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CNN Live Event/Special
John Ashcroft Testifies Before 9/11 Commission
Aired April 13, 2004 - 15:55 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JUDY WOODRUFF, CNN ANCHOR: I'm Judy Woodruff in Washington. Welcome back to our continuing coverage of the 9/11 Commission hearings.
As you see Attorney General John Ashcroft has taken his seat there on Capitol Hill facing the members of the 9/11 Commission. He is expected to face some tough questions about whether he and the Bush administration adequately responded to intelligence warnings about the al Qaeda threat.
Ashcroft's testimony coming just hours before President Bush holds a rare, primetime news conference. A news conference likely to be dominated by questions about the 9/11 investigation and about Iraq. Let's listen in.
THOMAS KEAN, 9/11 COMMISSION MEMBER: Please be seated, sir.
I also recognize the solicitor general, Ted Olson. And I recognize it's not easy for you to be here today, sir, and thank you very much for coming.
Mr. Attorney General, your prepared statement will be entered into the record in full, and if you could summarize your opening remarks, we'd appreciate it.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES: Mr. Chairman, thank you.
It is with great sorrow that I join this commission today in reflection on September 11, 2001.
Even today, 31 months after the attacks, I struggle to learn the lessons of that day without being overwhelmed by the losses of that day. I feel sorrow for the loss of life, sorrow for the loss of promise, sorrow for the loss of innocence, sorrow for the loss suffered by a nation that is forever scarred.
My sorrow for the victims of September 11th is equaled only by my rage at their killer. Osama bin Laden is to blame for my anger. I blame his hatred for our values, his perversion of a faith, his idolatry of death. It was his hand that took the lives of nearly 3,000 innocents on September 11th. It is his face that is the face of evil.
September 11th revealed not just our enemy's capacity for murder, but our fellow Americans' thirst for justice. The men and women of the Justice Department have embraced the cause of our time; that is the protection of the lives and liberties of Americans. Working within the Constitution, we fight any battle, shoulder any burden, no matter, personal or political, what the cost, to prevent additional terrorist attacks.
And for the time being, al Qaeda's slaughter has ceased on America's soil.
We've been aggressive, we've been tough and we've suffered no small amount of criticism for being tough in our tough tactics. We accept this criticism for what it is: the price we are privileged to pay for our liberty.
Had I known a terrorist attack on the United States was imminent in 2001, I would have unloaded our full arsenal of weaponry against it. Despite the inevitable criticism, the Justice Department's warriors, our agents and our prosecutors, would have been unleashed. Every tough tactic we have deployed since the attacks would have been deployed before the attacks.
But the simple fact of September 11th is this: We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies. Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions and starved for basic information technology.
The old national intelligence system in place on September 11th was destined to fail.
This commission can serve a noble purpose. Your responsibility is to examine the root causes of September 11th and to help the United States prevent another terrorist attack. Your duty is solemn and sobering.
But I too have a duty today: I have sworn to tell the whole truth and I intend to fulfill this obligation.
Today I will testify to four central issues which have not been developed fully in the commission's work and which deserve your attention.
First, this commission has debated the nature of covert action authorities directed at Osama bin Laden prior to 2001.
In February 2001, shortly after becoming attorney general, I reviewed these authorities. Let me be clear: My thorough review revealed no covert action program to kill bin Laden.
There was a covert action program to capture bin Laden for criminal prosecution, but even this program was crippled by a snarled web of requirements, restrictions and regulations that prevented decisive action by our men and women in the field. When they most needed clear, understandable guidance, and our agents and operatives were given instead the language of lawyers. Even if they could have penetrated bin Laden's training camps they would have needed a battery of attorneys to approve the capture. With unclear guidance, our covert action teams' risk of injury may have exceeded the risk to Osama bin Laden.
On March 7, 2001, I met with National Security Adviser Condoleezza Rice. I recommended that the covert action authorities be clarified and be expanded to allow for decisive, lethal action. "We should end the failed capture policy," I said. "We should find and kill bin Laden."
I recall that Dr. Rice agreed and gave Director Tenet the responsibility for drafting, clarifying and expanding the new authorities.
My second point today goes to the heart of this commission's duty to uncover the facts. The single greatest structural cause for the September 11th problem was the wall that segregated or separated criminal investigators and intelligence agents. Government erected this wall, government buttressed this wall and before September 11th government was blinded by this wall.
In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required.
The 1995 guidelines and the procedures developed around them imposed draconian barriers, barriers between the law enforcement and intelligence communities. The wall effectively excluded prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system that was destined to fail.
In the days before September 11th, the wall specifically impeded the investigation of Zacarias Moussaoui, investigation of Khalid al Mihdhar and Nawaf al Hazmi.
After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal search warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.
When the CIA finally told the FBI that al Mihdhar and al Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about recent al Qaeda attacks to join the hunt for suspected terrorists.
At that time, a frustrated FBI investigator wrote headquarters, and I'm quoting: "Whatever has happened to this, some day somebody -- someone will die. And, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems. Let's hope the National Security Law Unit will stand behind their decision then, especially since the biggest threat to us, OBL, is getting the most protection."
FBI headquarters responded, and I quote: "We're all frustrated with this issue. These are the rules. NSLU does not make them up."
But somebody did make these rules. Somebody built this wall. The basic architecture for the wall in the 1995 guidelines was contained in a classified memorandum entitled "Instructions for Separation of Certain Foreign Counterintelligence and Criminal Investigations."
The memorandum ordered FBI Director Louis Freeh and others, quote, "We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued criminal investigations.
"These procedures," the memo went on to say, "which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation."
This memorandum laid the foundation for a wall separating the criminal and intelligence investigations, as a matter of fact, established the wall following the 1993 World Trade Center attack, which at the time was the largest international terrorism attack on American soil, the largest prior to September 11th.
Although you understand the debilitating impact of the wall, I cannot imagine that the commission knew about this memorandum. So I have had it declassified for you and the public to review.
Full disclosure compels me to inform you that the author of this memorandum is a member of the commission.
By 2000, the Justice Department was so addicted to the wall it actually opposed legislation to lower the wall. Finally, the USA Patriot Act tore down this wall between our intelligence and law enforcement personnel in 2001. And when the Patriot Act was challenged, the FISA court of review upheld the law, ruling that the 1995 guidelines were required by neither the Constitution nor the law.
The third issue I'd like to raise with the commission this afternoon is another limitation government placed on our ability to connect the dots of the terrorist threat prior to September 11, and it was the lack of support for information technology at the FBI.
After I became attorney general in February 2001, it became clear that the FBI's computer technology and information management was in terrible shape. The bureau essentially had 42 separate information systems, none of which were connected.
Agents lacked access to even the most basic Internet technology. These problems didn't just hamper interagency communication, they hindered information sharing in the Justice Department, the intelligence community, and communication with state and local law enforcement. It's no wonder, given the state of this technology, that the Phoenix memo warning that terrorists may be training in commercial aviation was lost in the antique computers at the Washington headquarters.
Yet, for year after year, the FBI was denied funds requested for its information technology. Over eight years, the bureau was denied nearly $800 million of its information technology funding requests. To put this $800 million shortfall in perspective, the Trilogy program, which is now revolutionizing the computer system at the bureau, the data and information sharing at the bureau, has cost $580 million.
On September 11, 2001, the FBI's annual technology budget under the prior administration was actually $36 million less than the last Bush budget eight years before. The FBI's information infrastructure had been starved. And by September 11, it was collapsing from budgetary neglect.
When the Hanson and McVeigh failures fully exposed this neglect and its cost to national security, I ordered four independent external reviews of the FBI's information infrastructure under the coordination of Deputy Attorney General Larry Thompson.
And I'm pleased that Larry is here in the audience today.
And my first two budgets, both proposed before 9/11, requested a 50 percent increase for FBI information technology.
Finally, the commission should study carefully the National Security Council plan to disrupt the al Qaeda network in the U.S. that our government failed to implement fully 17 months before September 11th.
This NSC millennium after action review declares that the United States barely missed major terrorist attacks in 1999 and cites luck as playing a major role.
Among the many vulnerabilities in homeland defenses identified, the Justice Department surveillance and FISA operations were specifically criticized in the after-action assessment of the millennium approach. They were criticized for what were identified as glaring weaknesses.
It is clear from the review that actions taken in the millennium period should not be the operating model for the U.S. government. In March of 2000, the review warns the prior administration of a substantial al Qaeda network and affiliated foreign terrorist presence within the U.S. capable of supporting additional terrorist attacks here.
Furthermore, fully seventeen months before the September 11th attacks, the review recommends disrupting the al Qaeda network and terrorist presence here, using immigration violations, minor criminal infractions, tougher visa and stronger border controls.
These are the same aggressive, often-criticized law enforcement tactics that we have unleashed for 31 months to stop another al Qaeda attack. These are the same tough tactics we deployed to catch al Mahri (ph), who was sent here by al Qaeda on September 10th, 2001, to facilitate a second wave of terrorist attacks on Americans.
Now, despite the warnings and the clear vulnerabilities identified by the NSC in 2000, no new disruption strategy to attack the al Qaeda network within the United States was deployed. It was ignored in the Justice Department's five-year counterterrorism strategy. I did not see this highly classified review before September 11th. It was not among the 30 items upon which my predecessors briefed me in transition. It was not advanced as a disruption strategy to me during the summer threat period by the NSC staff, the staff which had wrote the review more than a year earlier.
I certainly cannot say why the blueprint for security was not followed in the year 2000.
I do know from my personal experience that those who take the kind of tough measures called for in the plan will feel the heat. I've been there, I've done that. So the sense of urgency simply may not have overcome concern about the outcry and criticism which follows such tough tactics.
I am aware that the issues I have raised this afternoon involve at times painful introspection for this commission and for the nation. I have spoken out today not to add to the nation's considerable stock of pain, but to heal our wounds.
This commission's heavy burden to probe the causes of September 11th demands that the record be complete. Our nation's heavy burden to learn from the mistakes of the past demands that this commission seeks the whole truth.
May this commission be successful in its mission and may we learn well the lessons from history. I thank the members of the commission for their service and for the opportunity to be here and testify today.
KEAN: Thank you very much, general. Our questioning today will be led by Governor Thompson.
JAMES THOMPSON, 9/11 COMMISSION MEMBER: General, does a member your staff have the copy of this declassified memorandum about the walls? And if so, could we have it?
ASHCROFT: I believe the memorandum is available, and we'd be glad to provide it to the commission.
THOMPSON: OK. While they're searching for that, let me ask some questions, and let's start with this walls business.
Let me read you one paragraph from the prepared statement of your predecessor General Reno that I asked her about this morning, and then ask for your comment on it.
She said, "there are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of members of the intelligence community to share intelligence information with each other.
"With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction.
"While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title 3 wiretaps, in practice they did not prove to be a serious impediment, since there was very little significant information that could not be shared."
When you took office, sir, in 2001, was that your understanding of the wall?
ASHCROFT: No. I believe that the understanding of the wall that was prevalent in the Justice Department and among attorneys was that individuals who shared information from a criminal file or from an intelligence file to a criminal file might be subject to serious discipline. And the memorandum of which I spoke, which was crafted in 1995, specifically indicated that it was based on an understanding at that time held that the law would not countenance certain exchanges. I believe it was a mistaken impression of the law which was later corrected by the rulings of the FISA court of appeals.
But if you look through the history of what happened just in the cases surrounding 9/11, time after time you find individuals being advised by their superiors that they could not or should not be involved in activity because such involvement would breach the wall.
I cited both the Mihdhar and Hazmi cases together with the Moussaoui case, each case where advice was given to individuals who wanted to be more active in their pursuit of individuals, that they should restrain themselves in their pursuits because of the wall.
So it's my clear belief that the wall itself developed this culture which restrained in a substantial way the exchange of information in the intelligence and law enforcement communities.
The Bellows report, which was part of some recommendations following the Wen Ho Lee case, indicated that it was part of the culture at the FBI that if one made a mistake and shared information that was later deemed to be inappropriate, it was called a "career- ender," so that the risk of a person sharing information improperly was at least known in the culture of the law enforcement community to be a very substantial risk and that individuals should shy away from sharing.
Now, let me just say that when we enacted the Patriot Act, we did so believing that this culture needed to have a clear signal that the wall did not and should not inhibit this kind of cooperation. The Patriot Act did take down the wall.
Later on, one of the courts, the FISA court, reasserted that the wall was not really effectively lowered by the Patriot Act, and I made a decision to appeal that decision. The appeal from the lower FISA court's ruling is what finally established the legal principle that the wall, as a matter of fact, is of little or no effect now.
THOMPSON: General, we've heard testimony today which is at best confusing and at worst conflicting and which I think will probably, to the American public at least, who may or may not understand federal budgeting procedures, prove to be distressful.
Can you lay out in time lines, if you can, what budget requests were made by the FBI to you, and for what purposes, and what actions were either taken by you to grant or deny them, or taken by OMB after your decision on budgetary requests for the FBI?
And then, secondly, if you would and can, contrast them with similar requests of the FBI and similar actions by the attorney general during prior administrations.
ASHCROFT: Well, first of all, it's important to note that the budget under which we were operating on September 11th was a budget established by the prior administration.
No budget of the Bush administration was in place on September 11th, and none had finally been enacted or put in place.
So the proposals for subsequent years, which were developed and were in place, were under construction. But they were not the budgets that were controlling activities on September 11th or at any time prior thereto.
As it relates to the counterterrorism effort, the 2002 budget -- we were operating under the 2001 budget on 9/11. The 2002 budget proposed by President Bush had the largest counterterrorism increase in five years. The 2003 budget which we proposed was a 13 percent increase over the last Clinton budget, the 2001 budget, which was the budget under which we were operating at the time of 9/11.
Now, over time, obviously after 9/11, there were amendments to the budget process, and there were increases. So that we ended up with substantially larger increases for terrorism than we had previously had.
I would just indicate in the budgeting process that the label of counterterrorism should not be controlling when assessing whether or not items were important to the development of a defense for national security interests vis-a-vis counterterrorism, counterintelligence or other things that challenged the United States.
For example, the information technology budget at the FBI is very important. An organization that is an intelligence organization, an investigation organization, needs to have an architecture of information that provides for information sharing and information communication.
So that the information regarding IT should be included in budgets.
Now, as it relates to information technology, the agency had been -- the FBI, for example, had been starved for years. The last Clinton administration budget was $36 million lower than the last budget of the first Bush administration eight years earlier, so that when you came to the ability to run information and to exchange it and process it, you were working with 1980s-type equipment. After 9/11, the cooperation on the budget was significant to provide serious assistance not only in counterterrorism but as it related to information technology as well.
I think Director Mueller has stated that we have worked in lockstep to meet the needs of the FBI, and its progress toward an integrated architecture of information sharing is substantial and significant and, frankly, is gratifying. I'm glad that they've been able to make the progress they have.
THOMPSON: Acting Director Pickard testified this afternoon that he briefed you twice on al Qaeda and Osama bin Laden and when he sought to do so again you told him you didn't need to hear from him again. Can you comment on that please?
ASHCROFT: First of all, Acting Director Pickard and I had more than two meetings. We had regular meetings.
Secondly, I did never speak to him saying that I did not want to hear about terrorism. I care greatly about the safety and security of the American people and was very interested in terrorism and specifically interrogated him about threats to the American people and domestic threats in particular.
One of the first items which came to my attention -- which I mentioned in my opening remarks -- was the question of whether we wanted to capture or find and kill bin Laden.
I carried that immediately to the national security adviser and expressed myself in that matter.
Together with the vice president of the United States, we got a briefing at FBI headquarters regarding terrorism. And I asked the question, "Why can't we arrest these people because I believe an aggressive arrest and prosecution model is the way to disrupt terrorism?" These are things about which I care deeply.
When the Senate Appropriations Committee met on May the 9th, in the summer of 2001, I told the committee that my number one priority was the attack against terror; that we would protect Americans from terror. I wrote later to them a confirming letter saying that we had no higher priority.
These are the kinds of things that I did in order to communicate very clearly my interest in making sure that we would be prepared against terror.
In addition when we went for the largest increase in counterterrorism budgeting before 9/11, in the last five years, that signalled a priority in that respect.
And when we, for the next year, had a 13 percent higher counterterrorism budget than was provided in the last year of the Clinton administration, it was also a signal that counterterrorism was a matter of great concern us to and that we would treat it seriously. THOMPSON: After you took office did you ever hear or participate in any discussions in the Bush administration about responding to the attack on the Cole, which took place late in the Clinton administration, since it was now apparent at some time in 2001 that not only was al Qaeda responsible for the attack on the Cole, but that Osama bin Laden directed it?
Was there ever any such consideration given in the Bush administration to responding to the attack on the Cole with a military strike?
ASHCROFT: Well, I was briefed by the CIA on a number of occasions, as well as by the FBI. And I did ask about the Cole.
As you know, our FBI personnel were on the scene within almost hours after the event and they developed a preliminary understanding that the individuals conducting the attack were associated with al Qaeda.
But the ability to come to a conclusion, to build the nexus back from those actually involved in the attack to those who were command- and-control figures in al Qaeda was not established until -- and I'm not sure of the date, I think it must have been late in the summer or early in the fall of 2001.
So my briefings through the summer during the elevated threat period and the like and my briefings that were earlier in the year, for instance at the FBI, communicated this believed nexus in terms of the operational involvement of individuals associated with al Qaeda. But they did not have a clear, considered provable understanding of whether the command and control of senior al Qaeda officials was really involved.
THOMPSON: What provisions of the Patriot Act that are due to expire next year, or sunset next year, do you deem to be of greatest importance for re-enactment. And are there additions or subsequent amendments to the Patriot Act that you think should be considered by the Congress next year?
ASHCROFT: Well, the Patriot Act -- one of its most important contributions was to help us to tear down the wall. The multipoint wiretap is very important. It extended...
THOMPSON: That's the roving wiretap.
ASHCROFT: The roving wiretap. This is something that had been available in the criminal law since 1986 regarding what was drug dealers and organized criminals. Our ability to use a roving wiretap is important.
Our ability to have national search warrants so that we don't have to, for individuals who are mobile, get new search warrants.
The pen register trap and trace for e-mail is a very important thing. These provisions of the Patriot Act are important to national security. And for this country to begin to forget that national security requires a robust capacity for law enforcement would be a major tragedy.
There are some things that I think could be added that would be helpful to us. The material support for terror statute could be clarified so as to make sure that individuals who are involved in contributing their services are actually providing material support.
The presumption against bail for terrorists -- for serious drug offenders and violent criminals, we have a presumption against bail in the law, and for a number of offenses. But there's no presumption against bail. Not meaning there couldn't be bail grant, but meaning that there ought to be a presumption that a person involved with serious charges of terrorism be restrained.
I believe that we should accord the terrorist investigators administrative subpoena power for certain kinds of business records. There are 335 different administrative subpoena authorities in the country regarding everything from nursing home fraud to a variety of other criminal or federal violations, whether they be health care fraud or crimes related to children. I believe if those authorities work against individuals in those areas, that we should have them as tools in our fight against terror.
The death penalty, which is not automatic, obviously, and shouldn't be automatic, but we should have an availability of the death penalty in certain terrorism crimes resulting in death. Currently, we have some terrorism crimes that may well result in death that wouldn't be punishable by the death penalty. And I think that's one of those areas where we would be well-served to expand the authority of our government to act against terror.
THOMPSON: General, one last question before the chairman gavels me down. I see his eye on the red light, and so is mine.
Sometimes in this country we fall victim to the notion of fighting the last war. And my guess is Osama bin Laden and al Qaeda are not going to fight the last war, they're going to fight a new war, perhaps, in the future.
We've responded with greatly increased security precautions to the hijackings that took place on September 11th. But who in the government, who in the Bush administration, is worrying about the next war and other means that al Qaeda may use to attack us -- or other groups, Hezbollah, Hamas, other groups -- on our soil, on other portions of our infrastructure besides aircraft and airports? Our food supply. Our water supply. Our oil pipelines. Our railroads. Our chemical factories.
Who's worrying about that, and how are they worrying about that? And what assurance do the American people have that somebody is indeed worrying about the next war?
ASHCROFT: Well, frankly, there are a number of us who are worrying about the next war, and we understand that al Qaeda is very likely to change its method of operation and its style to avoid detection. And it's something when we have to understand the nature of this enemy that we face. It's an enemy that is not stupid. This is not some garden variety criminal who is robbing a 7-Eleven. They plan well. They undertake actions that last for years. They seek to inflict mass casualties.
We understand that they might seek to use a different style of individual, individuals who would come from different countries, that it's clear that we know that they have interest in poisons, that they have interest in toxicity, in evil chemistry and evil biology, as well as the interest which they have had in explosives.
We've seen a wide variety of explosives used around the world in the proliferation of terrorism that has followed 9/11. It's not been used here and we're grateful that we've been successful in keeping it from happening here.
But this administration has tasked every quadrant of the administration to be alert.
In agriculture, I know very much the concerns of Secretary Veneman. I know in transportation, the concerns of Secretary Mineta. And I know in energy the kinds of concerns that have been expressed by Secretary Abraham, and the list could go on completely.
I guess I would say that we need to continue to do everything possible. When you look around the world and we see that even in cultures that are very attuned and very focused on disrupting terrorism that they are not always successful, and so we have to be at the highest level of readiness and anticipation.
THOMPSON: Thank you, General.
Thank you, Mr. Chairman.
KEAN: Commissioner Ben-Veniste?
RICHARD BEN-VENISTE, 9/11 COMMISSION MEMBER: Good afternoon, General Ashcroft.
I want to say hello to Larry Thompson.
And to Mr. Olson my renewed condolences.
I believe in your statement, General Ashcroft, with respect to the failed capture policy of the prior administration that you may be incorrect.
I don't believe that you have seen the MON that we have recently received as of last week which had not been previously made available to us. And I will leave that for others to discuss; we've got to tip- toe around it for obvious national security and classification reasons. But you may be enlightened by reviewing that document.
Let me ask you about the August 6th PDB memorandum, sir. It is correct, is it not, that you did not receive that document contemporaneously?
ASHCROFT: I did not receive that document in the August 2001 timeframe.
BEN-VENISTE: When was the first you had seen it?
ASHCROFT: I think I saw that in the last several days.
BEN-VENISTE: And so, unlike in the previous administration, the attorney general of the United States in the Bush administration was not a recipient of the PDB memorandum; is that correct?
ASHCROFT: Not prior to 9/11.
BEN-VENISTE: 9/11. That has changed since?
ASHCROFT: I am involved regularly with briefing of the president in regard to terrorist threats. And I accompany the director of the FBI to a morning briefing with the president, which briefing is attended by the director of the CIA and other officials, including director of homeland security. And I think you're familiar with that, I need not...
BEN-VENISTE: Yes, I am, sir.
If you put yourself back in time to early August of 2001, aside from not receiving the PDB, were you made aware from any source that the president of the United States had requested a briefing with respect to the potential for an attack by bin Laden in the United States?
ASHCROFT: This was the kind of information I was asking when I was briefed by the CIA and when I was briefed by the FBI. I was not aware that the president of the United States had made a request in that respect.
BEN-VENISTE: Had you been aware, would you not have made sure that the president received a comprehensive report from the FBI?
ASHCROFT: Any time the president would ask for information from the FBI it would have been my intention to provide the president with a comprehensive report from the FBI. We were not into giving the president less than comprehensive...
BEN-VENISTE: I understand that, sir.
ASHCROFT: ... responses. And had the president asked the FBI for information and I'd been aware of it -- and I would have expected to be aware of it -- I would have encouraged the FBI to be comprehensive.
BEN-VENISTE: Now, we received some very, very interesting information from Acting Director Pickard just a few moments ago. Mr. Pickard testified that as of the afternoon of September 11, 2001, he received three things that he did not know before: Number one, he received the Phoenix memorandum; number two, he received information about the Moussaoui arrest and the detailed background that I won't go into now about who Moussaoui was and what we knew about why he was in the United States; and he received information that the FBI was looking for Mihdhar and al Hazmi, two of the individuals who it turned out participated in the 9/11 catastrophe.
Now, given that fact, and given the fact that as I understand it from our prior meeting, you also did not know any of that information prior to 9/11, is it not possible, sir, that were you to have pulsed the FBI and directed the FBI to push up any information that it might have had, that that information might have been made available to you, to Mr. Clarke, to others contemporaneous in August and prior to 9/11?
ASHCROFT: Well, I think it's pretty clear that I was pulsing the FBI. I asked them regularly in my briefings with them if there were any evidence regarding threats domestically and the kind of conduct by the FBI was the kind of thing that I would have expected them to be involved in as a result of that kind of request on my part.
When you look at their conduct in asking twice in April for information relating to Sunni extremism, working the conference of the special agents in charge, when you ask -- when you relate to the telephone calls provided and made by the individuals, when you look at the inlets, you get the kind of activity on the part of the organization that is designed to respond to leadership, that is saying is there any information about a threat? And you would expect having conducted that kind of pulsing that if there were information, that it would be made available.
BEN-VENISTE: Well, obviously we know it wasn't made available. So the question is: Were you familiar with the dysfunctionality of the FBI as a result either of your first months in office or as a result of your great experience in Washington, in the United States Senate and elsewhere.
ASHCROFT: Do you want to repeat that part about the great experience that I had in United States Senate and elsewhere will have to be referring to something else, because I spent my previous time as a colleague of the gentleman on your left, there, who was a governor in the neighboring state.
BEN-VENISTE: I see.
ASHCROFT: I stood in the shadow of a man known as Big Jim Thompson.
BEN-VENISTE: Well, let's go back to your -- so I take that back, and I take your point that you were not well-versed in the ways of Washington, and particularly with respect to the problems of the FBI in connection with disseminating information.
The statement that we've heard time and again is the FBI didn't know what it didn't know, but it also didn't know what it did know.
ASHCROFT: Well, if I might comment on that. In my opening remarks, I talked about the fact that I had demanded four separate independent reviews regarding the information systems at the FBI, so that I was aware of the challenges.
The first of those challenges was revealed to me when, on the day of my going to Justice Department as attorney general, Louis Freeh pulled me aside and said, "Oh, by the way, we've got a real problem with the penetration of the FBI, we believe the individual involved to be Robert Hanssen, and access to our information systems that compromises the national integrity was revealed." That was a signal to me that we had serious problems.
Later on, I came to an understanding when we were preparing to deal with the second largest terrorist attack in the United States, which was that undertaken by Timothy McVeigh which resulted in the death of about 170 people, that in his trial we had failed to comply with a court order and we had not delivered -- the FBI had not delivered about 3,000 documents, most of which were duplicates but were the subject of a court order. So I had to delay -- I'd had to delay the execution to make sure that we had an innocent system as well as a guilty defendant in the case.
Additionally, I became concerned about the integrity of our information technology system when it was revealed that about 300 laptop computers were unaccounted for, and for well over 200 of them, the inspector general of the FBI, whom I asked to investigate the matter, said it couldn't be determined whether they were lost or stolen and raised the specter of national security issues.
So I understood there were problems.
But I also understood that when we went to agents and when we asked them specific questions about issues related to national security that we should expect them to respond and could expect them to respond. The FBI is populated with well-meaning, hard-working individuals. And they, I think, need to be understood for that and to be credited with that.
BEN-VENISTE: I agree with you, sir.
The problem was in the communication of information which did not reach those who might have made a difference.
Let me ask you, as my time is expiring, one question, which has been frequently put to members of this commission; probably all of us have heard this one way or another.
And we are mindful that part of the problem with the Warren commission's work on the Kennedy assassination was the failure to address certain theories that were extant and questions and much of the work was done behind closed doors. So I would like to provide you with the opportunity to answer one question that has come up repeatedly.
At some point in the spring or summer of 2001, around the time of this heightened threat alert, you apparently began to use a private chartered jet plane, changing from your use of commercial aircraft on grounds, our staff is informed, of an FBI threat assessment. And, indeed, as you told us, on September 11th itself you were on a chartered jet at the time of the attack.
Can you supply the details, sir, regarding the threat which caused you to change from commercial to private leased jet?
ASHCROFT: I am very please pleased to address this issue.
BEN-VENISTE: Thank you.
ASHCROFT: Let me indicate to you that I never ceased to use commercial aircraft for my personal travel.
My wife traveled to Germany and back in August. My wife and I traveled to Washington, D.C., on the 3rd of September before the 17th -- before the 11th attack on commercial aircraft.
I have exclusively traveled on commercial aircraft for my personal travel; continued through the year 2000, through the entirety of the threat period to the nation.
The assessment made by the security team and the Department of Justice was made early in the year. It was not related to a terrorism threat as a threat to the nation. It was related to an assessment of the security for the attorney general, given his responsibilities and the job that he undertakes. And it related to the maintenance of arms and other things by individuals who travel with the attorney general. And it was their assessment that we would be best served to use government aircraft.
These were not private chartered jet aircraft. These were aircraft of the United States government. And it was on such an aircraft that I was on my way to an event in Milwaukee on the morning of September the 11th.
BEN-VENISTE: I'm pleased to have been able to give you the opportunity to clarify that issue for all who have written to this commission and communicated in other ways about their questions about that, sir.
Let me also give you the opportunity to respond to Mr. Pickard's testimony just a little while ago about a statement which he claims that you made with respect to priorities.
And in that regard, it is correct, is it not -- because we have looked at the May 10th, 2001, guidance for preparing fiscal year 2003 budgets in which you indicate your priorities -- there are five goals, strategic goals laid out there?
It does not appear that terrorism was one of them. Is that correct?
ASHCROFT: Let me make an explanation here, because I welcome, as well, this opportunity. The date preceding, on May the 9th, I met with the Senate Appropriations Committee and was asked about my priorities. I said my number one priority was to protect the people of the United States against terrorism.
The Department of Justice, required by the Congress to have a strategic plan, followed that plan. The plan was developed in the year 2000 by my predecessor and had a set of strategic goals. They're listed here early in the book and they are similar to the goals -- they are, as a matter of fact, the goals which were used in large measure for the May 10th memorandum. And they cite some additional goals to terrorism. There's no question about that.
Let me just go -- because our time is limited...
BEN-VENISTE: I'm sorry. Did you say in the prior plan there were citations to counterterrorism?
ASHCROFT: Well, there was no major goal of counterterrorism, but under -- let's not sell Ms. Reno short -- under the first...
BEN-VENISTE: She's not short.
ASHCROFT: Pardon?
BEN-VENISTE: I can testify she's not short.
(LAUGHTER)
ASHCROFT: Well, I won't make any personal comment.
BEN-VENISTE: I'm short.
ASHCROFT: But we, and under the "Keep America Safe" by enforcing federal criminal laws, she did have deter and detect terrorist incidents. And this is the kind of -- let me just cut to the chase here to see where we were. Let our money do the talking.
In the budgets proposed prior to September 11th, the total CT increases were 72 percent greater than the total increases for drugs and gun prosecutions combined. Now, those were the other issues that were listed as priorities of the department. What we had was a combined total of increases of $683.1 million for drugs and gun prosecutions.
We had a combined counterterrorism-related budget increase of $1,175.2 million dollars, 72 percent higher for counterterrorism- related items than for items related to the other priorities which we had stated, drug interdiction and the prosecution of gun criminals.
Now I don't mean to discount those priorities. Thousands of people die on our streets as a result of gun crimes. And we are very grateful for our record there. But let the record be clear that when it comes to where the appropriation was, that we had a $1.175 billion increase for counterterrorism in those first two budgets, a $0.683 billion, or $683 million increase on drugs and guns.
KEAN: Senator Gorton?
SLADE GORTON, 9/11 COMMISSION MEMBER: Thank you, General. Mr. Attorney General, in your written statement, you have four issues that you discussed. The first one is your criticism of the lack of aggressive enough authorities for decisive action against Osama bin Laden, and you state that on March 7, 2001, you recommended that those authorities be expanded to allow for decisive lethal action. To the best of your knowledge, between that date and September 11, 2001, were those authorities expanded in any respect whatsoever?
ASHCROFT: It's my understanding that an assignment was made by the national security adviser to the director of the Central Intelligence Agency to work on that, and that a judgment was reached that rather than a specific change, that any change should be made as part of an integrated new set of directives.
GORTON: I take that as an answer in the negative.
Your second issue is a severe criticism of the 1995 guidelines that, as you say, imposed draconian barriers to communications between law enforcement and the intelligence communities, the so-called wall.
I don't find that in the eight months before September 11th, 2001, that you changed those guidelines. In fact, I have here a memorandum dated August 6th from Larry Thompson, the fifth line of which reads, "The 1995 procedures remain in effect today."
If that wall was so disabling, why was it not destroyed during the course of those eight months?
ASHCROFT: The August 6th memorandum of Deputy Attorney General Larry Thompson made possible significantly more information sharing by mandating that those individuals involved in intelligence investigations who came across information relating to a felony federal offense immediately provide notice of that felony federal offense to people on the criminal side of the house.
It was a step in the direction of disabling the wall. It was a step in the direction of lowering the wall, providing for greater communication.
GORTON: But it was after August 6th, 2001, that Moussaoui was picked up and the decision was made in the FBI that you couldn't get a warrant to search his computer. So those changes must not have been very significant.
ASHCROFT: I missed your question, Commissioner.
GORTON: Well, you say as a part of your criticism of the 1995 guidelines, after the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer.
The warrant was rejected because FBI officials had feared breaching the wall. Yet that was after these changes that you say were significant on August 6th.
ASHCROFT: Let me explain to you what I believed was the rationale of the FBI at that time.
The FBI feared that if they went forward with a criminal warrant, that later, in the event that a FISA warrant was needed, because a track had been chosen which was a criminal track rather than an intelligence track, that they would not be able to access the information they would otherwise want through the FISA.
So the FBI, mistakenly believing that you had to choose one way or the other because of the wall, decided to deny the criminal warrant in order to protect the option later on for a FISA.
Now, the Moussaoui case reflects not a federal felony offense that would be covered under the authority of the memorandum sent forward by the deputy attorney general.
The Moussaoui case involved an immigration violation. And he was detained on the basis of that violation and in conjunction with what was considered suspicious behavior, but not in conjunction with what provided the basis for evidence of a federal felony.
GORTON: And finally, the third of your issues has to do with that computer authority in which, obviously, you did take very, very positive action very early.
But the fourth refers to the millennium after-action review and its recommendations about disrupting the al Qaeda network.
And as you point out, fully 17 months before September 11th, the review makes these recommendations. Nine of those months were in the Clinton administration; eight of them were in yours.
Did you make any changes reflecting that millennium after-action review in your time as attorney general before 9/11?
ASHCROFT: This is a report which was not briefed to me or briefed to other individuals. It was a report which is a classified report.
GORTON: So you didn't know of its existence?
ASHCROFT: No, it turns out, when I learned of its existence, these were the very things following September 11th.
We began to address suspicious situations by being very aggressive in charging criminal violations, in charging immigration violations. We began to be very aggressive in our work at the border. And these are the kinds of recommendations that were involved in the report, which was simply not made available...
GORTON: Attorney General Ashcroft, there's no question of how aggressive you were in that period of time, and I think highly admirable. But the administration, of which you're a part, didn't take any of those actions before 9/11.
ASHCROFT: That's exactly correct. And this report would have recommended and signaled to us that this was a way that we might consider acting.
And, as a matter of fact, the report signaled that it would be appropriate and perhaps necessary. It signaled significant risks that those involved in the after-action assessments of the millennium plot believed would merit us being more aggressive.
Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
KEAN: Commissioner Fielding?
FRED FIELDING, 9/11 COMMISSION MEMBER: Thank you, Mr. Chairman.
Mr. Attorney General, thank you for being here. Thank you for all of the assistance you provided to our commission. And also thank you for all your years of public service.
You said in your prepared statement this afternoon, that in discussing the debate on the nature of the covert action authorities, that in February 2001, shortly after becoming attorney general, you reviewed those authorities. And your thorough review revealed no covert action program to kill bin Laden. Is that correct?
ASHCROFT: I believe that the covert action plan I reviewed was to capture bin Laden. And if he were to be killed it would only be in the eventual circumstance that there were some kind of inability to capture that resulted in a threat that required some kind of self- defense measure.
FIELDING: What briefings did you seek in February to review this whole situation?
ASHCROFT: Well, I was part of the consideration of the strategy regarding Osama bin Laden to the extent that it related to the treatment and the pursuit of Osama bin Laden himself. So this was one of the responsibilities I had.
FIELDING: Now, I'm sorry, sir. What briefings did you receive? What were your sources of information when you were making this review of authorities? Were you briefed by Director Tenet?
ASHCROFT: I'm not sure exactly where all the information came from that I was privy to at that time.
We were very confident that this individual had been involved in very serious acts against the United States, in the embassy bombings and the like. And we felt that we had a relative assurance that he was involved in the Cole attack.
We knew that Khobar Towers was what we considered to be Iranian Hezbollah; so it was a different group. But in my judgment, just knowing about the embassy bombings, the loss of life there, we all understood that the fatwa had been issued regarding his desire to kill Americans. FIELDING: Now, I appreciate that, General, and excuse me for interrupting you but we're playing with the clock here. But what I'm trying to determine is did you review MONs, for instance?
Did your staff provide you with the documents so that you could review the existing authorities?
ASHCROFT: I believe they did.
FIELDING: Did you request documents from agencies? Did you request documents from the CIA?
ASHCROFT: I'm not capable of telling you exactly how all the information was assembled. I just remember that having made the assessment of the information, I was struck by the fact that I believed that it was so complex and convoluted that it would be paralytic and that we owed people in the field clear direction, and that the direction should be to find and kill bin Laden and not to try and capture him.
FIELDING: Did you staff prepare a briefing for you? Was there any written documentation of the process that you went through to make this evaluation?
ASHCROFT: I'm not in a position to remember whether or not they did at this time.
FIELDING: We would request that you check that. And the reason I'm asking is I must advise you that we have received recent information in regard to MONs which I believe may alter your evaluation of existing authorities in February of 2001.
ASHCROFT: Well, I took that seriously when Commissioner Ben- Veniste mentioned it to me. I've made a note of it. And unless I'm missing a bet big time, my staff has made a note of it. And we'll work to understand that more thoroughly.
FIELDING: Well, thank you, sir, because we would otherwise want to review this with you in closed session, because it's obviously very highly classified, unless there's an opportunity to have this declassified so that we can supplement our staff statements as well. So thank you. We'd appreciate your cooperation in that regard.
Thank you, Mr. Chairman.
KEAN: Thank you, Commissioner.
Congressman Roemer?
TIMOTHY ROEMER, 9/11 COMMISSION MEMBER: Thank you, Mr. Chairman.
Welcome, General. Thank you for your time here and your fulsome testimony.
I want to turn to page three of your testimony and where you're talking about being aggressive and doing something about Osama bin Laden.
You certainly think Osama bin Laden is somewhere overseas, correct?
ASHCROFT: I don't know where he is.
ROEMER: Don't know where he is.
ASHCROFT: I don't believe he's in the United States of America.
ROEMER: You don't believe he's in the United States, and you want to go get him. And you go to the national security adviser to the president and you say, "Let's find a way to get him."
ASHCROFT: I said that if we could find and kill him, that should be the objective of our government.
ROEMER: So you're being aggressive. You're certainly trying to focus on the threat of bin Laden.
Let me ask you a question about al Qaeda. With the USS Cole, we lose 17 sailors. The Clinton administration gets a preliminary judgment in December of 2000 that says, "Well, we can't quite associate this with the command and control of Osama bin Laden, but these are definitely al Qaeda operatives."
You -- I believe your administration gets a briefing in January, same type of briefing. This is al Qaeda. Why don't you take this on the offensive, like you do Osama bin Laden, and say, "We are going to go get al Qaeda. They can't do this to our military, to our sailors, to our people"?
ASHCROFT: Well, Commissioner, I didn't get the briefing in January. As you may remember, I was one of the late individuals confirmed.
ROEMER: When do you understand this, then? You're certainly in March meeting with Condi Rice to do something about this. Why don't you do something about al Qaeda?
ASHCROFT: Very frankly, we didn't get confirmation that the -- as I explained earlier -- that the command and control of al Qaeda might be involved in this matter until substantially later.
ROEMER: Can you remember when?
ASHCROFT: I believe it was either late in the summer or the fall of 2001 when the final determination was made.
And that was a time, after which, I believe we brought criminal charges, although obviously those are not resolved.
ROEMER: For a law enforcement...
ASHCROFT: There is -- and it is a totally different world -- executive responsibilities in regard to presidential orders and directives are different than...
ROEMER: But why not go after al Qaeda? Why not militarily go after al Qaeda, rather than a law enforcement type of activity?
ASHCROFT: Well, first of all, let us make it clear that it's not either or. The mere fact that we would go after al Qaeda doesn't mean that we wouldn't also pursue and have the option of criminal remedies as well. The Justice Department has done that and continued to do that even against individuals who might be involved in al Qaeda or in more war-like settings.
If you're asking me why the administration didn't make a judgment, I believe that the administration, while it understood that there were ties to al Qaeda by those who were involved in the Cole bombing, the kind of information that would support a different judgment was not existent until substantially later.
ROEMER: But again, you're asking for a final conclusion, rather than a preliminary judgment that says al Qaeda is responsible. Al Qaeda did this. Al Qaeda killed our sailors. Why have to wait six to eight months down the line to say this is a particular individual, Osama bin Laden?
ASHCROFT: I don't understand your question, sir. I believe that the...
ROEMER: This is not just a terrorism fight against Osama bin Laden. It's al Qaeda. It's jihadists. It's the conveyor belts producing people that want to kill us in Afghanistan.
So my question is, why not go after broadly that group of people rather than one single individual?
ASHCROFT: Well, I believe that's eventually what we did. But, obviously, it's not a decision we made, and we didn't have the kind of information or predicate upon which to make that decision earlier. Whether or not we should have absent that predicate is a policy judgment that certainly wasn't mine to make.
ROEMER: Thank you, sir.
KEAN: Senator Kerrey?
BOB KERREY, 9/11 COMMISSION MEMBER: Attorney General Ashcroft, very nice to see you. I'm glad you're on the mend.
ASHCROFT: Well, I'm coming back, to the gratification of some and mortification of others.
(LAUGHTER)
KERREY I'm going to get into the mortification piece here in a minute.
(LAUGHTER)
ASHCROFT: You're going to what, help the mortifiers?
KERREY: No, no, no.
A couple of statements to you just for your information. In the, I think, '95 and '96 it was, Senator Specter and I, after learning of significant computer and communication inadequacies in the FBI, asked one of our staff to go over and do an evaluation of what the FBI -- that was a fast five minutes.
ASHCROFT: When you're having fun.
KERREY: Yes.
And came back and recommended that we authorize and appropriate several million dollars to do some evaluation. I guess it was a very unhappy experience.
I say that because there were a lot of us who simply didn't think the FBI could do it; that it was, sort of, like the IRS. You remember the whole IRS restructuring effort. That actually began with the IRS lousing up a several billion dollar computer investment. So I just ask to you look at that...
ASHCROFT: If I might comment on that, one of the real contributions of Louis Freeh as director of the FBI was that he began to reach outside the FBI in order to get help. And the FBI had been an insular agency of very capable people, but they really began to be injured by their own talent. They really thought they could do everything on their own.
And Robert Dyes was the first of the known experts to me to come to the FBI from IBM to begin to say, "Here's the way a modern information architecture should look and here's what should be done."
And so you were prophetic in saying that it needs something other than just the old agent core. Same thing with IRS. Until Rosati got there, nobody really trusted they could get the job done.
KERREY: And I think what we're doing now, we're beginning to use software and other things that are developed outside and beginning to accept expertise from outside the bureau. That's very, very helpful to us.
And the commercial world has things like link analysis and the like that they use commercially that can be very helpful to us in investigations and also connecting the dots when we want to organize intelligence.
The second thing I want to say, and I need your help on this because I was not in the Congress when the Patriot Act passed, and you know me well enough to know that anything that you have to put the word "patriot" on in order to get people to vote for it, I'm inclined to vote against it just on that basis.
ASHCROFT: I do know you. KERREY: In this case, looking at it -- the only thing I've heard about it by the way, so this is a mortification area -- I've heard a lot of my former Democratic colleagues giving fervent speeches against the Patriot Act. They all voted for it, but they're giving speeches against it. It's a weird situation.
ASHCROFT: That's not weird, that's rather usual around here.
KERREY: Anyway. I am concerned that section 218 could end up like Rico -- being used, you know, it starts off against organized crime but ends up abortion protests, using it against business. It has a life of its own beyond it.
I don't need a comment now, General Ashcroft. That and section 215 -- I need some help. I've got some questions about it. And I trust that you can help me with an open mind -- try to figure out where we need to preserve the Patriot Act and where we may have some provisions in there we actually don't need.
I mean, just generally, I'm very nervous about giving government too much power, frankly. And in the long-term -- I don't need to lecture you on that, but I get nervous about giving the government too much power. And it seems like the Patriot Act gave the government an awful lot of power over American citizens.
ASHCROFT: Let me comment that in large measure, the Patriot Act extended powers in the fight against terror that were already well- understood powers in the fight against drugs and organized crime, so that we weren't treading down new constitutional territory. The multi-point wire tap or the roving wire tap had been in existence for 14 years and 15 years. And the ability, for instance, to subpoena business records from grand juries had been in existence for a long time.
Now the FISA provisions that relate to it are different from grand juries. A grand jury, frankly, operates with the U.S. attorney or an assistant U.S. attorney reaching over on a stack of forms and filling it out, and taking it out and serving it. It's never seen by a judge unless someone resists it or protests it.
Under FISA, you can't have an order without first seeing the federal judge. Or unless it's an emergency order, and then it has to be brought before a judge within 72 hours. So there's a lot of safeguards here. I'd like to talk to you about it. It is important to our national security.
KERREY: Also, staff has asked, and I'd appreciate it if we could get that, some documentation that shows what the detain and clear policy did for counterterrorism, for intelligence, for law enforcement. I guess 768 detainees, and that's been a very controversial thing. If you can give us some documentation of what the counterintelligence...
ASHCROFT: I would love to comment on that. We did not detain anyone that was not in violation. So people who are detained were violators of the law. And our history has been that when you detain people for immigration violations or you charge them, if you don't detain them, they go, they just evaporate. Eighty-five percent of all people charged with violations, if they are finally adjudicated guilty, if you haven't detained them, they just merge into the culture.
Ninety-three percent of the people who come from terrorist- sponsoring states have the record of absconding, so they go into the culture.
We couldn't afford to have a situation like that with individuals who are detained in conjunction with the massive investigation following 9/11. We had to hold them, and we did.
And, frankly, that's one of the ways that we picked up a fellow named al Mahri (ph), who was sent here on September the 10th to be a facilitator of follow-on attacks. We first had him on immigration charges then on criminal charges. We eventually -- he has become an enemy combatant and is now being held...
KERREY: I appreciate that your staff is nodding like mad when I asked for the documentation, so I...
ASHCROFT: OK. Let them...
KERREY: Thank you.
KEAN: Commissioner Gorelick?
JAMIE GORELICK, 9/11 COMMISSION MEMBER: Thank you, Mr. Chairman.
You said in response to -- I think it was Commissioner Ben- Veniste's question -- that you, indeed, had been struck from the list of senior executives in the administration who got the presidential daily brief. I think you said you did not get it.
And that is curious, I think, given Dr. Rice's testimony that the domestic aspect of our national security was largely in the Department of Justice and FBI bailiwick.
You, when you were interviewed by our staff with regard to the adequacy of the FBI's response to the intelligence that was coming out in the summer of '01, said that you accepted the FBI's assurance that the threats were overseas and, sort of, assumed that things must be in hand and that whatever they were doing was adequate to respond. And then you said, I think quite candidly, that this was a dangerous assumption to make.
Now here is my question: You did not get the presidential daily brief, but you did get the senior executive intelligence brief that was provided to the next rung of the government.
Is that correct? You got that daily?
ASHCROFT: The SEIB...
GORELICK: The SEIB.
ASHCROFT: ... was available to me.
GORELICK: On August 7th, 2001, a SEIB that reflected much of -- although it was not identical to -- much of the content of the August 6th presidential daily brief came out. And I would like to ask you if you remember seeing a document headed, "Terrorism: Bin Laden Determined To Strike In The United States," in the SEIB.
ASHCROFT: I do not remember seeing that. I was in -- I believe I was in Chicago speaking at the American Bar Association meeting, I believe, at the time. So I do not have a recollection of seeing that.
GORELICK: Did your staff regularly brief you on the intelligence when you returned?
ASHCROFT: I was briefed, and items of interest were noted for me from time to time by my staff.
GORELICK: Would something like this, which is a memorandum that is going out to your colleagues, hundreds of your colleagues in the government, saying that bin Laden is determined to strike in the United States, been an item of significance that you would think would have been briefed to you?
ASHCROFT: These items had been briefed to me. They had been briefed to me by the FBI, they have been briefed to me by the CIA. The administration asked me to get briefings when appropriate in regard to these measures.
I remember Ms. Rice, for example, early in July, during the threat period and the heightened and elevated threat, asking me if I would receive a briefing from the CIA because she thought it important.
It's that kind of briefing that I received early.
The CIA, we have reconstructed it from the slides they used, talked a lot about the threat overseas. And we, obviously, were aware of the historical information that Osama bin Laden had issued statements years before, much of which is in the SEIB and was in the August 6th PDB, which I have now read.
But we inquired of the CIA and the FBI: Are there domestic threats that require -- is there any evidence of domestic threat? And they both said no. I might add that for the CIA, I inquired of them: Are there things we can do additionally by way of FISA to assist you in making sure that we have all the information necessary to be aware of those threats. And they assured me that if they needed additional help, they would ask for it.
GORELICK: So you were aware in early August -- by at least early August of '01 that in addition to the fatwas and the statements of intention by bin Laden, that there was evidence that he intended to strike in the United States? Is that correct? ASHCROFT: Well, I don't know if in addition to the fatwas and his statement of intention. We were aware that he had stated his intention, of the historical items mentioned in the SEIB and I believe also mentioned in the PDB. We were aware that those kinds of historical references had been made. And it was with that in mind, in conjunction with our understanding of what he had done in terms of the bombings in Nairobi and Dar es Salaam, that we understood him to be a very serious individual and we should take him seriously.
GORELICK: As a result of your awareness of this domestic threat, did you review with Acting Director Pickard the specific actions that he had taken to ensure that information in the possession of agents of the FBI across America relating to bin Laden's threats, his capacity, his ability to strike us, activities that might be going on in the United States, that that information would be flowing up to you?
ASHCROFT: I queried the director on numbers of occasions about threats in the United States that would require our attention.
I expected those queries to result in the kind of activity which we saw in the FBI across the summer -- not only in the face-to-face inquiries at the SAC meetings, but in the telephone inquiries and in the communications -- through the electronic communication as well as the inlets -- which shared those awarenesses with the rest of the law enforcement community in the country.
We viewed inlets as a force multiplier because we got away from just the 12,000 FBI agents to the 700,000 or so law enforcement officials in the country. And we wanted those to be pulsed, as well.
GORELICK: Do you know if any of the inlets actually produced any information to the FBI?
ASHCROFT: I do not know and would not be expecting to know what 700,000 or so law enforcement officials might be saying to the people in the FBI Joint Terrorism Task Forces around the country. And I'm sure they were saying lots of things. But obviously I wouldn't be aware of those.
GORELICK: Thank you very much.
KEAN: Thank you, Commissioner.
Attorney General, thank you very, very much for your appearance. For your help. You've helped our work and we appreciate it.
ASHCROFT: Thank you.
KEAN: Thank you. The hearing will now be adjourned until 9 o'clock tomorrow morning.
WOLF BLITZER, CNN ANCHOR: With that, the chairman of the 9/11 commission, Governor Tom Kean adjourns the hearing. It will resume as he just said tomorrow morning. Today was a full day. Former Clinton administration officials as well as we just saw the attorney general of the United States John Ashcroft testifying, sometimes tough questions by the ten commissioners. We'll have a complete wrap on all of these developments that's coming up on WOLF BLITZER REPORTS which starts right now.
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Aired April 13, 2004 - 15:55 Â ET
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JUDY WOODRUFF, CNN ANCHOR: I'm Judy Woodruff in Washington. Welcome back to our continuing coverage of the 9/11 Commission hearings.
As you see Attorney General John Ashcroft has taken his seat there on Capitol Hill facing the members of the 9/11 Commission. He is expected to face some tough questions about whether he and the Bush administration adequately responded to intelligence warnings about the al Qaeda threat.
Ashcroft's testimony coming just hours before President Bush holds a rare, primetime news conference. A news conference likely to be dominated by questions about the 9/11 investigation and about Iraq. Let's listen in.
THOMAS KEAN, 9/11 COMMISSION MEMBER: Please be seated, sir.
I also recognize the solicitor general, Ted Olson. And I recognize it's not easy for you to be here today, sir, and thank you very much for coming.
Mr. Attorney General, your prepared statement will be entered into the record in full, and if you could summarize your opening remarks, we'd appreciate it.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES: Mr. Chairman, thank you.
It is with great sorrow that I join this commission today in reflection on September 11, 2001.
Even today, 31 months after the attacks, I struggle to learn the lessons of that day without being overwhelmed by the losses of that day. I feel sorrow for the loss of life, sorrow for the loss of promise, sorrow for the loss of innocence, sorrow for the loss suffered by a nation that is forever scarred.
My sorrow for the victims of September 11th is equaled only by my rage at their killer. Osama bin Laden is to blame for my anger. I blame his hatred for our values, his perversion of a faith, his idolatry of death. It was his hand that took the lives of nearly 3,000 innocents on September 11th. It is his face that is the face of evil.
September 11th revealed not just our enemy's capacity for murder, but our fellow Americans' thirst for justice. The men and women of the Justice Department have embraced the cause of our time; that is the protection of the lives and liberties of Americans. Working within the Constitution, we fight any battle, shoulder any burden, no matter, personal or political, what the cost, to prevent additional terrorist attacks.
And for the time being, al Qaeda's slaughter has ceased on America's soil.
We've been aggressive, we've been tough and we've suffered no small amount of criticism for being tough in our tough tactics. We accept this criticism for what it is: the price we are privileged to pay for our liberty.
Had I known a terrorist attack on the United States was imminent in 2001, I would have unloaded our full arsenal of weaponry against it. Despite the inevitable criticism, the Justice Department's warriors, our agents and our prosecutors, would have been unleashed. Every tough tactic we have deployed since the attacks would have been deployed before the attacks.
But the simple fact of September 11th is this: We did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies. Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions and starved for basic information technology.
The old national intelligence system in place on September 11th was destined to fail.
This commission can serve a noble purpose. Your responsibility is to examine the root causes of September 11th and to help the United States prevent another terrorist attack. Your duty is solemn and sobering.
But I too have a duty today: I have sworn to tell the whole truth and I intend to fulfill this obligation.
Today I will testify to four central issues which have not been developed fully in the commission's work and which deserve your attention.
First, this commission has debated the nature of covert action authorities directed at Osama bin Laden prior to 2001.
In February 2001, shortly after becoming attorney general, I reviewed these authorities. Let me be clear: My thorough review revealed no covert action program to kill bin Laden.
There was a covert action program to capture bin Laden for criminal prosecution, but even this program was crippled by a snarled web of requirements, restrictions and regulations that prevented decisive action by our men and women in the field. When they most needed clear, understandable guidance, and our agents and operatives were given instead the language of lawyers. Even if they could have penetrated bin Laden's training camps they would have needed a battery of attorneys to approve the capture. With unclear guidance, our covert action teams' risk of injury may have exceeded the risk to Osama bin Laden.
On March 7, 2001, I met with National Security Adviser Condoleezza Rice. I recommended that the covert action authorities be clarified and be expanded to allow for decisive, lethal action. "We should end the failed capture policy," I said. "We should find and kill bin Laden."
I recall that Dr. Rice agreed and gave Director Tenet the responsibility for drafting, clarifying and expanding the new authorities.
My second point today goes to the heart of this commission's duty to uncover the facts. The single greatest structural cause for the September 11th problem was the wall that segregated or separated criminal investigators and intelligence agents. Government erected this wall, government buttressed this wall and before September 11th government was blinded by this wall.
In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required.
The 1995 guidelines and the procedures developed around them imposed draconian barriers, barriers between the law enforcement and intelligence communities. The wall effectively excluded prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system that was destined to fail.
In the days before September 11th, the wall specifically impeded the investigation of Zacarias Moussaoui, investigation of Khalid al Mihdhar and Nawaf al Hazmi.
After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal search warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.
When the CIA finally told the FBI that al Mihdhar and al Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about recent al Qaeda attacks to join the hunt for suspected terrorists.
At that time, a frustrated FBI investigator wrote headquarters, and I'm quoting: "Whatever has happened to this, some day somebody -- someone will die. And, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems. Let's hope the National Security Law Unit will stand behind their decision then, especially since the biggest threat to us, OBL, is getting the most protection."
FBI headquarters responded, and I quote: "We're all frustrated with this issue. These are the rules. NSLU does not make them up."
But somebody did make these rules. Somebody built this wall. The basic architecture for the wall in the 1995 guidelines was contained in a classified memorandum entitled "Instructions for Separation of Certain Foreign Counterintelligence and Criminal Investigations."
The memorandum ordered FBI Director Louis Freeh and others, quote, "We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued criminal investigations.
"These procedures," the memo went on to say, "which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation."
This memorandum laid the foundation for a wall separating the criminal and intelligence investigations, as a matter of fact, established the wall following the 1993 World Trade Center attack, which at the time was the largest international terrorism attack on American soil, the largest prior to September 11th.
Although you understand the debilitating impact of the wall, I cannot imagine that the commission knew about this memorandum. So I have had it declassified for you and the public to review.
Full disclosure compels me to inform you that the author of this memorandum is a member of the commission.
By 2000, the Justice Department was so addicted to the wall it actually opposed legislation to lower the wall. Finally, the USA Patriot Act tore down this wall between our intelligence and law enforcement personnel in 2001. And when the Patriot Act was challenged, the FISA court of review upheld the law, ruling that the 1995 guidelines were required by neither the Constitution nor the law.
The third issue I'd like to raise with the commission this afternoon is another limitation government placed on our ability to connect the dots of the terrorist threat prior to September 11, and it was the lack of support for information technology at the FBI.
After I became attorney general in February 2001, it became clear that the FBI's computer technology and information management was in terrible shape. The bureau essentially had 42 separate information systems, none of which were connected.
Agents lacked access to even the most basic Internet technology. These problems didn't just hamper interagency communication, they hindered information sharing in the Justice Department, the intelligence community, and communication with state and local law enforcement. It's no wonder, given the state of this technology, that the Phoenix memo warning that terrorists may be training in commercial aviation was lost in the antique computers at the Washington headquarters.
Yet, for year after year, the FBI was denied funds requested for its information technology. Over eight years, the bureau was denied nearly $800 million of its information technology funding requests. To put this $800 million shortfall in perspective, the Trilogy program, which is now revolutionizing the computer system at the bureau, the data and information sharing at the bureau, has cost $580 million.
On September 11, 2001, the FBI's annual technology budget under the prior administration was actually $36 million less than the last Bush budget eight years before. The FBI's information infrastructure had been starved. And by September 11, it was collapsing from budgetary neglect.
When the Hanson and McVeigh failures fully exposed this neglect and its cost to national security, I ordered four independent external reviews of the FBI's information infrastructure under the coordination of Deputy Attorney General Larry Thompson.
And I'm pleased that Larry is here in the audience today.
And my first two budgets, both proposed before 9/11, requested a 50 percent increase for FBI information technology.
Finally, the commission should study carefully the National Security Council plan to disrupt the al Qaeda network in the U.S. that our government failed to implement fully 17 months before September 11th.
This NSC millennium after action review declares that the United States barely missed major terrorist attacks in 1999 and cites luck as playing a major role.
Among the many vulnerabilities in homeland defenses identified, the Justice Department surveillance and FISA operations were specifically criticized in the after-action assessment of the millennium approach. They were criticized for what were identified as glaring weaknesses.
It is clear from the review that actions taken in the millennium period should not be the operating model for the U.S. government. In March of 2000, the review warns the prior administration of a substantial al Qaeda network and affiliated foreign terrorist presence within the U.S. capable of supporting additional terrorist attacks here.
Furthermore, fully seventeen months before the September 11th attacks, the review recommends disrupting the al Qaeda network and terrorist presence here, using immigration violations, minor criminal infractions, tougher visa and stronger border controls.
These are the same aggressive, often-criticized law enforcement tactics that we have unleashed for 31 months to stop another al Qaeda attack. These are the same tough tactics we deployed to catch al Mahri (ph), who was sent here by al Qaeda on September 10th, 2001, to facilitate a second wave of terrorist attacks on Americans.
Now, despite the warnings and the clear vulnerabilities identified by the NSC in 2000, no new disruption strategy to attack the al Qaeda network within the United States was deployed. It was ignored in the Justice Department's five-year counterterrorism strategy. I did not see this highly classified review before September 11th. It was not among the 30 items upon which my predecessors briefed me in transition. It was not advanced as a disruption strategy to me during the summer threat period by the NSC staff, the staff which had wrote the review more than a year earlier.
I certainly cannot say why the blueprint for security was not followed in the year 2000.
I do know from my personal experience that those who take the kind of tough measures called for in the plan will feel the heat. I've been there, I've done that. So the sense of urgency simply may not have overcome concern about the outcry and criticism which follows such tough tactics.
I am aware that the issues I have raised this afternoon involve at times painful introspection for this commission and for the nation. I have spoken out today not to add to the nation's considerable stock of pain, but to heal our wounds.
This commission's heavy burden to probe the causes of September 11th demands that the record be complete. Our nation's heavy burden to learn from the mistakes of the past demands that this commission seeks the whole truth.
May this commission be successful in its mission and may we learn well the lessons from history. I thank the members of the commission for their service and for the opportunity to be here and testify today.
KEAN: Thank you very much, general. Our questioning today will be led by Governor Thompson.
JAMES THOMPSON, 9/11 COMMISSION MEMBER: General, does a member your staff have the copy of this declassified memorandum about the walls? And if so, could we have it?
ASHCROFT: I believe the memorandum is available, and we'd be glad to provide it to the commission.
THOMPSON: OK. While they're searching for that, let me ask some questions, and let's start with this walls business.
Let me read you one paragraph from the prepared statement of your predecessor General Reno that I asked her about this morning, and then ask for your comment on it.
She said, "there are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of members of the intelligence community to share intelligence information with each other.
"With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction.
"While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title 3 wiretaps, in practice they did not prove to be a serious impediment, since there was very little significant information that could not be shared."
When you took office, sir, in 2001, was that your understanding of the wall?
ASHCROFT: No. I believe that the understanding of the wall that was prevalent in the Justice Department and among attorneys was that individuals who shared information from a criminal file or from an intelligence file to a criminal file might be subject to serious discipline. And the memorandum of which I spoke, which was crafted in 1995, specifically indicated that it was based on an understanding at that time held that the law would not countenance certain exchanges. I believe it was a mistaken impression of the law which was later corrected by the rulings of the FISA court of appeals.
But if you look through the history of what happened just in the cases surrounding 9/11, time after time you find individuals being advised by their superiors that they could not or should not be involved in activity because such involvement would breach the wall.
I cited both the Mihdhar and Hazmi cases together with the Moussaoui case, each case where advice was given to individuals who wanted to be more active in their pursuit of individuals, that they should restrain themselves in their pursuits because of the wall.
So it's my clear belief that the wall itself developed this culture which restrained in a substantial way the exchange of information in the intelligence and law enforcement communities.
The Bellows report, which was part of some recommendations following the Wen Ho Lee case, indicated that it was part of the culture at the FBI that if one made a mistake and shared information that was later deemed to be inappropriate, it was called a "career- ender," so that the risk of a person sharing information improperly was at least known in the culture of the law enforcement community to be a very substantial risk and that individuals should shy away from sharing.
Now, let me just say that when we enacted the Patriot Act, we did so believing that this culture needed to have a clear signal that the wall did not and should not inhibit this kind of cooperation. The Patriot Act did take down the wall.
Later on, one of the courts, the FISA court, reasserted that the wall was not really effectively lowered by the Patriot Act, and I made a decision to appeal that decision. The appeal from the lower FISA court's ruling is what finally established the legal principle that the wall, as a matter of fact, is of little or no effect now.
THOMPSON: General, we've heard testimony today which is at best confusing and at worst conflicting and which I think will probably, to the American public at least, who may or may not understand federal budgeting procedures, prove to be distressful.
Can you lay out in time lines, if you can, what budget requests were made by the FBI to you, and for what purposes, and what actions were either taken by you to grant or deny them, or taken by OMB after your decision on budgetary requests for the FBI?
And then, secondly, if you would and can, contrast them with similar requests of the FBI and similar actions by the attorney general during prior administrations.
ASHCROFT: Well, first of all, it's important to note that the budget under which we were operating on September 11th was a budget established by the prior administration.
No budget of the Bush administration was in place on September 11th, and none had finally been enacted or put in place.
So the proposals for subsequent years, which were developed and were in place, were under construction. But they were not the budgets that were controlling activities on September 11th or at any time prior thereto.
As it relates to the counterterrorism effort, the 2002 budget -- we were operating under the 2001 budget on 9/11. The 2002 budget proposed by President Bush had the largest counterterrorism increase in five years. The 2003 budget which we proposed was a 13 percent increase over the last Clinton budget, the 2001 budget, which was the budget under which we were operating at the time of 9/11.
Now, over time, obviously after 9/11, there were amendments to the budget process, and there were increases. So that we ended up with substantially larger increases for terrorism than we had previously had.
I would just indicate in the budgeting process that the label of counterterrorism should not be controlling when assessing whether or not items were important to the development of a defense for national security interests vis-a-vis counterterrorism, counterintelligence or other things that challenged the United States.
For example, the information technology budget at the FBI is very important. An organization that is an intelligence organization, an investigation organization, needs to have an architecture of information that provides for information sharing and information communication.
So that the information regarding IT should be included in budgets.
Now, as it relates to information technology, the agency had been -- the FBI, for example, had been starved for years. The last Clinton administration budget was $36 million lower than the last budget of the first Bush administration eight years earlier, so that when you came to the ability to run information and to exchange it and process it, you were working with 1980s-type equipment. After 9/11, the cooperation on the budget was significant to provide serious assistance not only in counterterrorism but as it related to information technology as well.
I think Director Mueller has stated that we have worked in lockstep to meet the needs of the FBI, and its progress toward an integrated architecture of information sharing is substantial and significant and, frankly, is gratifying. I'm glad that they've been able to make the progress they have.
THOMPSON: Acting Director Pickard testified this afternoon that he briefed you twice on al Qaeda and Osama bin Laden and when he sought to do so again you told him you didn't need to hear from him again. Can you comment on that please?
ASHCROFT: First of all, Acting Director Pickard and I had more than two meetings. We had regular meetings.
Secondly, I did never speak to him saying that I did not want to hear about terrorism. I care greatly about the safety and security of the American people and was very interested in terrorism and specifically interrogated him about threats to the American people and domestic threats in particular.
One of the first items which came to my attention -- which I mentioned in my opening remarks -- was the question of whether we wanted to capture or find and kill bin Laden.
I carried that immediately to the national security adviser and expressed myself in that matter.
Together with the vice president of the United States, we got a briefing at FBI headquarters regarding terrorism. And I asked the question, "Why can't we arrest these people because I believe an aggressive arrest and prosecution model is the way to disrupt terrorism?" These are things about which I care deeply.
When the Senate Appropriations Committee met on May the 9th, in the summer of 2001, I told the committee that my number one priority was the attack against terror; that we would protect Americans from terror. I wrote later to them a confirming letter saying that we had no higher priority.
These are the kinds of things that I did in order to communicate very clearly my interest in making sure that we would be prepared against terror.
In addition when we went for the largest increase in counterterrorism budgeting before 9/11, in the last five years, that signalled a priority in that respect.
And when we, for the next year, had a 13 percent higher counterterrorism budget than was provided in the last year of the Clinton administration, it was also a signal that counterterrorism was a matter of great concern us to and that we would treat it seriously. THOMPSON: After you took office did you ever hear or participate in any discussions in the Bush administration about responding to the attack on the Cole, which took place late in the Clinton administration, since it was now apparent at some time in 2001 that not only was al Qaeda responsible for the attack on the Cole, but that Osama bin Laden directed it?
Was there ever any such consideration given in the Bush administration to responding to the attack on the Cole with a military strike?
ASHCROFT: Well, I was briefed by the CIA on a number of occasions, as well as by the FBI. And I did ask about the Cole.
As you know, our FBI personnel were on the scene within almost hours after the event and they developed a preliminary understanding that the individuals conducting the attack were associated with al Qaeda.
But the ability to come to a conclusion, to build the nexus back from those actually involved in the attack to those who were command- and-control figures in al Qaeda was not established until -- and I'm not sure of the date, I think it must have been late in the summer or early in the fall of 2001.
So my briefings through the summer during the elevated threat period and the like and my briefings that were earlier in the year, for instance at the FBI, communicated this believed nexus in terms of the operational involvement of individuals associated with al Qaeda. But they did not have a clear, considered provable understanding of whether the command and control of senior al Qaeda officials was really involved.
THOMPSON: What provisions of the Patriot Act that are due to expire next year, or sunset next year, do you deem to be of greatest importance for re-enactment. And are there additions or subsequent amendments to the Patriot Act that you think should be considered by the Congress next year?
ASHCROFT: Well, the Patriot Act -- one of its most important contributions was to help us to tear down the wall. The multipoint wiretap is very important. It extended...
THOMPSON: That's the roving wiretap.
ASHCROFT: The roving wiretap. This is something that had been available in the criminal law since 1986 regarding what was drug dealers and organized criminals. Our ability to use a roving wiretap is important.
Our ability to have national search warrants so that we don't have to, for individuals who are mobile, get new search warrants.
The pen register trap and trace for e-mail is a very important thing. These provisions of the Patriot Act are important to national security. And for this country to begin to forget that national security requires a robust capacity for law enforcement would be a major tragedy.
There are some things that I think could be added that would be helpful to us. The material support for terror statute could be clarified so as to make sure that individuals who are involved in contributing their services are actually providing material support.
The presumption against bail for terrorists -- for serious drug offenders and violent criminals, we have a presumption against bail in the law, and for a number of offenses. But there's no presumption against bail. Not meaning there couldn't be bail grant, but meaning that there ought to be a presumption that a person involved with serious charges of terrorism be restrained.
I believe that we should accord the terrorist investigators administrative subpoena power for certain kinds of business records. There are 335 different administrative subpoena authorities in the country regarding everything from nursing home fraud to a variety of other criminal or federal violations, whether they be health care fraud or crimes related to children. I believe if those authorities work against individuals in those areas, that we should have them as tools in our fight against terror.
The death penalty, which is not automatic, obviously, and shouldn't be automatic, but we should have an availability of the death penalty in certain terrorism crimes resulting in death. Currently, we have some terrorism crimes that may well result in death that wouldn't be punishable by the death penalty. And I think that's one of those areas where we would be well-served to expand the authority of our government to act against terror.
THOMPSON: General, one last question before the chairman gavels me down. I see his eye on the red light, and so is mine.
Sometimes in this country we fall victim to the notion of fighting the last war. And my guess is Osama bin Laden and al Qaeda are not going to fight the last war, they're going to fight a new war, perhaps, in the future.
We've responded with greatly increased security precautions to the hijackings that took place on September 11th. But who in the government, who in the Bush administration, is worrying about the next war and other means that al Qaeda may use to attack us -- or other groups, Hezbollah, Hamas, other groups -- on our soil, on other portions of our infrastructure besides aircraft and airports? Our food supply. Our water supply. Our oil pipelines. Our railroads. Our chemical factories.
Who's worrying about that, and how are they worrying about that? And what assurance do the American people have that somebody is indeed worrying about the next war?
ASHCROFT: Well, frankly, there are a number of us who are worrying about the next war, and we understand that al Qaeda is very likely to change its method of operation and its style to avoid detection. And it's something when we have to understand the nature of this enemy that we face. It's an enemy that is not stupid. This is not some garden variety criminal who is robbing a 7-Eleven. They plan well. They undertake actions that last for years. They seek to inflict mass casualties.
We understand that they might seek to use a different style of individual, individuals who would come from different countries, that it's clear that we know that they have interest in poisons, that they have interest in toxicity, in evil chemistry and evil biology, as well as the interest which they have had in explosives.
We've seen a wide variety of explosives used around the world in the proliferation of terrorism that has followed 9/11. It's not been used here and we're grateful that we've been successful in keeping it from happening here.
But this administration has tasked every quadrant of the administration to be alert.
In agriculture, I know very much the concerns of Secretary Veneman. I know in transportation, the concerns of Secretary Mineta. And I know in energy the kinds of concerns that have been expressed by Secretary Abraham, and the list could go on completely.
I guess I would say that we need to continue to do everything possible. When you look around the world and we see that even in cultures that are very attuned and very focused on disrupting terrorism that they are not always successful, and so we have to be at the highest level of readiness and anticipation.
THOMPSON: Thank you, General.
Thank you, Mr. Chairman.
KEAN: Commissioner Ben-Veniste?
RICHARD BEN-VENISTE, 9/11 COMMISSION MEMBER: Good afternoon, General Ashcroft.
I want to say hello to Larry Thompson.
And to Mr. Olson my renewed condolences.
I believe in your statement, General Ashcroft, with respect to the failed capture policy of the prior administration that you may be incorrect.
I don't believe that you have seen the MON that we have recently received as of last week which had not been previously made available to us. And I will leave that for others to discuss; we've got to tip- toe around it for obvious national security and classification reasons. But you may be enlightened by reviewing that document.
Let me ask you about the August 6th PDB memorandum, sir. It is correct, is it not, that you did not receive that document contemporaneously?
ASHCROFT: I did not receive that document in the August 2001 timeframe.
BEN-VENISTE: When was the first you had seen it?
ASHCROFT: I think I saw that in the last several days.
BEN-VENISTE: And so, unlike in the previous administration, the attorney general of the United States in the Bush administration was not a recipient of the PDB memorandum; is that correct?
ASHCROFT: Not prior to 9/11.
BEN-VENISTE: 9/11. That has changed since?
ASHCROFT: I am involved regularly with briefing of the president in regard to terrorist threats. And I accompany the director of the FBI to a morning briefing with the president, which briefing is attended by the director of the CIA and other officials, including director of homeland security. And I think you're familiar with that, I need not...
BEN-VENISTE: Yes, I am, sir.
If you put yourself back in time to early August of 2001, aside from not receiving the PDB, were you made aware from any source that the president of the United States had requested a briefing with respect to the potential for an attack by bin Laden in the United States?
ASHCROFT: This was the kind of information I was asking when I was briefed by the CIA and when I was briefed by the FBI. I was not aware that the president of the United States had made a request in that respect.
BEN-VENISTE: Had you been aware, would you not have made sure that the president received a comprehensive report from the FBI?
ASHCROFT: Any time the president would ask for information from the FBI it would have been my intention to provide the president with a comprehensive report from the FBI. We were not into giving the president less than comprehensive...
BEN-VENISTE: I understand that, sir.
ASHCROFT: ... responses. And had the president asked the FBI for information and I'd been aware of it -- and I would have expected to be aware of it -- I would have encouraged the FBI to be comprehensive.
BEN-VENISTE: Now, we received some very, very interesting information from Acting Director Pickard just a few moments ago. Mr. Pickard testified that as of the afternoon of September 11, 2001, he received three things that he did not know before: Number one, he received the Phoenix memorandum; number two, he received information about the Moussaoui arrest and the detailed background that I won't go into now about who Moussaoui was and what we knew about why he was in the United States; and he received information that the FBI was looking for Mihdhar and al Hazmi, two of the individuals who it turned out participated in the 9/11 catastrophe.
Now, given that fact, and given the fact that as I understand it from our prior meeting, you also did not know any of that information prior to 9/11, is it not possible, sir, that were you to have pulsed the FBI and directed the FBI to push up any information that it might have had, that that information might have been made available to you, to Mr. Clarke, to others contemporaneous in August and prior to 9/11?
ASHCROFT: Well, I think it's pretty clear that I was pulsing the FBI. I asked them regularly in my briefings with them if there were any evidence regarding threats domestically and the kind of conduct by the FBI was the kind of thing that I would have expected them to be involved in as a result of that kind of request on my part.
When you look at their conduct in asking twice in April for information relating to Sunni extremism, working the conference of the special agents in charge, when you ask -- when you relate to the telephone calls provided and made by the individuals, when you look at the inlets, you get the kind of activity on the part of the organization that is designed to respond to leadership, that is saying is there any information about a threat? And you would expect having conducted that kind of pulsing that if there were information, that it would be made available.
BEN-VENISTE: Well, obviously we know it wasn't made available. So the question is: Were you familiar with the dysfunctionality of the FBI as a result either of your first months in office or as a result of your great experience in Washington, in the United States Senate and elsewhere.
ASHCROFT: Do you want to repeat that part about the great experience that I had in United States Senate and elsewhere will have to be referring to something else, because I spent my previous time as a colleague of the gentleman on your left, there, who was a governor in the neighboring state.
BEN-VENISTE: I see.
ASHCROFT: I stood in the shadow of a man known as Big Jim Thompson.
BEN-VENISTE: Well, let's go back to your -- so I take that back, and I take your point that you were not well-versed in the ways of Washington, and particularly with respect to the problems of the FBI in connection with disseminating information.
The statement that we've heard time and again is the FBI didn't know what it didn't know, but it also didn't know what it did know.
ASHCROFT: Well, if I might comment on that. In my opening remarks, I talked about the fact that I had demanded four separate independent reviews regarding the information systems at the FBI, so that I was aware of the challenges.
The first of those challenges was revealed to me when, on the day of my going to Justice Department as attorney general, Louis Freeh pulled me aside and said, "Oh, by the way, we've got a real problem with the penetration of the FBI, we believe the individual involved to be Robert Hanssen, and access to our information systems that compromises the national integrity was revealed." That was a signal to me that we had serious problems.
Later on, I came to an understanding when we were preparing to deal with the second largest terrorist attack in the United States, which was that undertaken by Timothy McVeigh which resulted in the death of about 170 people, that in his trial we had failed to comply with a court order and we had not delivered -- the FBI had not delivered about 3,000 documents, most of which were duplicates but were the subject of a court order. So I had to delay -- I'd had to delay the execution to make sure that we had an innocent system as well as a guilty defendant in the case.
Additionally, I became concerned about the integrity of our information technology system when it was revealed that about 300 laptop computers were unaccounted for, and for well over 200 of them, the inspector general of the FBI, whom I asked to investigate the matter, said it couldn't be determined whether they were lost or stolen and raised the specter of national security issues.
So I understood there were problems.
But I also understood that when we went to agents and when we asked them specific questions about issues related to national security that we should expect them to respond and could expect them to respond. The FBI is populated with well-meaning, hard-working individuals. And they, I think, need to be understood for that and to be credited with that.
BEN-VENISTE: I agree with you, sir.
The problem was in the communication of information which did not reach those who might have made a difference.
Let me ask you, as my time is expiring, one question, which has been frequently put to members of this commission; probably all of us have heard this one way or another.
And we are mindful that part of the problem with the Warren commission's work on the Kennedy assassination was the failure to address certain theories that were extant and questions and much of the work was done behind closed doors. So I would like to provide you with the opportunity to answer one question that has come up repeatedly.
At some point in the spring or summer of 2001, around the time of this heightened threat alert, you apparently began to use a private chartered jet plane, changing from your use of commercial aircraft on grounds, our staff is informed, of an FBI threat assessment. And, indeed, as you told us, on September 11th itself you were on a chartered jet at the time of the attack.
Can you supply the details, sir, regarding the threat which caused you to change from commercial to private leased jet?
ASHCROFT: I am very please pleased to address this issue.
BEN-VENISTE: Thank you.
ASHCROFT: Let me indicate to you that I never ceased to use commercial aircraft for my personal travel.
My wife traveled to Germany and back in August. My wife and I traveled to Washington, D.C., on the 3rd of September before the 17th -- before the 11th attack on commercial aircraft.
I have exclusively traveled on commercial aircraft for my personal travel; continued through the year 2000, through the entirety of the threat period to the nation.
The assessment made by the security team and the Department of Justice was made early in the year. It was not related to a terrorism threat as a threat to the nation. It was related to an assessment of the security for the attorney general, given his responsibilities and the job that he undertakes. And it related to the maintenance of arms and other things by individuals who travel with the attorney general. And it was their assessment that we would be best served to use government aircraft.
These were not private chartered jet aircraft. These were aircraft of the United States government. And it was on such an aircraft that I was on my way to an event in Milwaukee on the morning of September the 11th.
BEN-VENISTE: I'm pleased to have been able to give you the opportunity to clarify that issue for all who have written to this commission and communicated in other ways about their questions about that, sir.
Let me also give you the opportunity to respond to Mr. Pickard's testimony just a little while ago about a statement which he claims that you made with respect to priorities.
And in that regard, it is correct, is it not -- because we have looked at the May 10th, 2001, guidance for preparing fiscal year 2003 budgets in which you indicate your priorities -- there are five goals, strategic goals laid out there?
It does not appear that terrorism was one of them. Is that correct?
ASHCROFT: Let me make an explanation here, because I welcome, as well, this opportunity. The date preceding, on May the 9th, I met with the Senate Appropriations Committee and was asked about my priorities. I said my number one priority was to protect the people of the United States against terrorism.
The Department of Justice, required by the Congress to have a strategic plan, followed that plan. The plan was developed in the year 2000 by my predecessor and had a set of strategic goals. They're listed here early in the book and they are similar to the goals -- they are, as a matter of fact, the goals which were used in large measure for the May 10th memorandum. And they cite some additional goals to terrorism. There's no question about that.
Let me just go -- because our time is limited...
BEN-VENISTE: I'm sorry. Did you say in the prior plan there were citations to counterterrorism?
ASHCROFT: Well, there was no major goal of counterterrorism, but under -- let's not sell Ms. Reno short -- under the first...
BEN-VENISTE: She's not short.
ASHCROFT: Pardon?
BEN-VENISTE: I can testify she's not short.
(LAUGHTER)
ASHCROFT: Well, I won't make any personal comment.
BEN-VENISTE: I'm short.
ASHCROFT: But we, and under the "Keep America Safe" by enforcing federal criminal laws, she did have deter and detect terrorist incidents. And this is the kind of -- let me just cut to the chase here to see where we were. Let our money do the talking.
In the budgets proposed prior to September 11th, the total CT increases were 72 percent greater than the total increases for drugs and gun prosecutions combined. Now, those were the other issues that were listed as priorities of the department. What we had was a combined total of increases of $683.1 million for drugs and gun prosecutions.
We had a combined counterterrorism-related budget increase of $1,175.2 million dollars, 72 percent higher for counterterrorism- related items than for items related to the other priorities which we had stated, drug interdiction and the prosecution of gun criminals.
Now I don't mean to discount those priorities. Thousands of people die on our streets as a result of gun crimes. And we are very grateful for our record there. But let the record be clear that when it comes to where the appropriation was, that we had a $1.175 billion increase for counterterrorism in those first two budgets, a $0.683 billion, or $683 million increase on drugs and guns.
KEAN: Senator Gorton?
SLADE GORTON, 9/11 COMMISSION MEMBER: Thank you, General. Mr. Attorney General, in your written statement, you have four issues that you discussed. The first one is your criticism of the lack of aggressive enough authorities for decisive action against Osama bin Laden, and you state that on March 7, 2001, you recommended that those authorities be expanded to allow for decisive lethal action. To the best of your knowledge, between that date and September 11, 2001, were those authorities expanded in any respect whatsoever?
ASHCROFT: It's my understanding that an assignment was made by the national security adviser to the director of the Central Intelligence Agency to work on that, and that a judgment was reached that rather than a specific change, that any change should be made as part of an integrated new set of directives.
GORTON: I take that as an answer in the negative.
Your second issue is a severe criticism of the 1995 guidelines that, as you say, imposed draconian barriers to communications between law enforcement and the intelligence communities, the so-called wall.
I don't find that in the eight months before September 11th, 2001, that you changed those guidelines. In fact, I have here a memorandum dated August 6th from Larry Thompson, the fifth line of which reads, "The 1995 procedures remain in effect today."
If that wall was so disabling, why was it not destroyed during the course of those eight months?
ASHCROFT: The August 6th memorandum of Deputy Attorney General Larry Thompson made possible significantly more information sharing by mandating that those individuals involved in intelligence investigations who came across information relating to a felony federal offense immediately provide notice of that felony federal offense to people on the criminal side of the house.
It was a step in the direction of disabling the wall. It was a step in the direction of lowering the wall, providing for greater communication.
GORTON: But it was after August 6th, 2001, that Moussaoui was picked up and the decision was made in the FBI that you couldn't get a warrant to search his computer. So those changes must not have been very significant.
ASHCROFT: I missed your question, Commissioner.
GORTON: Well, you say as a part of your criticism of the 1995 guidelines, after the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer.
The warrant was rejected because FBI officials had feared breaching the wall. Yet that was after these changes that you say were significant on August 6th.
ASHCROFT: Let me explain to you what I believed was the rationale of the FBI at that time.
The FBI feared that if they went forward with a criminal warrant, that later, in the event that a FISA warrant was needed, because a track had been chosen which was a criminal track rather than an intelligence track, that they would not be able to access the information they would otherwise want through the FISA.
So the FBI, mistakenly believing that you had to choose one way or the other because of the wall, decided to deny the criminal warrant in order to protect the option later on for a FISA.
Now, the Moussaoui case reflects not a federal felony offense that would be covered under the authority of the memorandum sent forward by the deputy attorney general.
The Moussaoui case involved an immigration violation. And he was detained on the basis of that violation and in conjunction with what was considered suspicious behavior, but not in conjunction with what provided the basis for evidence of a federal felony.
GORTON: And finally, the third of your issues has to do with that computer authority in which, obviously, you did take very, very positive action very early.
But the fourth refers to the millennium after-action review and its recommendations about disrupting the al Qaeda network.
And as you point out, fully 17 months before September 11th, the review makes these recommendations. Nine of those months were in the Clinton administration; eight of them were in yours.
Did you make any changes reflecting that millennium after-action review in your time as attorney general before 9/11?
ASHCROFT: This is a report which was not briefed to me or briefed to other individuals. It was a report which is a classified report.
GORTON: So you didn't know of its existence?
ASHCROFT: No, it turns out, when I learned of its existence, these were the very things following September 11th.
We began to address suspicious situations by being very aggressive in charging criminal violations, in charging immigration violations. We began to be very aggressive in our work at the border. And these are the kinds of recommendations that were involved in the report, which was simply not made available...
GORTON: Attorney General Ashcroft, there's no question of how aggressive you were in that period of time, and I think highly admirable. But the administration, of which you're a part, didn't take any of those actions before 9/11.
ASHCROFT: That's exactly correct. And this report would have recommended and signaled to us that this was a way that we might consider acting.
And, as a matter of fact, the report signaled that it would be appropriate and perhaps necessary. It signaled significant risks that those involved in the after-action assessments of the millennium plot believed would merit us being more aggressive.
Thank you, Mr. Attorney General.
Thank you, Mr. Chairman.
KEAN: Commissioner Fielding?
FRED FIELDING, 9/11 COMMISSION MEMBER: Thank you, Mr. Chairman.
Mr. Attorney General, thank you for being here. Thank you for all of the assistance you provided to our commission. And also thank you for all your years of public service.
You said in your prepared statement this afternoon, that in discussing the debate on the nature of the covert action authorities, that in February 2001, shortly after becoming attorney general, you reviewed those authorities. And your thorough review revealed no covert action program to kill bin Laden. Is that correct?
ASHCROFT: I believe that the covert action plan I reviewed was to capture bin Laden. And if he were to be killed it would only be in the eventual circumstance that there were some kind of inability to capture that resulted in a threat that required some kind of self- defense measure.
FIELDING: What briefings did you seek in February to review this whole situation?
ASHCROFT: Well, I was part of the consideration of the strategy regarding Osama bin Laden to the extent that it related to the treatment and the pursuit of Osama bin Laden himself. So this was one of the responsibilities I had.
FIELDING: Now, I'm sorry, sir. What briefings did you receive? What were your sources of information when you were making this review of authorities? Were you briefed by Director Tenet?
ASHCROFT: I'm not sure exactly where all the information came from that I was privy to at that time.
We were very confident that this individual had been involved in very serious acts against the United States, in the embassy bombings and the like. And we felt that we had a relative assurance that he was involved in the Cole attack.
We knew that Khobar Towers was what we considered to be Iranian Hezbollah; so it was a different group. But in my judgment, just knowing about the embassy bombings, the loss of life there, we all understood that the fatwa had been issued regarding his desire to kill Americans. FIELDING: Now, I appreciate that, General, and excuse me for interrupting you but we're playing with the clock here. But what I'm trying to determine is did you review MONs, for instance?
Did your staff provide you with the documents so that you could review the existing authorities?
ASHCROFT: I believe they did.
FIELDING: Did you request documents from agencies? Did you request documents from the CIA?
ASHCROFT: I'm not capable of telling you exactly how all the information was assembled. I just remember that having made the assessment of the information, I was struck by the fact that I believed that it was so complex and convoluted that it would be paralytic and that we owed people in the field clear direction, and that the direction should be to find and kill bin Laden and not to try and capture him.
FIELDING: Did you staff prepare a briefing for you? Was there any written documentation of the process that you went through to make this evaluation?
ASHCROFT: I'm not in a position to remember whether or not they did at this time.
FIELDING: We would request that you check that. And the reason I'm asking is I must advise you that we have received recent information in regard to MONs which I believe may alter your evaluation of existing authorities in February of 2001.
ASHCROFT: Well, I took that seriously when Commissioner Ben- Veniste mentioned it to me. I've made a note of it. And unless I'm missing a bet big time, my staff has made a note of it. And we'll work to understand that more thoroughly.
FIELDING: Well, thank you, sir, because we would otherwise want to review this with you in closed session, because it's obviously very highly classified, unless there's an opportunity to have this declassified so that we can supplement our staff statements as well. So thank you. We'd appreciate your cooperation in that regard.
Thank you, Mr. Chairman.
KEAN: Thank you, Commissioner.
Congressman Roemer?
TIMOTHY ROEMER, 9/11 COMMISSION MEMBER: Thank you, Mr. Chairman.
Welcome, General. Thank you for your time here and your fulsome testimony.
I want to turn to page three of your testimony and where you're talking about being aggressive and doing something about Osama bin Laden.
You certainly think Osama bin Laden is somewhere overseas, correct?
ASHCROFT: I don't know where he is.
ROEMER: Don't know where he is.
ASHCROFT: I don't believe he's in the United States of America.
ROEMER: You don't believe he's in the United States, and you want to go get him. And you go to the national security adviser to the president and you say, "Let's find a way to get him."
ASHCROFT: I said that if we could find and kill him, that should be the objective of our government.
ROEMER: So you're being aggressive. You're certainly trying to focus on the threat of bin Laden.
Let me ask you a question about al Qaeda. With the USS Cole, we lose 17 sailors. The Clinton administration gets a preliminary judgment in December of 2000 that says, "Well, we can't quite associate this with the command and control of Osama bin Laden, but these are definitely al Qaeda operatives."
You -- I believe your administration gets a briefing in January, same type of briefing. This is al Qaeda. Why don't you take this on the offensive, like you do Osama bin Laden, and say, "We are going to go get al Qaeda. They can't do this to our military, to our sailors, to our people"?
ASHCROFT: Well, Commissioner, I didn't get the briefing in January. As you may remember, I was one of the late individuals confirmed.
ROEMER: When do you understand this, then? You're certainly in March meeting with Condi Rice to do something about this. Why don't you do something about al Qaeda?
ASHCROFT: Very frankly, we didn't get confirmation that the -- as I explained earlier -- that the command and control of al Qaeda might be involved in this matter until substantially later.
ROEMER: Can you remember when?
ASHCROFT: I believe it was either late in the summer or the fall of 2001 when the final determination was made.
And that was a time, after which, I believe we brought criminal charges, although obviously those are not resolved.
ROEMER: For a law enforcement...
ASHCROFT: There is -- and it is a totally different world -- executive responsibilities in regard to presidential orders and directives are different than...
ROEMER: But why not go after al Qaeda? Why not militarily go after al Qaeda, rather than a law enforcement type of activity?
ASHCROFT: Well, first of all, let us make it clear that it's not either or. The mere fact that we would go after al Qaeda doesn't mean that we wouldn't also pursue and have the option of criminal remedies as well. The Justice Department has done that and continued to do that even against individuals who might be involved in al Qaeda or in more war-like settings.
If you're asking me why the administration didn't make a judgment, I believe that the administration, while it understood that there were ties to al Qaeda by those who were involved in the Cole bombing, the kind of information that would support a different judgment was not existent until substantially later.
ROEMER: But again, you're asking for a final conclusion, rather than a preliminary judgment that says al Qaeda is responsible. Al Qaeda did this. Al Qaeda killed our sailors. Why have to wait six to eight months down the line to say this is a particular individual, Osama bin Laden?
ASHCROFT: I don't understand your question, sir. I believe that the...
ROEMER: This is not just a terrorism fight against Osama bin Laden. It's al Qaeda. It's jihadists. It's the conveyor belts producing people that want to kill us in Afghanistan.
So my question is, why not go after broadly that group of people rather than one single individual?
ASHCROFT: Well, I believe that's eventually what we did. But, obviously, it's not a decision we made, and we didn't have the kind of information or predicate upon which to make that decision earlier. Whether or not we should have absent that predicate is a policy judgment that certainly wasn't mine to make.
ROEMER: Thank you, sir.
KEAN: Senator Kerrey?
BOB KERREY, 9/11 COMMISSION MEMBER: Attorney General Ashcroft, very nice to see you. I'm glad you're on the mend.
ASHCROFT: Well, I'm coming back, to the gratification of some and mortification of others.
(LAUGHTER)
KERREY I'm going to get into the mortification piece here in a minute.
(LAUGHTER)
ASHCROFT: You're going to what, help the mortifiers?
KERREY: No, no, no.
A couple of statements to you just for your information. In the, I think, '95 and '96 it was, Senator Specter and I, after learning of significant computer and communication inadequacies in the FBI, asked one of our staff to go over and do an evaluation of what the FBI -- that was a fast five minutes.
ASHCROFT: When you're having fun.
KERREY: Yes.
And came back and recommended that we authorize and appropriate several million dollars to do some evaluation. I guess it was a very unhappy experience.
I say that because there were a lot of us who simply didn't think the FBI could do it; that it was, sort of, like the IRS. You remember the whole IRS restructuring effort. That actually began with the IRS lousing up a several billion dollar computer investment. So I just ask to you look at that...
ASHCROFT: If I might comment on that, one of the real contributions of Louis Freeh as director of the FBI was that he began to reach outside the FBI in order to get help. And the FBI had been an insular agency of very capable people, but they really began to be injured by their own talent. They really thought they could do everything on their own.
And Robert Dyes was the first of the known experts to me to come to the FBI from IBM to begin to say, "Here's the way a modern information architecture should look and here's what should be done."
And so you were prophetic in saying that it needs something other than just the old agent core. Same thing with IRS. Until Rosati got there, nobody really trusted they could get the job done.
KERREY: And I think what we're doing now, we're beginning to use software and other things that are developed outside and beginning to accept expertise from outside the bureau. That's very, very helpful to us.
And the commercial world has things like link analysis and the like that they use commercially that can be very helpful to us in investigations and also connecting the dots when we want to organize intelligence.
The second thing I want to say, and I need your help on this because I was not in the Congress when the Patriot Act passed, and you know me well enough to know that anything that you have to put the word "patriot" on in order to get people to vote for it, I'm inclined to vote against it just on that basis.
ASHCROFT: I do know you. KERREY: In this case, looking at it -- the only thing I've heard about it by the way, so this is a mortification area -- I've heard a lot of my former Democratic colleagues giving fervent speeches against the Patriot Act. They all voted for it, but they're giving speeches against it. It's a weird situation.
ASHCROFT: That's not weird, that's rather usual around here.
KERREY: Anyway. I am concerned that section 218 could end up like Rico -- being used, you know, it starts off against organized crime but ends up abortion protests, using it against business. It has a life of its own beyond it.
I don't need a comment now, General Ashcroft. That and section 215 -- I need some help. I've got some questions about it. And I trust that you can help me with an open mind -- try to figure out where we need to preserve the Patriot Act and where we may have some provisions in there we actually don't need.
I mean, just generally, I'm very nervous about giving government too much power, frankly. And in the long-term -- I don't need to lecture you on that, but I get nervous about giving the government too much power. And it seems like the Patriot Act gave the government an awful lot of power over American citizens.
ASHCROFT: Let me comment that in large measure, the Patriot Act extended powers in the fight against terror that were already well- understood powers in the fight against drugs and organized crime, so that we weren't treading down new constitutional territory. The multi-point wire tap or the roving wire tap had been in existence for 14 years and 15 years. And the ability, for instance, to subpoena business records from grand juries had been in existence for a long time.
Now the FISA provisions that relate to it are different from grand juries. A grand jury, frankly, operates with the U.S. attorney or an assistant U.S. attorney reaching over on a stack of forms and filling it out, and taking it out and serving it. It's never seen by a judge unless someone resists it or protests it.
Under FISA, you can't have an order without first seeing the federal judge. Or unless it's an emergency order, and then it has to be brought before a judge within 72 hours. So there's a lot of safeguards here. I'd like to talk to you about it. It is important to our national security.
KERREY: Also, staff has asked, and I'd appreciate it if we could get that, some documentation that shows what the detain and clear policy did for counterterrorism, for intelligence, for law enforcement. I guess 768 detainees, and that's been a very controversial thing. If you can give us some documentation of what the counterintelligence...
ASHCROFT: I would love to comment on that. We did not detain anyone that was not in violation. So people who are detained were violators of the law. And our history has been that when you detain people for immigration violations or you charge them, if you don't detain them, they go, they just evaporate. Eighty-five percent of all people charged with violations, if they are finally adjudicated guilty, if you haven't detained them, they just merge into the culture.
Ninety-three percent of the people who come from terrorist- sponsoring states have the record of absconding, so they go into the culture.
We couldn't afford to have a situation like that with individuals who are detained in conjunction with the massive investigation following 9/11. We had to hold them, and we did.
And, frankly, that's one of the ways that we picked up a fellow named al Mahri (ph), who was sent here on September the 10th to be a facilitator of follow-on attacks. We first had him on immigration charges then on criminal charges. We eventually -- he has become an enemy combatant and is now being held...
KERREY: I appreciate that your staff is nodding like mad when I asked for the documentation, so I...
ASHCROFT: OK. Let them...
KERREY: Thank you.
KEAN: Commissioner Gorelick?
JAMIE GORELICK, 9/11 COMMISSION MEMBER: Thank you, Mr. Chairman.
You said in response to -- I think it was Commissioner Ben- Veniste's question -- that you, indeed, had been struck from the list of senior executives in the administration who got the presidential daily brief. I think you said you did not get it.
And that is curious, I think, given Dr. Rice's testimony that the domestic aspect of our national security was largely in the Department of Justice and FBI bailiwick.
You, when you were interviewed by our staff with regard to the adequacy of the FBI's response to the intelligence that was coming out in the summer of '01, said that you accepted the FBI's assurance that the threats were overseas and, sort of, assumed that things must be in hand and that whatever they were doing was adequate to respond. And then you said, I think quite candidly, that this was a dangerous assumption to make.
Now here is my question: You did not get the presidential daily brief, but you did get the senior executive intelligence brief that was provided to the next rung of the government.
Is that correct? You got that daily?
ASHCROFT: The SEIB...
GORELICK: The SEIB.
ASHCROFT: ... was available to me.
GORELICK: On August 7th, 2001, a SEIB that reflected much of -- although it was not identical to -- much of the content of the August 6th presidential daily brief came out. And I would like to ask you if you remember seeing a document headed, "Terrorism: Bin Laden Determined To Strike In The United States," in the SEIB.
ASHCROFT: I do not remember seeing that. I was in -- I believe I was in Chicago speaking at the American Bar Association meeting, I believe, at the time. So I do not have a recollection of seeing that.
GORELICK: Did your staff regularly brief you on the intelligence when you returned?
ASHCROFT: I was briefed, and items of interest were noted for me from time to time by my staff.
GORELICK: Would something like this, which is a memorandum that is going out to your colleagues, hundreds of your colleagues in the government, saying that bin Laden is determined to strike in the United States, been an item of significance that you would think would have been briefed to you?
ASHCROFT: These items had been briefed to me. They had been briefed to me by the FBI, they have been briefed to me by the CIA. The administration asked me to get briefings when appropriate in regard to these measures.
I remember Ms. Rice, for example, early in July, during the threat period and the heightened and elevated threat, asking me if I would receive a briefing from the CIA because she thought it important.
It's that kind of briefing that I received early.
The CIA, we have reconstructed it from the slides they used, talked a lot about the threat overseas. And we, obviously, were aware of the historical information that Osama bin Laden had issued statements years before, much of which is in the SEIB and was in the August 6th PDB, which I have now read.
But we inquired of the CIA and the FBI: Are there domestic threats that require -- is there any evidence of domestic threat? And they both said no. I might add that for the CIA, I inquired of them: Are there things we can do additionally by way of FISA to assist you in making sure that we have all the information necessary to be aware of those threats. And they assured me that if they needed additional help, they would ask for it.
GORELICK: So you were aware in early August -- by at least early August of '01 that in addition to the fatwas and the statements of intention by bin Laden, that there was evidence that he intended to strike in the United States? Is that correct? ASHCROFT: Well, I don't know if in addition to the fatwas and his statement of intention. We were aware that he had stated his intention, of the historical items mentioned in the SEIB and I believe also mentioned in the PDB. We were aware that those kinds of historical references had been made. And it was with that in mind, in conjunction with our understanding of what he had done in terms of the bombings in Nairobi and Dar es Salaam, that we understood him to be a very serious individual and we should take him seriously.
GORELICK: As a result of your awareness of this domestic threat, did you review with Acting Director Pickard the specific actions that he had taken to ensure that information in the possession of agents of the FBI across America relating to bin Laden's threats, his capacity, his ability to strike us, activities that might be going on in the United States, that that information would be flowing up to you?
ASHCROFT: I queried the director on numbers of occasions about threats in the United States that would require our attention.
I expected those queries to result in the kind of activity which we saw in the FBI across the summer -- not only in the face-to-face inquiries at the SAC meetings, but in the telephone inquiries and in the communications -- through the electronic communication as well as the inlets -- which shared those awarenesses with the rest of the law enforcement community in the country.
We viewed inlets as a force multiplier because we got away from just the 12,000 FBI agents to the 700,000 or so law enforcement officials in the country. And we wanted those to be pulsed, as well.
GORELICK: Do you know if any of the inlets actually produced any information to the FBI?
ASHCROFT: I do not know and would not be expecting to know what 700,000 or so law enforcement officials might be saying to the people in the FBI Joint Terrorism Task Forces around the country. And I'm sure they were saying lots of things. But obviously I wouldn't be aware of those.
GORELICK: Thank you very much.
KEAN: Thank you, Commissioner.
Attorney General, thank you very, very much for your appearance. For your help. You've helped our work and we appreciate it.
ASHCROFT: Thank you.
KEAN: Thank you. The hearing will now be adjourned until 9 o'clock tomorrow morning.
WOLF BLITZER, CNN ANCHOR: With that, the chairman of the 9/11 commission, Governor Tom Kean adjourns the hearing. It will resume as he just said tomorrow morning. Today was a full day. Former Clinton administration officials as well as we just saw the attorney general of the United States John Ashcroft testifying, sometimes tough questions by the ten commissioners. We'll have a complete wrap on all of these developments that's coming up on WOLF BLITZER REPORTS which starts right now.
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