S. 1448, the Intelligence to Prevent Terrorism Act of 2001 and Other Legislative Proposals in the Wake of the September 11, 2001 Attacks
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HRG. 107–449 S. 1448, THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS HEARING BEFORE THE SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE ONE HUNDRED SEVENTH CONGRESS FIRST SESSION ON S. 1448 THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS MONDAY, SEPTEMBER 24, 2001 Printed for the use of the Select Committee on Intelligence ( Available via the World Wide Web: http://www.access.gpo.gov/congress/senate U.S. GOVERNMENT PRINTING OFFICE 79–625 PDF WASHINGTON : 2002 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 11-MAY-2000 15:04 Jul 31, 2002 Jkt 079625 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 C:\DOCS\INTEL\79625.TXT SSC1 PsN: SSC1 SELECT COMMITTEE ON INTELLIGENCE ONE HUNDRED SEVENTH CONGRESS BOB GRAHAM, Florida, Chairman RICHARD C. SHELBY, Alabama, Vice Chairman CARL LEVIN, Michigan JON KYL, Arizona JOHN D. ROCKEFELLER IV, West Virginia JAMES M. INHOFE, Oklahoma DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RON WYDEN, Oregon PAT ROBERTS, Kansas RICHARD J. DURBIN, Illinois MIKE DeWINE, Ohio EVAN BAYH, Indiana FRED THOMPSON, Tennessee JOHN EDWARDS, North Carolina RICHARD G. LUGAR, Indiana BARBARA A. MIKULSKI, Maryland THOMAS A. DASCHLE, South Dakota, Ex Officio TRENT LOTT, Mississippi, Ex Officio ALFRED CUMMING, Staff Director BILL DUHNKE, Minority Staff Director KATHLEEN P. MCGHEE, Chief Clerk (II) VerDate 11-MAY-2000 15:04 Jul 31, 2002 Jkt 079625 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 C:\DOCS\INTEL\79625.TXT SSC1 PsN: SSC1 CONTENTS Page Hearing held in Washington, DC: Monday, September 24, 2001 .......................................................................... 1 STATEMENTS Graham, Hon. Bob, a U.S. Senator from the State of Florida ............................. 1 Rockefeller IV, Hon. John D., a U.S. Senator from the State of West Virginia, prepared statement .............................................................................................. 6 Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama ................. 4 WITNESSES Berman, Jerry, executive director, Center for Democracy & Technology ........... 54 Prepared statement .......................................................................................... 48 Divoll, Vicki, General Counsel, Select Committee on Intelligence; accompanied by Steven Cash, Counsel, Select Committee on Intelligence ............................ 6 Halperin, Morton H., chair, Advisory Board and Kate Martin, director, on behalf of the Center for National Security Studies, prepared statement ........ 56 Kris, David, Associate Deputy Attorney General, Department of Justice; ac- companied by: Larry Parkinson, General Counsel, Federal Bureau of Inves- tigations ................................................................................................................ 16 Martin, Kate, director, Center for National Security Studies .............................. 63 McNamara, Jr., Robert, General Counsel, Central Intelligence Agency ............. 17 Smith, Jeffrey H., partner, Arnold and Porter ...................................................... 46 Prepared statement .......................................................................................... 41 (III) VerDate 11-MAY-2000 15:04 Jul 31, 2002 Jkt 079625 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 C:\DOCS\INTEL\79625.TXT SSC1 PsN: SSC1 VerDate 11-MAY-2000 15:04 Jul 31, 2002 Jkt 079625 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 C:\DOCS\INTEL\79625.TXT SSC1 PsN: SSC1 S. 1448, THE INTELLIGENCE TO PREVENT TER- RORISM ACT OF 2001 AND OTHER LEGISLA- TIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS MONDAY, SEPTEMBER 24, 2001 U.S. SENATE, SELECT COMMITTEE ON INTELLIGENCE, Washington, DC. The committee met, pursuant to notice, at 3:05 p.m., in room SH–216, Hart Senate Office Building, the Honorable Bob Graham (Chairman of the Committee) presiding. Committee Members Present: Senators Graham, Rockefeller, Feinstein, Wyden, Durbin, Bayh, Edwards, Mikulski, Shelby, Kyl, DeWine, Thompson, and Lugar. OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA Chairman GRAHAM. I call the meeting to order. This meeting of the Senate Select Committee on Intelligence is for the purpose of hearing testimony on legislation that was intro- duced on Friday relative to law changes as it relates to American intelligence and counterterrorism. The horrific events of September 11 demonstrate America’s vul- nerability to international terrorism. But the warning signs of our vulnerability have been evident for some time—the bombing of the U.S. Embassy and the Marine Barracks in Beirut as long ago as 1983; the 1993 bombing of the World Trade Center; the 1996 bomb- ing of Khobar Towers in Saudi Arabia; the 1998 bombing of the U.S. Embassies in Kenya and Tanzania; and last year’s terrorist attack against the U.S.S. COLE in Yemen. These and other terrorist incidents have made it increasingly im- portant for the Senate Select Committee on Intelligence to focus on the adequacy of the Intelligence Community’s response to the ter- rorist threat. Our Committee has called this hearing today to discuss with gov- ernment officials and outside experts and civil libertarians the pro- visions of S. 1448, The Intelligence to Prevent Terrorism Act of 2001, which Senator Feinstein and I introduced last Friday, along with co-sponsors Senators Rockefeller, Bayh and Nelson of Florida. We will also address today selected provisions of the proposal which was sent to the Congress by Attorney General John Ashcroft on Wednesday, September 19. The Attorney General provisions we (1) VerDate 11-MAY-2000 15:04 Jul 31, 2002 Jkt 079625 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\INTEL\79625.TXT SSC1 PsN: SSC1 2 will address today are those that fall within the jurisdiction of the Intelligence Committee. A number of panels and commissions in recent years all have made clear that any effort to improve the governmentwide ap- proach to terrorism must take into account every facet of the issue—detection, prevention, consequence management, crisis man- agement, and law enforcement, diplomatic and military responses. We, as a government, need to address these issues in a coordinated fashion so that priorities may be set, resources allocated, and gov- ernment structures changed, if necessary, to serve that overall strategy. A counterterrorism intelligence program must be designed within that larger context of a government counterterrorism pro- gram. We must have a centralized authority for managing the in- telligence components of that counterterrorism policy. The Director of Central Intelligence needs to perform that intelligence role for the U.S. Government. In the wake of the September 11 incidents, we must begin to act on myriad aspects of this problem. Accordingly, last Friday, in ad- dition to the legislation I have already referenced, I introduced an- other bill, S. 1449 which creates a National Office for Combating Terrorism within the White House. Senator Feinstein and I and others have been working on this proposal for several months. We believe, along with the other co-sponsors—Senators Rockefeller, Durbin, Mikulski, Bayh, and Nelson of Florida—that for a coordi- nator of the forty-plus Federal agencies that must play a role in counterterrorism that the office should be with the following char- acteristics. It should be created in statute so as to support the Legislative and Executive branches. It should have a Senate-confirmed director so that he will have the stature appropriate for the position and should have budget authority over that portion of the various agen- cies’ budgets which relate to counterterrorism so that the director can set priorities and allocate the resources appropriately against those priorities. And finally, the director should examine the over- all structure of the U.S. Government to deal with terrorism preven- tion and response and, if necessary, recommend restructuring or merging of agencies and functions. We believe that the President’s Executive order was a significant step forward to achieve these objectives, and that the President’s selection of Governor Tom Ridge is an excellent choice to coordinate this enormous and critical effort by the U.S. Government. We want to give him the authority and the tools he needs to be successful. In this hearing today we will not be discussing the National Of- fice for Combating Terrorism. The Committee will have hearings on that bill in the near future in conjunction with the other commit- tees of jurisdiction, such as the Senate Committee on Govern- mental Affairs. Today we want to focus on the issues that are most critical for immediate resolution by the Congress. The Attorney General has urged expedited attention to his series of proposals. Our action today and the Judiciary Committee’s hearing tomorrow, which will focus on those matters in its jurisdiction, are indicative of the close collaboration between the Administration and the Congress on these critical issues. VerDate 11-MAY-2000 15:04 Jul 31, 2002 Jkt 079625 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\INTEL\79625.TXT SSC1 PsN: SSC1 3 The bill that we will discuss today includes a number of statu- tory provisions relating to clarifying the authorities of