[Senate Hearing 111-616]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 111-616

SECURING AMERICA'S SAFETY: IMPROVING THE EFFECTIVENESS OF ANTITERRORISM 
                  TOOLS AND INTERAGENCY COMMUNICATION

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 20, 2010

                               __________

                          Serial No. J-111-71

                               __________

         Printed for the use of the Committee on the Judiciary











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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel

















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   129
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   170
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3

                               WITNESSES

Heyman, David F., Assistant Secretary for Policy, U.S. Department 
  of Homeland Security, Washington, DC...........................    10
Kennedy, Patrick F., Under Secretary for Management, U.S. 
  Department of State, Washington, DC............................     8
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, U.S. Department of Justice, Washington, DC......     5

                         QUESTIONS AND ANSWERS

Responses of David F. Heyman to questions submitted by Senators 
  Feingold, Grassley, Hatch, Leahy and Specter...................    49
Responses of Patrick F. Kennedy to questions submitted by 
  Senators Leahy, Feinstein, Feingold, Specter, Sessions, Hatch, 
  Grassley.......................................................    72
Responses of Robert S. Mueller III to questions submitted by 
  Senators Feingold, Feinstein, Hatch, Leahy and Specter.........   101

                       SUBMISSIONS FOR THE RECORD

Baird, Zoe, and Slade Gorton, Markle Foundation Task Force, 
  National Security in the Information Age, New York, New York, 
  joint statement................................................   120
Constitution Project, preface only, (additional Material is being 
  retained in the Committee files)...............................   127
Flynn, Stephen E., President, Center for National Policy, 
  Washington, DC, statement......................................   133
Heyman, David F., Assistant Secretary for Policy, U.S. Department 
  of Homeland Security, Washington, DC, statement................   138
Hutchinson, Asa, CEO, Hutchinson Group, Undersecretary, 
  Department of Homeland Security, Washington, DC, statement.....   152
Jenkins, Brian Michael, Bruce Butterworth, and Cathal Flynn, 
  statement......................................................   157
Kennedy, Patrick F., Under Secretary for Management, U.S. 
  Department of State, Washington, DC, statement.................   160
Leiter, Michael, Director, National Counterterrorism Center, 
  Washington, DC, statement......................................   173
Macleod-Ball, Michael W., Acting Director, and Christopher 
  Calabrese, Legislative Counsel, American Civil Liberties Union, 
  Washington, DC, joint statement................................   178
Martin, Kate, Director, Center for National Security Studies, 
  Washington, DC, statement......................................   189
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, U.S. Department of Justice, Washington, DC, 
  statement......................................................   196
Schneier, Bruce, Schneier@Schneier.com...........................   208
Spaulding, Suzanne E., statement.................................   210

 
SECURING AMERICA'S SAFETY: IMPROVING THE EFFECTIVENESS OF ANTITERRORISM 
                  TOOLS AND INTERAGENCY COMMUNICATION

                              ----------                              


                      WEDNESDAY, JANUARY 20, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Feingold, 
Schumer, Cardin, Whitehouse, Klobuchar, Kaufman, Franken, 
Sessions, Hatch, Grassley, Kyl, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. I think before we start on 
this hearing, every one of us has to be moved by what we have 
seen on television or people we have talked with during the 
past couple weeks in Haiti. And if I could, with the indulgence 
of my colleagues, wearing another hat that I have as Chair of 
the Appropriations Subcommittee that handles our foreign aid, I 
have been particularly interested in what has been happening. I 
have had talks with people on the ground in Haiti and others 
who have gone down there, and I want to begin by thanking 
President Obama, Secretary of State Hillary Clinton, USAID 
Administrator Shah, General Fraser of the U.S. Southern 
Command, and all the hard-working people here and on the ground 
in Haiti for their efforts to save lives in the aftermath of 
this devastating earthquake.
    A number of States--I know California sent search and 
rescue, Virginia did, and others. My own little State of 
Vermont is sending down a medical team today. Recovering from 
this disaster is a daunting challenge for the people of Haiti, 
but Vermonters and all Americans have opened their hearts and 
are sharing generously. We will continue to do so. Any one of 
us just as human beings have to be moved by what we have been 
seeing down there.
    Now to the subject of this important hearing. A terrorist 
intent on detonating an explosive was able to board a plane 
with hundreds of passengers headed for Detroit, Michigan, on 
Christmas Day. After Congress passed major legislation in 2004 
to implement the 9/11 Commission's recommendations, and after 
the country invested billions of dollars to upgrade security 
systems and to reorganize our intelligence agencies, the near 
tragedy on Christmas Day compels us to ask what went wrong and 
what additional reforms are needed.
    The administration responded quickly and has already 
conducted a preliminary review. The President has candidly 
identified problems. He spoke directly to the American people 
about the incident, the threat, and the actions that are 
necessary to prevent future attempted attacks. They did not 
offer excuses, but instead they have taken responsible action 
to provide additional security measures.
    I know there will be some hard questions at this hearing. 
We will want to know how and why we failed to successfully 
detect and prevent this attempted attack. How did someone who 
paid for an airline ticket with cash, who boarded without 
luggage for a winter trip to Detroit, and whose father had come 
to U.S. officials weeks before to warn that his son had become 
radicalized, how was he able to board a flight for the United 
States with a valid visa? Just as we now know the horrific, 
deadly attacks on 9/11 could have been prevented, should have 
been prevented, the recent White House review found that the 
Government ``had sufficient information to have uncovered and 
potentially disrupted the December 25 attack.'' Our 
intelligence agencies did not adequately integrate and analyze 
information that could have prevented this attempt. The 
President called it a ``systemic failure,'' and he is right 
that this is unacceptable. Just as we failed on 9/11, we failed 
here.
    Now, I would hope that all Senators here ask whatever 
questions they feel they should, but I hope we proceed with the 
shared purpose of making America safer. No one has been angrier 
or more determined than the President. He did not respond with 
denial and obfuscation, but instead came forward to identify 
failures and correct them.
    Let this not be a setting where we are looking for partisan 
advantage. We are all Americans; we are all in this together. 
Every one of us as members and virtually everybody in this room 
fly often. ``Passions and politics'' should not obscure or 
distract us. We should all do our part. As the President said 
recently in announcing the immediate actions he had ordered: 
``Instead of giving in to cynicism and division, let's move 
forward with the confidence and optimism and unity that define 
us as a people. For now is not a time for partisanship, it's a 
time for citizenship--a time to come together and work together 
with the seriousness of purpose that our National security 
demands.''
    I was here after 9/11. I saw Republicans and Democrats come 
together to work together with the President to find out what 
went wrong and to make sure it did not happen again. That is 
what we need to do today.
    Our witnesses today are public officials. They are not 
adversaries. They each share with us a common purpose, as the 
President said, ``to prevail in this fight...to protect our 
country and pass it--safer and stronger--to the next 
generation.''
    In the aftermath of the Christmas Day plot as well as the 
Fort Hood tragedy, it can be tempting to forget that it is 
always easier to connect the dots in hindsight. It was not our 
intelligence agencies that first raised the alarm about the 
suspect who tried to blow up the Northwest Airlines flight. It 
was the suspect's own father, a Nigerian, who turned him in. 
Our response to the incident has to be swift but also 
thoughtful. It may be tempting to take reflexive actions, but 
to do so will only result in the unnecessary denial of visas to 
legitimate travelers and the flooding of our watchlists such 
that they become ineffective tools in identifying those who 
would do us harm. We want to stop real people who may do us 
harm, not 8-year-old children.
    A ``one size fits all'' mentality will only ensure that we 
will miss different threats in the future. We cannot hunker 
down and hide behind walls of fear and mistrust. We should not 
let our response to the incident provide another recruiting 
tool for terrorists, and we have to be smarter than that.
    Finally, this morning, the Inspector General released a 
report a few minutes ago detailing the misuse of so-called 
exigent letters by the FBI to obtain information about U.S. 
persons. The report describes how the FBI used these exigent 
letters without proper authorization to collect thousands of 
phone records, including in instances where no exigent 
conditions existed. The report also details how the FBI then 
compounded the misconduct by trying to issue national security 
letters after the fact. This was not a matter of technical 
violations. If one of us did something like this, we would have 
to answer to it. This was authorized at high levels within the 
FBI and continued for years. I understand, Director Mueller, 
that the FBI has worked to correct these abuses, but this 
report is a sobering reminder of the significant abuse of this 
broad authority. No one is above the law--no Senator and no 
member of the FBI. And there has to be accountability for what 
happened here.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, and I would join with you in 
your comments about the tragedy in Haiti and hope that we in a 
unified effort in Congress can do all possible to assist in 
that tragedy.
    It was on Christmas Day that America was reminded that the 
war on terror is still being waged and that our enemies will 
stop at nothing in their efforts to destroy our country. But 
for the bravery of passengers and crew aboard Northwest Flight 
253 and a defect in the bomb, close to 300 innocent people 
could have been murdered.
    Make no mistake, this was another act of terrorism, another 
act of war. And now it appears clear that our intelligence 
officials had gathered enough information to stop Mr. 
Abdulmutallab from boarding the plane. In reality, it was our 
enemies' poor bomb-making skills, luck, and the courage of 
passengers and crew that saved that flight.
    The problem arose from a lack of action on available 
intelligence. Was it the result of policies arising from a 
hesitation to interfere in one person's travel plans? Or, was 
it a failure to connect the dots? Was it an individual failure 
somewhere, or a systemic failure? Perhaps all. It is clear that 
8 years after September 11, 2001, there are still holes in our 
counterterrorism system. Al Qaeda has openly declared war on 
our country. They have attacked us and are still attacking us. 
This administration cannot wish that reality away, and I do not 
think they intend to. The threat cannot be negotiated away. 
What we must do is acknowledge this reality and work to both 
interrupt the attacks and destroy the organizations that are at 
war with us. It is a different kind of war, but a real war 
nonetheless.
    This hearing can help us get insight into the failures that 
occurred and what we need to do in the future. But until the 
administration and Congress fully acknowledges the reality of 
the enemy, I do not think we will be fully effective. The work 
of the 9/11 Commission unified our Nation behind the idea that 
preventing acts of war by traditional law enforcement 
techniques would not be effective. They declared we should 
treat this danger with a new understanding of war. The sad 
truth is that the administration tends to view this conflict 
wrongly as a law enforcement matter now, retreating from that 
national decision I thought we reached. Now we have a policy 
that presumes captured terrorists here and abroad will receive 
a trial in our civilian courts, be given Miranda warnings, be 
given court-appointed attorneys, not be subject to 
interrogations, and have rights to repeated court appearances 
and speedy trials, regardless of whether they might possess 
critical information concerning further deadly attacks that 
might be planned.
    This is what civilian trials mean. This is how they are 
conducted. As Attorney General Holder testified, civilian 
trials are not required in these cases by the law or the 
Constitution. And I would note that in no war, to my knowledge, 
has any nation has ever allowed the enemy to use their own 
courts to further the enemy's efforts to destroy that nation. 
This is not a case about whether there were red flags. The 
terrorist's father personally went to the U.S. embassy to raise 
a red flag. The would-be attacker bought his plane ticket with 
cash. He checked no luggage. He reportedly was known to have 
communicated with terrorists in Yemen. According to press 
reports, our intelligence agencies intercepted messages 
referring to ``the Nigerian,'' Mr. Abdulmutallab.
    So this case is one where our own intelligence commuity had 
information. People at risk in the far corners of the globe got 
valuable information. So we have preliminary information that 
suggests that the authorities were aware of this terrorist and 
had ample cause to stop and question him and deny him the right 
to board that plane.
    We cannot defeat al Qaeda through half steps, Miranda 
warnings, minimization procedures, and Inspector General 
reports. This is not the time for the Government to erect new 
barriers between the intelligence and law enforcement agencies. 
We understood that was a mistake before. Nor is it time to add 
more bureaucratic red tape, new reporting requirements, or 
unnecessary safeguards which do nothing more than hinder the 
ability to thwart the next shooting, the next bombing, the next 
9/11.
    We should use every lawful power and tool we have to 
protect this Nation. This war was declared by al Qaeda and its 
terrorist allies long before September 11th, before Guantanamo 
Bay. Guantanamo Bay did not cause these terrorist attacks. This 
war started long before we invaded Afghanistan, before the 
drone attacks and before the fall of Saddam Hussein. This is a 
war that began to take shape in the early 1990s when al Qaeda 
attacked various U.S. facilities here and abroad. 
Unfortunately, it is a war which will continue, I have to say, 
for some time, for some years. And it is imperative that our 
intelligence and counterterrorism professionals have what they 
need on the front lines to disrupt the next terror plot and 
thwart the enemy at every turn.
    Rather than putting more bureaucratic hurdles on our 
intelligence agencies through a weakening of the PATRIOT Act, 
we should be looking to cut the red tape, strengthen their 
ability to stop the next airline bomber promptly before he gets 
a visa or is allowed to board a plane. We need to get this 
right. I appreciate the willingness of all the administrative 
witnesses to testify. I especially appreciate the presence of 
Director Mueller, who took a hard look 8 years ago at some of 
the warning signs that were missed before September 11th and 
address the reforms, good reforms, in the FBI. Through his 
testimony and experience and the testimony of Mr. Kennedy and 
Mr. Heyman, I hope we will be able to come to a consensus that 
we must give our investigators the tools and flexibilities they 
need to prevent further attacks on our country.
    Thank you, Mr. Chairman, and I am glad we are having the 
hearing. I know the Homeland Security Committee, I think, is 
also having one, and I believe it will help the American people 
feel that we are responding to the concerns that I know they 
are feeling.
    Chairman Leahy. Well, thank you, and I think the American 
people also expect us to work together on responding to these 
issues.
    I am going to ask each witness--I know you have long 
statements. The whole statement will be placed in the record. I 
am going to ask you to limit your time to the time that has 
been suggested to you because, as you can see, we have a lot of 
Senators, and I want to give every Senator the opportunity to 
ask the questions they want.
    We will begin with Robert Mueller, the sixth Director of 
the Federal Bureau of Investigation. Prior to that, he had a 
long and distinguished record at the Department of Justice, 
including serving as U.S. Attorney for the Northern District of 
California. Please go ahead.

STATEMENT OF THE HON. ROBERT S. MUELLER, III, DIRECTOR, FEDERAL 
     BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, 
                         WASHINGTON, DC

    Mr. Mueller. Thank you, Mr. Chairman, Senators, Senator 
Sessions in particular. I am pleased to be here today. And 
before I begin, as did you, Mr. Chairman, I would like to take 
a moment on behalf of the men and women of the FBI to extend 
our condolences and support to the people of Haiti and to all 
of those who have lost family and friends from the devastating 
earthquake last week. The FBI is providing assistance to the 
rescue effort, but we are also focused on making sure that 
fundraising efforts are not tainted by fraud and that we are 
doing everything possible to ensure that funds raised for the 
relief in Haiti are legitimately going to support the victims 
of the earthquake.
    Now, let me turn to the subject of today's hearing, if I 
might. As recent events have made clear, terrorists remain 
determined to strike the United States. The FBI has transformed 
itself in recent years to meet our responsibilities to deter, 
detect, and disrupt these terrorist threats. We have improved 
our intelligence capabilities and created the administrative 
and technological structure needed to meet our national 
security mission. We are now a full partner in the intelligence 
community, and we, too, must consistently collect, analyze, and 
disseminate intelligence to those who need it. As has often 
been said, today we share information by rule and withhold by 
exception.
    Meeting these threats, however, requires continued 
vigilance and improvements on the FBI's part and on the part of 
every member of the intelligence community. Let me take a 
moment to address the evolving threats we have seen over the 
past several years.
    We not only face the traditional threat from al Qaeda but 
also from self-directed groups not part of al Qaeda's formal 
structure. We face threats from homegrown extremists, those who 
live in the communities they intend to attack, and who are 
often self-radicalized and self-trained.
    We also face threats from individuals who travel abroad to 
terrorist training camps in order to commit acts of terrorism 
overseas or to return home to attack America. And these threats 
continue to change and evolve as extremists are now operating 
in new sanctuaries around the world as al Qaeda and its 
offshoots are rebuilding in Pakistan, Yemen, and the Horn of 
Africa.
    While the terrorist threat has not diminished, together 
with our intelligence community partners we have disrupted a 
number of plots over the past year. We have learned a great 
deal from these cases, both about the new emerging threats and 
how to stop them. Let me offer several examples.
    In May, four individuals in New York, some of whom met and 
were radicalized in prison, were arrested for plotting to blow 
up Jewish synagogues and to shoot down military planes.
    In July, a group of heavily armed extremists in North 
Carolina were arrested for making plans to wage jihad overseas 
after traveling to terrorist training camps.
    In September, on the eve of September 11th, a Colorado 
resident was arrested in New York for planning to set off a 
bomb after having received detailed bomb-making instructions 
from Pakistan.
    That same month, two self-radicalized loners--one in 
Springfield, Illinois, and one in Dallas, Texas--were arrested 
for attempting to bomb a Federal courthouse and a downtown 
office tower in those respective cities.
    And weeks later, a Chicago resident was arrested for his 
role in planning a terrorist attack in Denmark and assisting in 
the deadly 2008 Mumbai attacks.
    And, of course, the killing of a young Army recruiter in 
Arkansas in May and the tragic shootings at Fort Hood in 
November are stark examples where lone extremists have struck 
military here at home.
    Last year's cases demonstrate the diversity of new threats 
we face. Some involve self-radicalized terrorists influenced by 
the Internet or their time in prison. Others receive training 
or guidance from known terrorist organizations abroad either in 
person or over the Internet. And the targets of these attacks 
range from civilians to Government facilities to transportation 
infrastructure and to the military both in the United States 
and overseas.
    On Christmas Day, the attempted bombing of Northwest Flight 
253 has made it clear that the threat of attack from al Qaeda 
and its affiliates continues to this day, and we can and must 
do more in response to these threats.
    As directed by the President, the FBI has joined with our 
partners in the intelligence and law enforcement communities to 
review our information-sharing practices and procedures to make 
sure such an event never happens again.
    For the FBI, the President has directed a review of the 
visa status of suspected terrorists on databases at the 
Terrorist Screening Center and asked for recommendations for 
improvements to the protocols for watchlisting procedures at 
the TSC. Together with our intelligence community and law 
enforcement partners, we will learn from and improve our 
intelligence systems in response to the Christmas Day attack.
    Now, Mr. Chairman, you mentioned the exigent letter issue, 
and let me address that as well. Let me start off by saying 
that we take the issues raised by the Inspector General 
exceptionally seriously, and we have since he first undertook a 
review a number of years ago. At the outset, it is important to 
understand that the records obtained were telephone toll 
records and not the content of conversations. And, second, 
exigent letters have not been used since 2006.
    As I stated in 2007, when the Inspector General first 
reported on the FBI's use of exigent letters, the FBI had 
substantial weaknesses, substantial management and performance 
failures in our internal control structure as it applied to 
obtaining telephone records. And since that time we first 
became aware of this, we have reformed our internal controls 
and developed an automated program that together with changes 
in policy and training substantially minimizes any errors.
    On this issue, I would like to insert one quote from the 
report that summarizes what we have done since 2006. And the IG 
states: ``It is important to recognize that when we uncovered 
the improper exigent letter practices and reported them to the 
FBI in our first NSL report, the FBI terminated those improper 
practices and issued guidance to all FBI personnel about the 
proper means to request and obtain telephone records under the 
ECPA.'' He goes on to say that that does not excuse--and I 
agree with him--does not excuse the improper use of exigent 
letters and the ineffective and ill-conceived attempts to cover 
them with other NSLs.
    Chairman Leahy. Thank you, and the rest of the statement 
will be placed in the record. We will probably be going back to 
this issue during the hearing.
    [The prepared statement of Mr. Mueller appears as a 
submission for the record.]
    Chairman Leahy. Our next witness will be Patrick F. 
Kennedy, who is Under Secretary of State for Management, a 
career minister in the Foreign Service. Under Secretary Kennedy 
oversees the Bureau of Consular Affairs and is the Secretary's 
principal adviser on management issues.
    Mr. Kennedy, please go ahead, sir.

   STATEMENT OF HON. PATRICK F. KENNEDY, UNDER SECRETARY FOR 
      MANAGEMENT, U.S. DEPARTMENT OF STATE, WASHINGTON, DC

    Mr. Kennedy. Thank you very much. Chairman Leahy, Ranking 
Member Sessions, and distinguished members of the Committee, 
thank you for the opportunity to appear before you today.
    As Secretary Clinton stated following the attempted bombing 
of Flight 253, ``we all are looking hard at what did happen in 
order to improve our procedures to avoid human errors, 
mistakes, oversights of any kind...and we are going to be 
working hard with the rest of the administration to improve 
every aspect of our efforts.''
    We acknowledge that errors were made and that processes 
need to be improved. Here are the steps we have already taken.
    The Department of State misspelled Umar Farouk 
Abdulmutallab's name in a Visas Viper report. As a result, we 
did not add the information about his current visa in that 
report. To prevent this, we have instituted new procedures that 
will ensure comprehensive visa information is included in all 
Visa Viper reporting that will call attention to the visa 
application and issuance material that is already in the 
databases that we share with our national security partners.
    Chairman Leahy. With the forbearance of my colleagues, why 
can't you have something--if you go on a Google search or you 
go on a Yahoo search and you type in a name, the computer will 
automatically ask you, ``Did you mean . . .? '' and it will put 
three or four other ways of spelling it. Why wouldn't that be a 
relatively simple thing to do?
    Mr. Kennedy. That is correct, Senator. When an applicant 
appears before us, we already have that software installed on 
our application screening process. If we put in the name 
Kennedy and we misspell it, it will come back K-E-N-N-E-D-Y, K-
E-N-E-D-Y, K-N-N-D-Y. We had not loaded that software into the 
database to check on already issued visas because we were 
looking for a specific known commodity. We are in the process 
of changing that.
    We have also evaluated the procedures and criteria used to 
revoke visas. The State Department has broad and flexible 
authority to revoke visas, and we regularly use that power. 
Since 2001, we have revoked 51,000 visas for a variety of 
reasons, including over 1,700 for suspected links to terrorism.
    In an ongoing effort with our partner agencies, new 
watchlisting information is continually checked against the 
database of previously issued visas. We can and will revoke 
visas without prior consultation in circumstances where an 
immediate threat is recognized. We can and do revoke visas at 
the point of people seeking to board an aircraft, preventing 
their boarding. In coordination with the National Targeting 
Center, we revoke visas under these circumstances almost daily. 
We are standardizing procedures for triggering revocations from 
the field, and we are adding revocation recommendations to our 
Visa Viper report. We have scrubbed our databases and reviewed 
information in coordination with our partner agencies.
    In our data scrub since December 25th, we have reviewed the 
names and all prior Visa Viper submissions. We have re-examined 
information in our Consular Lookout database on individuals 
with potential connections to terrorist activities or support 
for such activities. In these reviews, we have identified cases 
for revocation and have also confirmed that substantial numbers 
of these individuals hold no visas and few ever did. And for 
the few who did, many were revoked prior to the current review.
    We recognize the gravity of the threat and are working 
intensely with our colleagues from other agencies to ensure 
that when the U.S. Government obtains information that a person 
may pose a threat to our security, that person does not hold a 
visa.
    At the same time, expeditious coordination with our 
national security partners is not to be underestimated. There 
have been numerous cases where our unilateral and uncoordinated 
revocation of a visa would have disrupted important 
investigations that were underway by one of our National 
security partners. They had the individual under investigation, 
and our revocation action would have disclosed the U.S. 
Government's interest in that individual and ended our 
colleagues' ability, such as the FBI, to pursue the case 
quietly and to identify terrorists' plans and co-conspirators.
    We will continue to closely coordinate our revocation 
processes with our intelligence and law enforcement partners. 
Information sharing and coordinated action are foundations of 
our border security systems put in place over the past 8 years.
    We believe that U.S. interests in legitimate travel and 
trade promotion, as the Chairman mentioned, and educational 
exchange are not in opposition to our border security agenda 
and, in fact, further that agenda in the long term. We will 
continuously make enhancements to the security and integrity of 
the visa process. As we continue to do this work, we take a 
comprehensive review.
    The Department has close and productive relationships with 
our interagency partners, and particularly the Department of 
Homeland Security, which has authority for visa policy. The 
State Department brings unique assets and capabilities to this 
partnership. Our global presence, international expertise, and 
highly trained personnel bring us singular advantages in 
supporting the visa function throughout the world. We have 
developed and implemented an extensive screening process 
requiring personal interviews and supported by a sophisticated 
global information network. This front line of border security 
has visa offices in virtually every country staffed by highly 
trained, multilingual, culturally aware personnel of the State 
Department. We have embraced a multilayered approach to border 
security which gives multiple agencies an opportunity to review 
information and require separate reviews at both the visa and 
admission stages. No visa is issued without being run through 
security checks against our partner databases, and we also 
screen applicants' fingerprints against U.S. databases as well. 
We take our partners' consideration into every effort that we 
make. We fully support the visa security program of the 
Department of Homeland Security and work closely with them in a 
dozen countries.
    This multi-team effort to which each agency brings its 
particular strengths results in a more robust and secure 
process with safeguards and checks and balances. It is based on 
broadly shared information and is a solid foundation on which 
to build our border security future. We are past the era of 
stovepiping data, but there is clearly more work to be done. We 
are doing that work now and planning future improvements as we 
continue our review.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Kennedy appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Secretary Kennedy.
    David Heyman is the Assistant Secretary for Policy at the 
Department of Homeland Security. He previously served as 
Director of the Homeland Security Program of the Center for 
Strategic and International Studies, also served as a senior 
adviser to the U.S. Secretary of Energy, the White House Office 
of Science and Technology Policy.
    Secretary Heyman, thank you for being here. Please go 
ahead, sir.

  STATEMENT OF HON. DAVID F. HEYMAN, ASSISTANT SECRETARY FOR 
  POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, DC

    Mr. Heyman. Thank you, Chairman Leahy, Senator Sessions, 
and distinguished members of the Committee. I appreciate the 
opportunity to testify.
    Let me just start by echoing the sentiments regarding the 
tragedy in Haiti. This tragedy is of epic proportions, and the 
men and women at the Department of Homeland Security, Coast 
Guard, FEMA, and across the Department are working around the 
clock to support the international effort for the people of 
Haiti.
    As President Obama has made clear, we are, all of us, 
determined to find and fix the vulnerabilities in our systems 
that allowed this attempted attack to occur. Our country's 
actions against terrorism require a multiagency, multinational 
effort to include the intelligence community, the Defense 
Department, DHS, the agencies here today, as well as efforts of 
our international allies.
    Our aviation security relies on partnerships among the U.S. 
Government, the airline industry, and foreign governments. 
These partnerships must all come together when an individual 
seeks to travel to the United States. To board a plane, there 
are effectively three key requirements: An individual must 
retain proper documentation to include a passport, visa, or 
travel authorization, a ticket and boarding pass. That 
individual must pass through checkpoint screening to ensure 
that he is not concealing a weapon or other dangerous material 
on his person or in his baggage. And, third, the individual 
must be cleared through a pre- flight screening process that 
seeks to determine if that individual poses a threat and, thus, 
could be denied permission to fly.
    Within that travel process, let me briefly describe the DHS 
role.
    First, to accomplish pre-flight screening, the Department 
of Homeland Security is one of the principal consumers of the 
terrorist watchlist, which includes the no-fly list. We check 
against it and use it to keep potential terrorists from 
boarding flights and to identify travelers who should undergo 
additional screening.
    Second, within the United States, to prevent smuggling of 
weapons and other dangerous materials on planes, DHS performs 
the physical screening at airport checkpoints and provides 
further security measures in flight.
    Outside the United States, DHS works with foreign 
governments and airlines to advise them on required security 
measures for flights bound to the U.S. as well as on which 
passengers may prove a threat. TSA does not, however, screen 
people or baggage at international airports.
    I have submitted a longer written statement describing the 
various DHS programs that work to keep terrorists from boarding 
planes, but regarding the attempted attack on December 25th, 
Umar Farouk Abdulmutallab should never have been able to board 
a U.S.-bound plane with explosives. The interagency process to 
fix the vulnerabilities highlighted by this attack is well 
underway. As a consumer of the watchlist information, DHS 
welcomes the opportunity offered by this process to contribute 
to improving the Federal Government's ability to connect and 
assimilate intelligence, and we are working with the FBI, ODNI, 
and NCTC on that.
    We are also focused on improving aviation screening and 
expanding international partnerships to guard against a similar 
type of attack. I have just personally returned from a 12-day 
trip of consultations with key partners abroad.
    In terms of the DHS role, though, the bottom line is that 
Abdulmutallab 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. Furthermore, the physical screenings that were 
performed by foreign authorities at airports in Nigeria and in 
the Netherlands failed to detect the explosives on his body.
    Immediately after the attack, DHS took a number of 
immediate steps to secure incoming and future flights to 
include directing FAA to alert 128 incoming flights of the 
situation, increasing security measures at domestic airports, 
implementing enhanced screening for all our international 
flights coming to the U.S., and working with State and local 
air carriers to provide appropriate information.
    In the report to the President regarding this attempted 
attack, the Department has outlined five key areas of action 
that we are now addressing.
    First, as the incident underscores, aviation security is 
increasingly an international responsibility. That is why 
Secretary Napolitano dispatched Deputy Secretary Lute and 
myself and other officials to meet our international 
counterparts on this issue. Today Secretary Napolitano is 
traveling to Spain to meet with her European counterparts for 
discussions on how to strengthen international aviation 
security measures.
    Second, DHS has created a partnership with the Department 
of Energy and its National Laboratories to use their scientific 
expertise to improve screening technology at airports.
    Third, DHS will move forward in deploying enhanced security 
screening technologies like advanced imaging technology and 
explosive trace detection machines to improve our ability to 
detect the kind of explosives we saw on the 25th.
    Fourth, we will strengthen the capacity of aviation law 
enforcement, including the Federal Air Marshals Service.
    And, finally, as mentioned earlier, we will work with our 
interagency partners to re-evaluate and modify the way the 
terrorist watchlist is created, including how names are added 
to the no-fly and selectee list.
    As the President has said, there is, of course, no 
foolproof solution, but there are many steps we can and are 
taking today to strengthen international aviation security. We 
face an adaptive adversary as we develop new screening 
technologies and procedures. Our adversaries will also seek new 
ways to evade them, as shown on Christmas Day. We must always 
be thinking ahead to innovate, improve, and adapt to the new 
emerging security environment, and I look forward to your 
questions to discuss this further.
    Thank you.
    [The prepared statement of Mr. Heyman appears as a 
submission for the record.]
    Chairman Leahy. Thank you.
    I still remain concerned, and, Secretary Kennedy, the State 
Department did not realize the suspect in the Christmas Day 
attempted bombing possessed a visa until after he initiated 
this action on the flight. The consular officer sent the first 
notice that was given to the National Counterterrorism Center, 
initially misspelled the name, as we have talked about. But 
within days, an amended notice was sent to NCTC with the 
corrected spelling. Why did the consular office not check the 
visa status of the Nigerian national at the time the second 
notice was sent?
    Mr. Kennedy. He did not do that, Mr. Chairman, because----
    Chairman Leahy. I know he did not do it, but why not?
    Mr. Kennedy. Because the second message was launched from 
another source.
    Chairman Leahy. But why wouldn't--it may have been launched 
from another source, but why wasn't it checked?
    Mr. Kennedy. I cannot--because we did not have access at 
the embassy to that other reporting, Mr. Chairman, and we had 
entered his name in the incorrect spelling into the database 
that is our watchlist database, which was disseminated to all 
the appropriate agencies. We slipped up. I have no statement 
other than that, sir.
    Chairman Leahy. Thank you.
    Before I go into the Christmas Day attack, just to go back, 
Mr. Mueller, to some of the things you talked about, the 
Justice Department Inspector General report on the national 
security letters, the FBI essentially told those companies that 
got these letters that there was an emergency so that the 
company would give the records voluntarily, as we would expect 
them to do. And the letters they were given said a subpoena 
would follow. Of course, the subpoena did not follow. Often 
there was no emergency. And this goes beyond being a technical 
violation. These are records of Americans being obtained 
improperly, 2,000 telephone records.
    Has or will any FBI official be sanctioned or punished for 
these violations of the law?
    Mr. Mueller. Let me start by saying yes. This process 
started back in, I think it was, 2006 and initial reports were 
issued by the Inspector General. As a result of those reports, 
they were reviewed for discipline, and individuals have been 
disciplined for their participation in these series of issues. 
In this particular case, the report will go through our 
process, and we will look at the conduct and assign discipline 
as warranted.
    Let me also say I share with you the concern that this is 
information on American citizens that we had without following 
the appropriate protocols, in some cases where there was not an 
emergency, and we have put in place a process to go through 
every one of those numbers and determine whether we had a valid 
legal basis to retain that number, and where we did not, it was 
purged from our system.
    Chairman Leahy. Please let this Committee know what action 
is taken. I would note for the record you nodded yes on that.
    Mr. Mueller. Yes.
    Chairman Leahy. Now, what I worry about is the 
overinclusion of names on the no-fly list. You want to have the 
right names on there, but if you put every single possible 
name, in effect you have no names. You have such things as we 
saw last week in the New York Times, an 8-year-old boy who was 
on this list from the time he was an infant. He has been 
subjected to physical searches and patted down so much that the 
family does not want to fly. As his mother said, he may be a 
terrorist at home, but he is certainly not on an airplane. And 
it would be humorous except for what it causes to that family, 
but also what it says of the whole system when, complaint after 
complaint, the name stays on there. It is the same as the late 
Senator Kennedy, who was stopped numerous times because he was 
on the list. And even the President of the United States, 
President Bush, called him to apologize. He said it was not the 
President's fault. He just wanted to know how to get off the 
list, and he still did not get off the list for some time. I 
think we have to be looking first and foremost at our analysis 
and say what puts somebody on there.
    How do we go about, No. 1, making sure we have the right 
person on there but, second, that we now do not so overinflate 
the list that legitimate travelers, business people, students, 
just the average American suddenly finds themselves on a list 
and unable to travel?
    Mr. Mueller. Well, it is, on the one hand, a delicate 
balance. As we have seen in the Christmas Day plot, a name can 
be misspelled by one letter, and you will miss them.
    On the other hand, there are basically two precautions that 
are taken to assure we have the right person. For almost all of 
these lists, particularly the ones where it results in a 
stopping at an airport or at a no-fly list, it requires not 
just the name but an identifier, date of birth, something else 
that identifies it, as opposed to just the name.
    Second, the other aspect of it is there is a redress 
process. If a person is no-fly, there is a redress process that 
DHS maintains so that----
    Chairman Leahy. Let me interrupt that. A date of birth, 
this 8-year-old first went on there when he was about a year 
old. Somebody looking at the list would say he is on there, he 
was born last year, and he is now on a terrorist watchlist. I 
mean, somebody----
    Mr. Mueller. I cannot explain what happened with the 8-
year-old any more than I could have explained to Senator 
Kennedy how he had gotten stopped.
    Chairman Leahy. I am sure. But, you know, I told him it was 
because he was Irish and they all know him. But you heard what 
Secretary Kennedy said. You have a list over here and you have 
a list over here. Who determines which agency carries the 
primary responsibility for a lead that touches several 
agencies? You might have input from State, NCTC, DHS, and other 
agencies?
    Mr. Mueller. Well, when it comes to international 
terrorism, the contributions, nominations on international 
terrorism go to the National Counterterrorism Center. It can be 
an international terrorism case developed by the CIA, DIA, NSA, 
or even ourselves. It goes to the National Counterterrorism 
Center. The National Counterterrorism Center makes the 
determination as to which lists the individual will be 
nominated to, whether it be the no-fly, the selectee, or the 
Terrorist Screening database.
    For domestic terrorists, it is the FBI that makes the 
recommendation to the Terrorist Screening Center as to who 
should go on that list. It is screened by both. The 
contributing agency and the National Counterterrorism Center 
screens it. Then the National Counterterrorism Center screens 
it itself. Then finally the Terrorist Screening Center does a 
follow-up screening to assure that there is sufficient 
identifying data and that the information putting the person on 
that list supports the criterion for being placed on that list.
    Chairman Leahy. I have gone over my time. I obviously have 
a lot more questions, and I do not want to interrupt others. We 
will go through these questions, and you and I may want to 
spend some time later in the week. And I am showing a list of 
testimony that I am going to submit for the record, a long 
list, and that will be submitted for the record. I am showing 
it to Senator Sessions.
    [The prepared statement appears as a submission for the 
record.]
    Chairman Leahy. Senator Sessions, over to you.
    Senator Sessions. Thank you.
    Briefly, I guess, Mr. Mueller, I will ask you, the NCTC, 
the center that maintains the list, do you think we can do 
better about getting people off the list? I heard somebody on a 
talk show the other day who said he was born here, his family 
is from Lebanon, but he keeps getting stopped.
    Mr. Mueller. Yes, in some sense, yes. If you have got 
people who do not belong on the list, they should be gotten off 
the list for a variety of reasons. It interferes with their 
right to travel----
    Senator Sessions. And who would be responsible for that? Is 
that the NCTC?
    Mr. Mueller. NCTC in terms of international terrorism, yes. 
But also DHS in terms of the redress process. When somebody 
files a complaint that they should not be on the list, it is 
then handled principally by DHS. But generally you want to have 
on those lists--as many persons who meet that criterion should 
be on that list because it is protection against terrorist 
attacks in the United States.
    Senator Sessions. I could not agree more, and people in 
this world have--a lot of people have the same name, and it is 
difficult to know. And one of the reasons we are here 
complaining is because somebody did not get on the list.
    But, Mr. Heyman, I think you should look to see how a 
person who can prove that they may have the same name as a 
dangerous person can somehow not be given as much burdens at 
the airport as otherwise would be the case.
    Mr. Heyman. Senator, there is a one-stop-shop website that 
was developed for redress purposes, www.dhs.gov/trip, and 
anyone who has concerns that they are inappropriately on a 
watchlist should go there. There is an adjudication process. 
The Department through the interagency process has adjudicated 
56,000 people at this point.
    Senator Sessions. I don't think--I just would say I do not 
think we need to have proof beyond a reasonable doubt that a 
person is a terrorist before they go on the list. What is the 
burden normally we would have there? It should not be too high.
    Mr. Mueller. It is reasonable suspicion that the person is 
either assisting, participating, or supporting terrorists.
    Senator Sessions. Are you satisfied that is the sound 
standard?
    Mr. Mueller. We are looking at the standards and seeing 
their application across various potential threats. But it has 
worked well in the past, and at this point, without further 
discussion, I am satisfied with that. I believe it is a low 
enough standard----
    Senator Sessions. We are not putting them in jail. We are 
just simply confronting them before they get on an airplane.
    Mr. Mueller, after being dispatched by an al Qaeda 
affiliate in Yemen to blow up hundreds of civilians in an 
airline bombing, Umar Abdulmutallab was charged via a criminal 
complaint within 24 hours of the landing of Northwest Flight 
253. He was reportedly given Miranda warnings shortly after 
being arrested, including being advised he had the right to 
remain silent and he was entitled to a lawyer.
    First, who made the decision that Abdulmutallab was going 
to be treated as a criminal rather than an enemy belligerent?
    Mr. Mueller. Well, let me preface this by saying, as I am 
sure you are aware, this is in litigation, but I think I can 
talk generally about what happened and not interfere with the 
ongoing litigation.
    Abdulmutallab was arrested on the plane after these 
incidents. There was no prior discussion. He was handed over, I 
believe, by the personnel on the plane to CBP, who originally 
had custody of him. He was taken to a hospital in which the FBI 
took custody of him. And it happened so fast that there was no 
time really at that point where the transfer was made very 
quickly given the moving circumstances to determine whether 
alternative arrest could or should be made.
    Senator Sessions. Well, who made the decision that he would 
be treated as if he were a criminal to be tried in civilian 
courts and be provided Miranda warnings? Who?
    Mr. Mueller. Well, the decision was to arrest him, put him 
in criminal courts. The decision was made by the agents on the 
ground, the ones that took him from the plane and then followed 
up on the arrest----
    Senator Sessions. Well, this is a very big issue. So the 
decision was made by agents on the ground based on some 
protocol or some policy that they understood?
    Mr. Mueller. Based on an ongoing, very fluid situation in 
which they were trying to gather the facts and determine what 
culpability this individual had. But as important as 
determining the culpability of this individual is what other 
threats were out there that needed to be addressed.
    Senator Sessions. Well, surely you recognize--I know you 
do--that there are great differences between trying a person in 
military commissions. In fact, I was able to work on 
legislation and get language in that said anyone ``a part of al 
Qaeda at the time of the alleged offense was per se an 
unprivileged criminal combatant, enemy combatants, subject to 
military commissions and indefinite detention'' as long as we 
have a conflict with al Qaeda. And so this was a big decision. 
Immediately, I assume, the lawyer advised his client not to 
talk.
    Mr. Mueller. Well, without getting too much into the 
details, in this particular case the agents interviewed him for 
a period of time for any information relating to ongoing and 
other threats.
    Senator Sessions. Before or after a Miranda warning was----
    Mr. Mueller. Before Miranda warnings were given.
    Senator Sessions. Well, that is pretty dangerous because 
anything he said during that time is not admissible in a 
civilian court, is it?
    Mr. Mueller. That is correct.
    Senator Sessions. So if he confessed----
    Mr. Mueller. Well, I take that back. I take that back. As I 
am sure you are aware, there is a limited exception for 
emergency situations in the case called Quarles where----
    Senator Sessions. But with regard to your agents, it seems 
to me you have a policy that these kinds of individuals will be 
tried in civilian courts rather than military commissions. That 
has ramifications because it is going to reduce, I think you 
would agree, the likelihood of intelligence being gathered. One 
of the things we learned from the 9/11 Commission is that 
intelligence saves lives, and we need to gather intelligence. 
That is not the motive of the criminal justice system generally 
in America. It is to prosecute criminals. So I think this is a 
serious matter.
    Are you satisfied that you have a clear understanding, a 
national policy about how these people should be treated once 
they are apprehended?
    Mr. Mueller. Well, I do believe----
    Senator Sessions. It sounds to me like the guys on the 
ground just made a decision on the fly.
    Mr. Mueller. There are decisions made whether or not to 
arrest somebody, and our arrest powers are dependent upon----
    Senator Sessions. Arrest powers, that is not a problem. 
Were you contacted about whether or not this individual should 
be treated as an unlawful enemy combatant----
    Mr. Mueller. No.
    Senator Sessions.--or a civilian criminal?
    Mr. Mueller. No.
    Senator Sessions. So the decision was made below your 
level.
    Mr. Mueller. Well, that does not mean the decision can be 
taken--that does not mean the decision can or should not be 
taken later if one wants to go otherwise. But in this 
particular case, in fast-moving events, decisions were made, 
appropriately, I believe, very appropriately, given the 
situation----
    Senator Sessions. I do not think you can say it is 
appropriately. We do not know what that individual learned 
while he was working with al Qaeda, and we may never know 
because he now has got a lawyer that is telling him to be 
quiet.
    Chairman Leahy. Senator Sessions, for one thing, let him 
finish answering the question. The fact is, of course, if you 
are talking about him going to a military commission, he would 
have been given a lawyer in a military commission. Military 
commissions had, I think, three convictions. The courts have 
had hundreds of convictions of terrorists.
    Senator Sessions. I do not think they are given lawyers who 
tell them to remain silent initially. If they are going to be 
tried in a trial by a military commission, they are given a 
lawyer.
    I think this is a matter of serious import. I do not think 
we have clarity of rules, and I believe we have got to get it 
straight. And I believe these people will be better tried in a 
military commission for a lot of reasons, one of which is the 
gaining of intelligence.
    My time is up, Mr. Chairman.
    Chairman Leahy. I might say to the distinguished Senator 
from Alabama, he, like I, was a prosecutor. Do you think any 
prosecutor is going to have to worry about what was said by 
somebody who tried to ignite a bomb and was stopped by several 
eyewitnesses? I do not think they are going to have to rely too 
much on a confession from them.
    Senator Sessions. Well, just in response to your question--
--
    Chairman Leahy. Let us be serious for a moment.
    Senator Sessions. In response to your question to me, it is 
not just the ability to prosecute this individual, but whether 
if he were properly interrogated over a period of time we may 
find out that there are other cells, other plans, other 
Abdulmutallabs out there boarding planes that are going to blow 
up American citizens.
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Director Mueller, how many people are on the no-fly list, 
approximately? Is it being expanded now? What is the----
    Mr. Mueller. We are generally hesitant to give the full 
numbers. I would say several thousand.
    Senator Kohl. And are you anticipating----
    Mr. Mueller. Hesitant to give it in open session. That is 
what I am saying.
    Senator Kohl. I understand that. Are you anticipating that 
list is going to be expanded?
    Mr. Mueller. There are discussions, and there have been 
some expansions, yes.
    Senator Kohl. All right.
    Mr. Mueller. And, again, that can be part of a briefing as 
to what activities have taken place, particularly since 
Christmas Day.
    Senator Kohl. All right. Director Mueller, clearly there 
are flights into the United States from hundreds of airports 
all around the world, and these airports are under the 
direction and supervision of other governments. I assume some 
of them do a better job, some of them do not do as good a job. 
For example, according to what we hear, in Israel they do a 
terrific job of screening people before they board flights.
    What kind of a problem is dealing with other countries to 
be sure that their security measures at their airports 
originating flights into the U.S. are sufficient?
    Mr. Mueller. I would be happy to try to answer, but I 
actually think my colleague Mr. Heyman from DHS would be more 
familiar with this than I am.
    Senator Kohl. All right. Mr. Heyman, go ahead.
    Mr. Heyman. Thank you, Senator. The standards by which 
international airport security are the ICAO standards, which is 
the international body for developing security regimes for 
aviation across the globe. Countries are required to meet ICAO 
standards for the last point of departure to the United States. 
TSA does audit those countries to ensure security standards are 
met. But you are absolutely right, the ability to meet those 
standards varies from country to country, and I think as we 
look forward, one of the things we are looking at in terms of 
discussions with our international partners is the ability to 
help build the capacity around the globe for the right level of 
security.
    Senator Kohl. Well, it seems to me that is a crucial 
element of this whole discussion we are having, how well do 
they do their jobs in other countries and at other airports. I 
would not be surprised that there may be airports around the 
world that should not be allowed to originate flights into the 
United States because of their lack of proper security 
implementation. Wouldn't you imagine that might be true?
    Mr. Heyman. Well, in order for a carrier to travel from a 
country abroad, from a last point of departure abroad to the 
United States on a direct leg to the United States, they have 
to meet the ICAO standards, and they have to meet TSA audit 
requirements. And the Department audits last points of 
departure--there are about 245 of them--to the United States 
every year, and if an airport or carrier do not meet the 
standards, they are given an opportunity to address those 
concerns, or the flights are discontinued.
    Senator Kohl. I have never heard about an airport that has 
been cited and disallowed from originating flights into the 
United States because of lack of proper security observations, 
and I would suggest that there must be some serious issues 
relating to airports that are not doing the proper job of 
screening prior to originating flights into this country. My 
common sense tells me that that is very possibly true. What do 
you think?
    Mr. Heyman. I can tell you that of the 245 last points of 
departure to the United States, the TSA has audited them on a 
regular--does audit them on a regular basis to ensure the 
safety and security of flights emanating from those points of 
departure. Other cities that may be interested in direct 
flights to the United States would have to go through the ICAO 
standards and the TSA review, and if they were not able to meet 
them, they would not be permitted flights.
    Senator Kohl. I would like to hear a little bit from you 
all about body scanners, their use, their effectiveness, and 
plans to expand them. What are some of the issues that we are 
dealing with, Director Mueller?
    Mr. Mueller. That is a little bit out of my bailiwick as 
well. Again, I would defer to DHS.
    Mr. Heyman. I would be happy to answer that question, 
Senator.
    Senator Kohl. Go ahead.
    Mr. Heyman. There are a number of different ways in which 
we provide security at checkpoints here in the United States 
and that are considered abroad for screening passengers who may 
be trying to conceal weapons or materials. The standard use of 
a walk-through metal detector is what is the predominant 
security feature around the world. In the United States, we 
have a number of layers of defense, layers of security, to 
include behavioral observation, canines, explosive detection 
devices as well as other technologies. We are in the process of 
deploying whole-body imaging, enhanced image technology. That 
technology has the advantage of detecting non-metallic 
substances such as powders or liquids, such as what was found 
on Abdulmutallab on Christmas Day. So we are moving forward 
rapidly to deploy additional scanners around the United States 
on that.
    Senator Kohl. I would like to get back to my question about 
different airports in different countries. What is it about the 
Israeli airport security system that has attracted as much 
praise as it has over the years?
    Mr. Heyman. Senator, that is one of the countries I just 
visited and, in fact, did take a tour of their airport, Ben 
Gurion Airport, and had briefings from security officials 
there. They have addressed their security concerns through a 
number of layers, including things that we do in the United 
States, such as behavioral observation, the way that they 
interview--the interview is critically important to 
passengers--and the number of layers of screening, of targeting 
potential terrorists as well as screening of baggage that may 
be on board.
    They also live in a very different environment, and I would 
not compare their targeting necessarily to the United States. I 
think they have a very different environment that they live in 
and, thus, not necessarily transferable. But their layers of 
defense is something that we have also adopted in the United 
States and is what a lot of people talk about.
    Senator Kohl. Finally, I would just make the observation 
again that this is a worldwide issue, clearly, and I am 
troubled by the thought that rating security, airport security 
in different countries, if it were done very critically, would 
probably disclose wide variances between the security 
effectiveness implemented in different countries. And until we 
do a better job of trying to coordinate as a world the security 
systems in different countries, we will continue to be at great 
risk. Would you agree with that?
    Mr. Heyman. Senator, I do agree. I think one of the key 
things we learned from this is that access to any airport in 
the world gives you access to the entire international system. 
This individual bought a ticket in one country, traveled to a 
second country, transited through a third country to target a 
fourth country. There were somewhere near two dozen 
individuals, two dozen nationalities represented on that plane. 
They traveled across a number of different countries. This is 
an international problem, and that is why Secretary Napolitano 
is heading to Europe tonight to meet with European counterparts 
for discussions on enhancing international security. There will 
be additional--the President has tasked the Department to 
expand international cooperation in this realm.
    Senator Kohl. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. Thank you, Mr. Chairman.
    I will start with Secretary Kennedy. The State Department 
has indicated that it could not provide this Judiciary 
Committee with a copy of the Christmas Day bomber's visa 
application prior to this hearing because it was part of ``an 
interagency DOJ review process.'' However, the Justice 
Department indicated to my staff yesterday, just yesterday, 
that the State Department had not even provided a copy of the 
application to the Justice Department yet. I do not understand 
why the State Department would tell us that it was being 
reviewed by the Justice Department if the Justice Department 
says they do not have it. So since I do not want to trust just 
executive branch opinion about what is on this and what process 
it ought to go through, I want to know for myself what 
information did this bomber put on his visa application. Why 
shouldn't we conclude that the State Department is simply 
trying to hide behind the Justice Department criminal process 
in order to avoid or delay a full accounting of how this 
terrorist got into this country on your watch? But my big 
question is, second: When will we get a copy of this 
application?
    Mr. Kennedy. Senator, we are by no means attempting to hide 
behind this whatsoever.
    Senator Grassley. OK. Well, then, when will I----
    Mr. Kennedy. I promise you that I will return to my office 
and I will have our staff contact the Department of Justice 
immediately, and if it is in, we will proceed from there, sir. 
We are not attempting to hide behind the Department of Justice. 
We carefully coordinate all our activities with the Department 
of Justice, and we will get back to you, sir.
    Senator Grassley. But they have got to have it in order to 
review it, and you told me it is being reviewed. I do not say 
you did, but the people in the agency said it is being 
reviewed.
    Mr. Kennedy. We will check with the Department of Justice 
this afternoon, sir.
    Senator Grassley. I would think the first thing to do would 
be to walk it over there so that they can have it.
    I would like to go on to another issue with the FBI 
Director. On January the 7th, President Obama directed the FBI 
to ``conduct a thorough review of Terrorist Screening database 
holdings and ascertain current visa status of all known and 
suspected terrorists, beginning with the no-fly list.''
    This directive implies that there is a concern that the 
State Department may have issued visas to individuals who are 
known or suspected terrorists. However, the Christmas Day 
bomber was not labeled a known or suspected terrorist. Instead, 
he was given a lesser classification by the State Department as 
what they referred to as a P3B, meaning he was a possible or 
probable terrorist.
    Has the FBI reviewed all records in the State Department's 
CLASS system for individuals designated P3B, meaning possible 
or probable known or suspected terrorist, to determine if any 
of these individuals were issued a visa?
    Mr. Mueller. My understanding, Senator, is that we have 
taken the no-fly list and assured that the persons there do not 
have visas. We have taken the selectee list and determined that 
persons there do not have access to visas. And then with regard 
to the much larger Terrorist Screening database, we are going 
through that and making certain--at this time we are going 
through that database and assuring that those persons do not 
have visas.
    It is from the Terrorist Screening database that the CLASS 
system is populated with information on particular individuals. 
So we feel that this way we are looking at the databases which 
are handled by the Terrorist Screening Center, and what we are 
doing will be redundant to what is being done by the State 
Department as well as by the NCTC.
    Mr. Kennedy. Senator, could I, with your----
    Senator Grassley. Well, just a minute, and then I will be 
glad to have you do that. Just in case you answered my 
question, but I do not know for sure if you answered it, have 
you reviewed P3Bs, then? And if you have not, do you intend to 
do so?
    Mr. Mueller. I am not personally familiar with P3Bs, 
Senator, but I would be happy to----
    Senator Grassley. Well, they are the possible or probable 
terrorists.
    Mr. Mueller. Is that a definition for--I am a little bit 
lost. Is that a definition for populating a particular list?
    Senator Grassley. It is my understanding it is. But now 
maybe I ought to let Secretary Kennedy speak.
    Mr. Mueller. He may be more versed in that.
    Senator Grassley. Maybe you could have solved this for me, 
but go ahead.
    Mr. Kennedy. Yes, sir, Senator. Thank you. If I could just 
give 1 second of context, every visa applicant who comes into a 
United States embassy and applies for a United States visa, his 
or her name is run against a complete database that includes 
entries from the FBI, entries from Homeland Security, entries 
from the Terrorist Screening Center, entries from DEA. We take 
entries in from all these agencies daily and load them into our 
database, and so no one who applies for a visa, no one is 
issued a visa without a complete scrub against the full 
interagency database. And, additionally, they are also scrubbed 
against the complete DHS and FBI fingerprint sets of 
individuals who are of concern to those agencies.
    So we run this complete screen. Then anytime someone is 
moved up, so to speak, on the screening list from either of our 
partners within the national security community, that 
information is immediately transferred to us. We then run that 
new information against our list of issued visas to see if 
those agencies have obtained new information that they had not 
been made available to us earlier, and then we run that. And if 
someone has moved up on that list, we then move to revoke those 
visas immediately.
    Last, on your question, sir, about the P3B, the P3B is a 
category, when someone comes to our attention, we have concerns 
about them, but it is not conclusive. We then immediately send 
that information to our partners in the intelligence and law 
enforcement community, but we put this P3B code in so that no 
State Department officer at that post or anywhere else in the 
world will issue that visa without doing a double-check with 
our partner agencies.
    After December 25th, we rescrubbed that with our partners 
in the intelligence community and have canceled seven visas.
    Senator Grassley. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman. I 
would like to just make a couple of comments and then some 
questions.
    I think it has become pretty clear now that the airplane 
remains a major explosive device. I think it is very clear that 
there are going to be more attempts. This attack took place 
over United States soil. I think the handling by the FBI is 
entirely appropriate. And I would like to bring to this 
Committee's attention the fact that the FBI has done excellent 
interrogation in the past. A Subcommittee on which Senator Kyl 
and I have participated has had former FBI agents testify going 
back to the 1993 New York City bombings where the interrogation 
done by the FBI really brought about convictions of a number of 
people, including the blind sheikh, people who are serving time 
in prisons in the United States who were part of trials here in 
the United States. So I believe the handling of Mr. 
Abdulmutallab is entirely appropriate, and I think people 
should understand that.
    I am concerned about the no-fly list. I believe the 
definition of who would go on the no-fly list is highly 
convoluted. It takes a Philadelphia lawyer to interpret. And I 
have been told by Director Blair that it is being reassessed 
and hopefully will be redone.
    PETN is becoming the explosive of choice. I suspect we are 
going to have more attempts using this explosive, and hopefully 
it will not be perfected soon.
    So let us go for a moment to the visas, and, Mr. Kennedy, 
let me ask you: Were you saying in your testimony that there 
will be an automatic revocation of visas for subjects of a Visa 
Viper cable or a Terrorist Identities Datamart Environment, the 
TIDE, entry? The answer is yes or no.
    Mr. Kennedy. The answer is no for the reasons outlined in 
my testimony, Senator. We receive information that causes us 
great concern as the first line of national security. We send 
that information to our partners in the FBI, our partners in 
other law enforcement agencies, and our partners in the 
intelligence community. We have been requested on numerous 
occasions by those agencies not to revoke the visa because 
there is an active investigation----
    Senator Feinstein. Well, let me stop you there because I 
know all about that, and I have some questions about that, but 
that is for another Committee, and we will be taking that up on 
Thursday. But those are not many, and I know the number of 
people on the no-fly list. It seems to me that we ought to have 
a process which assured revocation of a visa, and what I have 
learned is that essentially it is very difficult to revoke a 
visa.
    Mr. Kennedy. Senator, it is not very difficult to revoke a 
visa. If the FBI, Homeland Security, any other member of the 
law enforcement and intelligence community comes to us--and we 
get information from them every day which we run against our 
records. If they come in and say that this individual is a 
danger to national security, we revoke the visa immediately.
    Senator Feinstein. So that is automatic. And where does it 
have to come from, the automatic?
    Mr. Kennedy. The Terrorist Screening Center at the FBI, the 
NCTC, from the Department of Homeland Security. We receive 
information from all our partners, and if they provide us with 
information that says that this individual is a danger to 
national security, we revoke that visa immediately.
    Senator Feinstein. All right. I am happy to hear that.
    As you know, Mr. Abdulmutallab was issued a multiyear, 
multiple-visit tourist visa in June of 2008. Do you believe it 
is in the United States' security interest to issue visas that 
allow entries over several years or more than one visit to the 
United States?
    Mr. Kennedy. Senator, because we receive information every 
day from our law enforcement and intelligence community 
partners, we are able to revoke and cancel visas on any given 
day if new information comes to our attention that says an 
individual who was not a threat when we ran his or her 
application against our partners' databases. If those 
circumstances change and we are notified by the intelligence 
community or law enforcement that this individual's 
circumstances have changed, we then immediately revoke his 
visa.
    Senator Feinstein. All right. It just seems to me we still 
have a lot of learning to do. This Committee had the consular 
officers before it who gave visas to certain of the 9/11 
hijackers, and those visas should not have been issued, in my 
view. And I think we have really got to batten down the hatches 
of who we give visas to. And I am about to go into the Visa 
Waiver Program because, in my view, that is the soft underbelly 
of this country, Mr. Heyman.
    Mr. Kennedy. Senator, if I could add one thing with your 
permission.
    Senator Feinstein. Sure. Go ahead.
    Mr. Kennedy. You are entirely correct. Before 2001, we were 
not--we, the State Department, were not receiving sufficient 
information from our intelligence community and law enforcement 
colleagues. Since 2001, the number of data elements given to us 
from our partners is up 400 percent. We now have a 27-million-
name list from the intelligence community, writ large, from the 
law enforcement community, and from our own sources that every 
single visa applicant's name is run against that database as 
well as run against fingerprint databases from the FBI and 
Homeland Security.
    So there has been an absolute change from the point that 
you spoke of in 2001 where we were not getting sufficient 
information in order to have a data set to run against. We now 
have that. As I said, it is up 400 percent since 2001.
    Senator Feinstein. I appreciate that, and I thank you for 
it.
    Mr. Heyman, as you will probably know, I am not a fan of 
the Visa Waiver Program. We now have 16 million people from 35 
different countries who come in without a visa, and we do not 
know if and when they leave. I believe it is the soft 
underbelly of this country. I believe that if Mr. 
Abdulmutallab, who went to school in Great Britain, in the 
U.K., became a naturalized citizen of the U.K., he could have 
had a visa waiver and come into this country without one. And I 
think that is a real, real problem.
    So let me ask you: What checks do we have that someone who 
is denied a visa but is not put on a terrorist watchlist can 
come into this country at a later date through the Visa Waiver 
Program?
    Mr. Heyman. Well, just to clarify, in the Visa Waiver 
Program you do not need a visa, but there is a travel 
authorization that is required, an advance travel authorization 
that runs the same checks basically that a visa check would do. 
It is also done--the same kind of cursive review of the 
watchlist and things like that to revoke or refuse 
authorization is done. And I understand your concerns about it, 
but let me just say that the Visa Waiver Program includes a 
number of additional enhanced opportunities for cooperation and 
information sharing to include reporting of lost and stolen 
passports, standardized passports, sharing of terrorist 
screening information, sharing of criminal data information, 
and recurring auditing or review that we have with these 
countries to evaluate overall security, which we do not have 
with non-visa waiver countries.
    So there are a number of enhanced security measures that 
actually supplement security in the VWP programs, and so I am 
not sure I would agree with the characterization, but I 
understand your concerns.
    Senator Feinstein. Yes, and I am not sure I would agree 
with what you said, so perhaps we can debate this or discuss it 
separately.
    Chairman Leahy. This debate could go on, and I am sure it 
will. We are going to do--Senator Feingold is going to be next. 
Then Senator Cardin is going to chair the hearing. I have to go 
on the floor on a judicial nomination.
    I have been making notes here. I think all of you are 
probably going to be getting calls from me or my staff in the 
next few days. There are an awful lot of follow-up things.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Thank you all for being here. I join all members of this 
Committee in my horror at what happened on Christmas Day on the 
Northwest flight from Amsterdam to Detroit. While the attempt 
did not end in the tragedy that it could have, we must 
understand how and why the bomber was able to board that flight 
and what steps we can take to prevent the next such attempt. 
But we must also approach our task calmly and thoughtfully and 
not treat this as an opportunity to score political points. 
Congress needs to work with the executive branch to find the 
right answer to these questions and not just lay blame or take 
actions that are politically expedient but ultimately 
ineffective.
    By all accounts, the President was right to characterize 
this as a systemic failure, and I agree with him that some very 
tough questions must be asked to repair and improve the 
counterterrorism systems that are now in place. This is not the 
time for excuses, nor is it the time for pointing fingers. It 
is time to fix the problem, and that is exactly what will make 
us safer.
    Mr. Chairman, I would just ask that my full statement be 
placed in the record.
    Senator Cardin. [Presiding.] Without objection.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Senator Feingold. Thank you, Mr. Chairman.
    First, I am concerned that the policy of enhanced screening 
for all nationals from 14 countries will potentially harm our 
relations with governments and populations that can be allies 
in defeating al Qaeda and its affiliates and may not be an 
effective use of limited resources. Can any of you tell me 
whether a formal intelligence analysis has been conducted 
assessing the value of blanket screening of all people who are 
traveling from or through or are nationals of particular 
countries, either generally or specifically with respect to the 
recently designated 14 countries? Somebody.
    Mr. Heyman. Sure. The designation of the countries was a 
determination in consultation with the Department of State and 
the Department of Homeland Security, as well as an assessment 
of new and emerging threat information. Their recommendation 
includes not just the enhanced screening of a number of foreign 
nationals, but, in fact, the majority of any individual 
traveling to the United States, to include U.S. citizens. So it 
is not, in fact, a blanket across specific nations per se, but 
enhanced screening for all individuals coming to the United 
States.
    Senator Feingold. Mr. Heyman, my question was whether there 
was a formal intelligence analysis that had been conducted as a 
part of this.
    Mr. Heyman. The threat information was included in the 
analysis for determining the enhanced screening procedures.
    Senator Feingold. I am not certain that is the same. Could 
you provide that analysis to Congress? Formal intelligence 
analysis that led to these determinations.
    Mr. Heyman. I will have to get back with you. I was not a 
party of the discussions, but I will be able to follow up with 
you after.
    Senator Feingold. OK. Secretary Kennedy, what role did the 
State Department play in helping to determine which countries 
should be on the list? And how did the State Department handle 
the responses it received from those countries once they were 
notified?
    Mr. Kennedy. Thank you, Senator. The Department of Homeland 
Security presented the State Department right after the events 
of Christmas Day with a list of countries that they said that 
they believe that these areas needed enhanced screening. We 
reviewed that list. There were a couple of countries we asked 
questions about. The list was then approved by the State 
Department because Homeland Security felt on the basis of the 
information, as Mr. Heyman said, was sufficient that as an 
interim step that needed to be taken immediately in order to 
safeguard not only American citizens but nationals of other 
countries boarding those aircraft as well. And so I know from 
discussions that have taken place that the Department of 
Homeland Security is continuing reviewing that list to 
determine the best way to provide safe and secure aviation 
movement because of the boarding--let us call it the boarding 
process, if I could, Senator.
    Senator Feingold. How did the State Department handle the 
response it received from those countries once they were 
notified that they were in this group?
    Mr. Kennedy. We shared that information with the Department 
of Homeland Security, and we are in discussions with them. Our 
Office of Counterterrorism at the State Department works very, 
very closely with the Department of Homeland Security, as does 
the Aviation Division of our Economic and Business Bureau. 
Those discussions are ongoing, but the primary responsibility, 
as Mr. Heyman said in his earlier testimony, for surveying 
airports and determining whether or not that airport is safe to 
launch aircraft to the United States is the last----
    Senator Feingold. But what I would like to be able to have 
access to is the information about what happened when these 
countries were notified and what their response was. This is 
very relevant to the value and wisdom of doing this.
    Mr. Kennedy. Senator, I will----
    Senator Feingold. So can we get a briefing on it, 
classified if necessary?
    Mr. Kennedy. Yes, sir. We will be in contact with your 
staff this afternoon to set something up for you.
    Senator Feingold. Thank you.
    Director Mueller, we have heard criticism this morning for 
the decision to try Abdulmutallab in Federal court, and I am, 
of course, a little mystified by this reaction given the 
similarity of this case to the attempt by Richard Reid who was 
prosecuted in Federal court by the prior administration, now 
serving a life sentence. Some have argued the decision has 
compromised our ability to obtain useful intelligence. But as I 
understand it, and as Senator Feinstein touched on, there are 
quite a few examples of people who have been charged with 
terrorism-related crimes in Federal court and who have 
cooperated with the U.S. Government.
    Do you see any reason to treat this case differently from 
the Richard Reid case? And has it been your experience that 
alleged terrorists charged with crimes in Federal court often 
cooperate with the Government and provide useful intelligence?
    Mr. Mueller. Well, in a direct answer to the question, we 
have had a number of cases in which, through the process, the 
criminal justice process of the United States, individuals have 
decided to cooperate and provided tremendous intelligence. That 
is not to say that there may not be other ways of obtaining 
that intelligence, but, yes, in answer to your question, the 
criminal justice system has been a fount of intelligence in the 
years since September 11th.
    Senator Feingold. Thank you for that answer. Director, I 
cannot finish without telling you how concerned I am, as I am 
sure you know, about the new Inspector General report that came 
out this morning, which you talked about, detailing rampant 
illegality at the FBI with regard to obtaining phone records. I 
know you have taken a number of steps previously to address 
those issues, but the IG recommends much more, and DOJ and the 
FBI need to provide Congress today with the new OLC opinion 
that states what legal authorities the FBI has to obtain phone 
records. Will you make sure that that happens?
    Mr. Mueller. I am trying to understand exactly what you 
want.
    Senator Feingold. The new OLC opinion that states what 
legal authorities the FBI has to obtain phone records.
    Mr. Mueller. If it ia an OLC opinion, it really is in the 
hands of the Department of Justice. It is up to the Attorney 
General. But I see no reason why you should not have it, but it 
is not my decision to make.
    Senator Feingold. OK. I thank all of you.
    Thank you, Mr. Chairman.
    Senator Cardin. Well, first let me thank all of our 
witnesses for the work that you do for our National security.
    In my role as Chairman of the Subcommittee on Terrorism and 
Homeland Security, we held a hearing last year in which we went 
over whether we are sharing information among the U.S. 
intelligence agencies as effectively as we need to in order to 
protect homeland security. At that hearing, Ms. Baird and 
former Senator Gorton testified, and they have submitted 
testimony for the record in regards to this hearing in regard 
to the concerns they have about the culture of sharing 
information within our Federal agencies. Without objection, I 
am going to ask that their testimony be made part of this 
record.
    [The information appears as a submission for the record.]
    Senator Cardin. I guess my first question is: There has 
been concern as to the operational roles and responsibilities 
in regard to making the decisions concerning who is to be 
stopped at our airports, how we share the appropriate 
information, and the President has asked for a review. Is there 
currently in the works any recommendations for change as to the 
sharing of information and the respective roles of the 
different agencies in making these decisions?
    Mr. Mueller. Why don't I try to address that? The President 
has directed us to look at the criteria that are utilized to 
put persons in various levels of the terrorist watchlist. That 
is one aspect of it.
    The President has also asked us to look and Admiral Blair 
is looking at other mechanisms utilizing information technology 
which will enhance our ability to better connect pieces of 
information from various databases. That has been an ongoing 
process since September 11th, and it is an ongoing process as 
new technology becomes available and we have new data sets.
    But I would say just as a comment that the sharing is--it 
is a new world since September 11th in terms of our desire to 
share with every other agency. Not a one of us, sitting at this 
table or otherwise, does not understand that we have an 
obligation to share that information to prevent the next 
terrorist attack. So the motivation is there. The will is 
there. A lot has been done. There is still work to be done, 
particularly when it comes to utilizing information technology 
to make our jobs easier.
    Senator Cardin. And also how we connect the dots. Let me 
get to Mr. Abdulmutallab for one moment. Information became 
available last year to the State Department from his father, 
and as I understand, that information was reviewed as to 
whether there was a visa outstanding in regard to that 
individual, and because of the misspelling of the name, it did 
not pop up on your data search. Is that correct?
    Mr. Kennedy. That is correct, Senator. As I said earlier, 
we made--if I could add two points quickly. We did, though, put 
the name correctly into our lookout system, and the lookout 
system went to all the agencies in Washington, and a longer 
classified message describing more in-depth conversations with 
his father went in with the correct spelling, and the two were 
married up in a single file in Washington. And so the 
misspelling, our error, was obviated by the second message that 
paired up with it, sir.
    Senator Cardin. But it never gave you the information at 
the time that a visa was outstanding. If it did, if it would 
have shown that he had been issued a visa in 2008, was there 
sufficient information available for you to take action in 
regard to that visa?
    Mr. Kennedy. No, sir. There was not sufficient information 
from his father, nor do we take preemptive action because, as I 
mentioned earlier, we always consult with our law enforcement 
and intelligence community partners before we revoke a visa to 
make sure the individual is not a subject of investigation and 
we would compromise their investigation.
    Senator Cardin. So let me make sure. Are you saying that 
even if it would have popped up that he had a visa outstanding, 
you would have not taken any action to revoke that visa?
    Mr. Kennedy. There was insufficient information to 
immediately revoke the visa, and also following the protocols 
that have been in place since 2001, we check with our partners 
in the intelligence and law enforcement communities to make 
sure that our revoking that visa does not tip him off that he 
is under surveillance by one of our partners in the national 
security community, and, thus, our action would have 
compromised their ability, let me hypothetically state, to roll 
up a larger terrorism ring.
    Senator Cardin. So in this particular case, we do not know 
what would have happened if you made that inquiry.
    Mr. Kennedy. We did notify--we did put his name, correctly 
spelled, into our database that was available to law 
enforcement and the intelligence community personnel.
    Senator Cardin. And no dots were connected from that, that 
we are aware of prior to Christmas Day.
    Mr. Kennedy. Sir, that is something that is outside----
    Senator Cardin. He did not go on any watchlist, did he?
    Mr. Kennedy. No, sir. If the intelligence or law 
enforcement communities had come back to the State Department 
and said, ``We have other information on this individual in 
addition to the information you, the State Department, has 
provided us; we are putting him on one of the lists,'' we would 
have potentially--we would have revoked that visa in 
coordination with law enforcement and intelligence.
    Senator Cardin. So DHS had the information prior to 
Christmas Day, but did not have any reliable information to 
act. Is that where we are?
    Mr. Heyman. He was neither on the watchlist nor a no-fly 
list nor a selectee list, and so there was--no check against 
those lists would have come up with anything.
    Senator Cardin. But whose responsibility was it to look 
into that information and determine as to whether he was 
actively involved in al Qaeda in Yemen? There is information 
that he was there. It seems to me that there was significant 
information linking him to potential terrorist activities that 
was put into our data bank. Whose responsibility was it to 
follow up to see whether action should be taken to at least 
alert agencies of a risk factor, but also to investigate 
whether there is further reason to suspect that an act of 
terrorism might be taking place? No one seems to want to answer 
that.
    Mr. Kennedy. Senator, that is a subject outside the 
jurisdiction of at least the State Department. I can describe 
our process. Any information that comes to the attention of the 
State Department that says there is a potential terrorist, we 
send it in to the national----
    Senator Cardin. You send it in. You type it in. It is sent 
in. You did not think he had a visa outstanding. If he had one, 
you would not have acted without further information from other 
agencies. And this point, I guess, Director Mueller, I was 
referring to originally as to responsibility. Whose 
responsibility was it to take that information and try to 
connect the dots?
    Mr. Mueller. I think the President's--the report identified 
by the President would say that the information goes into the 
National Counterterrorism Center where the lists are maintained 
from which you then put the person on no-fly or the----
    Senator Cardin. Someone has to develop the----
    Mr. Mueller. And so the information is developed. It is 
developed by NSA. It is developed by CIA, developed by the 
State Department, goes into the NCTC, the National 
Counterterrorism Center for determination as to whether that 
person should be on which watchlist. And to the extent that 
there is follow-up, it is done generally there when it comes to 
international terrorism.
    Senator Cardin. I would just make the observation there was 
information that was put into the data bank, and it appears 
like before Christmas Day no one acted on that.
    Mr. Mueller. Well, there is some information that did get 
to NCTC. There is other information that did not get to NCTC 
before then. And so it was a question of--I think it is fair to 
say some person should have passed information into NCTC that 
did not end up there, and the database, the ultimate database 
where you have the information that leads to putting a person 
on either the selectee or the no-fly list for international 
terrorism generally goes through that process.
    Senator Cardin. I guess my concern is that it is not clear 
as to whose responsibility it was to take that information and 
to develop it, whether it is a serious enough link not only to 
protect America against that individual but to use that 
information to try to determine whether there is active 
terrorist plots against America. And I hope that is being 
corrected because there was information there that was just 
sitting there, and obviously it could have been a very serious 
situation against this country.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. Let me thank all 
the witnesses for being here.
    My first question is for Mr. Kennedy from the State 
Department. It is about multiple-entry visas. One of the main 
criticisms that has been leveled in this matter was that 
Abdulmutallab's multiple-entry visitor visa issued to him by 
our embassy in London in June 2008 was not revoked once his 
father warned our Nigerian embassy about his extremist 
activity. This criticism is valid but does not take into 
account the complex process the State Department must typically 
follow in order to revoke a visa. You know that.
    So instead of focusing solely on visa revocation, which is 
more complex than people realize, I think we should look at the 
fact that Abdulmutallab and seven of the 9/11 hijackers came to 
America on unlimited multiple-entry visas that gave them a 
revolving door to come and go to America as they please. In 
other words, the multiple-entry visa, once you get it, you can 
go back and forth without anybody checking on you as many times 
as you want. And the new information that came in from al Qaeda 
in Yemen as well as from Mr. Abdulmutallab's father came in 
after he was issued that multiple-entry visa. That is the 
problem.
    So I propose that the citizens of the 14 countries 
identified as potential security threats by the Obama 
administration should be required to apply for permission each 
time they visit the United States rather than enter at will by 
virtue of the so-called revolving-door visas that stay valid 
for years at a time. This way we can have a calm re-examination 
of all the facts that we know about an individual each time 
they enter. So when new information comes in, that will be part 
of the file, and the burden of proof will be on the entrant 
rather than on the State Department to revoke.
    Had this policy been in place before the Abdulmutallab 
incident, he would have been denied a visa because his name was 
entered in the TIDE database, and the entry stated he would be 
presumed ineligible if he had applied for a new visa.
    So my question to you, Mr. Kennedy, is this: Do you agree 
that Abdulmutallab would have been unable to enter the United 
States had he been required to obtain a new visa prior to his 
flight to Detroit? Do you agree?
    Mr. Kennedy. Possibly, Senator, for this reason: I fully 
agree that we have to examine all issues, and that is part of 
the ongoing process we are engaged in. Two points, if I might, 
Senator.
    Senator Schumer. Well, let me ask my second question. I 
thought you were just going to say yes. Will you work with me 
to implement the suggestion that either administratively or 
through legislation that we implement this plan? So those are 
the two questions. Go right ahead.
    Mr. Kennedy. Yes, sir. We are examining all our processes 
now. As you rightly suggest, this calls for a full and complete 
review.
    Senator Schumer. Well, what do you think of this idea?
    Mr. Kennedy. The one point that I--if I could, with one 
preliminary statement. Once an individual receives a visa, it 
is not that that is continually reviewed. It is continually 
reviewed. If the National Counterterrorism Center or any of our 
other partners in the law enforcement or intelligence community 
say that they have new information on an individual, they pass 
that information to us on a daily basis. We run all that 
information against the list----
    Senator Schumer. I understand that. That is not what I----
    Mr. Kennedy.--and then we revoke the visa.
    Senator Schumer. I am not asking that, sir. If the 
information is missed, which it was here, if the burden of 
proof were on the entrant who had to get a new visa, it is much 
more likely that it would be caught than if you had to go 
revoke the visa, because you would have no way of revoking it 
because that new information was missed.
    Mr. Kennedy. Senator, I agree we have to look at this very 
strongly, and I totally agree with you. The point, I think, 
that are just our difference is that we do every day review 
every issued visa to see that new information has come in to us 
or not. And so we do continual reviews, and if we discover that 
the Terrorist Screening Center at the FBI or Homeland Security 
has elevated this person, we then revoke that visa immediately.
    Senator Schumer. So, again, I just want to get--why 
wouldn't it be better to do it the way I am suggesting?
    Mr. Kennedy. Because, Senator, if the information is not--
if the dots are not connected, then the individual is going to 
get the visa because there is no--then when they applied for 
the new visa and we ran it against the database, if the dots 
are not connected and an individual has not been put on the 
list by one of the intelligence or law enforcement 
communities----
    Senator Schumer. But he was on the list.
    Mr. Kennedy. He was on a--no, sir. He was not on no- fly; 
he was not on--he was not on the no-issuance list.
    Senator Schumer. Right, but he was on the larger list.
    Mr. Kennedy. Right.
    Senator Schumer. And what I am saying is if the visa had to 
be applied for and you are from one of these 14 countries, then 
he wouldn't have gotten--if they would have seen him on this 
list, the bigger list, the 500,000 list----
    Mr. Kennedy. Yes, sir.
    Senator Schumer. And they would have reviewed it more 
carefully.
    Mr. Kennedy. They reviewed--yes----
    Senator Schumer. If they wouldn't, then something is 
profoundly wrong.
    Mr. Kennedy. You are--Senator, you are very correct that 
this all lies in connecting the dots.
    Senator Schumer. And you do not have access to the TIDE 
database, right?
    Mr. Kennedy. Yes, sir, we have access to the TIDE data--we 
are the people who caused his name to be put into the TIDE 
database when we filed the Visa Viper report. We caused his 
name----
    Senator Schumer. OK. As I understand it, you have access to 
what you put into the TIDE database but not to the whole TIDE 
database. Correct?
    Mr. Kennedy. That is--we have----
    Senator Schumer. Is that correct? Yes or no.
    Mr. Kennedy. Yes.
    Senator Schumer. OK. That is my point, isn't it?
    Mr. Kennedy. But if someone is in the TIDE database, 
Senator, and that comes up on the TIDE database, we then send a 
message to the intelligence and law enforcement communities and 
say, ``Should we issue this visa or not?''
    Senator Schumer. OK. I am--I was told that the State 
Department was seriously interested in making this change 
instead of saying, well, we are going to study it, which means 
nothing. Are you or aren't you?
    Mr. Kennedy. We are seriously interested in finding any 
means to improve national security.
    Senator Schumer. Are you seriously interested in this 
proposal and look at it carefully?
    Mr. Kennedy. Absolutely, Senator.
    Senator Schumer. And do you think it is a good idea off the 
top of your head?
    Mr. Kennedy. I think it is a good idea to figure out----
    Senator Schumer. Do you think it would be tighter than the 
present process?
    Mr. Kennedy. That is what we are trying to figure out, 
Senator.
    Senator Schumer. What do you think?
    Mr. Kennedy. It has its pluses and its minuses, and that is 
why, because it is a serious proposal, we are very seriously 
reviewing it.
    Senator Schumer. All right. My second question--well, I do 
not have much time left, so I will submit it in writing.
    Mr. Kennedy. Senator, I would be glad to come up and visit 
with you, if you would like.
    Senator Schumer. Thank you.
    Senator Whitehouse. [Presiding.] I will be chairing for the 
remainder of the proceeding, and with some allowance for 
working around a potential vote that may go off, my intention 
would be to follow through until all the questions are answered 
without interruption. We may have to do a little bit of a fire 
drill on seats in order to accomplish that. But since I intend 
to stay until the end, I would now yield to Senator Klobuchar 
for her questions.
    Senator Klobuchar. Thank you, Mr. Chairman. I think that 
Senator Franken was here before me for the deadline, so he 
would go first and then me.
    Senator Franken. Well, I would like to thank Senator 
Klobuchar and the Chair.
    Here is a question that has been on my mind, and I would 
like to direct this to the Director. And I think I know some of 
the answers to this, but this Abdulmutallab was on the bigger 
list, the 550,000 list. And he was not on the no-fly list, but 
he was on this list. He gets to the airport. It is easy to 
access--it is just as easy to access a list of 550,000 as it is 
to access a list of 18,000. Nobody at a counter goes through 
18,000 names. It is done through a computer. So a name kicks up 
just as fast if it is on a 550,000-person list as it does if it 
is on an 18,000-person list.
    Why don't we have access--why don't the people who book 
these people in have access to that list and simply say, OK, 
that means you are going to get another patdown, or that means 
you are going to go through the full-body scanner? And I just 
came through Dubai, and you go through security once, and then 
at the gate you go through security again. But at the gate you 
could simply--so as not to slow down everybody at the first 
security, at the gate if you come up, you could pat somebody 
down, you could give them extra attention or take them over to 
the one body scanner that might be at the Minneapolis-St. Paul 
airport where we do not have one now, but if we did have one, 
you could take them over there.
    Mr. Mueller. Let me start, and then, if I can, pass it to 
my friend from DHS in terms of the screening procedures and 
what is accessed at the borders, whether it be at the airport 
or otherwise.
    The way the system is set up, there is a very large 
Terrorist Screening database which is populated by various 
agencies' information, and from that there is a selectee list 
where the person--there is a showing that has to be made with 
regard to the person's association with terrorism in order to 
get on that list.
    Senator Franken. I understand.
    Mr. Mueller. Then there is the no-fly.
    Senator Franken. But this guy was on the bigger list.
    Mr. Mueller. He was on a much bigger list called the TIDE 
list, and I did not know myself----
    Senator Franken. And he came on board to bomb a plane.
    Mr. Mueller. I do not know myself how that particular list 
is treated as somebody comes through the airport, which is 
why----
    Senator Franken. It is evidently not treated. Is that 
right, Mr. Heyman?
    Mr. Heyman. The creation of the consolidated watchlist, the 
TSDB, was intended specifically so that agencies did not go out 
and create their own determination of who is a terrorist, who 
is a known or suspected terrorist. The list that you are 
referring to--it is called TIDES--is the larger list that 
contributes to the terrorist watchlist. Somebody has to be 
nominated from that list, and it has to be determined by the 
NCTC process to make the cut, as it were, for somebody to be a 
known or suspected terrorist.
    There is another review that goes in to determine if 
someone is on a selectee or a no-fly. None of those 
determinations were made, and consequently, when the passenger 
comes to board, he is allowed to board because there is no list 
that he is on.
    Senator Franken. No. He is on a list. He is on the TIDE 
list.
    Mr. Heyman. He has not made it to the known or suspected 
terrorist------
    Senator Franken. I know that. That is not what I am asking. 
I am asking why the guy on the TIDE list cannot come up, which 
he was on, and why that would not merit an extra look.
    Mr. Heyman. Well, it merits an extra look today. I think 
originally when it was created it was because not everybody on 
the TIDE list merited becoming a known or suspected terrorist.
    Senator Franken. But what is the harm?
    Mr. Heyman. Today I believe that people agree that there is 
a need to include the P3Bs from the State Department, these 
national security concerns, in the look before people board 
aircrafts, and we are doing that.
    Senator Franken. So now, as of December 26th, people on the 
TIDE list are going to have a second look?
    Mr. Heyman. No, the----
    Senator Franken. No. Why don't I understand then?
    Mr. Heyman. Sir, there is a number of different--and this 
is not--the TIDE list is maintained by the NCTC, so I am a 
little out of my lane here. But the----
    Senator Franken. Well, that might be part of the problem. 
If you are out of that lane, and they are out of your lane, 
shouldn't you all be in the same lane?
    Mr. Heyman. We are a consumer of that database to determine 
whether somebody is a board or no-board. We----
    Senator Franken. I am not saying it is a board or a no-
board. I am saying--it is not a board or no-board. It is take 
another look. It is a patdown. It is a scan. That is all I am 
saying. I am saying that this guy's name was in a database of 
550,000 people. That name, given today's technology, can come 
up in an instant, and then all it needed to do was warrant 
either a patdown or a body scan, and he would have been 
discovered. And I think you just agreed about a minute ago that 
that seems logical and that is what everyone agrees on, I think 
is what you said. And then you said you do not know because you 
are not in the right lane to know whether that is the practice 
now. So that is what I am trying to figure out.
    Mr. Heyman. Sure. Let me just clarify it. The State 
Department record, which is classified as a P3B for national 
security concerns, is a sub-element of this TIDE list. There 
are a number of other elements in that TIDE list that have to 
do with identifications of individuals, information of people 
who may or may not be--who may have immigration issues that may 
have nothing to do with necessarily the security of civil 
aviation per se. And that is why there is a process to nominate 
somebody to become on the terrorist watchlist and subsequently 
to become a no-fly or a selectee, which would then get the 
secondary look. The subset of information, the P3Bs, is now 
being considered because of the national security 
consideration.
    Senator Franken. So the P3B is a sub-list, a subset of the 
TIDE.
    Mr. Heyman. Correct.
    Senator Franken. And that is now accumulated as a--that is 
its own separate list, and does that come up at airports now?
    Mr. Heyman. Now CBP uses that for determining whether 
somebody should get a second look, correct.
    Senator Franken. OK. So that is the answer to my question. 
Thank you.
    Mr. Heyman. You are welcome.
    Senator Franken. Thank you, Mr. Chairman.
    Senator Whitehouse. Can I confirm before Senator Klobuchar 
begins whether the vote has begun or not? Do we know that?
    Senator Klobuchar. I think it has, Mr. Chairman.
    Senator Whitehouse. All right. In that case, I will go and 
vote and then return during Senator Klobuchar's questioning.
    Senator Klobuchar.
    Senator Klobuchar. Very good. Thank you.
    Thank you very much to all of you. I was listening to all 
the questions today, and I think anyone that looks at these 
facts they think about this person getting on this plane, 300 
people, with explosives attached. You think about the 
misspelled name, the one-way ticket, no baggage, the father 
coming in to express some very serious concerns, and it just 
leads you to think how could this happen.
    But I will say as a former prosecutor--and I know Director 
Mueller knows what I am talking about--when you look back at 
any crime or any problem, you always are haunted by what could 
have been and what could have been changed, whether it is the 
police not following up on the lead or it is a prosecutor who 
made a deal 10 years ago or it is a judge that made a decision 
that led to someone being out. And so the key for me is not as 
much this blame game, because I truly believe you are all 
devoted to fixing this, but how we do fix this going forward.
    The first thing that is appealing to me when I look at this 
is some of these scanners and technological fixes, because the 
easiest thing to think about is if the right scanner was 
there--and correct me if I am wrong. Maybe it is you, Mr. 
Heyman, but this could have been caught because if one of those 
full-body scanners, whether it was the--what are they? The 
backscatter or the milliliter wave, millimeter wave, if they 
were deployed, then this would not have happened. Is that 
correct?
    Mr. Heyman. Senator, I would not want to speculate on that. 
I think that we have to be careful not to say that there was a 
silver bullet to detect anything, no single technology or----
    Senator Klobuchar. But if it was attached to his leg, would 
it have been found with one of those things? We are having a 
Commerce hearing this afternoon, and I am going to ask 
Secretary Napolitano about this as well. But don't you think 
that would have been discovered, chances are?
    Mr. Heyman. I am happy to discuss that in a closed session 
in terms of the capabilities of the technology and how it was 
used and deployed, but I would not want to do that in this 
session. But it is important to note that technology is part of 
the solution, it is not the only solution, and that this 
technology----
    Senator Klobuchar. I am not saying it is. I am just trying 
to--I mean, the President has clearly sent a clear message to 
send--what?--450 more of these scanners out. I was doing the 
math. We have 2,100 lanes at the airports, and now there are--I 
do not know--just dozens of them out there right now. So the 
plan would be to triage these and put them at certain 
locations?
    Mr. Heyman. That is correct. The technology has the 
advantage of being able to detect non-metallic substances such 
as liquids or powders, much like was used on the 25th and, as 
such, provides an enhanced capability above the standard walk-
through metal detectors.
    Senator Klobuchar. All right. And so do you know what the 
timetable is for this?
    Mr. Heyman. For deploying the--I can get back to you. In 
the beginning of this year, we are already in the process of 
looking at that deployment.
    Senator Klobuchar. And I can ask Secretary Napolitano about 
this, but as she goes to Europe tonight, I figure--what?--there 
are 2,500 international flights coming in a day, that some of 
the discussion will be about this technology as well?
    Mr. Heyman. Absolutely, yes.
    Senator Klobuchar. OK. Director Mueller, thank you for your 
good work on this as well as the work you have been doing in 
Minnesota that you and I have discussed regarding terrorism, 
and I was thinking, as Senator Franken was saying, that we have 
the names, it could pop up with modern-day technology. But I 
think you and I talked about this before, and it is the 
computer systems that do not always work the way they should, 
that cannot search automatically and repeatedly for possible 
links. Even simple keyword searches, as was reported in the New 
York Times on January 18th, are a challenge, according to a 
2008 report by investigators for the House Committee on Science 
and Technology.
    Is this a fair assessment? Do there need to be some 
computer changes?
    Mr. Mueller. There always has to be some computer changes 
as a result of a number of factors. The growth of technology, 
the growth of different databases, actually when Congress 
passes a statute that allows us to gather information and then 
disseminate the information, often in the dissemination it is 
limited in some way, and so particular databases are developed 
to address a particular problem with all the statutory 
guidelines within that database, which makes it that much more 
difficult to make it available to others within the same 
agency, much less others throughout the Government. And what 
you find is, as technology grows, however, it is much easier 
for persons to do an all-source search given the new 
technology. But often it is by fits and starts, and the Federal 
procurement schedule, in order to get this done, keeps us a 
step behind where we want to be. But I think in the wake of 
what happened on Christmas Day, we are all looking at 
particular fixes, short-term and long-term fixes, individually 
within our agencies but also across the community. It is not as 
if we have not been doing it since September 11th. We certainly 
have. But this may give us additional momentum to find some of 
the later fixes and then have them funded so that we can get 
them into place as soon as we possibly can.
    Senator Klobuchar. Thank you.
    There have been a lot of discussions with my colleagues 
about the watchlist. I actually have been concerned about this 
for a while. We had a little kid going to Disneyland who got 
stopped, could not go on the trip, and so, you know, this issue 
where you have people on it that should not be on it and people 
that are not on it, obviously, that should, I may explore that 
at the end if I have time. But there is a piece of this that I 
want to talk about that no one has raised.
    Northwest Airlines' flight, now owned by Delta, but 
Northwest Airlines, based in Minnesota--and I have had long 
talks with Richard Anderson, the head of Delta, about this 
whole thing. It was his employees in addition to that brave 
passenger that really stopped this from happening. They were on 
the front line. They did the right thing. They were really the 
last resort here for the system failures. And some of the 
concerns that really have not been talked about here is just 
the relation.
    As you know, with Secure Flight being implemented, the 
airlines are supposed to be pulling back more from being the 
one that is watching for this, but yet in the rest of the 
world, they do not have the equivalent of the Transportation 
Security Administration, and many airline carriers here and 
abroad remain the primary security pre-screeners in foreign 
airports.
    So my question, whoever wants to take them, is: What steps 
were taken immediately following the December 25th event to 
inform the carriers and others within the commercial aviation 
industry of the breach of security? And as you look at this 
coordination going forward, have there been efforts to include 
the aviation industry? Because, remember, abroad they are the 
ones that are going to be on the front line many times making 
these calls.
    Mr. Heyman. I can answer that question for you, Senator. 
This is obviously very important. The carriers are very much on 
the front lines and have a central role to play as partners in 
the security of the aviation system. Immediately following the 
incident, the Transportation Security Administration notified 
about 128 inbound flights of the issue, provided them with as 
much detail as they could so that they could take appropriate 
measures in their path on the way back into the United States.
    Since the incident, we have had numerous conversations with 
CEOs of carriers. The Secretary will be meeting with the head 
of IATA in Geneva on this trip that she is going on today after 
the hearing with you and will be having discussion with airline 
carriers as to how we can all work together to improve the 
security of the system.
    Senator Klobuchar. Carriers have indicated that information 
regarding passengers' visa status is not available in real time 
when a passenger checks in at the airport. Will actions be 
taken to address this and other similar information problems?
    Mr. Heyman. The visa revocations and visa refusals or 
denials are checked prior to boarding an individual or printing 
a boarding pass. They are checked as part of the pre-flight 
screening process that is ongoing and has been ongoing for some 
time.
    Senator Klobuchar. OK. Do you think there is an issue with 
them not having this visa information in real time?
    Mr. Kennedy. The State Department uploads all the visa 
issuances that it makes to databases that we share with the law 
enforcement and intelligence community, and my understanding is 
that when the airline files its manifest passenger list for 
this plane, there is a process called APIS, Automated Passenger 
Information System, that then checks all of that material by 
TSA and then gives a go/no-go to the carrier on that. So though 
the airline may not know that you have a B1 visa or a J visa or 
any of the various types, they know when they get the report 
back from TSA that they are good to go with that individual 
because he or she has a visa--or is an American citizen and 
obviously does not need it. But that information that we make 
available to DHS is then checked and then fed back to the 
carrier, Senator.
    Senator Klobuchar. OK. And just could I suggest as we go 
forward--and I understand the priority put on coordination 
between government agencies, but I think coordinating with some 
of the airlines would also be a good idea just from what I am 
hearing, especially given that they were on the front line 
here.
    Back to the security, the watchlist and things like that, 
Director Mueller, if you could just talk about generally--I 
know people have gotten, understandably, in the weeds about 
these lists. But do you think adding more people to this 
watchlist would be a smart idea? And how do you think we could 
focus on improving criteria so we do not have the kid going to 
Disneyland on the list?
    Mr. Mueller. I do think there are standards that we ought 
to look at in terms of developing or improving the criteria. 
For instance, the selectee list requires generally that the 
person be part of a terrorist organization and associated with 
terrorist activity.
    Senator Klobuchar. And that is the one that there are about 
14,000 people on. Is that right?
    Mr. Mueller. Generally, yes. And the issue there is what is 
the nexus to terrorism, and you have a number of lone wolves 
out there, lone actors now, and so proving that somebody is a 
member can be an inhibitor to putting the person on the list. 
So there are certain areas that we are looking at which would 
change the criteria. That probably would expand the number of 
persons, and appropriately so, who are on the particular list.
    Senator Klobuchar. And this means they would be subject to 
extra screening or screening at the airport.
    Mr. Mueller. Yes, yes. Appropriately so, in my mind. On the 
other hand, we have always put a tremendous emphasis on having 
other identifiers. You have any number of names, iterations of 
names, and often it is very difficult on a name itself to 
identify a particular person. And so at the same time we are 
changing the criteria to add persons who we are concerned 
about. At the same time we have to continue to develop 
identifiers, whether it be fingerprints or----
    Senator Klobuchar. Right, and that is what--I was going to 
actually ask you about that as we look at the misspelling that 
took place. And, again, sometimes people have different names, 
anyway, so just this whole biometrics. We have been talking 
about this for years on flights and how you get on, just what 
is the status of that, because to me that would help immensely 
in this.
    Mr. Mueller. Well, to the extent that we can go to an era 
of biometrics, not just a date of birth but biometrics, we will 
be much better able to identify the particular person who is 
carrying that name and trying to get on an airline. And there 
is a substantial interagency effort underway to expand our 
biometrics, whether it be use of fingerprints, retina scans, 
and the like. And my hope is that in the future we have better 
ability to identify persons and, to an appropriate extent, 
expansion of the criteria so that we get the troublesome 
persons on the list that it will be more effective.
    Senator Klobuchar. OK.
    Mr. Kennedy. Senator, if I might add for one brief moment.
    Senator Klobuchar. Secretary?
    Mr. Kennedy. The State Department, when it receives a visa 
application, already uses biometrics. We take the fingerprints 
of every visa applicant and transmit them to Homeland Security 
and the FBI, and if that applicant does not clear that 
database, no visa is issued.
    We also have probably the finest facial recognition 
capacity so that if somebody comes in and applies as Jane Doe 
in one place and then tries to apply as Sara Smith in another, 
those applicants are----
    Senator Klobuchar. So it is trying to take that information 
and put it on the front line at the airports.
    Mr. Kennedy. We share our material with our colleagues, and 
so we are doing that as part of the application process, and 
then we share the information.
    Senator Klobuchar. OK. I am going to have to go back and 
vote now, but one thing I want to just put in your mind and we 
can talk about it later, Mr. Heyman, but it is just this idea 
if we could actually potentially save some resources in the 
long term with these scanners. I am someone that gets stopped 
every time because of my hip replacement, and me and a number 
of 80-year-olds are standing there getting our knees and hips 
checked, and it is really time-consuming. Is there an argument 
that you could go faster through this process if you used the 
full-body scanner?
    Mr. Heyman. Each technology is different, and the goal is 
to try to get as fast as possible----
    Senator Klobuchar. OK. I am not going to get you to comment 
on the details. It is just a thought, because it takes a long 
time. But my constituents love watching it happen, so, you 
know, we will miss that. Thank you.
    Mr. Heyman. Thank you for your questions.
    Senator Whitehouse. I understand that Senator Sessions will 
be returning and will have, I think, another very brief round. 
But before he gets here, I wanted to ask a number of questions 
myself. I will say one thing--actually, I will wait until he 
gets here so that he has a chance to respond.
    Director Mueller, in your testimony you described the 
sipping from the fire hose phenomenon of trying to pick data 
out of the enormous stream of data that our intelligence and 
law enforcement services have available to them. In his 
testimony, Michael Leiter described the difficulty of having 
pieces of information rise above the background noise and sort 
out how all that is happening.
    I just want to summarize what appear to be the major pieces 
of derogatory information about Mr. Abdulmutallab. One is that 
his father had come in and warned of his radicalization. Second 
is an obvious one: He was boarding a flight for the United 
States. That puts him into a higher risk profile than if he is 
just off someplace. Three, he exhibited troubling, anomalous 
passenger characteristics, it appears from public reports: cash 
ticket, no luggage, no coat for landing in the winter in 
Detroit. Fourth, there was some general threat information out 
of that part of the world about al Qaeda in the Arabian 
Peninsula, AQAP. And then there was a reference to a Nigerian 
in the traffic somewhere, and he was indeed a Nigerian and 
boarded his initial flight in Lagos.
    It strikes me that the general threat information is not 
particularly helpful in identifying Abdulmutallab. The Nigerian 
cue applies to every Nigerian. The fact that he was boarding a 
flight for the U.S. applies to every passenger boarding a 
flight for the U.S. I do not know how significant a single 
piece of data--the father having warned of radicalization--is, 
and those passenger characteristics would not really have 
turned up until check-in. And I do not know that our NCTC 
system is designed to play in that quick a timeline or even to 
search for passenger characteristics that would seem to be 
inconsistent with the nature of the flight.
    So when I look at the whole array, if I knew all of those 
things, I would be very anxious about having this individual 
sitting next to me on a plane, but I do not see any single one 
that sets up a very bright flare of concern. It strikes me that 
it is the assembly of them that is the key, and it strikes me 
that the assembly of them is to a large degree a computer 
search, data analysis, algorithmic-type problem because I doubt 
we have the staffing to take any one of these pieces of 
information and do a human search of that if we had to do one 
for every single piece of derogatory information of that level 
of risk.
    I would like first to hear from each of you, if I could, 
briefly, in what way you would ascribe the order of magnitude 
of information that we are sifting through every day out of 
which these elements would have to be plucked. We will start 
with that. What is the order of magnitude? People have said 
thousands. You have described the fire hose. How else would you 
describe it in terms of the----
    Mr. Mueller. Well, certainly for the FBI, both here and 
overseas, thousands upon thousands of these pieces of 
information come in daily in any number of ways--through 
intercepts, through sources, through pieces of information 
provided by us to the intelligence community.
    Senator Whitehouse. Tens of thousands? Hundreds of 
thousands?
    Mr. Mueller. It would be hard to--certainly tens of 
thousands.
    Senator Whitehouse. Certainly tens.
    Mr. Mueller. And I will tell you, the way we try to address 
this is no counterterrorism leads goes unaddressed. We have had 
discussions in the past as to whether or not we need to 
maintain the personnel on our Joint Terrorism Task Forces to 
address the threat, to which my answer is yes, because it is 
tracking down each lead to its end that enables us to discover 
other leads that may elevate the concern to the point where an 
Abdulmutallab is put on the no-fly list. And, consequently, you 
have to sort, you have to prioritize the leads, but the fact of 
the matter is in order to prevent terrorist attacks in the 
United States, we have to track every lead. And that takes the 
personnel on the Joint Terrorism Task Forces; it takes new and 
innovative ways to utilize technology. But you are drinking 
through a fire hose, and that does not mean that we cannot do a 
better job of sorting out the streams that are coming from that 
fire hose, prioritizing and making certain we follow up.
    Senator Whitehouse. Mr. Kennedy. Ambassador Kennedy.
    Mr. Kennedy. Thank you, sir. Almost 8 million individuals 
apply for visas every year at American embassies and 
consulates, and how we try to deal with that is we first have a 
personal interview of the individual by a trained consular 
officer who knows the language, should that be required; who 
knows the culture or the country; who knows interviewing 
techniques; who knows the economic situation of the country, 
which might be a motivating factor. And then we take that 
information and put that in one side of the consular officer's 
brain, and then we send the data checks out to our colleagues 
in the intelligence and law enforcement community. We send the 
fingerprints out. We run the individual's facial 
characteristics against our biometrics. And then we put all 
those pieces together, and we say yes or on. And that is a 
labor-intensive situation requiring trained professionals, but 
we do it because we are the first lines of national defense, 
and that is our task. But it is a daunting one.
    Senator Whitehouse. And, Mr. Heyman, from DHS' point of 
view, what is the volume of the fire hose? What is the order of 
magnitude of the information you have to sift through?
    Mr. Heyman. The Department screens approximately 1.8 
million individuals entering the United States per day.
    Senator Whitehouse. Per day.
    Mr. Heyman. Per day. Hundreds of thousands of those are 
flying in by air. Those individuals were all screened for 
admissibility into the United States and for concern about 
possible known or suspected terrorists.
    Senator Whitehouse. Given that scale of effort that each of 
you have described, how significant is the role of computer 
search capability in gnawing through that vast amount of data 
and collecting or connecting the dots?
    Mr. Heyman. Each of those passengers are screened one at a 
time. It is not all done at once. So if a flight comes in, you 
are screening them 300 passengers at a time. That is often done 
in an automated fashion. There are automatic targeting systems 
that run through to see if there is a match on the no-fly list, 
et cetera.
    Let me just make----
    Senator Whitehouse. Does the question of cash payment, no 
luggage, and no coat ever get caught--first of all, is that 
accurate?
    Mr. Heyman. I am glad you asked. I was just going----
    Senator Whitehouse. How does that trigger?
    Mr. Heyman [continuing]. To address that. There is 
something called the passenger name record which is transmitted 
from travel agencies or carriers to the Department to get 
advance notice of who might be on a play coming to the United 
States.
    The information that is collected that is transmitted is 
usually the name, gender, and flight path, so you would have, 
whether it is one-way or two-ways or something to that effect. 
But the other information that you mentioned, whether it is a 
cash transaction, the type of transaction, luggage, those kinds 
of things, not necessarily included in the passenger name 
record, was not included for this individual, and----
    Senator Whitehouse. Are the airlines under any obligation 
or do they feel any interest in looking at that not as 
representative of the Government, just as carriers who are 
potentially putting fellow passengers at risk? Is there a 
mechanism by which private carriers--or non-private carriers, 
State carriers--do this and then report to you? Or is it----
    Mr. Heyman. There is a formal requirement that carriers 
transmit passenger name records up to 72 hours prior to a 
flight departing for the United States.
    Senator Whitehouse. But somebody who is a senior gate 
attendant, they have seen a lot of folks, somebody comes to the 
flight to check in, they are headed for Detroit, it is the 
middle of winter, they have got no coat, they are checking no 
luggage, the ticket has been paid in cash, is there any 
program--what if you were suspicious and you were that gate 
attendant, what would you know to do at that point?
    Mr. Heyman. There is a difference between the information 
that is transmitted by the carriers for assessment, for 
determining whether someone is on the no-fly list. What you are 
describing is something we refer to as behavioral detection 
observations or anomalies that a gate individual might 
determine in the United States. We have BDOs in airports 
throughout the United States, not necessarily the case abroad.
    Senator Whitehouse. Would it be useful to develop this in a 
more robust way with the major airlines that fly in and out so 
that this can begin to be evaluated? As far as I can tell, from 
what you are saying, the question of the cash purchase, no 
luggage, and no coat never entered anybody's calculation ever 
until somebody looked back.
    Mr. Heyman. That data was not available.
    Senator Whitehouse. That data was not available.
    Mr. Heyman. And I would say that a cash purchase from 
Nigeria is not unusual. But----
    Senator Whitehouse. No, none of these elements--
particularly being Nigerian is not unusual. But when you pack 
them all together and you have the al Qaeda intercept 
mentioning a Nigerian, and you have this person boarding there, 
and you have the cash purchase, and you have the no luggage, 
and you have the boarding of a flight for the U.S., and you 
have the father's warning, it is the failure to assemble the 
data that is more significant than overlooking some bright red 
flag, it seems to me, and that is my question because that 
could be an important tipping piece of data, and if we are not 
even in a position to collect it, that appears to me as 
something that perhaps could be improved.
    Mr. Heyman. I think you are absolutely right. I think the 
discussions that we are now having with our international 
partners, governance, as well as air carriers----
    Senator Whitehouse. As well as carriers.
    Mr. Heyman. As well as carriers. We need to look at 
questions of is there additional information we should include 
in the passenger name record, is there any additional 
information we should share, or standards, and this is the kind 
of thing that would be addressed through the ICAO process, 
which is the international body for standards of aviation 
travel.
    Senator Whitehouse. OK. Let me yield to the Ranking Member 
for a second round of questions, but now that he is back, I 
wanted to make the point that I was going to make earlier.
    I agree with Senator Sessions about the importance of there 
being a rigorous and formal method for making the determination 
as to whether a case should proceed in civilian courts or in 
military tribunals. And I share his concern if there is not a 
process by which that decision gets made at a fairly rigorous 
and early time when whatever advantages of either forum are 
still available. And I am concerned if there is kind of an ad 
hoc or on-the-fly decision that is being made as to which 
direction we intend to proceed.
    Where I differ from him is that I am not confident that the 
military tribunal is, by definition, the better way to go. I am 
keenly aware of the history of the success of criminal trials 
in terror matters and the repeated failures in the military 
tribunal context. I believe that it is incorrect to suggest 
that FBI interrogation is sort of a second best, but if we 
could get them over to those military tribunal tracks, then we 
would have a really good interrogation. The hearings that I 
have done on this subject have shown that the FBI-led 
interrogation has actually been better than other, what I would 
consider to be less professional, and which are certainly more 
aggressive methods.
    It strikes me that the agents who arrested Mr. 
Abdulmutallab probably, pursuant to FBI protocols, treated that 
case a little bit differently from a national security and 
interrogation point of view than they would have had he been a 
bank robber or somebody who had been pursued in a long fraud 
investigation and this was the day when the agents were going 
to go out and put the cuffs on him.
    Do you not react differently to cases that have a national 
security and terrorism overtone than to your regular book of 
criminal business in terms of making early decisions as to what 
type of interrogation is appropriate?
    Mr. Mueller. Certainly we do, and that is what the agents 
did in this particular case. There were no Miranda warnings 
given. They immediately went in when they had the opportunity 
to interview him to determine whether--to gain intelligence, 
intelligence about whether there was another bomb, whether 
there were other co-conspirators, where did he get the bomb. 
All of that information without the benefit of--or without the 
Miranda warnings.
    It had to be done very quickly because of the fact that he 
had been injured, was in a hospital, and the window of 
opportunity to do this had to be undertaken very quickly. But 
the fact remains as well later that evening he was Mirandized, 
and he went into the judicial system.
    I am not going to opine one way or the other because I do 
not think it is my role to necessarily adopt the policy as to 
where the person goes. It is other persons at the Department of 
Justice and elsewhere. But----
    Senator Whitehouse. True, but as the lead implementer of 
that policy with respect to your organization, I think it is 
important to all of us to get a sense of at what stage that 
policy--to what stage that policy has been developed and at 
what stage in the arrest proceedings it first gets engaged, 
because if you are way down the road one way before the policy 
has a chance to kick in, and as a result you lose opportunities 
one way or the other, that is a problem, I think, that merits a 
solution.
    Mr. Mueller. I think everyone wants an opportunity to weigh 
in on those decisions earlier rather than later. Yes, I think--
and to the extent that decisions are made elsewhere, I 
implement them.
    I will tell you that intelligence is absolutely essential 
to preventing terrorist attacks, and to the extent that we can 
obtain the intelligence to prevent terrorist attacks, we will 
prevent terrorist attacks. But by the same token, I would also 
say that you cannot forget the end game. You cannot completely 
forget the end game as you search for intelligence. And you----
    Senator Whitehouse. Either in the military tribunal context 
or in a criminal court. Both have very similar----
    Mr. Mueller. Right here, principally the FBI is operating 
in the United States, and generally it is United States 
citizens, although in this case it was not. But I can tell you 
I share many of your concerns, but you should be assured that 
since September 11th our interest is principally to gain 
intelligence to prevent terrorist attacks, and to assure we do 
that so that there is a back-up plan to the extent that we can.
    Senator Whitehouse. And one final point on Miranda. My 
review of this suggests to me that very successful 
investigations have been conducted, very successful 
interrogations have been conducted, and very significant 
intelligence information has been obtained from suspects who 
have been Mirandized, and that in some cases Mirandizing a 
subject is actually a part of an interrogation plan for that 
particular subject. And for that reason, I am not convinced of 
the assertion, unless you correct me now, that by its very 
nature Mirandizing somebody is a sort of per se inhibition on 
our ability to collect intelligence from that individual. In 
fact, I can think of specific cases in which Mirandizing 
somebody was a specific part of the interrogation plan and 
strategy for that individual.
    Mr. Mueller. I would agree with that, having seen it happen 
many times. On the other hand, there are other occasions where 
the person was talking and Mirandizing them turns off the 
spigot. And so I think you can argue it both ways.
    Senator Whitehouse. My point is for it to be case by case 
and for there to be executive judgment and discretion deployed 
seems to be the best of both all-or-nothing alternatives.
    Senator Sessions.
    Senator Sessions. Well, the FBI agents are some of the best 
agents in the world. There is just no doubt about it. And they 
operate under the constraints and rules that they have been 
trained to operate under, one of which is when the defendant is 
in custody and he is going to be tried in a civilian trial, he 
is given Miranda before he is asked questions, unless there may 
be some immediate danger like whether the defendent has a bomb 
or a gun. But that is the fundamental way law enforcement is 
done. And I think it would be indisputable that you get less 
information if you give a Miranda warning than if you do not.
    Now, with regard to this specific incident, I have just 
been made aware that the Director of National Intelligence, Mr. 
Blair, says that he was not made aware that this high-value 
target had been Mirandized and somebody had made a decision 
about how they are going to be handled and he was going to be 
given a lawyer. He did not know about that. Is there such a 
thing as a High-Value Detainee Interrogation Group, Mr. 
Mueller?
    Mr. Mueller. Yes.
    Senator Sessions. Well, was that group utilized in this 
case?
    Mr. Mueller. No, it was not.
    Senator Sessions. Well, who made the decision not to do 
that? And who made the decision that Miranda and the right to 
have an attorney and the right not to speak and all would be 
given to this unlawful combatant?
    Mr. Mueller. Well, first, with regard to the High-Value 
Interrogation Group, that is an entity that is in its formation 
stages which brings together expertise from the FBI but also 
from other agencies--in other words, expertise in terms of the 
particular terrorist to be interrogated, expertise with regard 
to the country from whence the person comes, language and the 
like, as well as expertise in interrogations. And we have 
utilized that, as the administrative architecture is being 
built, as an opportunity to bring together those components for 
interrogations.
    In this particular case, it happened very quickly. There 
was no time to get a follow-up group in there. If one had had 
the opportunity over a period of time, we may well have had a 
specialized group do the interrogation.
    As to the second question, as to determinations that was 
done, my understanding is determinations were done in 
consultation with the Department of Justice and others in the 
administration prior to the agents going back in later that 
evening to interview them.
    Senator Sessions. Well, is this an Assistant United States 
Attorney in Detroit or is it some----
    Mr. Mueller. No. It is above that. Above that. I hate to 
get into that because I am not fully familiar with all who 
talked to whom on the afternoon, but I do know it was not made 
necessarily at the local level.
    Senator Sessions. But you were not informed and asked this 
question.
    Mr. Mueller. I may have been. I just cannot recall.
    Senator Sessions. Well, you earlier said you did not know 
when I asked you about it. You did not know who did or----
    Mr. Mueller. I thought you asked whether I had been 
informed of the decision, and I cannot recall whether I had 
been informed of the decision.
    Senator Sessions. Were you asked to give your opinion on 
the matter?
    Mr. Mueller. No.
    Senator Sessions. Well, apparently neither was Mr. Blair or 
Secretary Gates. This is, I think, a matter of national 
security since Abdulmutallab is associated with al Qaeda with 
whom we are at war. Was he asked his opinion about how the 
interrogation should be conducted?
    Mr. Mueller. I do not know, but I can tell you very senior 
people in the FBI had input on the decision.
    Senator Sessions. And is there some protocol that--well, 
what is this High-Value Detainee Interrogation Group? Shouldn't 
they have been activated as part of this? And in the future, 
shouldn't they be activated immediately upon such an event as 
this?
    Mr. Mueller. Yes, but quite often one of the reasons that 
we are putting it together is to identify potential persons 
that may come into our custody. In this particular case, you 
would have to put the group together with some expertise in 
Nigeria and some expertise in this particular area of the 
world, which as it relates--after we learned, after we did the 
initial interrogation, that it was Yemen. And so you have to 
put together the expertise to do the thorough interrogation to 
support----
    Senator Sessions. Well, I would agree with that, but that 
was not done. Somebody made a decision that this case would be 
tried in civilian court, that they would be given Miranda. And 
isn't it a fact that after the Miranda was given, they were 
told they had a right to a lawyer and did not have to make a 
statement, they stopped talking, the individual stopped 
talking?
    Mr. Mueller. He did.
    Senator Sessions. That is not unusual. That is the normal 
case of things. So this was a bad mistake, in my view. Who in 
the Department of Justice that you know of was at least 
involved in this discussion? Now, I know you do not want to 
talk about that, but I think I have a right to ask. I am asking 
you what knowledge you have about anybody in the operational 
lines of the Department of Justice who had input into this 
decision, not the details but----
    Mr. Mueller. I would be happy to discuss that with you, but 
I do believe I have to go through the Department of Justice to 
get approval to do that.
    Senator Sessions. Well, Mr. Attorney General Holder, has 
already made clear his presumption that these cases would be 
tried in civilian court, which I think was a big error. It 
baffles me, and I am concerned about it. Sooner or later we are 
going to need to know how this happened, because one of the 
things that we do in oversight is to find out what happens in 
the real world. I mean, you have these lists and this list, and 
why didn't it quite come together? Well, one of the things that 
we have is a High-Value Detainee Interrogation Group who had 
expertise in language and culture and al Qaeda, and apparently 
we had--whatever FBI agent we were lucky enough to get 
responding to this emergency and a decision was made without 
this expertise being called upon.
    Mr. Mueller. We actually had very qualified members of the 
Joint Terrorism Task Force who were called upon to do it and 
some of our best agents.
    Senator Sessions. You are not saying that those agents made 
the decision. You are saying the decision was made in United 
States Attorney's Office or the U.S. Department of Justice, 
Attorney General Holder's unit, somewhere in that chain of 
command--which is not improper. I mean, normally a prosecutor 
makes a decision on a lot of these issues if they have the 
opportunity to be engaged on it. But it seems to go against the 
idea of gaining intelligence.
    Mr. Mueller. In this particular case, the consultation 
could not occur as fast as the decision needed to be made as to 
whether or not you take the opportunity to interview him for 
intelligence purposes. The individual was at the hospital about 
to undergo treatment, and there was a limited window of 
opportunity to obtain the intelligence that the agents felt 
they needed to obtain to determine more aspects of what had 
happened and spent some time with him. And, consequently, on 
this particular occasion--and I am using this particular 
occasion--there was not the opportunity to do the type of 
consultation that you suggest and recommend.
    Senator Sessions. Well, I do not agree that the hospital 
has anything to do with it. He was in our custody. He was not 
in a life-and-death situation. I believe those agents talked to 
somebody. I want to know who they talked to and who said we are 
going to give Miranda, go ahead and give it. I do not believe--
if they were initially doing a discussion without it, I do not 
think they would have changed----
    Mr. Mueller. Sir, he was not given Miranda at the outset. 
They had an intelligence interview----
    Senator Sessions. Your agents did not do so. They saw it--
which is contrary to the normal policy. When he is in custody, 
he should be given Miranda. I see a lady shaking her head 
behind you. When you bring somebody into custody and you ask 
them a question, you have to give me Miranda except under 
extraordinary circumstances. So they did not do it then.
    Mr. Mueller. They did not Mirandize him, no.
    Senator Sessions. At some point somebody said now is the 
time to do it. You cannot give us any more information than you 
have given about who said so?
    Mr. Mueller. It has to come through the Department of 
Justice. As you are well aware, this is going to be the subject 
of a suppression hearing down the road, and, again, I do 
believe information on what decisions were made when should 
more appropriately come from the Department of Justice.
    Senator Sessions. Well, before I leave, I will be more 
generous. The questions that you have been given by the IG 
report on the exigent letters, isn't it true that when the 
Inspector General's preliminary report came out on the exigent 
letter issue--it was released back in March of 2007--you 
addressed the press openly; you answered questions, you came 
before the Congress and answered questions. You accepted 
responsibility and you announced a number of reforms, one of 
which was you stopped using exigent letters altogether. Is that 
right?
    Mr. Mueller. That is accurate, sir.
    Senator Sessions. And is there anything really new in this 
final report over what was brought up before?
    Mr. Mueller. There is more detail that had not been 
provided in earlier reports in terms of the actions that were 
taken or not taken. So there was some new, but I will tell you 
that we have tried to keep Congress abreast with periodic 
briefings on the findings as we know them from the IG and have 
addressed the issues that are raised by the IG in this latest 
report.
    Senator Sessions. I have an impression--but you correct me 
if I am wrong--that when the PATRIOT Act--this is all part of 
the PATRIOT Act legislation, exigent letters.
    Mr. Mueller. In some part.
    Senator Sessions. Or some of the post-9/11 legislation. 
There was a failure in Washington to immediately through 
regulations, training--it is kind of hard to stop everything 
you are doing and train everybody immediately when something 
happens, and it was not a deliberate attempt to subvert the law 
or a deliberate attempt to deny people rights. It was a lack of 
maybe discipline and education as part of your agents, and that 
when this was brought to your attention, you put an end to it 
and have handled it in a correct way ever since.
    Mr. Mueller. I believe that is accurate, sir. Certainly 
nobody intended to subvert the law. We, I, did not put into 
place the requisite machinery to assure that we dotted the i's 
and we crossed the t's and assured that we handled 
appropriately the issuance of national security letters during 
that period of time. And as you indicate, the last exigent 
letter was issued in 2006. And as I quoted from the IG report, 
I believe the IG believes that we have correctly addressed the 
problem and did so some time ago.
    Senator Sessions. Well, it was an error that should not 
have occurred, but if anybody has run a big organization, they 
know how hard it is sometimes to get information down to the 
lowest levels. But I think the FBI, one of its strengths is 
that it is pretty good at that kind of thing, although this 
time you messed up.
    Thank you.
    Senator Whitehouse. I thank the distinguished Ranking 
Member.
    The record of this hearing will remain open for a week, and 
I would hope and urge that the witnesses who have promised to 
provide various materials during the course of this hearing 
would make it available during the period that the record of 
the hearing is actually open. So if you could do that, I would 
appreciate it.
    I would close by echoing Senator Sessions' concern that we 
be clearer on the protocol and the deployment of the protocol 
for how and when the decision gets made between a military 
tribunal and a criminal court. I come at it from a different 
perspective in the sense that I disagree with him that the 
military tribunal is the right answer in every case; I disagree 
with him that Mirandizing people is the wrong answer in every 
case, and have further concerns about, frankly, legislators 
making that decision rather than the executive branch of 
Government. But however that plays out, it should play out in a 
way that, from a protocol point of view, makes those decisions 
at the right time by the right people with the right 
information and in a time to gather the right intelligence.
    So I thank the Ranking Member for coming back to explore 
that further, and the hearing is concluded.
    [Whereupon, at 12:53 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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