CHAIRMAN BROWN: Thank you.
Our next witness is the Honorable William Barr, who served as Attorney General of the United States in the Bush administration. He is now Senior Vice President and General Counsel of GTE.
Mr. Barr had previously been Assistant Attorney General, the Office of Legal Counsel, and subsequently Deputy Attorney General. He also had served on the White House domestic policy staff during the Reagan administration, and he started his career as a CIA analyst, and then assistant legislative counsel to the CIA, which will fuel many conspiracy theories, despite which we are honored to have Mr. Barr with us today. Thank you for coming.
STATEMENT OF HON. WILLIAM P. BARR, FORMER U.S. ATTORNEY GENERAL, CURRENT SENIOR VICE PRESIDENT AND GENERAL COUNSEL, GTE CORPORATION
MR. BARR: Thank you very much. I thought what I would do is just make a few preliminary comments about the relationship between law enforcement and intelligence, and I hope that that may trigger some questions, and then I could focus in on particular areas of interest that you have.
It's a pleasure for me to have this opportunity, because I think that there's never been a greater need for a robust intelligence capability in this country than now, and although the Cold War is over, in many ways the task of intelligence is more difficult than ever and more needed than ever, and in that I would include not only the function of collection of intelligence, but also my view that we need a very strong covert action capability.
At the same time, obviously, I am a proponent of strong law enforcement and the need to maintain law enforcement capabilities in this country that are second to none. It is an interesting time for those two communities, because more and more we are seeing an overlapping of responsibilities.
Much of what we view as national security interests also implicates the criminal laws of the country, and obviously the drug war and terrorism are the two most obvious examples, but there area plethora of other examples ranging from financial crimes such as counterfeiting U.S. currency, proliferation of nuclear weapons, and so forth.
Any areas that implicate international affairs are now part and parcel of our criminal law. One overall concern I have had, or perspective, is that we are moving in an unfortunate direction of putting too much emphasis on the law enforcement side of things. We have a tendency to pursue some of these matters solely or primarily on the law enforcement track, and when the law enforcement juggernaut gets going, everyone else steps out of the way.
I think that's appropriate in certain cases, but it's not appropriate in all cases. I think of, for example, Pan Am 103, which we indicted the two Libyan intelligence officers while I was Attorney General. That's a situation where it may have made sense to carry out a criminal investigation, but when you think about it, it's not a situation that really is amenable to the machinery of law enforcement and to the end game of law enforcement, which is prosecution.
These are individuals in a renegade country. They're not going to be delivered over to us for prosecution, and we are using a standard of proof, beyond a reasonable doubt, that I'm not sure is appropriate to be using in terrorist cases.
Do we really want to lock ourselves into a situation where, when a terrorist action is taken against Americans, we're going to stand there, take whatever time is necessary to ascertain who did it beyond a reasonable doubt, which is the standard we would use in law enforcement?
If we go down that path, that has a lot of implications, because there will be many cases where we have some reasonable assurance they did it, but we can't prove it beyond a reasonable doubt, so that's an area where we sort of let the law enforcement juggernaut go down the track, and I'm not sure that was a good idea, to look at it in that way, particularly the end game.
In my view, if we had been told the day after Pan Am 103 went down, if we were told that it was the Libyans, there's no doubt in my mind that we would have taken strong retaliatory action of the military type, and yet, because we're civilized, we take over 2 years to determine that beyond a reasonable doubt. We determine who did it, and then we sit around fine-tuning worthless sanctions against the Libyans.
Another example in my view is Kung-Sa, the drug area. Kung-Sa is a guy who controls about half of the heroin that comes into the United States. He sits 2 kilometers inside the Thai border, inside Burma, or Myanmar, as it is now called, with his koi fish pond and his seven mistresses enjoying the life of Riley, and we've indicted him in the United States. Does that make much sense? We can indict him from here to eternity, and it's not going to have any impact on the heroin trade.
I view that as a national security issue. The Burmese are not going to do anything about it. Even if they wanted to, they can't do anything about the Shan Army sitting over there on the eastern side of Myanmar, because they don't control the territory.
The PRC is very upset at this character, we're upset at the character, the Thais are, too, at least they say they are, and everyone sits around and relies on this law enforcement process to deal with this problem with Kung-Sa.
So I think one of the problems we have is that Americans are enamored of the law enforcement process, the Perry Mason syndrome, the courtroom, the buzz words, and they think this is a great tool, or a great machine that we have. It isn't for many things, and I think we have to start looking at these things in a broader perspective.
National security in some cases, in many cases, law enforcement will be the end game. Law enforcement investigations should occur on many -- on all the terrorist activities, in my view, and in many of the drug fronts, but we shouldn't look at it as the exclusive means or the primary means, necessarily, of doing anything, particularly when you're dealing with what we have in the world today, which are many sort of no-man's lands, whether it be the Upper Huallaga Valley of Peru, or the Becca Valley, or countries like Libya, where essentially we don't have lawful regimes, or regimes that abide by the normal standards of the international community.
One of the difficulties is it's very hard to say up front -- you can't really make a decision up front whether you're ultimately going to go down the law enforcement route or go down a national security route, so in most cases, in my view, you have to go down both tracks at the same time, and ultimately you have to make the call which side you're going to deal with something on, the law enforcement or the national security side, and this means, I think, sharing information.
It becomes very important and very touchy. I say sharing information, not tasking the intelligence community to support law enforcement, because I don't think that the intelligence community really can function as an adjunct of law enforcement. It doesn't have the capacity, and that mission is very different from its own, and really I think would impair its own very important mission.
But I do think that a lot of the information that is developed in intelligence can be of use in law enforcement, and we have to find a way of using that information but doing so in a way that protects intelligence sources and methods, and ultimately have a willingness not to go forward with prosecutions if there's any risk of disclosing sensitive information.
I think that what we have to do is develop a mechanism, a crosswalk, if you will, between the activities of law enforcement and the activities of the intelligence community manned by law enforcement analysts, intelligence analysts with counsel who are very experienced in the handling of information and the protection of information and the standards of evidence, and so forth, and that can serve as a filter for information going into the law enforcement community without having direct contact between the prosecutors and the agents who are working on a case, and the intelligence analysts who are handling their own matters.
I think the FBI is the only agency, really, who has that kind of experience as a crosswalk, because it operates both in the national security area and in the law enforcement area, and I think that they could provide a lot of support and assistance to that kind of function.
Right now, I think it has a bit of a haphazard, sort of ad hoc flavor to it, the way things are done, the sharing of information. Part of that is really the decentralization of law enforcement itself. I think this is a prime problem in the way law enforcement and the intelligence community work together, and that is decentralization within the Department of Justice.
You have 92 U.S. Attorneys, you have 52 FBI field offices No one person in the Department necessarily knows everything that's going on at any one time. It's hard to know whether a particular case has suddenly come up in the field and may implicate the Iranians or the Iraqis or what-have-you, and if you're sitting over at the CIA and you have some interesting information, you don't know who to give it to in the Department of Justice. You don't know what office is handling it, you don't know whether it's a case, and so forth.
So we do have -- I think it's a challenge for the Justice Department and any Attorney General to get a better handle on what's going on in the Department.
During the Persian Gulf War, we sort of set up an ad hoc mechanism to try to monitor all the cases that might affect the Iraqis or the Iraqi interests. I was surprised at the number of cases that were percolating around the country.
Finally, there is a great deal of proliferation within the executive branch. There are a lot of law enforcement agencies. They all have their own little intelligence units now. My view is, we have to do a lot of consolidation of that. There are a lot of Treasury agencies that should be over in the Department of Justice. I think that the Department of Justice should worry about things that go clink, clink, not worry about things that go boom.
I don't know what the ATF is doing -- I don't know what the ATF is doing kicking in doors and seizing guns and investigating bomb blasts over at the Department of Treasury. I don't say that because I have anything against ATF. They're an outstanding agency, and I think John McGaw, who's head of it, is an outstanding law enforcement officer, but really they should be in the Department of Justice. There are customs functions that should be over there.
There should be a rationalization and a consolidation which I think will help interaction with intelligence and help us fuse some of our intelligence capabilities more closely together.
Finally, and this is the final point I'd just sort of like to offer, this country would be well-served if there was more coordination of technology in the law enforcement area under the Attorney General, and the application of intelligence kinds of technology into law enforcement applications.
We have a lot of technology that's emerging. It would be tremendous for law enforcement -- ways of identifying people, ways of following people.
During the Persian Gulf War, where I had responsibility for domestic defense against terrorist threats, I was appalled at some of the gaps, frankly, that we have, and the fact that with a little bit of elbow grease on the technological front we could provide a lot more protection for the American people against terrorist threats, and yet there's no person in the executive branch looking at this from a law enforcement standpoint who has the muscle to really focus our energies and make sure we're covering the technological bases from a law enforcement perspective.
So that I'll sort of conclude my stream of consciousness remarks, and maybe I've triggered some questions.
CHAIRMAN BROWN: Thank you very much, Mr. Barr, for what I think was much more than a stream of consciousness presentation. I think you have illuminated for us an issue on which the Commission itself has spent a good deal of time, and to which you bring an especially well-informed perspective, having served on both sides of the law enforcement, intelligence, or national security boundary.
As I understand what you said, it is that there's a balance that needs to be struck between law enforcement requirements and national security requirements. For example, a balance between compromising sources and methods on the one hand and obtaining evidence in a prosecution on the other hand, and that deciding where to strike that balance depends on the nature of the case. It depends on whether the culprits are in denied territory. It depends upon the implications for subsequent terrorist or drug activity, for example. And that's a policy decision that needs to be made at the policy level.
My question has to do with the issue of timing of that decision. It seems to me that if that decision is made at the policy level after an investigation opened, or certainly if a prosecutorial case has begun, there will be a charge, understandably, of political interference. How do you deal with that, and at what point in the process then should the policy decision be made in order to avoid that charge?
MR. BARR: Unfortunately, you can't -- I think your summary of what I said was right on point. I wish I had been as concise.
But each case is different, and it's hard to say that there comes a particular time where that call can be made. For example, suppose a plane, an American plane, is bombed, or there's suspicion of bombing, killing of Americans in a terrorist act overseas. I believe the FBI should respond to that, and should be the lead agency in investigating, but someone may have to make a call right up front, is this an ongoing set of circumstances, is it important that we quickly find out who's the culprit and take action right away, because there may be threats over the next few days, or is this something where we can let the law enforcement process and the grand jury take its time on?
So that could come right up front, or someone could say, we're not so interested right now in finding out who did it from the standpoint of prosecution. Let's protect the American people and use whatever we can to bore in on this. That might come early. On the other hand, you might have a case that you can make the call very close to the end.
You are right that one of the risks for intelligence, and one of the risks for law enforcement, and one of the risks for an administration, once you start mixing these communities, is the conspiracy theorists and paranoia that seem to be in fuller and fuller bloom every year, and pointing fingers at an administration or what-have-you, saying, oh, they took a dive on this one, they're trying to protect their friends, or what-have-you.
There's no answer to that. I don't know an answer to that. We just haven't reached a level of maturity in this country in the political dialogue and the way we follow these things really to solve that problem. I just think the people in office have to take, sort of have to grit their teeth and do the right thing and muddle through somehow, hope for the best. I don't have an answer for that.
MR. BARR: Thank you.
VICE CHAIRMAN RUDMAN: Thank you, Mr. Chairman.
One of the issues that obviously we're looking at is the issue that has been discussed for a long time, and there's been no really good solution. Some solutions work better than others. That's the conflict between law enforcement, CIA, and intelligence agencies as to when the call has to be made as to whether or not it's a national security issue. And even though the law should be faithfully executed, this time you're not going to do it because of A, B, C, and D.
Would you support the establishment of a reasonable mechanism with some detachment on the part of the arbiter to solve these disputes more quickly than they have been in the past?
MR. BARR: Yes, I would. I don't know if it has to be so formal, or whether it can be, for example, a small subcommittee of the Deputy's Committee of the NSC staff.
I always felt that if there was any issue, I could just go and talk to Bob Gates or Brent Scowcroft and we could get the right people together and get it right to the President when we had to, and there were really no disputes that came up to my level that we weren't able to get quick resolution on, but that's because we had good people who saw, I think, the balance of interests and so forth at the NSC and in the Deputy's Committee.
VICE CHAIRMAN RUDMAN: There's a 1968 presidential order, I believe in the waning days of the Johnson administration establishing the Attorney General as, to state the obvious, the chief law enforcement officer. That has been cited by some in law enforcement as that the "final call" if the law has been broken must be with law enforcement. I'm sure that's familiar to you. I assume you disagree with that.
MR. BARR: Well, I used that upon occasion.
VICE CHAIRMAN RUDMAN: This is not the first time General Barr and I have had this conversation in similar circumstances.
Let me ask you just a last brief question, because we have plenty of time.
The FBI in recent years has increased, with congressional support, its overseas presence substantially for a number of very legitimate reasons. Recently, there has been criticism from the Intelligence Community and other places, some from within law enforcement, that when they start establishing liaison with agencies which may be their police forces, but in some countries they're also the internal security forces, and places that intelligence agencies might normally be more expected to work, we're starting to get into an area that we better nip in the bud.
Could you just talk about that, because a lot of that happened on your watch for legitimate reasons, where we had to increase Bureau presence overseas for substantial reasons, which we all know. What do you think about that? What should we do about that?
MR. BARR: I think we should expand FBI presence. I don't view it as at the expense of the CIA, because I think that we do have an international law enforcement community that's started to gel, and a lot of things are being handled by law enforcement agencies in other countries that it's very important for us to have a direct law enforcement liaison relationship with. These things can be a national security type, also, but we shouldn't sacrifice another channel of relationship and another channel of access simply because the CIA is over there working their channels.
I think from my experience it's very valuable to have FBI work overseas establishing relationships with other law enforcement agencies, sharing information with those law enforcement agencies. I don't view it at the expense of the CIA at all.
VICE CHAIRMAN RUDMAN: I think the problem comes, of course, when there tend to be some of the same or similar sources, and the channels start to get crossed a bit. That's a concern, and one that needs to be addressed.
MR. BARR: Right. Now, I guess there's some statute out there that was passed during the Watergate period that sort of makes the ambassador the arbiter out there.
VICE CHAIRMAN RUDMAN: That's correct.
MR. BARR: The ambassador should be able to resolve turf disputes.
VICE CHAIRMAN RUDMAN: Assuming he knows what's going on.
MR. BARR: Right. I had a situation in terms of exploiting information in a newly liberated, newly free country, and there was some clashing between the FBI and the CIA, and I talked to the ambassador and it was worked out very quickly.
VICE CHAIRMAN RUDMAN: Thank you very much. It's good to see you here.
MR. BARR: It's good to see you, sir.
CHAIRMAN BROWN: Ms. Baird.
MS. BAIRD: Good afternoon. It's good to see you here today. You're talking about drug trafficking and organized crime. You're talking about terrorism. These things have, it seemed, benefited from the same technology that American business has benefited from. They have been able increasingly to go global, just as American business has, because the movement of money, communications, movement of people has become so much easier.
Could you talk to us a little bit about the extent to which you think that this problem is larger than it used to be, and do you see it on a trajectory? Is it going to be an ever-increasing threat to American security?
MR. BARR: I think it will be. I think things are going to get more chaotic and more threatening to American interests.
I think the drug problem is a threat to national security. It's cost as much blood and treasure and national tragedy as a major war, in my view, over time, and I think that that will continue. Unless we radically change our approach to it, I think that's going to continue to be a problem.
I think organized crime is going to continue to grow. In Asia, it's gone through phenomenal growth, and is now moving more into the United States than in the past, Asian organized crime, and what we know about the Russian Mafia, as you say, the technology and the ability to move money around, the mobility and so forth, has really been an enabler for organized crime, so I continue to see that as a major threat.
Terrorism I think is going to continue to be a great danger, because again, technology enables mass murder, and weapons of mass destruction, to be developed and used by small zealot groups. Keeping track of them is very hard, and dealing with them is very, very difficult, so that's why I said at the outset I think the intelligence challenge today is, paradoxically, more difficult in many ways than it was at the height of the Cold War. It's a lot easier to keep track of missiles and silos.
CHAIRMAN BROWN: Other questions? Mr. Goss.
MR. GOSS: Thank you, Mr. Chairman. General Barr, pleased to see you here today, and I appreciate your comments.
You said that you didn't think we should be tasking intelligence for law enforcement overseas, which then leads to the next question. How do we go about getting what law enforcement needs overseas? Do we let them do it themselves? Which then leads to the next question. How do we coordinate that, and that's sort of a big mission.
I think the conventional view is that by and large, if it's going to be sort of a general trend, the people who have been doing it the longest, which is basically the clandestine services people, probably ought to continue to do the recruiting and training and so forth, and the long-term projections, and help out law enforcement where they can.
The reason I ask the question is, obviously we have more expertise in the areas of law enforcement. I'm aware of several instances, and some came on your watch. I think probably good things are going on in terms of training and what I will call our "standards of justice" being spread around the world in various places where I think they're sorely needed. And I've seen some good evidence of that.
What I have also seen, however, is some real lack of cooperation between law enforcement, some missed opportunities, and intelligence, some real lack of opportunities. Then, I have seen some near -- I guess I could say travesty, rather than tragedy, but it could have turned out either way, where we find out we are training people who are doing a great job learning our new skills, but they're suddenly going to be subject to a person we wouldn't approve of. And it doesn't have quite the same concept of law and order as we do, and the way the chain-of-command suddenly changes for political reasons in a country like that.
Those, it seems to me, are very big important, country, team and policy type decisions that we're sort of backing into if we don't have control on it right up front and a pretty good vision of where we want to go. I would be interested in your views because I can see some good things happening, as I say, in the areas of training. But I wonder where do you draw the line, and how do you coordinate that with a bigger purpose. Or is this just going to continue to be a unilateral law enforcement function, sort of task by task, and that whatever is on the agenda for law enforcement in that area on a given day?
MR. BARR: First, when I say intelligence shouldn't be tasked for law enforcement investigations, I mean generally we will not use intelligence information as evidence in a criminal case.
MR. GOSS: I understand that.
MR. BARR: But you may use it for leads, and generally, I think the way this should operate is, if law enforcement is investigating a particular case, they should go to the intelligence people and say, what do you have that can shed light on X, Y, or Z, and there may be a unique case or an extraordinary case where you could ask the CIA to do something. That was done in Pan Am 103.
I'm sure the agency collected some information on a specific tasking, but generally speaking, I just don't want to see intelligence become an arm of law enforcement simply because criminal laws have become international.
I'm not saying that the agenda should be set by law enforcement. I would like to see the agenda set by an administration, and law enforcement simply told what its role is in it. For example, training. I don't put much stock in this international training and setting up of law enforcement activities and training judges and prosecutors in other countries. It's a nice thing to do, but if we really think it's going to bear fruit, I think we're kidding ourselves.
This is the system we're applying in the United States, and we haven't made that much progress in the drug war. What makes us think if we train the Colombians like we are, they're going to have any greater success than we are? I'm not pushing that as a law enforcement agenda overseas.
I would like to see in many of these areas such as terrorism and drugs more of an administration consensus on the overall plan of action, with law enforcement playing a role in it. I'm not suggesting that law enforcement go -- that everyone march to law enforcement's particular tune at the time. I got that feeling that you thought I was suggesting that.
MR. GOSS: No. Actually, the reason I asked the question the way I did was, I wanted you to answer it the way you answered it exactly. I'm very pleased by the answer. I think there is a danger, however, that the people, the very strong advocates, who feel that there is so much going on with this proliferation, terrorism and so forth that that justifies doing things in a very much different way.
Basically, we're talking about "eyes and ears," and then the ability to follow up. I think in your testimony you pointed out that our follow-up is quite miserable in many instances, and the Pan Am incident tragically is one of them.
I'm sure we have a long list, each of us, and we can probably match a lot of the same events on it of failure to follow up. Recognizing that law enforcement is a very different precise art, and the way you've talked about the noncentralization, the proliferation here, I'm not so sure that it might not be a good recommendation of this Commission that this Commission change its hat and do the same thing for law enforcement that we're trying to do for roles. Is that all right, Mr. Chairman? Can I say that?
CHAIRMAN BROWN: You get the legislation passed.
MR. GOSS: I know some people here who might be interested in that, but that was the direction I was going. I am more worried about tripping over ourselves overseas and being clumsy and creating problems in areas where there is risk.
There is risk in operating in law enforcement, as we all know, whether it's Colombia or some place else. And there is tremendous risk in dealing in the clandestine services. I think that is a place where you definitely do not want to be clumsy. That is, I think, my biggest concern.
MR. BARR: Yes. Also, when we talk about stumbling overseas, we can't forget the State Department.
MR. GOSS: I'm glad you said that and not me.
MR. BARR: If you look at, in my view, one of the great impediments to intelligence and law enforcement overseas, it's the State Department.
MR. GOSS: They have had equal time today. I think they share the concern about stumbling, but they have a different point of view about where it might occur.
Thank you, Mr. Chairman.
CHAIRMAN BROWN: Mr. Dewhurst.
MR. DEWHURST: I have followed your comments, and the Commission appreciates them. I endorse a number of your comments which you've shared with us today.
Two small clarifications. When you were talking about expanded role for the FBI abroad, and you were talking about liaison with police forces in the law enforcement function, you weren't talking about the FBI running clandestine operations, were you?
There's been a concern on the part of the Commission. Several speakers earlier today were talking about unification, putting the clandestine collection within one organization, the CIA. If I misunderstood your comments earlier -- are you recommending that the FBI carry on unilateral clandestine operations abroad, or simply those of liaising with police forces in their law enforcement duties?
MR. BARR: I wouldn't say unilateral, but I wouldn't rule out -- for example, one reason I think you need a law enforcement presence is, there may be some countries where you have to set up a loyal group of police, incorrupt police, essentially with FBI or DEA advisors to carry out a particular task.
For example, in Colombia or Peru right now you have national policemen who are under the control of the DEA, trained by the DEA, and hopefully are not corrupt, and that's a small cadre that's used with the DEA being advisors, so that's something in my view that's better done by the FBI than the DEA, because it is viewed in those countries as a law enforcement function.
MR. DEWHURST: I understand. I understand the clarification.
And last, you were talking about the difference -- you were talking about Pan Am 103 and also the example in Thailand, the difference between national security and law enforcement. Do you have a feeling as to whether or not there should be some formalized committee, some organization that addresses these trends, national threats?
MR. BARR: I think that's the function of the NSC. I don't think there's a need for a specialized committee. I think the NSC should be looking at these things.
There's a schizophrenia, and I think it carries over into every administration regardless of whether it's Republican or Democrat. Before the Persian Gulf, the military was very big into the drug war, and they were looking for a mission. Now, it's very hard to get them involved in the drug war, and sometimes the State Department blows hot and cold on the thing. The intelligence agencies blow hot and cold on it. Some of them want to get more deeply in, or a particular Director might want to.
Frequently, the Department of Justice finds itself going to the NSC and saying, what are we going to do about this problem, and they're just as content to leave it over at the Department of Justice because it means they don't have to deal with it.
From my experience, it's not so much people coming to put a straitjacket on the Department of Justice as they Department of Justice frequently saying, look, if we're going to get the job done here, we're going to need help from the CIA and the State Department. We're going to need help from the Army, and they -- oh, we've got other things to do.
CHAIRMAN BROWN: Thank you very much, Mr. Barr. We appreciate it, and you've been very helpful.
MR. BARR: Thank you.