TYPE: COMMITTEE HEARING

LENGTH: 17623 words

COMMITTEE: TERRORISM AND GOVERNMENT INFORMATION SUBCOMMITTEE, SENATE JUDICIARY COMMITTEE

SUBCOMMITTEE: TECHNOLOGY

HEADLINE: U.S. SENATOR DIANE FEINSTEIN (D-CA) HOLDS HEARING ON IMPLEMENTING ANTI-TERRORISM LAWS

SPEAKER:
U.S. SENATOR DIANE FEINSTEIN (D-CA), CHAIRWOMAN

LOCATION: WASHINGTON, D.C.

WITNESSES:

(PANEL 1), GLENN FINE, INSPECTOR GENERAL, DEPARTMENT OF JUSTICE
ALICE FISHER, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION
DENNISE LORMEL, CHIEF, FINANCIAL CRIMES SECTION, FBI
(PANEL 2), SCOTT HASTINGS, ASSOCIATE COMMISSIONER, OFFICE OF INFORMATION, RESOURCES MANAGEMENT, IMMIGRATION AND NATURALIZATION SERVICE (INS)
MICHAEL CRONIN, ASSISTANT COMMISSIONER FOR INSPECTIONS, INS
STEVEN EDSON, ACTING DEPUTY ASSISTANT SECRETARY OF STATE FOR VISAS
BENJAMIN WU, UNDERSECRETARY OF COMMERCE FOR TECHNOLOGY

BODY:

 
U.S. SENATE JUDICIARY COMMITTEE: SUBCOMMITTEE ON TECHNOLOGY,
TERRORISM, AND GOVERNMENT INFORMATION HOLDS A HEARING TITLED
"TOOLS AGAINST TERROR: HOW THE ADMINISTRATION IS IMPLEMENTING
NEW LAWS IN THE FIGHT TO PROTECT OUR HOMELAND."
 
OCTOBER 09, 2002
 
SPEAKERS:
U.S. SENATOR DIANNE FEINSTEIN (D-CA), CHAIRWOMAN
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR MARIA CANTWELL (D-WA)
 
U.S. SENATOR JON KYL (R-AZ), RANKING MEMBER
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR MITCH MCCONNELL (R-KY)
 
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
 


*


FEINSTEIN: Good morning ladies and gentlemen. It's a pleasure for me to welcome you to this hearing of the technology, terrorism and government information subcommittee. I'd like to welcome the ranking member, Senator Kyl, from Arizona, with whom I have worked now for seven or eight years, either as chairman or ranking of this subcommittee. And also distinguished Senator from Wisconsin, Senator Feingold, delighted to have you with us this morning as well. The September 11 terrorist attacks were a wake-up call for our country. In the aftermath of those attack, it quickly became apparent that our approach to combating terrorism was, to put it simply, broken. In response to the failures that led up to September 11, Congress passed a number of key legislative initiatives to beef up. Well, we're working on beefing up homeland security, giving law enforcement a greater ability to go after potential terrorists, and improving the protection of our borders.

Two of the most important of those initiatives were the USA PATRIOT Act and the Enhanced Border Security and Visa Entry Reform Act, each of which passed just a few months -- within just a few months of the terrorist attacks. And each of which contained a number of key provisions and deadlines to enhance homeland security. It is these pieces of legislation that are the topic of today's hearing.

We're here to ask a number of questions of some very distinguished panelists. Are the new laws working? Are there things we left out? Are there improvements we should make? And most importantly, what progress is being made by the administration to implement these new items?

The USA PATRIOT Act was passed by the full committee, the full judiciary committee, with the knowledge that it had been drafted and negotiated rather quickly. Only six weeks elapsed between proposal and passage. And the Congress would need to exercise vigorous oversight to prevent abuses and solve unintended problems. That's one reason why some of the tools in the USA PATRIOT Act will sunset in a few years.

If the new tools of this act are working well and effective, clearly we should keep them and perhaps, if needed, even strengthen them. If they're being abused, we should eliminate them or add new safeguards.

The reforms in the USA PATRIOT Act were spurred by the fact that key agencies in our government had information about the hijackers and their plans before they attacked, but didn't share this information and didn't act on it. These failures reveal fragmentation of anti- terrorism efforts and the need for better information sharing.

The lack of investigative intelligence authority was another problem. As judiciary and intelligence committee hearings have revealed, and both Senator Kyl and I sit on these joint intelligence hearings, the FBI was unable to obtain a search warrant for the computer of accused terrorist Zacarious Moussaoui, who was detained by the FBI and the INS in August of 2001 after he enrolled in flight simulator training for jumbo jets, raised considerable suspicions.

Hearings also demonstrated that the terrorists made ample use of e-mail and the Internet in planning these attacks. The government clearly needed and still needs adequate tools to monitor electronic communications.

Senator Kyl and I worked together on an encryption issue. And yesterday at the hearing, Senator, you might be interested to know that I asked the question of former FBI director Louis Freeh as to whether the informal arrangements that he had made as a product of some meetings I organized were adequate. And he said clearly, "No. They're not adequate. There are some voluntary agreements between large computer companies and the FBI and other security organizations with respect to the key issue, but there were real problems and this remains a major point of American vulnerability." So I think this is something that this committee really should take another look at, at a future hearing.

Finally, the disclosure that hijackers entered the United States on legal visas, showed a need for immigration reform.

So the PATRIOT Act was an effort to solve some real problems. One issue is the ability of agencies to utilize the tools we gave them. The FBI can best use these new tools if it has a road map to ensure that it knows the nature, the likelihood and the severity of the terrorist threat we face, as well as intelligence gaps that still remain. The DOJ inspector general will testify today that the FBI has not yet performed a comprehensive written assessment of the terrorist threat facing the United States. That came out yesterday in our intelligence hearing, as well.

Now, with respect -- and I want to -- I don't want to go on and on, but with respect to the Border Security Act, there are some things that are important. First, enhancing our intelligence capacity is key to increased security. Second, our most effective security strategy is to keep out those who do us harm, while admitting those who come to build America and be good residents.

FEINSTEIN: There still are five areas of vulnerability in our immigration system. We still have an unregulated visa waiver program in which 23 million people arrived with little scrutiny from 29 different countries. Now there are 28. Argentina is out of the program. Abuse of the visa waiver program is real and there are examples of it.

Second, we have an unmonitored non-immigrant visa system, in which 7.1 million tourists, business visitors, foreign students and temporary workers arrive. To date, INS does not have a reliable tracking system. We need to know how progress is going, because this remains a huge loophole. We don't know if people leave. We don't know where they are in the country. And that's 7 million visitors.

Third, the poorest nature of our borders, along with INS's unreliable record-keeping, have contributed to the agency's inability to keep out criminals and terrorists. We need to continue to strengthen the border, and it can be done.

Fourth, this is an era where terrorist use satellite phones and encrypted e-mail. The INS, our nation's gatekeeper, is considered by many observers to still be in the technological dark ages. The agency is still using paper files, archaic computer systems, often non- functioning. They don't communicate with each other. And they do not integrate well with other law enforcement systems.

Fifth, about 50 to 70 percent of the estimated seven to nine illegal immigrant population are visa over-stayers. So people who come here legally -- illegally, 50 percent of them come with visas, and then just simply disappear.

In particular, I'm going to be interested in learning more about the progress of the State Department, INS and the National Institute of Standards and Technology in; one, establishing tamper-resistant visas and passports; two, establishing a non-immigrant tracking system using biometric data to verify the identity of person seeking to enter the United States. I very deeply believe this becomes a key and critical tool in deterring terrorists from entry. And three, upgrading the information technology systems; and four, building the necessary technology infrastructure so we can better protect our ports of entry.

So this is a big agenda. And I want to stop here and see if our distinguished ranking member has some comments that he might wish to make.

KYL: Thank you very much, Senator Feinstein.

First of all, I'm very interested in getting answers to the same questions that you just propounded. Let me add to that, that I'll be asking, at least on the first panel, some questions about what additional tools law enforcement may need. The questions you asked about the FBI analysis of the threat, I think is an important one to get an answer to. I'll be curious about the assessment of the sunset provisions in the U.S. PATRIOT Act.

And on panel two, we're going to be talking about the response to the various requirements that we established in the law. You identified them, but we need to have some very forthright assessment of the features of the Border Security Act. For example, whether the deadlines in the act are going to be met, where we are in the process of creating the interoperable data system that everybody agrees we need. As a matter of fact, I note that just this month, there's a 171 page report by the Brookings Institution and Center for Strategic and International Studies that concludes that we have to have an interoperable data system, the same one that we actually require in the act. How is the State Department responding to the new visa issue requirement as it pertains to terrorist-sponsored nations? How are INS and the State Department responding to the requirement that, upon notification, stolen passports must be entered into all systems, and to the requirement that INS must determine that any alien who is to be admitted out of port under the visa waiver system also be checked against relevant data -- look-out databases? Those, and other questions, we hold this hearing to determine answers to.

But I also would like to conclude my opening remarks by referring to a report that was just out today. It's in the national review magazine, the very latest issue. It's called The Terror Visas. And it says, "The applications of the September 11 hijackers should have been denied on their face, but the State Department approved them. Why?" The article goes on to note that in violation of our own provisions, section 214B, which essentially provides a presumption against the granting of visa for would-be immigrants, or puts the burden of proof, I should say, on the non-immigrant visa applicant to show that he ties to his own country, that he has a stated purpose for the visa, a reason for coming back to his country so that he won't be staying in the United States and be one of that 50 percent that you identified.

That not withstanding, that presumption that -- of the visa application forms of 15 of the 19 September 11 terrorists that were studied, all of the applicants among the 15 reviewed should have been denied visas under that provision, on their face. The article goes into a lot of detail. I'll just mention two because their names we know, Hanni Hanjour was first denied a visa. He conveniently changed many of the answers on the next application. Just two weeks later, he got a visa. Khalid Al-Mihdar, one of the terrorists who obtained visas through the visa express program, simply listed hotel as his U.S. destination, something that should have prompted personnel in Saudi Arabia to inquire further.

The bottom line is that apparently, according to this report, about three percent of the visas were denied, not withstanding this presumption against their granting. Excuse me, two percent -- two percent were denied for the Saudi-nationals in the 12 months prior to September 11. The world-wide refusal rate for temporary visas is about 25 percent.

Now, obviously things have changed. So how about in the 12 months following September 11, Madam Chairwoman? It's gone from two percent to three percent according to this article. We'll want to know from our witnesses, why, according to the State Department's own documents, on letterhead of the embassy in Saudi Arabia, its refusal rate for Saudi-nationals in the 12 months following September 11 is a mere three percent. That is something that we've got to get into, so I hope that those of you who haven't had a chance to review this can do so, and provide us your comments on it.

Thank you, Madam Chairman.

FEINSTEIN: Thank you very much, Senator Kyle.

Senator Feingold has indicated that he has to leave at 10:45, and so I'll ask him to go first for questions. But do you have a brief opening statement, or?

OK. All right, happy to do it.

Let me quickly introduce the panel. The first panelist is Glenn Fine. He is the Department of Justice's inspector general. He's a Rhodes Scholar, a graduate of Harvard Law School. He was an attorney specializing in labor and employment law prior to going to Justice. He has prosecuted more than 35 criminal jury trials, handled numerous grand jury investigations and argued cases in the District of Columbia and the United States Court of Appeals. He and his staff have made a tremendous contribution to the subcommittee's work in developing the enhanced border security and visa reform act. And I want to thank you for your cooperation.

The second person is Alice Fisher of DOJ. She serves at the deputy assistant attorney general of the criminal division. In that capacity, she supervises several criminal division litigating sections, including the terrorism and violent crimes section. That section has handled all investigations and prosecutions relating to the 9/11 terrorist attacks.

The next person is Dennise Lormel of the FBI. He joined the FBI 26 years ago as a special agent. And he now serves as chief of the terrorist financing operations section of the counterterrorism division. Immediately following the 9/11 attacks, he was given the responsibility for establishing and coordinating the FBI's comprehensive terrorist financing initiative. He also oversees the multi-agency terrorist financial review group, which is responsible for tracking and investigating terrorist financial abilities. So he can update us on that.

So why don't we begin with you, Mr. Fine. If you can possibly truncate your statements into five minutes, it will give us more chance to have a discussion back and forth.

FINE: Thank you.

Chairwoman Feinstein, Senator Kyle, members of subcommittee, thank you for inviting me to testify today regarding the Office of the Inspector General's recent audit of the FBI's counterterrorism program. Last week, our full 131-page classified audit was provided to the FBI and congressional committees, including this committee. And we publicly released an unclassified executive summary that highlighted our major findings and recommendations.

Our audit was part of a series of reviews we have undertaken regarding department programs that effect counterterrorism and national security issues. The audit examined aspects of the FBI's management of its counterterrorism resources, focused specifically on; one, the FBI's progress toward developing a comprehensive, written risk assessment of the terrorist threat to the United States; two, the FBI's strategic planning as it relates to counterterrorism. And three, the amount of resources dedicated to the FBI's counterterrorism program over the past seven years.

It is important to note at the outset of my remarks that our audit does not purport to assess all aspects of the FBI's counterterrorism program or how the FBI handled information that may have been related to the September 11 attacks. We have initiated a separate review that is examining aspects of the FBI's handling of certain intelligence information prior related to those attacks, including the Moussaoui case, the Phoenix electronic communication and other issues.

The audit that we released last week contained several important findings. We determined that the FBI has not developed a comprehensive, written assessment of the risk of a terrorist threat facing the United States despite its statement to Congress in 1999 that it would. We concluded that such an assessment would be useful not only to define the nature, likelihood, and severity of the terrorist threat but also to identify gaps that need to be addressed. A comprehensive, written threat and risk assessment would also be useful in determining where to allocate attention and resources on programs and initiatives to combat terrorism.

By September 2001, the FBI had developed a draft of what it called a terrorist threat report. This report described terrorist organizations and state sponsors of terrorism, but the draft report did not assess the threat and risk of a terrorist attack on the United States. Among the reports many omissions were assessments of the training, skill level, resources, sophistication, specific capabilities, intent, likelihood of attack, and potential targets of terrorist groups. Nor did the draft report discuss the methods the terrorists might use. For example, there was no analysis of terrorists' progress toward developing or acquiring chemical, biological, radiological, and nuclear weapons or any discussion of what the FBI had learned from its past terrorist investigations.

We identified a number of causes for the FBI not adequately addressing these issues. First, no single individual at the FBI was accountable for managing the assessment. Second, some FBI officials said the FBI lacked the analytical capability or resources to complete such a broad threat assessment. Third, the FBI did not have a system of management controls that ensured compliance with GAO or OIG recommendations. Also, FBI counterterrorism managers had a tendency to rely on their experience and professional judgment regarding the overall terrorist threat and did not value a formal written assessment that used a structured methodology.

We believe that completing the national-level, written threat assessment is critical to the FBI's counterterrorism efforts. This assessment must also include an evaluation of the likelihood the specific weapons of mass destructions will be acquired or used against American targets and citizens. Fully assessing the threat, probabilities and likely consequences of a terrorist attack by different methods will be of significant benefit, not only to the FBI in allocating resource, but also for domestic preparedness efforts and counterterrorism programs at all levels of government.

Our audit also found that the FBI's strategic planning has not been guided by an overall strategic-level assessment of the threat and risk of terrorist attacks on the United States. The FBI's strategic plan has not been updated since 1998 and does not conform to the counterterrorism priorities that the department's November 2001 strategic plan, the FBI director's new priorities, or the FBI counterterrorism division's approach to develop the maximum capacity to deal with the terrorist threat.

We also found that the FBI had not developed a system for capturing and using lessons learned from past terrorism incidents and operations to improve the FBI's counterterrorism capabilities.

In addition, the FBI has not established a core training curriculum and proficiency standards for these new agents working in counterterrorism.

FINE: Our report details the level of resources that the FBI had dedicated to counterterrorism. Our report details the level of resources that the FBI had dedicated to counterterrorism and related counterintelligence over the last seven years. While the FBI has indicated the exact figures are classified, I can say that those resources have tripled between 1995 and 2002.

I want to be clear that our findings are not intended to criticize the expertise of FBI employees and managers who work on counterterrorism matters, or the extensive knowledge they have developed through their case work and regular discussions with the FBI and the intelligence community. Our findings also should not be interpreted to mean that the FBI has not taken important steps during the past year to improve its counterterrorism program. After the September 11 attacks, the FBI identified, as a critical weakness, its ability to analyze intelligence, and has begun taking steps to improve its capabilities in this area.

But we believe the FBI can and must do more. Our audit report offers a total of 14 recommendations to help improve the management of FBI's counterterrorism program, including recommendations that the FBI prepare and authoritative, written, national-level threat and risk assessment of terrorism, identify the chemical and biological agents most likely to be used in a terrorist attack, develop criteria for evaluating incoming threat information. And establish a guide for the distribution of threat information; build a core of professional, trained and experienced intelligence analysts for assessing and reporting on threats at both the strategic and the tactical levels. And close the gap between planning and operations by establishing an effective system of performance measures and holding FBI managers at all levels accountable for achieving those performance goals.

The FBI responded that it concurred with our recommendations and they provide constructive guidance. It described its steps it is taking to address the recommendations. We are pleased that the FBI has agreed with our recommendations and we look forward to monitoring the FBI's progress towards implementing them. We believe these recommendations will aid the FBI in making the changes set in motion by the FBI director to move the bureau from a reactive post-crime investigatory culture to a more proactive organization that seeks to identify and deter terrorists before they strike.

This concludes my statements. And I would be pleased to answer any questions.

FEINSTEIN: Thanks, Mr. Fine. And again, thanks for your help to this subcommittee. We appreciate it.

Ms. Fisher?

FISHER: Thank you, Chairman Feinstein, Senator Kyl, Senator Feingold. Thank you for providing me the opportunity to testify on behalf of the Department of Justice to inform the subcommittee about the department's implementation and use of the important anti- terrorism provisions in the USA PATRIOT Act. I want to thank this subcommittee members who helped to develop and enact the USA PATRIOT Act so swiftly in the wake of last September's attacks on our nations.

As deputy assistant attorney general in the criminal division, I am personally involved in using the tools myself, and in working with others in the department in seeing that the tools Congress provided in the act have been used as intended; to enhance the ability of law enforcement to bring terrorists to justice.

The unprecedented and heinous attacks on our nation, in which over 3,000 innocent civilians were killed, occurred just over one year ago. At that time, the president pledged to the American people that we would not relent until justice was done and our nation was secure. Members of this committee, and the Congress in general, joined the president as key partners in this important undertaking. Congress' swift and comprehensive response was to develop and pass the USA PATRIOT Act, provided law enforcement with vital new tools, and updated those tools already at our disposal, that have been instrumental in our efforts to combat terrorism in the most extensive criminal deeds in history.

One year later, I am pleased to report that we have used these tools effectively, aggressively, and I believe responsibly. As the attorney general told this committee in July, the department's single and overreaching goal since September 11 has been to prevent future attacks on the United States and its citizens. In furtherance of that goal, we have been aggressively implementing the USA PATRIOT Act from the outset. Law enforcement uses the tools in our ongoing cooperative effort to identify, disrupt and dismantle terrorist networks.

We are expending every effort and devoting all available resources to intercept terrorists and defend our nation. Never was this so apparent as last Friday, as the attorney general described it a defining day in the war on terrorism, when law enforcement neutralized a suspected terrorist cell in Portland, Oregon, convicted attempted suicide bomber Richard Reid, and saw John Walker Lindh, an American captured fighting for the Taliban in Afghanistan, sentenced to twenty years imprisonment.

In the last six weeks, we have charged 17 individuals involved in terrorist-related activities. In addition to Portland, we have charged an individual with attempting to set up an Al Qaeda training camp in Oregon. Tools authorized by the USA PATRIOT Act, such as information sharing provisions and enhanced penalty provisions have been critical in all of these cases.

The PATRIOT Act has aided law enforcement efforts in the war on terrorism in four key areas. First, it updated the law to reflect new technology. Second, it removed obstacles to investigating terrorism. Third, it strengthened criminal laws and enhanced penalties. And fourth, it facilitated increased intelligence sharing, gathering and analyzing.

As examples over the past year, the department has used the following new important authorities and tools provided by the act. We have charged a number of individuals under 18-USC-23-39A and 23-39B, which prohibits providing materiel support terrorist or terrorist organizations, and now carry enhanced penalties. We have used newly streamlined authority to use trap and trace orders to track communications of a number of criminals including the terrorists, kidnappers and murderers of journalist, Danny (ph) Pearl, as well as identity thieves and a four time murder.

We abuse new authority to subpoena information about Internet users, network addresses, to track down terrorists and computer hackers. We abuse newly authorized nation-wide search warrants for terrorist investigations at least three times, including during the ongoing anthrax investigation. We abused, on many occasions, provisions in the act to foster an unprecedented level of cooperation and information sharing between government agencies. For example, we have disclosed grand jury information on at least 40 occasions.

We have saved precious time and resources through a provision that permits officials to obtain court orders for electronic surveillance pertaining to a particular suspect rather than a particular device. We have used the provision allowing Internet providers to disclose records to law enforcement in emergencies preventing risk of life. This authority allowed us to track down a student who posted electronic bulletin board threats to bomb his high school and shoot a faculty member. We have also made sure that the prosecutors in the field know what valuable tools Congress has provided them by training and through guidance.

I would like to conclude by thanking the members, once again, of your committee for your efforts in so swiftly giving us these tools.

FEINSTEIN: Thank you very much, Ms. Fisher.

Mr. Lormel, welcome back to the committee.

LORMEL: Thank you, ma'am.

I also appreciate the opportunity to participate in this forum today. I've submitted a formal statement for the record and I would just like to augment that with some comments, and particularly to stress the importance of interagency cooperation. And clearly it's important in our mission.

I'd like to commend the Treasury Department, who aren't here, for their outstanding efforts in furtherance of methodologies being developed for use of the PATRIOT Act in working with us, and particularly David Aufhauser for his leadership role in the policy coordinating committee on terrorist financing.

I'd like to focus my comments on the progress that we're making in terrorist financing investigations, and the operational benefits that we specifically derived from the PATRIOT Act. I think that will be important for your -- for your benefit.

First, our mission is two-fold. We were formed to investigate the events around the 19 hijackers and identify the financial infrastructure and flows. We've pretty much completed that. And at the same time, we set up a template for investigations in the future to be much more proactive and progressive and predictive. We've adopted a centralized approach, which our methodologies -- we're looking outside the box to develop new methodologies in our approaches. And clearly, the -- excuse me -- PATRIOT Act really helps us in that regard.

Our strategies are to conduct full financial analysis of terrorist suspects and their financial support structures, disrupt and dismantle terrorist funding mechanisms, coordinate the joint participation and liaison and outreach efforts to exploit financial investigative resources of private, government and foreign entities, to utilize the FBI and LEGAT expertise in reaching out and fully exploiting those relationships, work jointly with the law enforcement regulatory and intelligence and business communities to develop predictive models based on terrorist cell financial traits, to conduct data mining analysis to proactively identify terrorist suspects. We're also providing financial investigative component for the counterterrorism division and the overall mission. We're a support component of the terrorism division.

Our investigative initiatives include support to significant terrorism investigations and deployments, strategic investigative targets that we're going after, which include Al Qaida cells and other cells of -- like Hamas and Hezbollah in particular. We're looking at financial institutions, particularly non-banking financial institutions, the Hawallas, the money services businesses and others. And clearly in that regard the PATRIOT Act is a big help to us.

We're looking at NGOs and charities, fund raisers, facilitators, couriers and donors. We are conducting a number of data mining initiatives. We're looking at undercover possibilities and platforms, clearly looking at the Internet. And we've established the 24/7 financial monitoring capability where we've got a network of over 411 financial institutions involved. Clearly, human intelligence and outreach are important.

We're striving to disrupt the flows of funding to terrorists by going back to the donors and forward to the strike teams. There are clearly three or four tracks, and I'll come back to that in questions if you'd like, as to how we're proceeding on that regard.

And again, I'd like to reiterate the importance of our cooperation and coordination, particularly with the CIA and Treasury, and since then, in particular, our important partner for us with regard to the PATRIOT Act and the utilization of the provisions.

The benefits that we've derived from the PATRIOT Act, clearly on the financial side, the enhanced reporting requirements regarding suspicious activities particularly with the non-banking financial institutions, registration requirements for licensed money remitters. And this provides us with a broader data mining and investigative avenue to go after information. The authority to seize terrorists' assets has been beneficial. The ability to seize foreign banks accounts or funds in foreign bank accounts through correspondent accounts here in the U.S. has been helpful. The ability to prosecute unlicensed money remitters is going to be very important to us. The more timely access to reports on currency transactions in excess of $10,000, authority for the service of administrative subpoenas on foreign bank accounts concerning records of foreign transactions, clearly the sharing of intelligence information and the criminal information between us and the CIA, in particular, has been very important. And the mandated fence-in (ph) establishment of the secure network, that's going to be a tremendous benefit. I believe that our operation will be the primary beneficiary from that.

And there are some other things, Senator, but in deference to time and to Senator Feingold, I'll stop here. And again, I can expand on this during questioning.

Thank you very much.

FEINSTEIN: Good. Good. We certainly want you to. Thank you.

Senator, we'll turn to you.

FEINGOLD: Thank you, Madame Chairman. And I want to commend you and Senator Kyl for holding this very important hearing, and your tremendous courtesy in letting me go first. I really do appreciate that. My opportunity to speak on the Iraq resolution is at 11:00, so I am grateful.

One of the most vital tasks Congress has is to ensure that the powerful tools we give to law enforcement are used effectively and appropriately. I hope that this hearing will become part of a vigorous and consistent review of the tools Congress has given law enforcement.

On July 24, I sent a letter to the attorney general requesting a full report on the implementation of the USA PATRIOT Act, and asked specific questions about the business records, computer trespass and FISA (ph) of roving wiretap provisions. I still have not received answers to my questions about the use of the business records, computer trespass and FISA (ph) of roving wire tap provisions of the USA PATRIOT Act. These provisions deserve close Congressional oversight because, of among other reasons, the enormous potential chilling effect on the first amendment rights of innocent Americans who simply want to buy a book from an online retailer, or borrow a book from a local public library.

Nevertheless, I have received the department's unclassified responses to a house judiciary committee letter that requested information on USA PATRIOT Act. The department answered in response to many of the questions posed by Chairman Sensenbrenner and ranking member Conyers that the information would be shared with the House intelligence committee, but not the judiciary committee.

This is not a response in my view.

FEINGOLD: There is no reason why the department should not share with me or my colleagues on this committee or the House Judiciary Committee information, like the number of times the government has requested records from public libraries, book stores or newspapers.

Congress has an important responsibility to exercise our oversight of the department's application of the USA PATRIOT Act, a law that significantly expands the federal government's power to intrude in the lives of law abiding Americans. To the extent the responses are classified, of course, we have well tested procedures for handling that type of information in this committee.

I am still hopeful that I will receive a full and complete response to my July letter, as well as copies of the responsive material that the department has apparently conveyed to the House Intelligence Committee, but has so far refused to share with the House and Senate Judiciary Committees.

And I would like to just ask a couple of questions. Ms. Fisher, I have heard that the Justice Department is gathering proposals from various divisions from within the department for a possible sequel to the USA PATRIOT Act.

Could you please describe what efforts are being made within the department to seek to broaden the powers of the USA PATRIOT Act through additional legislation, and what other changes to existing law you anticipate that the Justice Department will propose?

FISHER: Thank you, Senator.

We have been, internally, within the Justice Department, looking at potential proposals on following up on the PATRIOT Act for new tools. And we have also been working with different agencies within the government. And they are still studying that. And hopefully we will continue to work with this committee in the future on new tools that we believe are necessary in the war on terrorism.

FEINGOLD: Can you give us some sense of what you're looking at?

FISHER: At this point, I can't. I'm sorry. They are studying a lot of different ideas and a lot of different tools that follow up on information sharing and other aspects.

FEINGOLD: I would ask you and the department to provide us with some sense of where they are heading on this as soon as possible so that we're not confronted again -- and it was more understandable last time, of course -- with such a brief period of time in which to review such a significant series of proposals.

FISHER: Yes, Senator.

FEINGOLD: Listening to the witnesses, I am struck by the tools being used in the war on terrorism that are not being spoken about today.

Since September 11, the Justice Department has declared and imprisoned two U.S. citizens as enemy combatants and detained people as material witnesses. In each of these instances, the Justice Department has opposed judicial review and refused to answer congressional questions about the affected people.

Now, I think the rules under the Constitution are pretty simple. If you have evidence of criminal misconduct, then you should provide people with attorneys, bring them into a courtroom and prosecute them. And if you don't have evidence, the Constitution dictates that you cannot hold them indefinitely.

Given the successes that you just, I think, reviewed that DOJ has had in criminal cases arising from the war against terrorism, what is it about the criminal justice system that leads the Justice Department to fear criminally charging the accused and prosecuting them in a courtroom?

FISHER: I take it that's directed at me?

The...

FEINGOLD: Please -- yes.

FISHER: The Justice Department is not fearing of criminal charges. But it is important to understand that these are two separate tracks. Enemy combatant is something that comes under the president's authority, as commander in chief of our country. And it provides the military -- and this has been upheld by the Supreme Court -- with the authority to detain combatants that would cause harm to our country.

So, therefore, it's made on a case-by-case situation whether someone -- for example, if you are referring to Mr. Padilla or Mr. Hamdi -- should be detained as enemy combatants under those powers or should be charged in a Article III court. But I will say that even if they are held as enemy combatants, they are not held indefinitely, as you suggest. In fact, they are held for the duration of the conflict.

FEINGOLD: Well, why was the choice made not to charge them in a criminal procedure? What is it about them that means that they can't be charged in a criminal procedure?

FISHER: Well, I wouldn't comment on saying that they can't be charged. It often may be the case that you could qualify as both an enemy combatant and be charged in a criminal Article III proceeding, such as John Walker Lindh.

However, in this case, when the department and other aspects of the government looked at the facts and looked at the national security interests and the information available, it was commander in chief power, utilized by the president to detain these two individuals as enemy combatants.

FEINGOLD: I understand that's the decision, but let me just say that I think it's deeply troubling to many Americans to not really understand why the decision was made. I understand that the decision was made, but given the lack of rights and procedures that are associated with this rather startling enemy combatant concept, I think that it would be in the interest of the administration to provide a better explanation of why this rather unusual procedure is used.

Finally, Mr. Fine, pursuant to Section 1001 of the USA PATRIOT Act, your office submitted a report concerning complaints alleging abuses of civil rights and civil liberties by employees and officials of the Justice Department covering the period of from October to June 2002. According to the report, there were 458 complaints suggesting a USA PATRIOT Act-related civil rights or civil liberties connection.

These complaints included charges of excessive force, illegal detention and a denial of the right to counsel.

What is the status of the IG investigation? And what can you tell us about the merits of the complaints that you have investigated?

FINE: Senator Feingold, I can tell you that we have a number of ongoing investigations, both criminal and administrative. We have also referred several of the allegations to other agencies, including the FBI, who is reviewing and investigating some of them.

In addition to the individual ongoing investigations, we also have a review that tries to look at it in a systemic way. So we have looked at the treatment of special interest detainees at two facilities -- the Metropolitan Detention Center in Brooklyn and the Passaic, New Jersey, facility -- looking at issues such as their access to counsel; whether their -- conditions of confinement; the timing of charging decisions.

We are pretty far along in that review and we hope to have a comprehensive review done in the near future.

So we are working hard on that and look forward to having findings...

FEINGOLD: You don't have any comments in the merits of the complaints at this point?

FINE: I wouldn't want to comment on an ongoing investigation.

FEINGOLD: My time, I think, has expired, but I would ask the Justice Department -- Ms. Fisher -- really hoping to get an answer to my letter of July. And if there is any information that needs to be presented in a classified manner, so be it. I have that clearance -- others on my staff do.

I surely think that the members of the Senate and House Judiciary Committee are entitled to the answers to those questions.

And I do thank all the witnesses and especially thank the chair for letting me do this.

FEINSTEIN: Thank you. Thanks, Senator.

My first question is of Ms. Fisher. And I want to just, sort of, set this question in some context, if I might. In June, the Department of Justice announced that a man was being held. His name was Abdulla al Mujahir. He was 31 -- a former Chicago gang member who Americans said was born Jose Padilla in Brooklyn. He was raised as a Roman Catholic, but he converted to Islam and began using a new name.

Mr. Padilla traveled to Pakistan, received training from Al Qaida in the wiring of explosives, intelligence officials have said. While he stayed at an Al Qaida safe house in Lahore, he conducted research of radiological devices on the Internet.

Now, in the PATRIOT Act, we changed the definitions of pen register and trap and trace devices to include devices that track dialing, routing, addressing or signaling information. And for those that might be interested, pen registers and trap and trace devices are like caller ID on a telephone. They record the date, the time and the phone number of outgoing and incoming calls. But they don't reveal their content.

This change allows the tracking of e-mail and Internet usage, rather than just phone calls. However, e-mail routing information and Web addresses provide a lot more information than a telephone number. The e-mail address John Smith at yahoo.com identifies a person, not a fixed piece of equipment and a Web address such as http://www.plannedparenthood.com/ provides information about a person's thoughts and interests.

To solve this problem, the PATRIOT Act requires that pen registers and trap and trace devices do not capture the content of any communication.

My question to you is how extensively has DOJ been using pen registers and trap and trace devices to track e-mail and Internet usage? And how do you ensure that these devices do not capture the content of any communication?

FISHER: Thank you, Senator. We do share your concern about content. And we have not used the tools, as we should not, to gather content information.

But the pen trap and trace statute and the tool authorized by the PATRIOT Act has been used on several occasions, although I don't have the particular number of times at my fingertips. It was used in the Danny Pearl case. It was used with regard to other terrorist conspirators; one major drug distributor investigation; identity thief investigation; to track down a four-time murderer; and as well as a fugitive who was fleeing using a false passport.

So we have been using this tool and we have been very cautious not to get into content or the Web addresses, as you suggest.

FEINSTEIN: So it has been a successful tool?

FISHER: Absolutely.

FEINSTEIN: Do you see any violations of privacy?

FISHER: No. In fact, I am not aware of any violations of privacy. This tool has been used very carefully. The deputy attorney general issued a memo clearly delineating the department's policy with regard to avoiding over-collection and avoiding the collection of content in the use of this authority.

FEINSTEIN: Thank you.

Mr. Lormel, I want to give you an opportunity to expand on the strike aspect that you spoke about in your opening comments. And this, of course, relates to Title III of the PATRIOT Act, which focuses on money laundering. And the Title provided for increased information sharing. It allows suspicious activity reports received by the Treasury Department to be shared with intelligence agencies and it authorizes the sharing of surveillance information between law enforcement and intelligence agencies.

Perhaps you can bring us up to date on any new activities that you're taking in that regard, how well this is working and what you are finding.

LORMEL: Yes, Senator.

We have -- some of our agents are assigned over at CIA Counterterrorism Center. And, conversely, they've got people assigned with us. And, as I mentioned, we work very closely with FinCEN. And in that regard, the sharing of information back and forth between us and the CIA has been outstanding.

I don't have any anecdotes that I could really get into in this forum.

FEINSTEIN: You don't have any nuggets like you had last time you appeared before us?

(LAUGHTER)

And perhaps I should ask about that. Have banks done anything about the hijackers?

Ladies and gentlemen, six of the hijackers just went into a bank to open an account, Mr. Lormel informed us at one of our earlier hearings. And in doing so, they just made up Social Security numbers.

LORMEL: Well, in regard with the Social Security numbers, let me clarify that. The numbers that were used weren't necessarily "made up" numbers, but they were on the application in the Social Security field, itself. So they are numbers that, for automation purposes, they had to fill in. and in a couple of instances -- not in the six instances -- Social Security numbers were listed which may have been FAA numbers, as opposed to Social Security.

But in the instances where the banks, themselves, listed the numbers, it was basically for administrative purposes in the use of those particular numbers.

But going to the greater question of the cooperation with the banks, in my statement or the comments I wanted to make were some observations, Senator, that I've seen in implementations of the PATRIOT Act. And in anticipation of the implementation between the banking community and, particularly, the non-banking financial institutions, their concern about consequence and their concern about doing the right thing in terms of reporting and working closer with us has been outstanding.

And that includes forms that we've had through FinCEN and independent of FinCEN, where we're trying to promote the use of the PAC (ph) system that FinCEN is implementing. We believe that that's going to enable us, in terms of the data mining, to get information in electronic format that we'll have more timely access to and more timely responsiveness in terms of following up on leads and investigations.

FEINSTEIN: So, to date, tell us what you're able to do with respect to the Hawala method of transferring funds to terrorist organizations.

LORMEL: In regard to that, let's go beyond the specific Hawala, but into that whole informal mechanism. And the fact now that there are licensing or reporting requirements helps us tremendously.

We are in the process -- we're going to have a conference in the next few weeks where we're bringing prosecutors together with our agents to determine the best vehicles out there for proceeding with prosecutions.

We have had some success in the disruption of money flows. And I think there are intelligence reports that will support that.

In terms of the actual Hawalas and that informal networking, the registration requirements through FinCEN, again, are enabling us to identify who is a licensed money remitter that's outside the normal banking confines and who are unlicensed and, perhaps, illegal. And it enables us to set up strategies and methodologies on both of those tracks.

So we're proceeding accordingly.

FEINSTEIN: Thank you.

My time is up.

Senator?

KYL (?): Thank you.

Let me begin with Mr. Fine. The threat assessment, with regard to terrorism, that you strongly suggest the FBI should get on with producing you said was hampered to some extent by, at least according to the FBI, a lack of analytical capability within the FBI. Is that correct?

FINE: Yes.

KYL (?): What would it take to correct that deficiency for the FBI?

FINE: I think the FBI needs to focus attention and energy on developing a core of trained, professional analysts. They have some, but they need more. And I think the FBI recognizes that.

In the past, it has not valued it as much as it, perhaps, could have and should have. There has been a focus in the past on reactive crime solving. Agents work has been valued, but the more strategic analytical overarching analysis that needs to be done and should be done hasn't received as much attention in the past. I think it needs to receive more attention in the future.

KYL (?): I know the FBI Director Mueller immediately brought some CIA analysts over to the FBI -- that kind of thing, perhaps -- I mean, I know he doesn't want to raid the CIA, but that kind of thing could, at least in the short term, help to augment his cadre, could it not?

FINE: Yes, it could. He has brought over 25 CIA analysts as detailees that can help in the short term. In the long term, I think the FBI needs to develop its own permanent, professional analyst capabilities.

KYL (?): And if they were able to engage in this analytical discipline, it would also require the integration of their field office personnel and the information that they derive from that with the other aspects of the intelligence community, including the CIA. Because you can't do analysis without a full knowledge integration. And so that, in itself, would be a useful exercise for further analytical capability of the FBI, would it not?

FINE: Absolutely. The FBI can't do it on its own. It needs to use intelligence and information from throughout the government and elsewhere to factor into its analysis.

It did try, as we indicated in our report, to look into the threat of weapons of mass destruction, but it didn't do it with all the information that it should have. It has to reach out, outside the FBI, for expertise that can help them in this area.

KYL (?): I think we're all aware of the fact that the FBI had some really good nuggets of information, but they weren't brought together in a central place. And this call that you're making for an analytical document, which would then, presumably, be ongoing, is a very important thing.

And I want to ask Mr. Lormel -- I gather the FBI has acknowledged the need for this. I suspect that you're not in a position to tell us why it hasn't been fully implemented, but at least, perhaps you could confirm to us that you will help convey the message to those with whom you work that we think this is an important thing to do -- to move on with very quickly and to let us know what you need, if anything -- that Congress can help to provide in order to get this done.

LORMEL: No. In that regard, Senator, I am aware that we are taking steps to move forward. For instance, we have, I believe, 240 analysts in some stage of backgrounds to come on board. And, clearly, the director deserves a lot of credit for his vision to integrate the analytical component with the operational component and also the third leg -- the financial component. Our financial analysts and things are going to be integrated into that process.

There are strategic reports that are now being drafted that the analytical component -- that the people from the agency are involved in finalizing, which will be going forward, I believe, in the very near future.

KYL (?): Well, just to conclude this point, be sure and convey to those with whom you work our view that this is a very important aspect of the FBI's contribution to the war on terror. The recommendations of the inspector general should be closely examined. And if there is any disagreement with any of that, to let us know. But, otherwise, we'll expect that it will be done with some alacrity.

LORMEL: Well, again, Senator, if I may -- you know, we embrace those recommendations. And I know that the director is looking to continuously improve our performing...

KYL (?): Let me just make one other point -- we heard testimony yesterday from Louis Freeh. And he documented how -- and I remember him coming before this very subcommittee three and four years ago asking us for authority. Senator Feinstein and I supporting those authorities. We couldn't get total cooperation from other members of the Senate and House. And, as a result, it wasn't until after September 11 that a lot of what he was asking for was actually done -- like the trap and trace, for example -- was a good example -- the roving wire tap. Those are authorities he asked for long ago.

He also asked for more agents. And he asked for something like 1,800 agents and I think we gave him 76 over a three-year period or at least numbers in that general realm.

So part of the problem is us not necessarily providing what is needed. And if there is something needed here to get this job done, we expect to be told.

Just my -- the red light is on -- let me just close with one question for Ms. Fisher.

In response to Senator Feingold, you indicated that there was an ongoing review of needs within not just the Department of Justice, but other agencies of the government to augment what has already been done in the USA PATRIOT Act and that study would produce a set of recommendations hopefully early so that we can act on that very early next year. That last part is -- I'm adding to your testimony.

But in this regard, I am especially interested in having you look at the provisions -- I think there are some 14 of them in the PATRIOT Act -- that will sunset in three years. And, unless you are aware of specific problems that have arisen with the application of those provisions, several of which are very important, I would hope that you could assess the desirability of making those provisions permanent, as part of the recommendations for legislative reform.

Your comment?

FISHER: We certainly will. As we all know, we don't expect the war on terrorism to sunset in the near future, unfortunately. And we certainly are using all of the tools. And we don't believe that they should sunset. We've put them to good use and so making that part of our recommendations, I think, is a very good idea.

KYL (?): All right. And then, finally, I'm kind of catching you off guard here, but Senator Schumer and I have an amendment that we'd like to get adopted sometime before Congress adjourns that would slightly modify the FISA warrant procedure to add to the definition a foreign person so that you -- and this, perhaps, would pertain to Moussaoui, but I don't ask for your comment on that -- where you have an individual that you don't necessarily -- you believe he's engaged in terrorism, but you can't necessarily connect him to a specific terrorist organization or foreign power, would still permit the warrant to be obtained to investigate further.

Previous witnesses representing the Department of Justice or the FBI have testified in favor of that. Is that still the position of the department?

FISHER: Absolutely. The administration supports your bill on that. We think that it's an important and needed fix.

KYL (?): Thank you.

FEINSTEIN: To you, Ms. Fisher, I need to say one thing -- I authored legislation that was signed into law in 1999 that mandates up to 20 years in prison for anyone who distributes bomb-making information knowing, or intending, that the information would be used for a violent federal crime -- that's 18 USC 842(p).

Now, this law has been on the books for three years. It has not been enforced. We know that bomb-making information has been found. We know that in Afghanistan -- we know that it's been found from the Internet. We know that it's intent is clearly for terrorists to use it to violate a federal law.

Federal prosecutors have only charged a single person under the statute and then these charges were quickly dropped for lack of evidence.

I see this as a indispensable supplement for anti-terrorism tools. Terrorist groups, we know, are not only actively searching out bomb-making information, but they're even distributing it for recruitment and instructional purposes.

If they do that, you've got them for 20 years. Why don't you use the law?

FISHER: Well, Senator, you raise a good point. Clearly, you're right -- we do know that there are individuals out there that are doing this kind of activity with regard to bomb-making materials. I can't speak to the one case where it was used and dropped.

We can certainly take a fresh look at that statute and where appropriate, charge it.

FEINSTEIN: I mean, one Al Qaida videotape consisted of a lab session showing the materials and processes needed to make TNT and high explosive bombs. So, I mean, you have a cause.

And this ties in with my second question and I was very surprised to see this. My staff did some research and, according to an analysis of DOJ records by the transactional record access clearing house -- that's associated with Syracuse University -- from October 2001 to March 2002, federal prosecutors turned down 55 percent of referrals in international terrorism cases and 46 percent of referrals in domestic terrorism cases.

Now, what's surprising about this is the likelihood was to decline prosecution for terrorism cases to a much greater extent that for other cases. The declination rates for referrals in non-terrorism cases during the same period was 32 percent.

Why is that?

FISHER: Well, Senator, a couple of points on that -- first, over the past year -- and certainly since September 11, which I think you said the data started -- I have been involved in overseeing terrorism prosecutions. And terrorism prosecutions come up for approval, regardless of where they are in the U.S. attorney's office, they come up for approval through main justice. And I am not aware of one terrorism case that we have declined.

(CROSSTALK)

FISHER: Putting that aside...

FEINSTEIN: Can I ask that perhaps you, then, research it and give the committee a response in writing? I'll be happy to give you the question in writing right now.

FISHER: Sure.

FEINSTEIN: And perhaps you would answer it in writing within the next week.

FISHER: OK.

I am aware that there is a definitional issue of how the FBI characterizes what is a terrorism case. And I know that the FBI is working with the executive office of U.S. attorneys on these statistics to figure out what the definitions are.

It may be that included in those numbers are intelligence cases, which don't necessarily go to the criminal division because they are continuing as intelligence operations.

It also may be that something is cataloged as a terrorist investigation initially, but later it is determined that it has no links to terrorism and it is some other type of charge and so, therefore, it is not pursued as a terrorism case.

But it is important to note that I am not aware -- and I don't think that the people at main justice are aware of any terrorism cases, and certainly no international terrorism cases, where we have declined prosecution or stepped away from that. We are very aggressively pursuing those cases.

FEINSTEIN: Well...

FISHER: And I will be happy to look at your question and get back to you with an answer.

FEINSTEIN: Right. Thanks so much.

Senator, do you have any?

Well, let me just thank the panel very much. You've been very gracious with your time and also with your expertise and we appreciate it.

FISHER: Thank you.

FEINSTEIN: Thank you.

KYL (?): Thank you very much.

FEINSTEIN: We will now go to the Visa Reform and Border Entry Act. And I will introduce the witnesses.

We have Scott Hastings from INS. Scott is the associate commissioner for the Office of Information Resources Management with INS. He is responsible for the information technology programs, including all electronic enforcement technology programs. He is also responsible for examining the role of federal information technology organizations and their future configurations and structure.

Michael Cronin, also of INS -- he serves as assistant commissioner for inspections. He is responsible for program and policy development relating to INS operations at our nation's ports of entry. He is the principal point of contact between the INS and other government agencies -- active at ports of entry, as well as numerous foreign governments.

FEINSTEIN: Steven Edson, from the State Department, began his work with State in '81. He now serves as the acting managing director of the visa services directorate with the department's Bureau of Consular Affairs. He has served the State Department all over the world, including Thailand, India and Japan.

Mr. Benjamin Wu represents the Commerce Department. He is the deputy undersecretary for technology at that department. In that role, he supervises policy development and direction among numerous federal offices that work on technology policy, including the National Institute of Standards and Technology, which was directed in the USA PATRIOT Act and the enhanced Border Security and Visa Entry Reform Act to work with INS and the State Department to develop a biometric standard for immigration documents.

Clearly, we want to know where that is today.

So if I might, perhaps I could begin with you, Mr. Hastings -- if you gentlemen would confine your remarks to five minutes -- go right down the line. And then we'll be able to ask you some questions.

HASTINGS: Madam Chairman, the INS has prepared a single statement and Mr. Cronin will summarize, so I will defer to him.

FEINSTEIN: That's fine.

CRONIN: Thank you, Madam Chairman...

FEINSTEIN: Thank you.

CRONIN: ... -- Senator Kyl.

Thank you very much for the opportunity to participate in this hearing concerning coordinated information sharing among federal agencies in the war against terrorism.

Since September 11, INS has witnessed an unprecedented increase in information flow among agencies. We strongly recognize our need for vital enforcement and intelligence data. And we are committed to providing accurate and timely immigration data to other agencies that require it.

We are also strongly committed to the use of this data in a fashion that improves the security of our borders, while limiting disruption to legitimate travel and trade.

We appreciate the support and leadership of the Congress for this information sharing effort, especially as embodied in the USA PATRIOT Act and the enhanced Border Security Act.

The Office of Homeland Security, in conjunction with the Office of Management and Budget, is leading critical initiatives to improve and monitor information sharing among key federal agencies and to ensure the timely provision of critical data to state and local law enforcement and emergency management agencies. We also are working internationally to develop new and better ways of sharing information that will support intelligence and enforcement efforts.

INS has been engaged in broad-based information sharing efforts since long before the terrorist attacks of September 11. For more than a decade, INS has joined with the U.S. Customs Service in development and management of the Interagency Border Inspection System, or IBIS, which is the principal border lookout system, containing data from more than 20 federal agencies, as well as real time linkage to the National Crime Information Center or NCIC.

Since the late 1990s, INS has been working with the Department of State to develop and expand the datashare project under which visa data is transmitted electronically through IBIS to our ports of entry.

In January 2002, the consolidated consular database was made available to ports of entry. Through use of this system, inspectors can access non-immigrant visa issuance information, as well as a photograph of the rightful bearer of a visa.

Before and after September 11, INS has worked with the U.S. Marshal Service and the Federal Bureau of Investigation to include wanted persons' fingerprint data in INS' fingerprint system -- IDENT.

For nearly a decade, INS has received data from the State Department's TIPOFF database of suspected terrorists.

Each of these systems and projects has led to significant enhancement of the security of our borders through the interdiction or apprehension of numerous terrorists and criminals.

Also related to and supported by the USA PATRIOT Act and the Enhanced Border Security Act are several key programs designed to manage and track the entry, stay and departure of foreign visitors. INS has formed an interagency project team with representative from the Departments of State, Treasury, Transportation and Justice to effect the creation of the statutorily mandated entry-exit tracking system.

This effort has lead to implementation of electronic tracking of the arrival and departure of visa waiver program travelers, as of October 1 of this year, with full implementation for all foreigners arriving by air anticipated as of January 1, 2003.

This information will be fed automatically into the arrival- departure information system -- ADIS -- which will be the repository for arrival and departure data, eventually replacing the current non- immigrant information system.

INS has also very quickly implemented the national security entry-exit registration system, under which certain non-immigrant aliens, who may potentially pose a national security risk, are fingerprinted and interviewed upon arrival in the United States and registered periodically if they remain in the United States for a period exceeding 30 days and again if they remain for more than one year.

Registration information is also updated in the event of changes of address, employment or schools and again upon departure from the United States.

The legislation we are discussing today mandates use of biometrics in various documents and processes. INS is awaiting the results of evaluation and development of biometric standards by the National Institute of Standards to proceed to develop approaches to this statutory direction. In the interim, we are working with the Departments of Justice and State to design and evaluate processes and technologies which could potentially be used in the integration of biometric checks and border operations.

Next week, we will begin deployment of border crossing card readers to selected ports of entry for test and evaluation prior to a large-scale procurement of readers for all ports of entry.

The INS has made significant progress in development and implementation of the student and exchange visitor information system and we are confident that we will meet the January 1, 2003, deadline for full implementation established in the USA PATRIOT Act, with gradual incremental implementation of use of the system by schools throughout 2003.

In May 2000, INS initiated a project to develop a business-driven enterprise architecture. The result is a multi-year modernization plan which provides a blue print and build out plan for modernizing information systems and technical infrastructure. This clearly has been a broad brush over a great deal of activity in the area of systems development and information sharing.

Once again, we thank the committee for this opportunity to testify on these important issues. And we welcome any questions.

FEINSTEIN: Thank you very much -- appreciate it.

Mr. Edson, do you have comments?

EDSON: OK.

Madame Chair, Senator Kyl, thank you for allowing me to speak this morning concerning the progress of the Department of State's efforts to implement the provisions of the Enhanced Border Security and Visa Entry Reform Act of 2002.

In implementing the immigration laws of the United States, the Department of State has no higher priority than our national security. We participate with the border security agencies and the broader law enforcement and intelligence communities in a wide range of activities, including, but not limited to, the visa process to ensure the greatest possible cooperation in our joint efforts to secure our borders and fight terrorism.

Although these relationships are long-standing, they have been significantly expanded in the past year. We are dedicated to meeting the opportunities provided by the Enhanced Border Security and Visa Entry Reform Act, both to build on our efforts to date and to break new ground in our common search for a safer United States.

In my written remarks, I have provided a comprehensive review of our efforts by section in the implementation of the act. Now I would like to just provide some highlights.

Significant progress has been made in the past year to increase the amount of information available to visa officers overseas and, conversely, to INS and other law enforcement and intelligence agencies in the United States. The State Department's Consular Lookout and Support System -- CLASS -- is a principal example of this progress.

We have been able to leverage the provisions of the Enhanced Border Security Act and the USA PATRIOT Act to make CLASS an ever more effective tool for fighting terrorism. CLASS uses sophisticated search algorithms to match lookout information to individual visa applicants. Every single applicant is run through this system.

CLASS in only as good, however, as the data it contains. And I'm happy to report that post-9/11, this situation has improved dramatically. CLASS records have doubled in the past year. More than seven million names of persons with FBI records have been added to CLASS by August of 2002, augmenting the 5.8 million name records that we already had from State, INS, DEA and intelligence sources.

These NCIC records include the FBI's violent gang and terrorist database, a particularly valuable resource. Twenty thousand Customs serious violator name records have been added to CLASS since September 11, 2001. CLASS now has over 78,000 name records of suspected terrorists, up 40 percent in the past year. Most of this information has entered CLASS through the TIPOFF program run through the department's Bureau of Intelligence and Research that acts as a clearinghouse for sensitive intelligence information provided by other agencies.

Since September 11, 2001, approximately 20,000 new terrorist lookouts have entered CLASS through TIPOFF, alone.

FEINSTEIN: Say that again, would you? Approximately...

EDSON: Twenty thousand new entries into CLASS concerning terrorists that we've gotten through TIPOFF in the past year.

The State Department's CLASS lookout system has used, for some time now, linguistically sensitive algorithms for checking Arabic and also (ph) Slavic names. A Hispanic algorithm is developed and ready for implementation. And an algorithm for East Asian languages is under study.

We have been a leader in the development of linguistic logic for search purposes and we are actively engaged with other U.S. government agencies to help share this expertise as we work to expand those language algorithms.

The State Department currently shares electronic data with other agencies, including INS, and is rapidly expanding information sharing arrangements throughout the law enforcement and intelligence communities.

Our CLASS database is already interoperable with the Interagency Border Inspection System -- IBIS -- that INS uses. In fact, we've been sharing information between CLASS and IBIS since 1995.

The department's systems use open, flexible architecture, consistent with industry standards, in order to facilitate information sharing. All non-immigrant and immigrant visa activities at all of our posts, worldwide, are replicated back to a corporate consular consolidated database in Washington at five-minute intervals, providing the department, INS and other U.S. government agencies with a near real time window into this work.

We, in the State Department, are actively participating in the design and the development of the Student Exchange and Visitor Information System -- SEVIS -- the permanent system that will contribute to our national security as it adds integrity to the student and exchange visa issuing process. At the same time we're working on SEVIS implementation, in response to a separate legislative mandate, the department has launched the Interim Student and Exchange Authentication System -- ISEAS -- which will provide for electronic verification of student and exchange visitor visas until SEVIS is fully implemented.

As of October 7, nearly 3,000 educational institutions and exchange programs sponsored had entered approximately 72,000 records into ISEAS -- 213 visa-issuing posts around the world had used this system to verify 9,000 cases. ISEAS has provided both the department and INS a better system to verify incoming foreign and exchange students until SEVIS becomes fully operational.

This concludes my testimony. And I would be happy, of course, to take any questions.

FEINSTEIN: Thank you very much.

Mr. Wu?

WU: Good morning Madam Chairwoman and Ranking Member Kyl.

I appreciate the opportunity to update you on the Department of Commerce's implementation of the US PATRIOT Act and the Enhanced Border Security and Visa Reform Act, which the bulk of the work is performed by our Technology Administration's National Institute of Standards and Technology. And this is our nation's oldest federal laboratory and the only laboratory with the express mission in working closely with industry to develop measurements, standards and a variety of technologies.

Consequently, NIST has been working with the biometrics industry and other federal agencies for years and has especially been in very close collaboration over the past year in meeting the statutory requirements to develop a biometric standard for visas and passports.

In this Congress, Congress provided by statute appropriate tools required to intercept and obstruct terrorism in our country. These laws call for the Departments of Justice and State, working with NIST, to develop and certify technology standards to be used in visa control systems.

NIST has a responsibility to develop and certify a technology standard that can be used to verify the identity of persons applying for a U.S. visa or using a visa to enter the country. The Department of Justice and the Department of State also expect NIST to certify the accuracy of specific government and commercial systems being considered for use in the visa system.

At this time, biometrics that are included in this studies are face (ph) and fingerprints, including the 10 finger rolled fingerprint system, the flat finger print matching system and also a single flat fingerprint for verification, as well as face-based (ph) verification. And NIST has received large-scale databases from both the INS and the State Department and is conducting tests to be used for setting standards for certifying the accuracy of proposed fingerprint and facial (ph) biometric technologies.

NIST is also establishing interoperability standards for use between systems for both identification and verification functions. This is being done jointly with industries for the...

FEINSTEIN: Could you allow me -- could I just stop you there?

WU: Yes, ma'am.

FEINSTEIN: We heard testimony -- oh, maybe a year ago -- about all of these biometric cards that went on to the border between our country and Mexico -- I think five million, but no readers for those cards. Is the biometric system that you are now talking about the same as the system that's on those cards? Or is this a different one?

WU: The system that we are using could be used -- my understanding is that it would be or could be used for implementation with the system that we already have. But I'm not clear as to whether or not it's the exact same system that you're referring to. But we can certainly check on that.

FEINSTEIN: Seems to me you'd want one system that's used all over so that all readers can...

WU: Well, that is the goal...

FEINSTEIN: ... jive with the systems.

WU: ... ultimately to have one system that's interoperable that can be used with multi-systems and, ideally, even using these standards and applying them internationally, so we have a worldwide network for verification and authentication for visas and border control.

FEINSTEIN: Please continue.

WU: Thank you.

And this is being done jointly with industry through the International Committee for Information Technology Standards Biometric Committee in trying to achieve this international interoperable standards system.

And this has also contributed greatly in laying the foundation for interoperable data exchange for one of their primary biometrics technologies and that's fingerprint technology.

NIST, working closely with the FBI, state and local law enforcement agencies and product vendors of fingerprint classification systems recently completed a joint American National Standards Institution -- ANIS -- and NIST standard for the data format for exchange of fingerprint information. And this standard promotes the exchange of fingerprint data among different law enforcement agencies using systems from different vendors.

NIST is also spearheading the Face Recognition Vendor Test 2002, which is evaluating automated facial recognition systems that eventually could be used in identification and verification processes for people who apply for visas who visit the United States. The significance of the Face Recognition Vendor Test 2002 is evident by its large number of sponsors and supporters. This includes 16 federal government departments and agencies. The current evaluation builds on the success of NIST personnel who have had success in evaluating face recognition systems over the past decade.

And this evaluation methodology developed for FRVT 2002 will become a standard for evaluating other biometric technology. And we will learn precisely how accurate and reliable these systems are.

Fourteen companies are currently participating in FRVT 2002. And we deliberately designed a tough test that involved matching extremely challenging real world images. It required participants to process a set of about 121,000 images and match all possible pairs of images to this image set. In other words, this required about some 15 billion matches. And as you can imagine, this generated a mountain of data, and we are crunching all the numbers to see how well this system worked.

Also, open consensus standards, and associated testing, are critical to providing the higher levels of security through biometric identification systems. Throughout the years, NIST has worked in partnership with U.S. industry and other federal agencies to establish formal groups for accelerating national and international biometric standardization,

The Biometric Consortium, which NIST is leading, serves as the federal government's focal point for research, development, testing, evaluation and application of biometric developed personal identification and verification technology. And this consortium has grown by more than 900 members, including 60 government agencies.

NIST and the National Security Agency co-chair the consortium. And NIST has collaborated with the consortium, the biometric industry and other biometric organizations to create a CBEFF -- the Common Biometric Exchange File Format. And this format already is part of a requirement for data interchange and is being adopted by the biometric industry.

The specification is a candidate for fast-track approval as an ANSI standard and as an international standard for exchange of many types of biometric data files, including data on fingerprints, faces, retinas, palm prints and iris and voice patterns.

And later this year also, NIST expects to submit a report, as required by the act, on our work to the State and Justice Departments for transmittal to the U.S. Congress. The due date, I believe, is November 10.

And the report will make a recommendation on which biometric or a combination of biometrics would best secure the nation's borders. The report will also address interoperability standards and tamper- resistant standards.

And Madam Chairman, I want to thank you and the committee, also, for the passage of the act, not just because of the work that it's been -- that has made our country safer, but also it allows for NIST to cooperate closely with several government agencies in the development of biometric standards and testing. And this cooperation has really been successful and allows for us to determine appropriate test scenarios for biometrics and exchange of very large datasets of fingerprints and face images obtained under operational conditions.

And, as a result, we believe that the underlying science and technology for biometrics will greatly benefit an overall biometrics industry will also benefit, as well.

We thank you in Congress for providing legislative tools to allow us to achieve this goal. And I thank you for the opportunity to testify this morning.

FEINSTEIN: Thanks very much, Mr. Wu.

I'm going to try and shorten my questions. And I have a number of them. And I think I'd like to send them to you in writing, if I might. And hopefully you could respond within a week.

I have a big concern over the visa waiver program, largely because it is so huge -- 23 million people a year come in. And I recognize why it's necessary. On the other hand, I recognize that it's a very easy thing to abuse.

Now, if I understand it, in our bill, by October 26, 2004, every person participating in the visa waiver program should have a machine- readable passport, I assume with biometric data. Will you meet that date?

You were on the record -- Mr. Cronin or Mr. Edson?

EDSON: Yes. I mean, we are already...

FEINSTEIN: Make that "yes."

EDSON: Yes. Many of the visa waiver countries have had machine- readable passport programs at varying degrees of implementation for some time now. We used the passage of the legislation to, sort of, heat up discussions with them on this issue.

The EU countries have indicated to us that they are planning on a uniform standard within the European community for the biometric to be adopted. ICAO is proceeding at pace with work on a, sort of, a triple standard. And it's our understanding right now that the ICAO members would be allowed to choose one of those three.

But although no one is committing to us to definite deployment plans right now in these foreign governments, it looks as if they will all have some biometric that's accepted by ICAO within the time allotted.

FEINSTEIN: Well, I might say both Senator Kyl and I worked very hard on some of these aspects of the bill. And this is very important to us. So we are going to be watching with glasses on.

To what extent are you able to develop a pre-screening for visa waiver passport holders so that you know who is coming into that program ahead of time?

CRONIN: If I may, Senator, basically that's done through the collection of data on departure by airlines. When airlines or when flights depart for the United States, a manifest is provided to the U.S. Customs Service and to INS. We use the data provided, while the flight is in the air, to screen the names of the individuals on the flight -- to identify persons who may be the subjects of lookouts. We do analysis on that data to identify persons who might fit broad criteria that would indicate that they should be examined more closely for criminal reasons -- for terrorism reasons -- for reasons relating to migration issues or Customs issues.

FEINSTEIN: Does the manifest, alone, contain sufficient data to do that?

CRONIN: It provides us the name, the date of birth, the nationality, passport number of the individuals who are coming, as well as other data.

FEINSTEIN: And that's in operation now?

CRONIN: Correct.

FEINSTEIN: And is it observed 100 percent of the time?

CRONIN: I can't say we're at -- we're very close to 100 percent. We're working -- both INS and Customs are working closely with the carriers to ensure that we are hitting 100 percent as to both the data in the system and the accuracy of the data. That is going to continue to be an issue. I mean, we will always be faced with keying errors, to some degree, in the check-in process or similar aspects of error that can't be avoided. But we are very, very close to 100 percent in terms of working with the carriers.

FEINSTEIN: Good -- that's good news.

Now, the 7.1 million non-immigrant visas -- what is being done to assure -- A, that it's properly filled out -- that it isn't falsified -- and that the exit date is carried out?

CRONIN: In terms of departure data, once -- we're basically using the same system of gathering data from the airlines to close out the departures of persons who have arrived.

The data is all coming to us electronically, based on airline manifests.

The way the system functions, the airline provides a departure manifest based on check-in information. They provide a subsequent departure manifest based on boarding gate information to verify that all persons that have checked in have, in fact, departed.

We are going to have to continue to work with the airlines in terms of the integrity of the system to ensure that there aren't elements of fraud introduced into the system -- persons using other identities.

At this point, we're still relying on provision of data from the airlines, albeit in electronic form. As this...

FEINSTEIN: But at this point, it could all be fraudulent data.

CRONIN: Sure.

FEINSTEIN: You would have no way of knowing.

CRONIN: We're relying on the data provided at check-in to the airlines. The airlines are required to check documentation when the individual checks in. But, by and large, as part of the statutory scheme, they are required to check that documentation. And we get that data from them.

I would distinguish, then, the National Security Entry-Exit Registration System where we are tracking select individuals. Those individuals, on departure, will be interviewed by an immigration officer. Their biometric will be verified against the data collected when the arrived and their departure will be recorded by an immigration officer.

But, again, that's that select group of people that are subject to national security entry-exit registration.

FEINSTEIN: I want to turn to Senator Kyl. But, can you give me a percent compliance of the airlines with this?

CRONIN: I would prefer to go back and give that to you for the record. I am not sure, off the top of my head, that what I would give you would be accurate. But I would certainly be happy to do that.

FEINSTEIN: Fine. Thank you.

Senator Kyl? I know you have to leave and...

KYL: Thank you, Senator Feinstein.

I would like to submit some questions for the record to the entire panel here.

But because of the time limits of this article, I would really like to focus that -- and primarily, I suspect, Mr. Edson, these questions will go to you. You did not choose to be the subject of my questioning this morning. And I don't mean this in any way personally. But I would like to start by reading three paragraphs from the beginning of this article to set the stage for it.

"On June 18, 2001, Abdul Aziz al Omari filled out a simple two- page application for a visa to come to the United States. Al Omari was not exactly the ideal candidate for a visa. He claimed to be a student, though he left blank the space for the name and address of his school. He checked the box claiming he was married, yet he left blank the area where he should have put the name of his spouse.

This student indicated that he would self-finance a two-month stay at the JKK Windom (ph) Hotel. And evidently provided no proof, as required by law, that he could actually do so.

Despite the legal requirement that a visa applicant show strong roots in his home country, to give him a reason to return from America, Al Omari listed his home address as the Alquads (ph) Hotel Jeddah, Saudi Arabia.

Al Omari didn't even bother filling in the fields asking for his nationality and sex, apparently realizing that he didn't need to list much more than his name to obtain a visa to the United States. He was right -- he got his visa.

When he arrived in the United States, he connected with his friend, Mohamed Atta. And less than three months later, on September 11, he helped smash American Airlines Flight 11 into the north tower of the World Trade Center."

Al Omari never should have gotten the visa that allowed him to be in the United States on that day and neither should at least 14 of the other 9/11 terrorists.

Now, I discussed in my opening statement some of the other facts that are in this story that relied upon the analysis of six experts -- people who were in the business -- State Department or INS -- looking at these kind of visa applications. And their conclusion was unanimous -- that of those that they reviewed, none of the individuals should have been granted a visa.

With that as the background, let me just confirm some information and then ask the questions.

Is it correct that Section 214(b) has always been determined to create a presumption that the immigrant has the burden of proof of demonstrating a likelihood of return -- or not a likelihood, but that he will return to the country of origin and not remain in the United States?

EDSON: Yes -- the non-immigrant visa applicants -- yes.

KYL: And I should have said -- basic for non-immigrant visas, of course -- yes.

And that that is a relatively high burden that consular officers are trained to try to cause the applicant to meet?

EDSON: Yes.

KYL: Ordinarily, with the kind of application that I read to you -- if you assume those facts to be true, there should have been an oral interview, should there not, to inquire into the reasons why the information was left blank that was left blank and to inquire further as to what the applicant could say that would cause the consular officer to believe that he would return to Saudi Arabia?

EDSON: That's a harder question to answer, just because we cannot tell from -- well, we can't tell how much of the article is accurate at this point. I just read it this morning. But we also can't tell from looking at the applications whether or not an interview took place -- whether or not additional evidence was submitted with the application and returned to the applicant -- questions asked over the phone -- answered...

KYL: Right. That's unclear, although, let me get back to my question.

KYL: Ordinarily, wouldn't an application of the kind that I read you be followed up with an oral interview -- wouldn't just be -- the visa wouldn't just be granted on the basis of that information on its face, would it?

EDSON: Not on the basis of that information on its face.

KYL: OK. If there had been an oral interview, wouldn't it be probable that that application -- the two pages, or the face page of it, would have had some notation of an oral interview?

EDSON: It should have. Our instructions would be that the officer should have annotated the application.

KYL: OK.

So either interviews were not held or the instructions to annotate the interview application were not done. In either case, the consular officers should have done something that apparently was not done. Is that correct?

EDSON: Yes. They could have done what they did better, it seems.

KYL: Yes. And by the way, let me say, I'm not blaming any consular officers here. The article, itself, notes that they are not implicated in the problem. The problem was the culture that had been created by their superiors.

Let me, since the time is getting beyond us here, let me turn right to the -- an ultimate point I wanted to make -- these individuals should be demonstrating that they have a means of financial support; that they have a destination in the United States that is clear; that they have a specific reason for being in the United States; and especially if they are young, single men -- and every one of these applicants were single, and none was even 30-years- old, by the way -- that they be able to demonstrate to the consular officers that they will, in fact, return to their country of origin, in this case Saudi Arabia. Those are all of the kinds of things that the consular officer should have looked at. Is that correct?

EDSON: Yes.

KYL: Now, the last point that I want to make is this -- according to the article -- and I'll ask you if you have any reason to believe that this is not true -- the consulate in Jeddah, where many of the terrorists visas were issued, refused applications for fewer than 2 percent of the Saudi-nationals in the 12 months prior to September 11, where as the worldwide refusal rate for temporary visas is approximately 25 percent. Do those numbers sound reasonable to you, or would you have any reason to know?

EDSON: It's difficult to -- we track refusal rates based on the source of the application, the nationality of the applicants, the type of visa being issued, so it's very difficult to speculate. I'd much rather talk on the -- answer on the record for the -- answer in writing concerning the refusal rates, because they could be comparing rates against two different populations.

KYL: Sure.

And one thing I would like to ask is if you, or someone at the department, could get these statistics for us and could respond to the allegations in the article as to whether or not these statistics or true, or if there are some other statistics, what they are. I think that would be very useful to us.

And that answer, probably then also applies to the 12 months following September 11 where the article asserts that according to documents bearing its letterhead, the embassy there, in Saudi Arabia, claims that its refusal rate for Saudi-nationals in the 12 months following September 11 is a mere 3 percent. I gather you'd have the same answer with respect to that.

EDSON: Yes. I'd need to check and see what they were counting.

KYL: Is it -- just as a matter of visceral reaction, if these numbers are correct, would it seem to you that they are highly out of balance with the probability that Saudi-nationals, especially those under 30 years of age, males, could prove a likelihood of returning to Saudi Arabia -- that those numbers do seem to be out of balance?

EDSON: Not necessarily. Again, without knowing what we're counting, it's difficult to speculate. But remember that the -- much of the population we're talking about is now subject to special additional screening procedures that have been put in place since September 11 -- much of it throughout the U.S. law enforcement and intelligence communities. So that the ultimate refusal rate might be in that neighborhood would not necessarily surprise me, but I don't know. We'll have to check on the numbers for you.

KYL: Well, let me just conclude, then, with this general question.

Given the fact that all of these people were under 30, single males, from Saudi Arabia -- we're talking about the hijackers that caused the terror on September 11 -- and that so many of them, according to this article anyway, obtained a visa not withstanding those facts, and not withstanding the kind of omissions that the article reported, on their applications, would it not suggest to you a need for the State Department to immediately investigate what the practices of the State Department were at the time, in that location, as well as other Middle Eastern countries that might be of concern to us -- and to concur that what the instructions are today to the consular officers with respect to how they handle such applications as a means of ensuring us that the State Department is on top of this situation and that it's officers are making the right kind of decisions with respect to people coming into this country on temporary non-immigrant visas?

EDSON: Yes. I think we have some -- I know we do not agree. I do not agree with some of the conclusions reached by the article, but the important thing is just what you've just raised. The article raises the question that we have to ask ourselves constantly, did we do the right thing? And have we made changes since then to ensure that we are doing the best possible thing now in the visa process?

That's what we do on an ongoing basis and that's what I hope that we do again, in response to the article as we're looking to it and answering your questions.

FEINSTEIN: Would you yield? OK.

The Senator is good enough to yield.

And I would like to associate myself with his comments because I asked this question informally and I was told that every applicant goes through a special screening process now. If that is not true, then I would like to know it because I believe it should be. And if we need legislation to accomplish it, we should do that.

EDSON: Speaking to Saudi-nationals?

FEINSTEIN: That's correct -- of all these countries where there is a very real risk to the United States that every visa applicant from those countries goes through this special screening process.

EDSON: Referring here to...

FEINSTEIN: Now, Saudi Arabia isn't on our list as a terrorist state...

EDSON: Right.

FEINSTEIN: ... but, I mean, maybe it should be.

KYL: Is it not one of the states that are subject to this special screening requirement, nevertheless?

EDSON: Correct. We're talking -- I assume we're talking about the visas condor process, which applies primarily to adult males in all of these states that we're talking about.

FEINSTEIN: But every one should be specially screened.

EDSON: It doesn't apply to all of them. It applies -- I ran some numbers yesterday and it's very -- it's in the high 90s. The criteria are driven by intelligence community concerns and don't cover everyone, as currently constituted.

FEINSTEIN: Well, I think we need to take a look at that and see if we have some views.

KYL: I concur with Senator Feinstein. I think probably with some of the questions that we will submit in writing you can clarify some of this. And we'll probably need to have some additional oral testimony.

And I would also like to conclude, if I could, by making one thing clear. This Section 214(b) does not relate to terrorism, per se. it, rather, is a standard part of our immigration policy to ensure that non-immigrant visas return to their country of origin.

So this should have been standard procedure before September 11. It is not a terrorism-related filter for applicants, but rather one designed to ensure that people will comply with the laws of the United States when they seek to be our guests temporarily.

The reason this had such special meaning to me is that Senator Feinstein and I were the ones that prepared the border security act. And part of it was based upon testimony that we received in this subcommittee -- and I'll never forget the testimony of Mary Ryan, who said, "We didn't have the information we needed to deny these visas." And she specifically talked about Mohamed Atta. And I remember her saying, "It's like the person that hits the child who dashes out in front of the car in the school zone. You feel horrible about it, but there wasn't anything you could have done about it."

But it appears to me that there was something that we could have done about it -- not because of anything related to terrorism, but simply enforcing the laws of the United States of America. And that had those laws been enforced, it is likely that most of the terrorists who committed the heinous acts of September 11 would not have been permitted into the United States at least under the circumstances in which they were.

They would have had to come back and complete their applications in a very complete way and demonstrate to consular officers that they were committed to returning to Saudi Arabia. And, of course, what they would be trying to prove is something that was utterly false. So that the likelihood is that consular officers, being the good people they are, would have found this out, discovered the problem and never granted the visas to these people in the first instance.

FEINSTEIN: I have...

KYL: If you have any comment, fine. It's not really a question. And...

EDSON: I think...

KYL: ... again, Mr. Edson, I am in no way casting any aspersions upon you.

EDSON: Yes.

KYL: You came here to represent the department -- really to deal with some other questions. But I hope that you'll be a conduit of information because we need the answers from the State Department with respect to this. And I don't expect you to have those here this morning.

But I would hope that you would be as upset as I am that when we talked about being able to prevent September 11, this, perhaps, could have prevented September 11. If we had just done our job -- having nothing to do with terrorism, but just abided by the law of the United States. If our consular officers had done their job, it is quite possible -- and I shouldn't say "if our consular officers," because I'm, again, not suggesting that they didn't do their job. If the State Department had had the proper policies in place to be followed by its employees, it is possible that these terrorists would never had made it to the United States.

FEINSTEIN: Thank you, Senator Kyl. And I know you're under time pressure. I am, as well, but I have four quick questions I must ask.

Let me just make a comment on this, one of the things that I really believe is true is that, you know, prior to 9/11, immigration policy in this country was really forged on humanitarian concerns. And then there were also economic concerns of facilitating travel.

After 9/11, this has changed dramatically and national security concerns have to dominate.

So I think from the perspective of this subcommittee, which oversees technology and terrorism, and as that technology impacts each of your departments, the goal clearly has to be that national security it protected. And if anybody errs, it's got to err toward the conservative, not toward the other side.

I had taken a position early on in the student visa program -- have followed it rather closely. And I have just four questions.

In the past year, how many schools have you investigated for fraud or violating the terms of the student visa program?

CRONIN: I don't know the answer to that, Senator, I would have to get that for you for the record.

FEINSTEIN: I would like to have the answer.

How many schools have you dropped from the foreign student visa program after finding they were either sham operations, had fraudulently obtained student visas for persons not intending to attend classes or had ceased operations?

CRONIN: And, again, I apologize, that is not data that I have available.

FEINSTEIN: How many cases of student visa fraud has the INS referred for further investigation or prosecution in the past five years?

CRONIN: I'll have to get that for you for the record.

FEINSTEIN: How many individuals have you deported in the past five years for foreign student visa violations.

CRONIN: Again, an answer I'll have to provide for the record.

FEINSTEIN: What type of institutions have you identified as high risk in terms of fraud and lack of compliance with the law?

CRONIN: I will provide that for the record, Senator.

FEINSTEIN: What is the INS' timetable for conducting site visits to those institutions?

CRONIN: See, this is not under my responsibility...

FEINSTEIN: OK.

CRONIN: ... we will provide that answer for the record.

FEINSTEIN: I understand. But these are the questions that we are going to ask about this program. And we're going to ask them in the next three months for the next three months.

And I'm going to ask you to come back and I'll give you a list of the questions. And I would ask you to answer them with specificity three months from today.

CRONIN: Absolutely.

FEINSTEIN: Thank you very much.

And I thank everybody.

This hearing is adjourned.

END

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

PERSON:  DIANNE FEINSTEIN (92%); JON L KYL (69%); JOSEPH R BIDEN (57%); JEFF SESSIONS (55%); MITCH MCCONNELL (54%); RUSSELL FEINGOLD (51%); 

LOAD-DATE: October 14, 2002