review of this incident suggests
a failure to connect-the-dots, rather than a failure to share
information, your analysts were apparently deprived of at least some
information: The State Department cable--perhaps due to a simple
misspelling--failed to indicate that this would-be terrorist held a
U.S. visa; and press reports indicate that a contemporaneous report
authored by the CIA was also not shared in a timely manner. The
Washington Post reported on January 12 that ``lack of information about
Abdulmutallab's open visa affected the NCTC's determination of the
threat he presented and thus the list he was put on.'' Do you agree? If
your analysts had had the visa information or the CIA report, do you
think they would have recommended watch-listing for this subject?
Answer. A classified response was submitted to the Senate Commerce
Committee.
Question 2. You testified that, in recent years, the watchlisting
community has been pressured to shrink the size of the No Fly and
Selectee Lists. In the Department of Homeland Security Appropriations
Act of 2008 (Public Law 110-161, Division E, Title II), however,
Congress expressed its concern about the fact that the full TSDB was
not being used for airline passenger screening by requiring the
Assistant Secretary of Homeland Security (Transportation Security
Administration) to certify ``that no significant security risks are
raised by screening airline passenger names only against a subset of
the full terrorist watch list.'' Would you agree that, notwithstanding
calls to improve the screening process to minimize false-positive
matches, Congress has applied pressure to use the full TSDB for airline
passenger screening?
Answer. A classified response was submitted to the Senate Commerce
Committee.
Question 3. The media has reported that, on November 13, 2009, a
Somali man was stopped in Mogadishu attempting to board a commercial
air carrier flight while carrying powdered chemicals, liquid, and a
syringe that could have been used as an explosive device. In addition
to the Somali incident, news accounts state that investigators ``are
hoping to compare the remnants of a similar explosive device used in an
August attempt to kill a senior Saudi government official to determine
whether it employed the same technology and possibly was constructed by
the same bombmaker'' as Mr. Abdulmutallab's device. (See Karen DeYoung
& Michael A. Fletcher, The Washington Post, ``Obama: Security Agencies
Failed,'' January 6, 2010.) Moreover, on January 15, 2010, the press
reported that Al Qaeda in the Arabian Peninsula may be currently
planning more attacks on the U.S. (Eric Lipton, The New York Times,
``Possibility of Plots Prompts More Checks for Explosives at
Airports,'' January 15, 2010.) Given NCTC's role as ``the primary
organization in the U.S. Government for analyzing and integrating all
intelligence possessed or acquired by the USG pertaining to
[international] terrorism and counterterrorism'' (Public Law 108-458),
do you assess that these incidents are connected? Do you believe Mr.
Abdulmutallab's attempted attack was part of a larger conspiracy or
series of planned attacks?
Answer. A classified response was submitted to the Senate Commerce
Committee.
Question 4. Yemeni authorities have reportedly acknowledged that
Mr. Abdulmutallab met with radical Yemeni cleric Anwar at Awlaki last
fall in Yemen. (See, e.g., Haley Sweetland Edwards, the Los Angeles
Times, ``Yemen's Role Minimized,'' January 8, 2010.) At the hearing,
you testified that intelligence about the Yemeni cleric and his
associates had been scrubbed based on his association with Major Nidal
M. Hasan, who is charged with killing 13 people at Fort Hood, Texas, in
November 2009. In response to a question from Senator Ensign, however,
you stated that no communications between the cleric and Mr.
Abdulmutallab had been intercepted before December 25, 2009. Please
describe, in a classified response if necessary, what, if any,
intelligence about the connection between Mr. Abdulmutallab and Anwar
al Awlaki was known before December 25, 2009.
Answer. A classified response was submitted to the Senate Commerce
Committee.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Hon. Michael E. Leiter
Question 1. The findings of the Administration's report released
January 7, 2010, reviewing the intelligence failures leading up to
Christmas Day, 2009, concluded ``the information that was available to
analysts, as is usually the case, was fragmented and embedded in a
large volume of other data,'' and that both ``NCTC and CIA personnel
who are responsible for watch-listing did not search all available
databases to uncover additional derogatory information that could have
been correlated with Mr. Abdulmutallab.'' It is my understanding that
most intelligence analysis is currently a process of manual searches of
various databases.
It strikes me that this could easily reoccur, based on Director
Leiter's testimony concerning the vast volume of data processed by the
NCTC on a daily, if not hourly, basis. The Administration's review
makes clear that the current intelligence-sorting processes today could
be improved by utilizing technology that can be programmed to
differentiate among specific types of threats, assign roles and
responsibilities to each, and manage the response and escalation
procedures, including the follow-up on such threats. Could this
potential gap be remedied with automation?
Is the Department or the NCTC actively developing, or seeking,
technology that can process such large volumes of data effectively, not
missing intelligence-gathering opportunities, and if so, when will such
technology be operational?
Answer. The NCTC submitted a classified response to the Senate
Commerce Committee.
Question 2. Although our security and intelligence networks
constantly are working to keep America safe, and their efforts have
thwarted numerous terrorist attempts, it is evident that the existing
workforce is spread thinly in many areas, and could face an even
greater burden if heightened security measures are put in place. While
I believe personnel increases would go a long way toward minimizing the
risks we now face, I believe in some cases technology could reduce
human errors and the failure to consider pertinent and currently
inaccessible data or pass it on to other relevant parties. Do you
believe the Department of Homeland Security and the Counter-Terrorism
Center has sufficient resources to secure the latest technologies that
would allow us to close these gaps?
Answer. Since the events of 12/25, NCTC has worked closely with the
ODNI and the White House to address resource shortfalls related to both
technology and personnel. Because the ODNI is seeking to determine how
to optimize technological solutions across the IC, no final
determination has been made as to what solution, or solutions, will be
pursued for the Community. However, in the interim, the ODNI and White
House have submitted, as part of the Overseas Contingency Operations
request for FY 2010 and FY 2011, a robust program for NCTC to address
our most pressing issues and to lay the ground work for addressing the
findings of the ODNI directed studies. Should these studies indicate
that additional requirements are necessary; the results will be the
subject of further discussions with the ODNI and White House, as part
of the FY 2012 program build.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Hon. Janet Napolitano
Question 1. Has the Department of Homeland Security (DHS) given
appropriate consideration to tightening the standards by which they
certify security at foreign airports or increasing its oversight of
security compliance at foreign airports? How often does DHS or TSA
conduct audits of foreign airports? What is the biggest challenge that
the U.S. security system confronts when working in the international
environment?
Answer. As required by 49 U.S.C. 114 (f)(14), the Transportation
Security Administration (TSA) continues to work with the International
Civil Aviation Organization (ICAO) and appropriate authorities of
foreign governments to address security concerns and standards for
passenger flights by international air carriers.
Under 49 U.S.C. 44907, TSA is charged with assessing all foreign
airports from which flights operate to the United States and those at
which U.S. air carriers operate (regardless of the destination). TSA
has a cadre of Security Specialists who visit the nearly 300 airports
at intervals between one and 3 years. The frequency of the visits is
based on risk analysis of current threat, documented vulnerabilities,
and flight data. More frequent assessments are conducted if
circumstances warrant, including previous deficiencies requiring
follow-up visits, recent threat information, start-up service requests,
and infrastructure changes at a particular foreign airport (e.g., Haiti
earthquake).
As signatories to the Convention on International Civil Aviation of
1944 (Chicago Convention), all Contracting States are required to
provide for the security of their airports serving international civil
aviation and the security screening of passengers and property prior to
boarding an aircraft engaged in international civil aviation
operations, in accordance with the Standards of Annex 17 to the Chicago
Convention as established by ICAO. ICAO is the United Nations'
specialized agency that oversees international civil aviation safety
and security matters. ICAO's Universal Security Audit Program (USAP)
oversees and monitors each Contracting State's implementation of and
compliance with the international security standards ICAO has
established. Under the USAP's current framework, the audit results are
highly confidential. TSA has been working through ICAO's Aviation
Security Panel to enhance the USAP's effectiveness and oversight
capabilities and to increase the transparency of the USAP audit results
among Contracting States. TSA fully supports the ICAO USAP, and
routinely provides technical experts to serve on USAP audit teams.
As a result of these international obligations, nearly every
Contracting State to ICAO has established its own national legislation
governing civil aviation security and its airports serving
international civil aviation in its territory and under its
jurisdiction. Through TSA's Foreign Airport Assessment Program, TSA
works closely with its foreign government counterparts to ensure these
international standards are effectively implemented at all foreign
airports with service to the United States or that are otherwise served
by U.S. air carriers. Moreover, TSA works with these partners to ensure
that special enhanced security measures for U.S. air carriers and all
flights to the United States are also implemented, to the extent these
foreign government authorities are responsible for carrying out such
requirements and oversee air carrier security operations at their own
airports, under their national laws. Given the different legal regimes
within which other civil aviation authorities operate, most of TSA's
foreign government counterparts address international aviation security
responsibilities differently than in the United States, resulting in
divergent authorities and shared responsibilities. As a result,
implementation and sustainment of measures frequently proves difficult.
TSA continues to actively engage with our international partners to
ensure the security of flights bound for the United States and to
enhance the overall security of international civil aviation.
Question 2. Will smaller airports be utilized in the initial run up
of WBI machines this year?
Answer. Transportation Security Administration (TSA) deployment
strategies for security technologies are based on risk, airport
readiness, and operational suitability, as well as facility
constraints. Many of these deployment factors make it is less likely
that smaller airports will be slated to receive initial AIT systems. By
the end of 2010, TSA expects to have 450 units deployed and has
budgeted for an additional 500 units in 2011. However, TSA will
continue to work toward full deployment of AIT systems, to include all
category X (largest airports) through category IV airports (smallest
airports). This would require a total of approximately 1,800 units.
Question 3. Do you have any concerns that an inability to apply
advance screening technologies across the entire system will leave
vulnerabilities in the aviation security system that could be exploited
by terrorist?
Answer. The Transportation Security Administration employs a
layered security approach that combines technology and process to
address the wide variety of aviation security threats. While Advanced
Imaging Technology (AIT) provides enhanced capabilities to detect
person-borne threats, other technologies and screening processes, such
as explosives trace detectors and pat-downs, are used to increase the
probability of threat detection when an AIT is not available or
installed at the checkpoint.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Hon. Janet Napolitano
Question 1. TSA is reportedly not positive whether a full body
imaging machine would have picked up on the explosives Abdulmutallab
was carrying, but some suggest that it would have; but, if a passenger
can elect a pat-down instead of going through an AIT machine, is TSA
confident a pat-down would have been effective in this case?
Answer. While no technologies or procedures will detect 100 percent
of all threats, the pat-down is the Transportation Security
Administration's (TSA) designated alternate screening procedure if an
individual declines to be screened by the advanced imaging technology.
TSA is adding procedures to increase our ability to detect explosives
on individuals and in accessible property. TSA is also reviewing its
pat-down procedures to improve explosive detection capabilities.
Question 2. Are current TSA regulations for flight attendant
counterterrorism training sufficient and effective?
Answer. The current Transportation Security Administration (TSA)
regulations for flight attendant security training are sufficient and
effective. Current flight attendant security training is required by 49
U.S.C. 44918, enacted by section 603 Vision-100 Century of Aviation
Reauthorization Act, Public Law 108-176 (2003), and title 49, Code of
Federal Regulations (49 CFR, Part 1544). Title 49 CFR 1544, Subpart B
requires the aircraft operators to adopt and implement a security
program. The specific elements of flight attendant security training
are outlined in the Aircraft Operator Standard Security Program.
Section 44918 requires aircraft operators to develop and submit crew
security training to TSA for review and approval; that approval
function is delegated to the operators' assigned TSA Principal Security
Inspector (PSI). Each air carrier has submitted a training program that
has been determined to be acceptable by the PSI.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
Hon. Janet Napolitano
Question 1. Without security cameras, TSA would not have been able
to verify the security breach at Newark Airport or identify the
suspect. Should all airports, particularly the largest and most at-
risk, have security cameras at all checkpoints and secure area exits?
How many airports currently do not have security cameras at security
checkpoints and exits?
Answer. The Transportation Security Administration (TSA) encourages
airports to have video surveillance capabilities with available and
immediate access to views and video recordings at security checkpoints
and secure area exits. A TSA survey of airports indicates that most
large airports do have security cameras at checkpoints.
Question 2. In the Newark Airport breach, the security of a busy,
heavily traveled exit was left to just one TSA guard. The suspect was
able to sneak in when that lone guard was distracted. What are you
doing to fortify security at secure area exits?
Answer. The exit lane breach at Newark Liberty International
Airport has been discussed with every Federal Security Director (FSD)
in the Nation, focusing on the specific exit lane failure at Newark,
remediation measures taken there, and mitigation efforts to avoid
similar breaches at other airports. All FSDs have been instructed in
writing to review their local exit lane procedures with their senior
staff and to increase the frequency of local breach drills.
In addition, TSA will be executing an Exit Lane Breach Control
Pilot early this summer to establish a set of initial capabilities for
an Exit Lane Breach Control system that will deter, prevent, or render
ineffective an attempt to use the exit lane as a means to bypass a
security checkpoint.
Question 3. The suspect in the Newark Airport security breach is
being charged under New Jersey state law with ``defiant trespassing.''
In other cases around the country, individuals who purposely breached
security at airport exits also walked away with a slap on the wrist. Is
deterring and prosecuting these offenders a national security issue
that should rest with the Federal Government, rather than individual
states or local governments?
Answer. A wide range of sanctions, under Federal and State law,
should be available to law enforcement and prosecutors. Because the
circumstances surrounding these types of violations can vary
tremendously from unintentional breaches of security to criminal and
willful conduct, the more varied the legal options the better equipped
the prosecutor is to seek the appropriate sanction. Under Federal law
there are significant penalties for those persons who knowingly and
willfully enter an aircraft or airport area in violation of security
requirements (49 U.S.C. 46314); for those who interfere with security
screening personnel (49 U.S.C. 46503, which includes an enhanced
penalty of life imprisonment if the crime involves use of a dangerous
weapon); or those who attempt to board an aircraft with a dangerous and
concealed weapon or explosive (49 U.S.C. 46505).
Question 4. At a Senate Judiciary Committee hearing this past
November, Attorney General Holder expressed his support for my
legislation to close the Terror Gap that allows known and suspected
terrorists to buy guns legally. Does the Department of Homeland
Security also support closing this loophole?
Answer. The Administration does not have a formal position on S.
1317 at this time.
Question 5 In the 9/11 Act, Congress required TSA to conduct a
pilot project to test different security technologies at airport secure
area exits. It's been over two and half years since this Act was signed
into law, but TSA has yet to complete this pilot project. Why hasn't
the Department completed this important project and what is the
Administration doing to strengthen security at airport secure area
exits?
Answer. In June 2009, the Transportation Security Administration
(TSA) issued a solicitation for the piloting of exit lane technology
systems at Dallas Fort Worth International Airport and Seattle-Tacoma
International Airport and is working closely with the airport
authorities to implement the project. The negotiation process with the
vendors should begin in March 2010 and take approximately 30 days to
complete. The National Laboratories, under the Department of Energy,
will be working with TSA and the airport authorities on the evaluation
and demonstration effort.
______
Response to Written Questions Submitted by Hon. Mark Warner to
Hon. Janet Napolitano
Question 1. What is being done to improve the situation regarding
our TSA workforce? TSA employee morale is very low and attrition rates
at the agency are unusually high. I've heard from airports in my home
state that say screening equipment is not being adequately staffed.
What are we doing to make sure that TSA has a robust and capable staff?
Answer. The Transportation Security Administration's (TSA) morale
and attrition have improved over the last year. TSA's attrition for
2009 was 10 percent. This is a 48 percent reduction from 2008, which
had an attrition rate of 19 percent, and is less than the government-
wide rate of 11 percent as reported by the Bureau of Labor Statistics.
Our workforce survey results have consistently shown improvements
in our employees' job satisfaction beginning at 45 percent on the 2004
Federal Human Capital Survey (FHCS) to TSA's most recent 2008
Organizational Satisfaction Survey (OSS) where 64 percent of employees
were satisfied with their job. Analysis shows that across survey
efforts (e.g., OSS, the Department of Homeland Security All Employee
Survey, and the FHCS) TSA's overall job satisfaction can be further
improved by continuing to focus on the areas of improving the quality
of leadership and continuing to involve employees in decisions that
affect the workforce. In the 2008 FHCS, the most recent comprehensive
survey for which data is available, there were improvements in many
dimensions. Notable category results include: TSA's ``Employee Skills/
Mission Match'' score went up by 8 percent, ``Performance-Based
Rewards'' score went up by 16 percent, and ``Training and Development''
improved by more than 12 percent. The ``Support for Diversity'' score
increased by nearly 19 percent, ``Pay and Benefits'' went up by 8
percent, and ``Work/Life Balance'' improved by 23 percent. TSA's
biggest gains were in the ``Effective Leadership'' category, where the
scores improved by 25 percent.
TSA is committed to making the agency a collaborative and engaging
workplace, and encourages employee involvement in meeting this goal. In
addition, TSA provides extensive training to Transportation Security
Officers (TSOs) to maintain a highly capable and robust staff. TSO
training includes basic training for initial hires, on-the-job
training, lead and supervisory technical training, recurrent training,
advanced technical skills training, remedial training, and return-to-
duty training. TSOs were also trained on ENGAGE!, an extensive
retraining program that brought together the latest thinking from
intelligence, explosives detection, and inhuman factors that can affect
security. TSA also has implemented employee development programs such
as the Career Evolution Program and the Associates Program. The TSA
Career Evolution Program (CEP) is a hiring initiative, for internal
candidates only, designed to identify and maximize the incredible
talents and experience of our diverse workforce. The program is an
exceptional opportunity for intensive training in the stimulating
environment of TSA Headquarters.
The TSA Associates Program Pilot is a Career Development Program
for our Transportation Security Officers (TSO's) to help them to
achieve an Associate's Degree in Homeland Security with the initial
three courses at their work place. Currently, less than 10 percent of
TSO's have an associate's degree and higher. As this program is
implemented in a wider scope it will allow our diverse workforce the
opportunity to further their education, thus affording them more
opportunities for advancement within the agency.
Currently, all screening equipment is fully staffed. To ensure that
the screening equipment will continue to be fully staffed, the Fiscal
Year 2011 budget request for additional equipment also includes a
request for TSO and support staff.
Question 2. With all the focus on screening equipment hardware,
there is also promising technology in the form of threat detection and
identification software. More effective threat detection software and
imaging analysis technology could serve as a good complement to scanner
equipment that we are employing. What efforts have DHS and TSA taken to
employ threat detection and identification software as part of its
security program? Do you have standards in place for the threat
detection software that is being used in conjunction with scanner
equipment being used at TSA checkpoints?
Answer. Currently, the Transportation Security Administration is
exploring the development of Automated Targeting (ATR) software. The
goal is to utilize ATR detection algorithms to provide comparable
detection capabilities without the need of an image interpretation
operator. The Department of Homeland Security Science and Technology
Directorate is also working to develop data input and output standards
under the Digital Imaging Communications on Systems program.
Question 3. I am sure you recall the conversation we had last time
you were before this committee concerning TSA's refusal to reimburse
airports around the country that had, on good faith, installed in-line
explosive detection equipment at the request of TSA. As we work toward
securing our aviation system, it is important that TSA work in close
cooperation with our airports on security initiatives. What is the TSA
doing to include, coordinate and share information with the airport
operators around the country who have first responder responsibilities
for aviation security events?
Answer. The Transportation Security Administration (TSA) has
established many programs to coordinate and share information with the
airport operators around the country who have first responder
responsibilities for aviation security events, both from the local and
the headquarters level. At many airports located around the country,
the Federal Security Director (FSD) has an Assistant Federal Security
Director for Law Enforcement on staff to interact with local operators
regarding aviation security events. The FSD also has Transportation
Security Inspectors on staff to ensure stakeholder compliance with
Federal regulations such as those pertaining to Law Enforcement Support
and Personnel, Recordkeeping for Law Enforcement Personnel, Contingency
Plans (including plan review and exercise mandates), Security Directive
Measures, and Incident Management Procedures. In addition, the TSA
Office of Intelligence has assembled a Field Support Unit, through
which Field Intelligence Officers located at airports around the Nation
can work with airport operators and local law enforcement entities on
aviation security issues.
TSA's Office of Transportation Sector Network Management (TSNM)
interacts with airport operators from the headquarters level by working
with the local FSDs and the TSA Personnel Security Office to process
security clearances for stakeholders. The SECRET level clearance
provides a means to share pertinent security and/or threat information
with the stakeholder and assist with understanding the need to
implement certain security measures to mitigate threat. TSNM interacts
directly with stakeholders on a routine basis by supporting a TSA
secure web board and electronic information mailbox. This office also
participates in industry workgroups and conferences in an effort to
exchange information and identify aviation security enhancements.
Question 4. What is the status of NSEERS (National Security Entry/
Exit Registration System) and how is it impacted by the Christmas Day
attempted bombing?
Answer. The NSEERS program is currently operational. DHS has not
made any changes as a result of the failed Christmas Day bombing.
NSEERS was originally created to record certain actions, such as
entry and exit, of designated travelers. At the time the designations
were established, they were geared toward providing the capability to
conduct extra scrutiny for those categories of individuals considered
most likely to present a national security threat, given the
intelligence available. Since the time NSEERS was initiated, DHS has
implemented many new capabilities that broadly address the ever-
evolving threats to the United States. The information regarding entry
and exit recorded under NSEERS is also tracked more effectively, and
for a much broader population, though other DHS programs. DHS is also
able to use intelligence-driven criteria to target individuals for
additional immigration and border screening, rather than relying on
fixed country-based criteria. DHS is currently reviewing the future of
the NSEERS program.
______
Response to Written Questions Submitted by Hon. Mark Begich to
Hon. Janet Napolitano
Question 1. What steps is the Department of Homeland Security
taking to ensure the relevant intelligence information is getting to
the correct people to keep extremists and terrorists off of our planes
and outside of our borders?
Answer. On June 3, 2008, Department of Homeland Security's (DHS)
Office of Intelligence and Analysis issued a memorandum (Subject: DHS
Protocol for Terrorist Watchlisting) to the Heads of all DHS
Components. This document includes the instructions, format, and points
of contact information required to make a nomination to the Terrorist
Screening Data base (TSDB). The TSDB is the terrorist watchlist and is
used by all agencies (including DHS) for terrorist screening.
Additionally, the Department is currently working with the interagency
collection and screening communities to review the current criteria for
possible updating and enhancement.
Question 2. After the determination that this event was in fact a
terrorist attack, were the flight crews on inbound flights notified? If
so, how long did it take to notify the crews and what was the process
and method of notification?
Answer. On December 25, 2009, at 2:40 p.m., under the direction of
Transportation Security Administration senior leadership, the Federal
Aviation Administration representative initiated a communique to all
inbound aircraft from Europe to continental United States (CONUS). A
telecom was held with all airline carriers and air traffic control
centers to provide incident overview and flight information relating to
Northwest Airline 253 (i.e., origination/destination). In addition,
airline carriers were instructed to require all passengers to remain
seated during the final hour of flight prior to entering CONUS
airspace. Airline carriers transmitted this information via Aircraft
Communications Addressing and Reporting System to inbound CONUS
aircraft.
Question 3. Advanced Imaging Technology is currently optional for
all passengers. Those who choose not to undergo this type of screening
are required to use the walk-through metal detector and undergo a pat-
down procedure to ensure they receive an equivalent level of screening.
Will this continue to be the policy of the TSA?
Answer. Yes, individuals who choose not to undergo advanced imaging
technology screening will continue to be required to undergo a pat down
search and may request private screening.
Question 4. How many different companies make Advanced Imaging
Technology for passenger screening?
Answer. There are a number of Advanced Imaging Technology (AIT)
vendors. The Transportation Security Administration has operationally
tested units from three vendors, and an additional three vendors are
currently undergoing laboratory testing at the Transportation Security
Laboratories under the current AIT solicitation. TSA encourages a
competitive market, and as more vendors meet TSA's operational testing
requirements, they will be given the opportunity to compete for TSA's
business.
Question 5. When will Secure Flight be fully deployed across
airlines operating domestically? Why has implementation of Secure
Flight fallen behind schedule?
Answer. Secure Flight is scheduled for deployment with the domestic
carriers by spring 2010 and the international carriers by the end of
calendar year 2010. The delay has been caused by technological
challenges within some of the domestic carriers. However, the
Transportation Security Administration (TSA) and the affected carriers
have diligently worked together to solve the challenges and minimize
the delays. With regard to international carriers, TSA is working with
carriers on an alternate process to meet program requirements on
schedule.
Question 6. How frequently does the TSA audit airport and aviation
security in foreign countries? What recourse does TSA have if they find
an airport does not meet U.S. security standards?
Answer. The Transportation Security Administration (TSA) is charged
with assessing all foreign airports from which flights operate to the
United States and those at which U.S. air carriers operate (regardless
of the destination). TSA has a cadre of Security Specialists who visit
the nearly 300 airports at intervals between one and 3 years. The
frequency of the visits is based on risk analysis of current threat,
documented vulnerabilities, and flight data. More frequent assessments
are conducted if circumstances warrant, including previous deficiencies
requiring follow-up visits, recent threat information, start-up service
requests, and infrastructure changes at a particular foreign airport
(e.g., Haiti earthquake).
If TSA finds that an airport does not effectively carry out
security measures, several options are available that range from
providing on-the-spot correction recommendations, conducting formal
training, recommending a Public Notice that the airport does not
implement adequate security measures, or recommending that service to/
from the United States be suspended. Recommending a Public Notice is
ordinarily only employed when all other attempts have failed in
assisting the airport or appropriate foreign government authorities to
improve the security posture of the subject foreign airport, and in
accordance with the requirements of 49 U.S.C. 44907.
______
Response to Written Questions Submitted by Hon. Kay Bailey Hutchison to
Hon. Janet Napolitano
Question 1. Public reports indicate that the No Fly and Selectee
Lists include about 18,000 people combined. By contrast, the Terrorist
Screening Data base (TSDB), the master watchlist, includes
approximately 400,000 people. Thus, more than 95 percent of the known
or suspected terrorists deemed worthy of inclusion on the consolidated
watchlist are not required to undergo additional airport screening. In
your opinion, is that defensible?
Answer. The interagency established very stringent requirements
(e.g., an operational threat to aviation) for a record to be included
in the No Fly or Selectee lists, which are subsets of the Terrorist
Screening Data base (TSDB). In response to the December 25 attempted
bombing, on December 27, 2010, President Obama ordered reviews of
airport security measures and watchlist policies to determine if there
are specific areas that warrant change or significant modifications
that should be made. The Department of Homeland Security (DHS) is
working with our interagency partners to re-evaluate the criteria and
processes used to create the consolidated terrorist watchlist,
including evaluating the process by which identities are added to the
No Fly and Selectee lists. As part of these reviews, DHS is taking into
account changes in our process, such as the implementation of Secure
Flight, so that we may identify opportunities for further enhancements
to the watchlisting process.
Question 2. One of the 9/11 Commission Recommendations that was not
entirely adopted was that air passengers be screened against the full
Terrorist Screening Data base (TSDB). Why wasn't this done? Do you now
expect to make this change? And what are the consequences of doing so
to the traveling public?
Answer. For international flights, U.S. Customs and Border
Protection (CBP) screens all passengers with reservations to fly to the
United States against the full Terrorist Screening Data base (TSDB)
within 72 hours of departure. Passengers are also screened against the
TSDB prior to takeoff and upon entry to the United States. In addition,
foreign nationals are screened against the TSDB when applying for a
visa or obtaining Electronic System for Travel Authorization (ESTA)
prior to flying to the United States.
DHS is working with our interagency partners to re-evaluate the
criteria and processes used to create the consolidated terrorist
watchlist, including evaluating the process by which identities are
added to the No-Fly and Selectee lists.
The Secure Flight program currently compares passenger information
only to the No-Fly and Selectee components of the TSDB. Secure Flight
will become the primary mechanism to screen flights within the United
States. In general, comparing passenger information against the No-Fly
and Selectee components of the TSDB during normal security
circumstances will enable the Transportation Security Administration
(TSA) to counter the security threat to aviation. According to the
Secure Flight Final Rule, TSA may use the larger set of TSDB records
when warranted by security considerations.
Matching passenger information against the full TSDB would result
in a significant increase in the number of ``possible'' matches,
meaning individuals whose names or other information are similar to a
person on the larger TSDB, and potentially cause unnecessary traveler
delays and frustration without enhancing aviation security. The
criteria for records on the No-Fly and Selectee lists were established
to specifically include those individuals most likely to present a
threat, while minimizing the potential for misidentification of
passengers. Other records don't indicate the same level of threat, or
may not have adequate information to enable DHS to rapidly distinguish
a positive match from misidentification. Matching against the entire
TSDB would result in a significant increase in misidentifications.
Question 3. In the Department of Homeland Security Appropriations
Act of 2008 (Public Law 110-161, Division E, Title II), Congress
expressed concern about the fact that the full TSDB was not being used
for airline passenger screening. Specifically, the bill directed that,
if the Assistant Secretary of Homeland Security (Transportation
Security Administration) determines that the Secure Flight program does
not need to check airline passenger names against the full terrorist
watch list, then the Assistant Secretary shall certify to the
Committees on Appropriations of the Senate and the House of
Representatives that no significant security risks are raised by
screening airline passenger names only against a subset of the full
terrorist watch list. Has this required certification been made? If
not, why not? If so, please provide a copy of the certification with
your response.
Answer. The Assistant Secretary of Homeland Security
(Transportation Security Administration) transmitted to Congress on
December 9, 2008 his determination that no significant security risks
are raised by screening airline passenger names only against the No-Fly
and Selectee components of the full terrorist watch list.
Question 4. In the aftermath of the Christmas plot, do you believe,
or can you confidently state, that our current advanced screening
technologies would have detected the substance and/or devices on the
Christmas Day terrorist, considering the amount of explosive material
and the method in which it was concealed?
Answer. The Transportation Security Administration (TSA) employs a
layered security approach that combines technology and process to
address the wide variety of aviation security threats. While no
technology is a silver bullet in stopping a terrorist attack, a number
of technologies, when employed as part of a multi-layered security
strategy, can increase our ability to detect dangerous materials. For
example, Advanced Imaging Technology provides enhanced capabilities to
detect person-borne threats. Other technologies and screening processes
are also important, such as well-trained Transportation Security
Officers, Behavior Detection Officers, Bomb Appraisal Officers, Federal
Air Marshals, canine teams, and an engaged traveling public.
Question 5. Our country's experience combating drug trafficking
demonstrates the willingness of smugglers to conceal contraband in body
cavities. As publicly described, even our most advanced screening
technologies do not have the capability to detect explosives or
explosive devices concealed in body cavities. Given this known security
weakness, do we need to further utilize explosive sniffing canines
across our transportation system? What additional training and
resources would be required to train canines to detect explosives on
humans?
Answer. The President's FY 2011 budget requests $71 million for an
additional 275 explosives detection canine teams for Category X and I
airports. The Transportation Security Administration's (TSA) National
Explosives Detection Canine Team Program (NEDCTP) develops, trains,
deploys, and certifies explosives detection canine teams to deter and
detect the introduction of explosive detection devices into the
transportation system.
As a result of the December 25, 2009, attempted terrorist attack,
TSA is accelerating its efforts to develop a program to train canines
for the detection of Person-Born Improvised Explosive Devices (PBIED).
This initiative, taken in cooperation with the science community, will
include canines physically searching humans as well as utilizing a
method known as Vapor Wake Detection. This method relies on the
canine's ability to process air currents and recognize odors the canine
has been specifically trained to detect, regardless of whether the
person is moving or standing still. TSA's goal is to institute PBIED
training in new canine training.
Question 6. In the years following the September 11 attacks, many
terrorist acts and attempted plots have involved so-called ``clean
skin'' terrorists: people with spotless records whose documents would
not arouse suspicion. How can we protect the homeland effectively from
such perpetrators, without unduly impeding the millions of travelers
who have no ill will toward the United States?
Answer. The use of ``clean skins'' is a recognized threat and is a
significant focus in the Department of Homeland Security's (DHS)
counterterrorism strategy. No matter how good the watchlist check
process is, the terrorists will seek ways to identify and use
individuals who are unknown to the U.S. Government. To combat this
threat, DHS relies on layers of defense, including the use of physical
screening technologies, analytical targeting tools to identify unknown
threats, canine teams, behavior detection officers, and other security
measures. This integrated, layered approach increases our ability to
deter, detect, and prevent someone from doing us harm.
DHS is constantly examining potential areas of threat and is
investing in countermeasures. For example, DHS has established a
partnership with the Department of Energy and its National Laboratories
to develop new and effective technologies to detect known threats, and
to anticipate new ways by which terrorists could board an aircraft with
weapons or other materials.
In addition, DHS is accelerating the deployment of Advanced Imaging
Technology (i.e., ``full body'' scanners) to provide additional
capability to identify objects or materials hidden on a person, such as
those used in the attempted December 25 attack. We are also encouraging
foreign aviation security authorities to use similar technologies and
increase their security capabilities.
Question 7. During a December 2, 2009, hearing before this
committee, I asked you whether Attorney General Holder had consulted
you on the decision to move the Guantanamo Bay detainee trials to New
York City. At that hearing you responded that you were not consulted
but were confident U.S. soil could be protected. Given recent events
and apparent weaknesses in our security system, evident from the
Christmas Day plot, do you still agree with the decision to move the
trial to New York? And do you stand by the notion that any shortcomings
in our security system can be nullified in order to protect all U.S.
citizens during that highly stressful time?
Answer. The President has stated that no final decision has been
made on whether to try the case in New York or to identify an alternate
venue given the concerns that have recently been raised by local
officials. The Federal courts have had a long history of successfully
prosecuting terrorists in a secure manner that brings them to justice
and protects sensitive information. The previous Administration
successfully prosecuted hundreds of terrorists in Federal courts.
I am confident we can bring the GITMO detainees to justice in a
safe and secure manner, and I expect to be involved in security
preparations for the trial when a final decision is made about the
venue.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Hon. Janet Napolitano
Question 1. The findings of the Administration's report released
January 7, 2010, reviewing the intelligence failures leading up to
Christmas Day, 2009, concluded ``the information that was available to
analysts, as is usually the case, was fragmented and embedded in a
large volume of other data,'' and that both ``NCTC and CIA personnel
who are responsible for watch-listing did not search all available
databases to uncover additional derogatory information that could have
been correlated with Mr. Abdulmutallab.''
It is my understanding that most intelligence analysis is currently
a process of manual searches of various databases.
It strikes me that this could easily reoccur, based on Director
Leiter's testimony concerning the vast volume of data processed by the
NCTC on a daily, if not hourly, basis. The Administration's review
makes clear that the current intelligence-sorting processes today could
be improved by utilizing technology that can be programmed to
differentiate among specific types of threats, assign roles and
responsibilities to each, and manage the response and escalation
procedures, including the follow-up on such threats. Could this
potential gap be remedied with automation? Is the Department or the
NCTC actively developing, or seeking, technology that can process such
large volumes of data effectively, not missing intelligence-gathering
opportunities, and if so, when will such technology be operational?
Answer. The Department of Homeland Security (DHS) is investigating
ways to improve our ability to identify whether an individual has been
previously encountered by a DHS entity by searching across the large
number of systems in the Department. In response to the December 25,
2009 incident, the Department established a DHS Threat Task Force
(DTTF) that established a single operations center allowing DHS
personnel access to 47 government information systems individually in
order to perform name traces. While the operations center represented a
positive step forward and yielded actionable insights, there is still a
need for the capability to search across multiple systems, including
the intelligence systems, and to combine the results from across the
Department and partner agencies. A federated search tool would allow
DHS and partner agencies to ``connect the dots'' better.
Cross database search will enable DHS to search individual names,
submit lists of names for search, and to set up alerts which are
tripped when new information on individuals of interest comes in.
While technically feasible, we must ensure that we perform searches
across databases in a manner that protects privacy and civil rights and
civil liberties. It requires a review of applicable System of Records
Notices (SORN) and Privacy Impact Assessments (PIA) to ensure that we
use the databases in a manner consistent with what we have publicly
stated about them. The Department will continue to work through these
issues to make available for search the kinds of sensitive U.S. Persons
data that are currently not easily shared with the Intelligence
Community in a manner that protects civil rights and civil liberties,
and ensuring DHS can achieve its mission to detect threats to the
homeland.
Question 2. The findings of the Administration's report released
January 7, 2010, reviewing the intelligence failures leading up to
Christmas Day, 2009, concluded ``the information that was available to
analysts, as is usually the case, was fragmented and embedded in a
large volume of other data,'' and that both ``NCTC and CIA personnel
who are responsible for watch-listing did not search all available
databases to uncover additional derogatory information that could have
been correlated with Mr. Abdulmutallab.''
It is my understanding that most intelligence analysis is currently
a process of manual searches of various databases.
Although our security and intelligence networks constantly are
working to keep America safe, and their efforts have thwarted numerous
terrorist attempts, it is evident that the existing workforce is spread
thinly in many areas, and could face an even greater burden if
heightened security measures are put in place. While I believe
personnel increases would go a long way toward minimizing the risks we
now face, I believe in some cases technology could reduce human errors
and the failure to consider pertinent and currently inaccessible data
or pass it on to other relevant parties. Do you believe the Department
of Homeland Security and the Counter-Terrorism Center has sufficient
resources to secure the latest technologies that would allow us to
close these gaps?
Answer. The Department of Homeland Security's (DHS) Office of
Intelligence and Analysis (I&A) believes that if DHS were able to
perform integrated queries against a variety of databases within the
Department and Intelligence Community (IC) reporting data bases, the
Department would be in a better position to connect individuals like
Abdulmutallab to certain types of derogatory data and prevent the next
terrorist attack.
Records on Abdulmutallab existed in DHS's TECS database and the
Department of State's Consolidated Consular Database (CCD). If IC
reporting on Abdulmutallab had been more accessible and of sufficient
depth, there is a greater likelihood that a link would have been found
that could have provided warning about this individual. DHS is piloting
technology that can enhance information sharing and analysis. The pilot
is adapting technology that the Federal Bureau of Investigation has
successfully used in counterterrorism financing cases. I&A is
interested in the possibility of applying the technology to the work of
the DHS Threat Task Force, the Intelligence Watch and Warning Branch,
and the Immigration and Travel Security branch, where it has the
potential to provide major analytic ``lift.'' The pilot has made over
10 billion records available for search, but much more engineering
rigor, and the time associated with employing that rigor, is needed to
make it a fully operational system. If the pilots are successful and
the technology found to be suitable to the envisioned applications, DHS
will review what additional resources are required and incorporate
appropriate requests through the budget planning process.
______
Response to Written Questions Submitted by Hon. Johnny Isakson to
Hon. Janet Napolitano
Question 1. Madam Secretary, almost 2 million people board aircraft
in, or bound for, the United States every day. Odds are that a bottle
of water or tube of hair gel in the hands of the vast majority of these
individuals is not a threat. As we know the real aim of terrorists is
to disrupt our way of life and provoke responses that are, often times,
large-scale, ineffective, inefficient, counterproductive, and
expensive.
Instead of these overreactions, and inconveniencing the vast
majority of the 2 million travelers mentioned above, shouldn't we have
a more robust watch list that is available to all relevant agencies of
government and the airlines?
Wouldn't this help us isolate the small percentage of these average
2 million fliers each day who are suspicious and allow us to pay extra
attention to them, instead of focusing on the young family, elderly
grandmother, or soldier in uniform? Of course these groups should have
to go through some form of security, but aren't our resources better
spent focusing on the bad guys?
Answer. This issue is one that we face everyday at the Department
of Homeland Security (DHS). It is embedded in the Department's mission
to protect the homeland while facilitating legitimate trade and travel.
We strive to create a balance between security and the personal
freedoms individuals have come to associate with the United States. One
of the primary goals of the Nation's counterterrorism efforts is to
identify known or suspected terrorists in order to prevent them from
harming U.S. citizens, both at home and abroad.
In response to the December 25 attempted bombing, on December 27,
2010, President Obama ordered reviews of airport security measures and
watchlist policies to determine if there are specific areas that
warrant change or significant modifications that should be made. DHS is
working with our interagency partners to re-evaluate the criteria and
processes used to create the consolidated terrorist watchlist,
including evaluating the process by which identities are added to the
No Fly and Selectee lists and how the lists are operationally managed
by Federal agencies involved in the watchlisting process.
In addition, we must also work to enhance aviation security in
other ways--including enhancing our physical screening capabilities.
The terrorist use of ``clean skins'' (i.e., persons with no previous
records connecting them to a terrorist threat) as agents is a
recognized threat and is a significant focus in DHS' counterterrorism
strategy. It is important to remember that no matter how good our
watchlist is, the terrorists will seek ways to identify and use
individuals who are unknown to us. To combat the various types of
threats, we rely on layers of defense, including use of algorithms to
identify unknown threats, use of canine teams, behavior detection
officers, and also improvements to our physical screening capabilities
in addition to our use of the watchlist. This integrated, layered
approach increases our ability to deter, detect, and prevent someone
from doing us harm.
In an effort to better focus security efforts in accordance with
potential risk, DHS is exploring the incorporation of new technology
solutions and practices in the security process. For example, DHS has
established a partnership with the Department of Energy and its
National Laboratories to develop new and effective technologies to
detect known threats, and to anticipate new ways by which terrorists
could board an aircraft with weapons or harmful materials. The
Transportation Security Administration also uses highly trained
Behavior Detection Officers as a security layer to identify potential
threats.
In addition, DHS is accelerating the deployment of additional
Advanced Imaging Technology (i.e., full body scanners) to provide
additional capability to identify materials such as those used in the
attempted December 25 attack. We are also encouraging foreign aviation
security authorities to use similar technologies and increase their
security capabilities.
Question 2. Madam Secretary, please update us, in a classified
manner if need be, on the deployment of TSA's Behavior Detection
Officer (BDO) program? How many airports is that program in now? How
many officers are participating? Is this program in place at
Hartsfield-Jackson airport?
Answer. The Transportation Security Administration (TSA) has
completed deployment of Behavior Detection Officers (BDOs) at currently
funded levels. The pending Fiscal Year (FY) 2011 President's Budget
includes a request for an additional 350 BDOs. Screening of Passengers
by Observation Techniques (SPOT) programs are operational full-time at
161 of the Nation's airports. There are approximately 3,000 BDOs
deployed at these airports. The specific locations where the SPOT
program has been deployed is Sensitive Security Information. The
Transportation Security Administration can provide this information to
the Committee at your convenience in a non-public setting.
Question 3. Madam Secretary, my understanding is that the airlines
incur the cost of returning passengers who are denied entry into the
United States because of visa revocations, even though they boarded
these passengers without the knowledge that these passengers have visas
that have been revoked.
I know it wouldn't have been helpful in the Abdulmutallab case
since the signs were missed and Abdulmutallab wasn't on the revocation
list, but rather than have these airlines board these passengers only
to have to return them, why doesn't DHS or CBP make the visa revocation
list known to airlines via APIS Quick Query so they can deny boarding
at the point of embarkation?
Instead of stopping these individuals at the point of entry at the
airport, wouldn't you agree that denying these individuals the ability
to board the aircraft in a foreign country is a more efficient, and in
some instances safer, method? Is this something DHS is planning on
doing? If not, why not?
Answer. The Department of Homeland Security (DHS) agrees that it is
preferable to prevent the travel of an individual who will clearly be
found inadmissible on entry, such as a traveler whose visa has been
revoked.
Since December 25, 2009, CBP has implemented a manual process to
notify carriers and advise them not to board an individual whose visa
has been revoked or for other appropriate reasons. Further, CBP is in
the process of developing an automated solution.
Question 4. Madam Secretary, it would seem that passengers who are
willing to submit to background checks should be allowed to pass
through an expedited screening. Can you update us on DHS and TSA's
plans, if any, for a registered traveler program?
Answer. The Transportation Security Administration (TSA) concluded
a two-year Registered Traveler (RT) pilot at 19 airports on July 30,
2008. As announced in the Federal Register--73 Fed. Reg. 44275 et. seq.
(July 30, 2008), the TSA no longer regulates the RT business model and
has completed a formal transition of RT to a fully private-sector
model. The value of a trusted passenger program remains a worthwhile
concept. The Department of Homeland Security continues to encourage
interested vendors to work directly with airports and airlines on
developing options for RT. TSA remains open to considering proposals
that could provide a security benefit to the traveling public.
______
Response to Written Questions Submitted by Hon. David Vitter to
Hon. Janet Napolitano
Question 1. Would you agree that the Christmas Day plot could well
have been launched from a domestic airport? Given that the threat isn't
the Secure Flight program which flags suspicious travelers on domestic
flights for additional screening or ensure individuals on the No-Fly
List don't get on a domestic flight vitally important? Has Congress
done everything it can do to make sure this program is successful?
Answer. Secure Flight is indeed vital to enhancing the security of
domestic and international flights in the United States. The Federal
Government's assumption of responsibility for watchlist matching was a
key recommendation of the 9/11 Commission and is mandated by the
Intelligence Reform and Terrorism Prevention Act of 2004. The program
serves to: (1) identify known and suspected terrorists, (2) prevent
individuals on the No-Fly list from boarding and aircraft, (3) require
individuals on the Selectee list to go through enhanced screening at
the checkpoint, (4) facilitate passenger air travel with less
confusion, and (5) protect individuals' privacy. Secure Flight provides
a fair, equitable, and consistent matching process across all airlines;
reduces instances of misidentified individuals; and offers consistent
application of an integrated redress process for misidentified
individuals through the Department of Homeland Security Travel Redress
Inquiry Program (DHS TRIP). Congress has been very supportive of the
Secure Flight program and the Transportation Security Administration's
efforts to ensure passenger security. Continued Congressional support
is vital as the Secure Flight program implements the program
incrementally over the course of 2010. Secure Flight is on schedule to
assume watchlist matching responsibilities from all domestic airlines
by spring 2010 and international airlines by the end of 2010.
Question 2. If such a plot were launched from a domestic airport
would a program like REAL ID have helped identify a terrorist who used
a fraudulent driver's license as proof of identity to board a plane? A
program like REAL ID was one of the top recommendations of the 9/11
Commission. Does TSA support moving forward with REAL ID as quickly as
possible?
Answer. The REAL ID Act was established to increase the security in
driver's licenses to reduce the threat of these documents being used to
establish a fraudulent identity for official purposes, such as boarding
a commercial aircraft--and thereby increasing aviation security. REAL
ID was intended to establish minimum standards for the issuance of
secure state issued driver licenses and identification cards to ensure
that the individual who is applying for a secure document is who they
say they are and is in lawful status in the U.S.
Unfortunately, as DHS had warned earlier in the year, 46 of the 56
states and territories were unable to meet the objectives for material
compliance with REAL ID this past December. If we establish
requirements that only a few states can meet, we can't achieve our
security objectives. Over the last year, DHS has worked diligently with
Congress to pass the widely-supported PASS ID bill--breaking the
impasse and putting us on a path to the security enhancements we all
support. Unfortunately, Congress has not enacted PASS ID.
In going forward, DHS plans to work with all the states to create a
path that allows for the majority of states to rejoin our collaborative
efforts to enhance security.
Question 3. From the TSA perspective can you explain the White
House Vision for Aviation Security? In the aftermath of the Christmas
Day plot, the Obama Administration's first response was to put in place
a plethora of feel-good but meaningless initiatives aimed at the
Transportation Security Administration (TSA) screening process. For
instance, the TSA announced it would single out travelers from 14
countries for additional screening. This move made little sense.
Terrorists, including al-Qaeda operatives, have long understood the
need to route their attacks through countries that are not the most
suspicious.
Answer. DHS has a multi-faceted approach to enhancing aviation
security capabilities both at home and abroad following the December
25th attack. DHS has the lead for the Federal Government in three areas
in the President's overall plan for corrective action:
Aggressively pursuing enhanced screening technology,
protocols, and procedures, especially in regard to aviation and
other transportation sectors, consistent with privacy rights
and civil liberties;
Strengthening international partnerships and coordination on
aviation security issues; and
Developing recommendations on long-term law enforcement
requirements for aviation security in coordination with the
Department of Justice.
In addition, DHS provides a significant supporting role in re-
evaluating and modifying the criteria and processes used to create
watch lists.
As our overall aviation security posture is strengthened with the
deployment of the capabilities and programs discussed in this report,
DHS will review whether and how the enhanced security requirements for
travelers originating from specified countries can be reduced or
eliminated. This review will result in a balanced and sustainable
approach to aviation security over the long term.
As DHS continues to explore avenues for strengthening aviation
security, we will do so in a manner consistent with our civil rights,
civil liberties and privacy responsibilities. Specifically, DHS will
work to:
Improve the processes available for identifying errors in
U.S. Government data bases and making corrections to reduce the
number of false-positives and misidentifications in the
screening process;
Ensure a more effective redress process is available for
individuals who have inquiries or seek resolution of
difficulties they experienced during their travel screening;
Ensure that new technologies and techniques avoid or
minimize the impact on civil liberties and privacy; and
Continue our engagement with key ethnic and religious
communities and other groups so that they understand aviation
security policies and procedures, as well continuing to be able
to express concerns to and seek information from Department
officials.
Question 4. From the TSA perspective can you explain why was the
Government able to foil a Similar 2006 Liquid Explosives Plot when it
was unable to do so on Christmas Day? In 2006, the U.S. was able to
work effectively with its U.K. security counterparts to foil plans for
a simultaneous attack on 10 airliners headed toward the U.S. This
success was the result of information sharing, good intelligence
gathering, and ``connecting the dots.'' Clearly, there is a system in
place that can work effectively to stop acts of terrorism against
Americans.
Answer. In response to the December 25 attempted bombing, on
December 27, 2010, President Obama ordered reviews of airport security
measures and watchlist policies to determine if there are specific
areas that warrant change or significant modifications that should be
made. DHS is working with our interagency partners to re-evaluate the
criteria and processes used to create the consolidated terrorist
watchlist, including evaluating the process by which identities are
added to the No Fly and Selectee lists and how the lists are
operationally managed by Federal agencies involved in the watchlisting
process.
DHS maintains a close relationship with the United Kingdom and
other international partners to strengthen international security
measures and standards for aviation security. Secretary Napolitano is
fully committed to making whatever changes are necessary to protect the
safety of the traveling public. Following the Christmas attack, senior
DHS officials traveled to Europe and other locations where they met
with officials and discussed the primary findings of President Obama's
aviation security review. Rather than a failure to collect and share
information, it was a failure to connect and understand the
intelligence that we already had.
DHS continues to work with global leaders on ways to collectively
bolster tactics for defeating terrorists wherever they may seek to
launch an attack. DHS is reviewing security procedures and technology
being used to screen passengers on U.S.-bound flights from airports in
Africa, Asia, Europe, the Middle East and South America. DHS is also
joining our international counterparts in a series of global meetings
intended to bring about broad consensus on new international aviation
security standards and procedures.
Question 5. How can TSA work better with the Department of State
and with International Partners to improve security practices overseas?
The relationship between DHS and the Department of State is weak and
needs to be vastly improved. Specifically, the two agencies fail to
coordinate on visa security matters. Abdulmutallab's visa was not
revoked on December 25, 2009, despite information to warrant this type
of action, nor was this information communicated to the National
Counterterrorism Center.
Answer. In light of the attempted attack on December 25, 2009, as
part of the Presidentially-mandated review, Department of Homeland
Security (DHS) is working via the interagency process to examine
methods to enhance security.
DHS and the Department of State (DOS) have a strong relationship
and coordinate closely on national security as well as on a variety of
other issues. Secretary Napolitano and Secretary of State Hillary
Clinton meet regularly, as do officials at every level in offices and
components from their respective departments, including the
Transportation Security Administration (TSA). Interaction is frequent
and both formal and informal. In March 2009, Secretaries Clinton and
Napolitano established a Deputy Assistant Secretary-level forum that
meets regularly to further improve coordination. Regular coordination
also occurs through existing forums such as the Deputies Committee and
Sub Interagency Policy Council.
DHS and DOS regularly share information on all visa applicants.
This cooperation ensures that U.S. Customs and Border Protection (CBP)
can act appropriately when encountering a visa holder. Additionally DHS
makes its encounter records--including biometric and biographic
records--available to DOS for their use.
The two departments also collaborate via the Visa Security Program
(VSP), which has enabled significant improvements in information
sharing and visa security mechanisms and through which DOS and DHS
continue to evaluate areas for further cooperation. Pursuant to Section
428 of the Homeland Security Act (HSA), U.S. Immigration and Customs
Enforcement's (ICE) VSP works cooperatively with DOS and other partners
to protect U.S. national security. ICE is currently conducting VSP
operations at 14 posts in 12 countries, offering a DHS law enforcement
capability and providing an important complement to DOS efforts in the
consular visa process. The VSP seeks to uncover ineligible applicants
previously unknown to the U.S. Government, deny them access to visas
and generate additional outcomes beyond the visa denial. These outcomes
include creating new watch list records, updating existing records with
new information, identifying trends, uncovering and halting fraud
schemes which may be exploited by applicants with ties to terrorism,
investigating criminals, supporting ongoing domestic criminal
investigations, and generating intelligence products. ICE Special
Agents accomplish this by working in a collaborative process at post
with consular officials.
In May 2007, Congress passed H.R. 2206, mandating the creation of a
Security Advisory Opinion Unit (SAOU) within VSP. VSP's SAOU is
currently operating a pilot program at the Human Smuggling and
Trafficking Center (HSTC) that screens one SAO category (the Condor
category) and communicates any potential admissibility concerns to DOS.
The SAOU has access to sensitive information and is available to assist
Visa Security Units (VSUs) overseas as needed. VSP also has a presence
at the National Targeting Center-Passenger and will deploy
representatives to the National Counterterrorism Center this month.
Question 6. If an alert Federal Air Marshal was on that flight he
might have spotted and prevented the intended attack. The
Administration plans to expand the FAM program. Can you tell me what
efforts are underway to work with other countries to convince them to
adopt similar programs or start them?
Answer. The Transportation Security Administration (TSA) encourages
other governments to develop and implement their own In Flight Security
Officer (IFSO) Programs. TSA coordinates the approval process for
foreign armed air marshals on foreign air carrier flights to and from
the U.S. through bilateral agreements and facilitates movement/entry of
foreign air marshals through U.S. airports. TSA provides an
International Air Marshal Training Program, a Training Needs Assessment
and a Trainer Exchange Program for countries interested in implementing
IFSO programs. Since 2004, the Federal Air Marshal Service (FAMS) has
provided training to 10 countries to promote IFSO programs, 16 tours
were provided to international partners that expressed an interest, and
11 international site visits, instructor exchanges, or aviation
conferences were attended.
TSA participates in the annual International Air Marshal Conference
(IAMC). The IAMC provides a unique platform to exchange views and share
best practices with air marshal programs from around the world.
Question 7. Most people don't realize that under the criteria
required of new countries that enter the Visa Waiver Program, the U.S.
is able to obtain more information, in a more timely manner, that would
make it easier to identify a potential malicious traveler than an
individual flying from a country where all they had to do was get a
travel visa to the United States? Would it not be in the interest of
TSA if the Congress allowed the U.S. Government more flexibility to
bring countries into the program--authorities that Congress had allowed
under the Bush Administration? This would not only strengthen travel
security with friendly allies, it would allow the State Department to
concentrate more of its counselor resources on countries of concern.
Wouldn't the TSA support that?
Answer. Visa Waiver Program (VWP) countries are among our closest
international partners. Countries participating in the VWP are required
to meet strict security standards. These standards include information
sharing agreements with the U.S. Government regarding known or
suspected terrorists and perpetrators of other serious crimes, the
sharing of lost and stolen passport information with INTERPOL, as well
as standards for transportation security, border security, and document
integrity. In addition, VWP travelers are subject to more stringent
passport security standards and information disclosure procedures than
other international travelers. The prospect of VWP membership
accordingly is a superb tool for incentivizing security enhancements by
foreign countries, upgrading the U.S. Government's screening capacity,
and furthering partnerships with foreign governments.
DHS--in cooperation with other departments and agencies--conduct
intense reviews of any prospective VWP country before the country can
be admitted. The 35 current members of the program must meet and
maintain the same standards, including information-sharing and
transportation, border, and document standards, and they are subject to
in-country biennial security reviews led by DHS. As a result, no other
mechanism provides DHS with the opportunity to conduct as broad and
consequential inspections of foreign security standards as does the
VWP.
DHS and the Department of State continue to consult with valued
allies to determine whether VWP designation is possible. For example,
the respective U.S. embassies hold regular working groups to discuss
VWP-related issues and DHS frequently hosts visiting delegations of
foreign officials to discuss the statutory requirements of the VWP.
It is important to note that individuals applying for a visa to
enter the United States go through extensive checks conducted by the
Department of State at application, as well as a personal interview.
Additionally, before flying to the United States, airlines provide U.S.
Customs and Border Protection (CBP) with information from passenger
reservations as well as manifest information so that CBP can conduct
appropriate security checks.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
Hon. Lee Hamilton and Hon. Tom Kean
Question 1. The suspect in the Newark Airport security breach is
being charged under New Jersey state law with ``defiant trespassing.''
In other cases around the country, individuals who purposely breached
security at airport exits also walked away with a slap on the wrist. Is
deterring and prosecuting these offenders a national security issue
that should rest with the Federal Government, rather than individual
states or local governments?
Answer. Deterring and prosecuting airport security offenders
strikes us as an important part of a multi-layered aviation security
program. However, our National Security Preparedness Group has not
studied the specific issue of Federal versus state prosecution. We
would welcome the opportunity to discuss this issue with you further.
Question 2. The Christmas Day attack and the security breach at
Newark airport highlighted glaring gaps in our aviation security, but
the 9/11 Commission report noted that, ``opportunities to do harm are
as great or greater in maritime and surface transportation.'' What
should the Federal Government be doing to improve our rail and port
security?
Answer. The Executive Branch and the Congress have made tremendous
strides on maritime and surface transportation since the publication of
the 9/11 Commission report. Part of the mandate of the NSPG is to
continue to study the implementation of our recommendations, including
the effectiveness of the actions the Congress and the President have
taken on these issues. We would welcome the opportunity to discuss
these issues further with you and work together to ensure we are doing
all we can.
______
Response to Written Question Submitted by Hon. Mark Warner to
Hon. Lee Hamilton and Hon. Tom Kean
Question. In your testimony and in your recent op-ed in USA Today,
you mention that it should be a priority of the DNI (Director of
National Intelligence) to break down the wall between foreign and
domestic intelligence and to create an architecture that would enable
such sharing. How would you rate our progress thus far in that regard?
What specific steps must be taken to improve this situation?
Answer. We have asked this very question throughout our work at the
Bipartisan Policy Center. It is our sense that the DNI made a
substantial step forward with the promulgation of Intelligence
Community directive 501 entitled ``Discovery and Dissemination or
Retrieval of Information within the Intelligence Community.'' But now
the issue is implementation. The Congress can play a very important
role in ensuring effective implementation through its oversight
function. As you are aware, the failure to share information was among
the most serious problems evident on 9/11 and it is incumbent upon us
to monitor these issues carefully to help ensure continued progress.
______
Response to Written Questions Submitted by Hon. Mark Begich to
Hon. Lee Hamilton and Hon. Tom Kean
Question 1. What lessons from 9/11 have we failed to take
appropriate action on?
Answer. It is our sense that we as a country have not solved the
issues of interoperable communications nor establishing effective
command and control at incident sites. Certainly these topics require
more attention and cooperation among state, local, and Federal
authorities.
Two other prominent items of unfinished business from the 9/11
Commission pertain to civil liberties and Congressional oversight. We
recommended the creation of a Civil Liberties Board. It was stood up in
Bush Administration but later lapsed after Congress enacted changes to
its mandate. We have publicly urged President Obama to swiftly appoint
members and send them to the Senate for confirmation.
With regard to Congressional oversight, we recommended two options
to increase the authority of the permanent select Committees on
Intelligence. Congress did not adopt either recommendation. We remain
seriously concerned regarding Congressional oversight over the
intelligence community and are open to ideas outside of the ones we
recommended. Finally, we recommended consolidating jurisdiction over
the Department of Homeland Security. We are increasingly concerned that
DHS has too many masters in the Congress, which inhibits quality
oversight. Throughout the years we have repeatedly urged the leadership
to make progress on this issue and will continue to look for
opportunities to press this important piece of unfinished business.
Question 2. Your joint testimony cites the vast amount of incoming
information counterterrorist analysts are inundated with. What steps do
we need to take to make sure the relevant data and information
collected by the intelligence community is being analyzed properly and
that the dots are being connected before incidents like the Christmas
Day attack occur?
Answer. We believe the answer to this question lies with utilizing
new technology and ensuring that we recruit and retain the best people
for the job. We're gratified that apparently there was not a failure to
share information in the Christmas attack. The problem was a failure of
analysis, and we're fortunate to be able to use this episode to
underscore the importance of this issue in stopping future attacks.
Question 3. What are the remaining recommendations of the 9/11
Commission that have not either been introduced as legislation or
signed into law?
Answer. See response to Question #1.
______
Response to Written Questions Submitted by Hon. John Ensign to
Hon. Lee Hamilton and Hon. Tom Kean
Question 1. After Vietnam and the failed attempt to rescue American
Hostages in Iran, the Congress took it upon itself to fix some of
problems and tensions that existed between the military services. The
concept of ``jointness'' or of having the different military services
increase cooperation has served our Nation well. In order for officers
to be promoted to the Flag or General Officer rank, they have to
complete at least one joint duty assignment and their joint
professional military education. This ``sharing'' of personnel with the
Joint Staff and other military services, along with this formalized
course work, has forced the different services to interact and has led
to greater efficiency and communication between them. Does the IC have
any program such as this where individuals in one IC agency can spend
time working for another?
Answer. Yes, The Director of National Intelligence, pursuant to the
Intelligence Reform and Terrorism Prevention Act of 2004, on May 16,
2006, promulgated Intelligence Community Policy Guidance 601.01, an
Intelligence Community Civilian Joint Duty Program. The directive
provides that joint duty certification is a mandatory qualification
requirement for promotion.
Question 2. If so, is spending time with another IC agency a
prerequisite for promotion within the community?
Answer. Yes, the directive provides that joint duty certification
is a mandatory qualification requirement for promotion.
Question 3. If not, is this something that you have looked at? Do
you believe the IC needs some sort of joint billeting requirement?
Should this IC billeting requirement be a prerequisite for promotion to
a certain level?
Answer. The 9/11 Commission studied this issue closely and
concluded that the intelligence community needed to act more like a
joint enterprise and less like a series of specialized intelligence
agencies. One way to achieve this was a joint duty system and we
recommended that the Defense Department's Goldwater-Nichols Reforms be
a model for the intelligence community. We have not conducted an
exhaustive study of the IC's Joint Duty program but our understanding
is that it is working well and we look forward to studying this issue
further.