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                                                        S. Hrg. 109-311



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                           SEPTEMBER 21, 2005


                          Serial No. J-109-39


         Printed for the use of the Committee on the Judiciary

25-409                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................     3
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    15
    prepared statement...........................................    63
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    66
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Bald, Gary M., Executive Assistant Director, National Security 
  Branch, Federal Bureau of Investigation, Department of Justice, 
  Washington, D.C................................................    35
Dugan, William, Acting Assistant to the Secretary of Defense for 
  Intelligence Oversight, Department of Defense, Washington, D.C.    37
Kleinsmith, Erik, former Army Major and Chief of Intelligence, 
  Land Information Welfare Analysis Activity, and Project Manager 
  for Intelligence Analytical Training, Lockheed Martin, 
  Newington, Virginia............................................    25
Weldon, Hon. Curt, a Representative in Congress from the State of 
  Pennsylvania...................................................     5
Zaid, Mark S., Partner, Krieger & Zaid, PLCC, Washington, D.C....    21

                       SUBMISSIONS FOR THE RECORD

Bald, Gary M., Executive Assistant Director, National Security 
  Branch, Federal Bureau of Investigation, Department of Justice, 
  Washington, D.C., prepared statement...........................    45
Dugan, William, Acting Assistant to the Secretary of Defense for 
  Intelligence Oversight, Department of Defense, Washington, 
  D.C., prepared statement.......................................    53
Gorton, Slade, former U.S. Senator and Member, Public Discourse 
  Project, 9/11 Commission, Washington, D.C., letter.............    57
Kleinsmith, Erik, former Army Major and Chief of Intelligence, 
  Land Information Welfare Analysis Activity, and Project Manager 
  for Intelligence Analytical Training, Lockheed Martin, 
  Newington, Virginia, prepared statement........................    65
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, letter...........................................    68
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania and Hon. Patrick J. Leahy, a U.S. Senator from the 
  State of Vermont, joint letter and attachment..................    71
Weldon, Hon. Curt, a Representative in Congress from the State of 
  Pennsylvania, prepared statement...............................    73
Zaid, Mark S., Partner, Krieger & Zaid, PlCC, Washington, D.C., 
  prepared statement.............................................    78



                     WEDNESDAY, SEPTEMBER 21, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:31 a.m., in 
Room 226, Dirksen Senate Office Building, Hon. Arlen Specter 
(chairman of the committee) presiding.
    Present: Senators Specter, Grassley, Kyl, Sessions, and 

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. The Judiciary Committee will now proceed 
to a hearing on a project known as Able Danger.
    There has been extensive publicity in the media about this 
program known as Able Danger, with representations made that 
the Department of Defense had information about an Al Qaeda 
cell, including the identification of Mohammed Atta, 
substantially prior to 9/11, and that arrangements which had 
been made preliminarily to turn over the information to the FBI 
were not carried out because of concern by the Department of 
Defense that there might be a violation of the Posse Comitatus 
Act. That is a statute which was enacted shortly after the 
Civil War which prevents the United States military from being 
engaged in law enforcement activities.
    If the Posse Comitatus Act precluded this information from 
being turned over by the Department of Defense to the FBI, then 
that is a matter which may require amendments to the Act, and 
that is a matter for the Judiciary Committee. It is squarely 
within our jurisdiction. The oversight of the FBI also is a 
matter squarely within the jurisdiction of the Judiciary 
Committee, so that the Committee is concerned about what 
happened here.
    There have been some allegations of destruction of records. 
There has been a question raised as to whether the name 
Mohammed Atta is the Mohammed Atta, some saying that it is a 
common name. The circumstances relating to the identification 
of the Al Qaeda cell, if, in fact, that happened, and alleged 
charts with the name of Mohammed Atta and a picture, all are 
questions to be resolved.
    For the record, I will now introduce, without objection, a 
letter which I wrote to Secretary of Defense Rumsfeld dated 
September 8, 2005. There have been extensive discussions 
between my staff and staff from the Department of Defense. I 
was surprised to find that the Department of Defense has 
ordered five key witnesses not to testify, some of them 
military, some civilian, all working for the Department of 
Defense. That looks to me as if it may be obstruction of the 
Committee's activities, which is something we will have to 
    There have been repeated requests for documents. They were 
delivered, I am advised, last night at five o'clock. They were 
in a secure room, Senate-407, some 500 pages, so there has not 
been any opportunity to review those documents for whatever 
light they may bear upon this hearing.
    There has been a contention raised by the Department of 
Defense that the Department is concerned about classified 
information. This Committee is zealous in its protection of 
classified information, something that I have had personally 
extensive experience with in my capacity as Chairman of the 
Senate Intelligence Committee in the 104th Congress. I 
conferred with Senator Pat Roberts, Chairman of the 
Intelligence Committee, and our staffs have coordinated so that 
we will be advised of whatever the Senate Intelligence 
Committee knows so that we have the benefit of the work of both 
    As a precautionary matter, the Committee has conferred with 
the Office of Legal Counsel on the issue of classified 
information and I would, without objection, put into the record 
the advice from the Office of Legal Counsel, which takes the 
form of a memorandum from my General Counsel, Carolyn Short, to 
me, specifying the advice which she had received orally from 
the Office of Legal Counsel. It was put in writing under their 
procedure on a request by Senator Leahy and myself in writing. 
I will put in a copy of the letter from Senator Leahy and me to 
the Office of Legal Counsel and put into the record this 
memorandum from the Office of Legal Counsel.
    The essence of the situation on classified information is 
that the Office of Legal Counsel advised that I should state, 
and I do, at the opening of this hearing that we are not 
seeking the disclosure of classified information and that I am 
instructing the witnesses not to disclose any classified 
information. The Legal Counsel further advised that I should 
instruct the witnesses that if there is classified information 
that they wish to present to the Committee, if they so inform 
the Committee, at the conclusion of the public hearing the 
Committee can make the decision about whether to go into closed 
    We have a representative from the Department of Defense 
here today, Mr. William Dugan, who is Acting Assistant to the 
Secretary of Defense for Intelligence Oversight, Department of 
Defense. Legal Counsel has made the suggestion that the DOD 
representative in the audience at the hearing should feel free 
to raise objections to staff, when appropriate. Well, I would 
go beyond that and say that if someone from the Department of 
Defense who is here has an objection, they can state it 
publicly prior to the time any risk arises of the disclosure of 
classified information and the Committee will take into account 
what is raised, make a determination, and we will err on the 
side of caution to be sure that there is no classified 
    Our lead witness is Congressman Curt Weldon, who has key 
positions on the House of Representatives Armed Services 
Committee and on Subcommittees dealing with intelligence. 
Congressman Weldon has made a very expansive study of this 
matter. I have known him personally for 25 years or more, since 
the days when he was mayor of Marcus Hook and in the House of 
Representatives, having been elected there in 1986. My 
knowledge of Congressman Weldon give me the utmost confidence 
in his thoroughness and his integrity and his objectivity.
    On the issue of the classified information, in discussing 
this matter with Congressman Weldon, he assured me and the 
Committee that classified information was not involved here. 
May the record show he is nodding. In a few minutes, he will be 
testifying about his knowledge of Able Danger and the reasons 
why he said, as reported to me in our discussions in advance of 
this hearing, that if it had been classified, there would have 
had to have been a formal order of destruction. Again, let the 
record show he is nodding, but he will testify.
    That is a very, very brief statement of overview. Terrorism 
remains the No. 1 problem in the United States today. 
Notwithstanding all the other problems we have, it is the No. 1 
problem. This country is still recoiling from the events of 9/
11/2001, more than 4 years ago. This country will be recoiling 
from those events for a very, very long time, indefinitely and 
perhaps permanently.
    If there is some change legislatively which needs to be 
undertaken in the Posse Comitatus Act, it is the duty of this 
Committee to move ahead and to find out what went wrong here, 
if something did, in fact, go wrong. And it is my hope that we 
will have cooperation yet from the Department of Defense on 
these important matters. It is not a matter of attaching blame, 
it is a matter of correcting any errors so that we don't have a 
repetition of 9/11. And if there is intelligence information 
available, it ought to be shared and made known to the 
authorities who can act on it, like the FBI and the CIA and the 
other intelligence agencies.
    This is practically a Delaware Valley affair at this 
moment. We have been joined by Senator Biden, whom I yield to 
now for any opening statement he may care to make.

                       STATE OF DELAWARE

    Senator Biden. Thank you, Mr. Chairman. I apologize for 
being a few minutes late. I am here for two reasons. One, my 
high regard for the Congressman. He has, over the years and the 
last 9 months, shared information with me. Some of it seemed 
prescient and it turns out that a number of the things he said 
have been--I was unaware of, have turned out to be the case.
    I thought this morning we were going to be able to get to 
the bottom of some of this. I know, as you know better than I 
do, that the Congressman is a loyal American first, but a very 
staunch Republican and has no political agenda here other than 
trying to figure out what we knew and didn't know and why we 
didn't know it.
    My staff indicates to me that representatives from the 
Department of Defense have confirmed that an internal 
investigation identified five Able Danger team members who 
claim they had either seen a picture of Atta or had seen his 
name in a chart prepared in 1999 by the Able Danger team, and 
the Defense investigation found these sources to be credible 
but didn't uncover the chart itself. Defense officials have 
said that documents associated with the project have been 
destroyed in accordance with regulations regarding collection, 
dissemination, and destruction procedures for intelligence 
gathering on people inside the United States.
    So I thought we were going to get a chance to clear some of 
that up this morning. For the life of me, I don't understand 
why--as I understand it, I stand corrected if I am wrong, but I 
understand the witnesses we assumed we were going to get to 
hear from the Defense Department have been pulled. They may be 
or may not be in the room, but have been instructed that they 
cannot testify. I think that is a big mistake and I am sorry 
that is the case, but I know the Chairman over these many years 
we have been friends and worked together seldom takes no for an 
answer when we have a right to hear some things, and so I hope 
we will pursue that.
    But in the meantime, I am anxious to hear--to be very blunt 
about it, I have heard, I have had the opportunity to travel 
with the Congressman. He and I went to Iraq Memorial Day with a 
number of his bipartisan group he led in the House. We had a 
chance to talk about a lot of this.
    So I am going to stop--I have a few minutes left, but stop 
now because I am supposed to co-host the King of Jordan with my 
colleague, Senator Lugar and the Foreign Relations Committee, 
and he is going to be talking to us about Iraq and a few other 
things. I am going to stay as long as I can, but hope we can 
get to the bottom of this and hope we can prevail upon the 
Defense Department to change its mind. I have heard no good 
reason for the change.
    I thank you and I welcome the Congressman.
    Chairman Specter. Thank you very much, Senator Biden.
    Senator Leahy, the Ranking Member, is scheduled to speak 
shortly on the floor on the nomination of Judge Roberts for 
Chief Justice or he would be here, as he attends very 
    We have been joined by Senator Kyl, who chairs the 
Subcommittee on Terrorism. Senator Kyl, would you care to make 
any opening remarks?


    Senator Kyl. Mr. Chairman, first of all, welcome to my 
colleague, Curt Weldon. We came into the House of 
Representatives together, oh, a few years ago. I have 
appreciated the effort that he has put into trying to get to 
the bottom of this matter and the fact that he has had a lot to 
do with bringing it to our attention.
    I commend you for the effort here to also get to the bottom 
of it and hold these hearings. I know that we are going to have 
a lot of work to do in the future to bring all of the folks 
here, and in the meantime, subscribe to your notion that we 
need to do a little bit more work on the whole issue of Posse 
Comitatus so that we can address that, as well.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kyl.
    For the record, as to Congressman Weldon's background and 
work in this matter, it ought to be noted that he is Vice 
Chairman of the House Armed Services Committee and chairs the 
Tactical Air and Land Forces Subcommittee. He served for 6 
years as Chairman of the Military Research and Development 
Subcommittee and he is also Vice Chairman of the Homeland 
Security Committee. So he has been very deeply involved in 
these issues.
    Our practice, Congressman Weldon, is to set the time at 5 
minutes, even for members of the House or for Senators, but 
knowing what you have to say, we are going to set the clock at 
15 minutes. To the extent you can testify about this very 
complex situation within that time would be fine, and if it 
takes a little longer, we want you to have an opportunity to 
develop the factual issues as fully as you can.
    Thank you for coming, and we look forward to your 


    Representative Weldon. Thank you, Mr. Chairman, and let me 
thank my friends, Joe Biden and Jon Kyl, for also showing up 
for this hearing. I want to thank you for your willingness to 
listen to the facts of this story and attempt to get to the 
bottom of it. I will be brief. I wrote my statement down, which 
I don't usually do, to stay in compliance with your time 
limitation, Mr. Chairman.
    I have a number of documents that I will make available to 
the Committee and will enter into the record. If the Chairman 
would like, I have a full written statement and a time line, 
but I have some prepared comments I would like to make today.
    I would like to thank you and Ranking Member Leahy and the 
other members for scheduling this hearing today. Mr. Chairman, 
I am dismayed and frustrated, however, with the response of our 
government to information about the program Able Danger.
    The Defense Department has acknowledged that a program, 
Able Danger, existed and operated during the 1999-2000 time 
period, authorized by the Chairman of the Joint Chiefs of Staff 
and carried out by SOCOM with the help of the Army. DOD has 
stated publicly that five individuals, including an Army 
lieutenant colonel, recipient of the Bronze Star, who is in the 
room today, and a Navy Annapolis graduate, ship commander, have 
emphatically claimed that they worked on or ran Able Danger and 
identified Mohammed Atta and three other 9/11 terrorists over 1 
year prior to the Trade Center attack. These five individuals 
have told me, your staff, and others that Able Danger amassed 
significant amounts of data, primarily from open sources, about 
Al Qaeda operations worldwide and that this data continued to 
be used through 2001 in briefings prepared for the Chairman of 
the Joint Chiefs of Staff and others.
    These two brave military officers have risked their careers 
to come forward to simply tell the truth and to help America 
fully understand all that happened prior to 9/11 that had or 
might have had an impact on the most significant attack ever 
against our country and our citizens. These individuals have 
openly expressed their willingness to testify here today 
without subpoenas, but have been silenced by the Pentagon. They 
have been prevented from testifying, according to the Pentagon, 
due to concerns regarding classified information, in spite, Mr. 
Chairman, of the Pentagon's claims to members of the House 
Armed Services Committee 2 weeks ago that the bulk of the data 
used by Able Danger was open source, which was why DOD lawyers 
claim that no certificates were needed to certify the 
destruction of massive amounts of data that had been collected.
    Mr. Chairman, you can't have it both ways. It is either 
classified or it is not. But what the Pentagon has done in the 
last 2 weeks is they have contradicted themselves.
    Another former DOD official told me and your staff and was 
prepared to testify today--and he is in the room--that he 
worked on the data collection and analysis used to support Able 
Danger. He was prepared to state, as he told us, that he had an 
Able Danger chart with Mohammed Atta identified on his office 
wall at Andrews Air Force Base until DOD Investigative Services 
removed it. At risk to his current employment, he has told us 
and was prepared to testify under oath in direct rebuttal to 
the claims of the 9/11 Commissioners that he was aware of the 
purchase of Mohammed Atta's photograph from a California 
contractor, not from U.S. legal identity documents. He was 
prepared to discuss the extensive amount of data collected and 
analyzed about Al Qaeda--
    Chairman Specter. Whom are you referring to now, 
Congressman Weldon?
    Representative Weldon. I am talking about J.D., right here, 
J.D. Smith, in the room. He was prepared to discuss the 
extensive amount of data collected and analyzed about Al Qaeda, 
underscoring the fact that Able Danger was never about one 
chart or one photograph, but rather was and is about massive 
data collected and assembled against what Madeleine Albright 
declared to be in 1999 an international terrorist organization. 
He, too, has been silenced.
    Another former DOD official will testify today that he was 
ordered to destroy up to 2.5 terabytes of data. Now, I don't 
know what a terabyte of data is, so we contacted the Library of 
Congress. It is equal to one-fourth of all the entire written 
collection that the Library of Congress maintains. This 
information was amassed through Able Danger that could still be 
useful today. He will name the individual who ordered him to 
destroy that data and will state for the record that the 
customer for that data, General Lambert of SOCOM, was never 
consulted about that destruction and expressed his outrage upon 
learning that the destruction had taken place.
    An FBI employee that I identified and has met with your 
Committee staff and was prepared to testify today that she 
arranged three meetings with the FBI Washington Field Office in 
September of 2000 for the specific purpose of transferring Al 
Qaeda Brooklyn cell Able Danger information to the FBI for 
their use. In each instance, she has stated that meetings were 
canceled at the last minute by DOD officials. She has not been 
allowed to testify publicly today.
    The 9/11 Commission was created by Congress with my full 
support. I have publicly championed many of their 
recommendations. On four separate occasions, I attempted to 
brief the Commission on specifics related to intelligence 
problems, lack of intelligence collaboration, the NOAH concept, 
the National Operations Analysis Hub that I had pursued in 1999 
and 2000, and the work of the LIWA and Able Danger. Except for 
one 5-minute telephone call with Tom Kean, I was unable to meet 
with 9/11 Commissioners and/or staff. In fact, I had my Chief 
of Staff hand-deliver questions to be asked of George Tenet and 
others to the Commission on March 24 of 2004, which I will 
enter into the record. They were never used and the questions 
were never asked.
    It was, in fact, a member of the 9/11 Commission who 
encouraged me to pursue the Able Danger story after I briefed 
him on June 29 of 2005. He informed me that the 9/11 Commission 
staff had never briefed Commission members on Able Danger. He 
said that the facts had to be brought out.
    When the 9/11 Commission first responded to questions about 
Able Danger, they changed their story and spin three times in 3 
days. This is not what Congress intended. All the people 
involved with Able Danger should have been interviewed by the 
9/11 Commission.
    Because Able Danger ceased to formally exist before the 
administration came into office, I understand why there might 
have been a lack of knowledge about the program and its 
operations. In fact, when I first met with Steve Cambone, and I 
am the one that introduced him to Tony Shaffer, who is here 
today, he told me that he was at a significant disadvantage, 
that I knew more about Able Danger than he did, but that is not 
an excuse to not pursue the complete story of Able Danger.
    In fact, Mr. Chairman, DOD never conducted an actual 
investigation, and this came up in our Armed Services meeting 2 
weeks ago. No oaths were given. No subpoenas were issued. 
Rather, an informal inquiry was initiated. A thorough review of 
Able Danger, its operations, and data collected and analyzed, 
and recommendations for data transfer to other agencies could 
have and should have been completed by more than one Member of 
Congress using one staffer.
    Instead, over the past 3 months, I have witnessed denial, 
deception, threats to DOD employees, character assassination, 
and now silence. This is not what our constituents want. It is 
unacceptable to the families and friends of the victims of 9/11 
and flies in the face of every ideal upon which this country 
was founded.
    Over the past 6 weeks, some have used the Able Danger story 
to make unfair public allegations, to question the intentions 
or character of 9/11 Commissioners, or to advance conspiracy 
theories. I have done none of this. When I learned details of 
Able Danger in June, I talked to 9/11 Commissioners personally 
and staff. I delivered a comprehensive floor speech on June 27 
of 2005 and methodically briefed the House Chairs of Armed 
Services, Intelligence, Homeland Security, and Justice 
    This story only became public, even though significant 
portions were first reported in a Heritage Foundation speech 
that I gave, still available online, on May 23, 2002, and a 
Computer World magazine story that ran on January 28, 2003, 
when Security News ran a story on August 1 of 2005, followed by 
a front-page story in the New York Times on August 2 of 2005.
    My goal now, Mr. Chairman, is the same as it was then, the 
full and complete truth for the American people about the run-
up to 9/11. Many Americans lost family and friends on 9/11. 
Michael Horacks was a neighbor of mine in Pennsylvania, a 
former Navy pilot, graduate of Westchester, like myself. He was 
at the controls of one of the planes on 9/11. He left behind a 
wife and two kids. We built a playground in his honor at his 
kids' school.
    Ray Downey was a personal friend. As a New York Deputy Fire 
Officer, he took me through the garage of the Trade Center 
Towers in 1993, the first time Bin Laden hit us. We worked 
together. In fact, he gave me the idea for the creation of the 
Gilmore Commission, which I authored and added to the Defense 
authorization bill in 1997. On September 11, 2001, he was the 
New York City Fire Department Chief of All Rescue. The 343 fire 
fighters, including Ray, who were all killed were under Ray's 
command as he led the largest and most successful rescue effort 
in the history of mankind.
    I promised Michael's wife and kids and Ray's wife and kids 
and grandkids that we would not stop until the day that we 
learned all the facts about 9/11. Unfortunately, Mr. Chairman, 
that day has not yet arrived. We must do better.
    Chairman Specter. Thank you very much.
    Representative Weldon. Mr. Chairman, I have significant 
material that I would put into the record, the data that I 
provided to the 9/11 Commission, the questions I gave them. I 
have packets that I gave them. I have material on the NOAH 
process. I can enter it all into the record at your--it is 
basically your call.
    Chairman Specter. Without objection, all of those documents 
will be made a part of the record.
    [The prepared statement of Representative Weldon appears as 
a submission for the record.]
    Chairman Specter. Senator Biden, you said you have other 
commitments. Can you wait for 5 minutes for the first round, or 
I would be glad to yield to you if--
    Senator Biden. Would you mind, Mr. Chairman?
    Chairman Specter. No, I would be glad to.
    Senator Biden. What I would like to suggest, with the 
Chairman's permission, is since the questions I had prepared, 
my staff and I had prepared, quite frankly, weren't directed to 
Congressman Weldon but to others who we thought were going to 
be testifying, I would like to submit for the record, just so 
it is in the record, what I want to know from these other 
witnesses, if that is--
    Chairman Specter. Without objection, you may do so.
    Senator Biden. There are a number of theories that are 
bouncing around, Curt, about why would--first of all, time line 
here. Able Danger was established in September 1999, correct?
    Representative Weldon. It was the 1998-99 time frame, but 
officially 1999.
    Senator Biden. When did it go out of business?
    Representative Weldon. As best we can tell, it ended in 
2000, yet there was a briefing given to the Chairman of the 
Joint Chiefs of Staff, a 3-hour briefing, in January of 2001 
using material. Now even though they have claimed they 
destroyed all the material, there obviously had to be material 
for the Chairman of the Joint Chiefs to be briefed, and I just 
learned that Steve Cambone also was involved in a briefing with 
the head of the DIA in March of 2001. I was not aware of that 
information until last week. One of your witnesses would have 
explained that here today.
    Senator Biden. Well, that is what I was hoping we would be 
able to establish, is that Lieutenant Colonel Shaffer, who I 
understand is in the audience today, who is under Rumsfeld's 
gag order, attempted to give this information, as well, to the 
FBI in 2001?
    Representative Weldon. Two-thousand--
    Senator Biden. Two-thousand.
    Representative Weldon. September of 2000, he arranged three 
meetings, and the FBI person who was going to testify but was 
silenced was going to state that she knew the purpose of the 
    Senator Biden. And was anyone prepared to testify to the 
fact that there was a 3-hour briefing for General Shelton?
    Representative Weldon. Yes. Tony Shaffer would have done 
    Senator Biden. And for the record, obviously, he was the 
Chairman of the Joint Chiefs at the time, right?
    Representative Weldon. Yes.
    Senator Biden. And then the March 2001 meeting, that 
briefing for Under Secretary of Defense for Intelligence Steve 
Cambone, there was someone prepared to confirm that today, as 
    Representative Weldon. My understanding is Mr. Cambone was 
not in his current position at that time. He was a Special 
Assistant to Secretary Rumsfeld. And the purpose of the brief, 
my understanding, it was not specifically for Able Danger. It 
was a briefing on another classified program, but Able Danger 
came up, it was discussed, and it was discussed by a lawyer who 
you had wanted to testify named Richard Schiefren by the head 
of Naval Intelligence, Admiral Wilson, and I believe there was 
a third person in the room--just the two, Admiral Wilson, 
Richard Schiefren, Steve Cambone, and Able Danger was discussed 
in March of 2001 at that meeting.
    Senator Biden. My next question, why was Able Danger shut 
    Representative Weldon. There were a combination of reasons. 
They had done a profile of Chinese proliferation in 1999 that 
John Hamre had asked for. I was aware of that presentation, and 
because it was massive data mined that had not yet been vetted, 
a couple of very sensitive names surfaced because they had been 
affiliated with Stanford University, where many of the students 
that were doing this very, very specific research, very 
sensitive to our country's security, were located, and I think 
partly because of that, there was a wave of controversy.
    In fact, in the House, the son of Congressman Sam Johnson 
was working for the Raytheon Corporation. He went to his father 
and said, ``Dad, they are destroying data.'' Sam went to Dan 
Burton, who was Chairman of the Government Operations 
Committee, and Dan Burton subpoenaed documents that had been 
used in compiling the Chinese proliferation information. As a 
result of that, tremendous pressure was placed on the Army, 
because this was a prototype operation, and they shut down the 
Able Danger operation.
    General Schoomaker was so enamored with this capability 
that he stood up a separate operation in Garland, Texas, at a 
Raytheon facility, to try to duplicate what had been done in 
the Army, and that lasted for about a year, maybe slightly 
longer than a year.
    So the Special Forces Command understood the significance 
of this data, and as a result of the Chinese proliferation 
situation, I am convinced Able Danger was shut down.
    Senator Biden. Is there anything to the sort of, when you 
get into this, the sort of buzz that it was shut down because 
Able Danger exceeded its authority and was dealing with 
targeting Americans that the Defense Department and others were 
concerned would cause a real brouhaha? There were even some 
press accounts that the now-Secretary of State came up on a 
list as being a suspect somehow, or something ridiculous. What 
part did that play in it?
    Representative Weldon. It was a significant part. In fact--
    Chairman Specter. Senator Biden, if you need a little more 
time, take it. He won't be here for a second round, so if you 
need a little more time, proceed.
    Representative Weldon. In fact, that was a significant 
part. The Secretary of State's name did come up, along with a 
former Secretary of Defense because they were both affiliated 
with Stanford where this research work was being done by 
Chinese students that were here basically acquiring technology 
that was very sensitive to our security.
    But for them to say that somehow this information should 
have all been destroyed, to me is unacceptable because the 
military itself has said it was open source information. It is 
the same information the Republican and Democrat Party used to 
target voters. It is massive data you can buy in open sources. 
It is information you can get. It is magazine subscriptions 
that you order. It is everything that is available in the 
public domain. Now if there, in fact, is some classified 
information blended in with that, then that needs to be dealt 
with and there are processes to do that.
    The Able Danger folks knew that there was the possibility 
of information coming out about American nationals and they 
knew how to deal with it. I don't understand for the life of me 
how that would justify destroying 2.5 terabytes of data, and 
especially not in telling the customer before you are going to 
do that, ``I am going to destroy all your data,'' if Madeleine 
Albright has declared Al Qaeda the top international terrorist 
organization in the world, which she did, and furthermore, for 
them to brief General Sheldon in January of 2001 meant they 
didn't destroy all the information.
    So who decided to keep information and what led to the fact 
that some of that information was kept for later briefings? So 
I don't accept the position, and furthermore, what I would say 
is let them come and explain that publicly. I am not making any 
    Senator Biden. Well, that is the only point I am trying to 
get at here. This is a bit--your assertions are not confusing. 
I am inclined to accept what the witnesses would have said 
based upon staff and based upon assertions that have been made 
by you. You wouldn't be saying this with them sitting behind 
you if these guys weren't ready to say what you said they were 
going to say. One of them would, at this point, gagged or not, 
would say, ``Hey, I wasn't going to say that.'' So it is pretty 
    The part that, quite frankly, confuses the devil out of me 
as I try to figure this out, Mr. Chairman, this started in the 
Clinton administration and it morphed into or it leached into 
the beginning of the Bush administration. It is not like there 
is an attempt to nail politically anybody here. I don't 
understand why--it is not self-evident to me why the Defense 
Department would be so focused on this not coming forward. I 
don't understand, quite frankly, why the Commission and Slade 
Gorton, if he was--if, in fact, folks were briefed, why they 
would say, ``No, it is absolutely''--I forget, but he has a 
very, very strong statement saying--
    Representative Weldon. They were never briefed.
    Senator Biden. [continuing]. That they were never briefed 
and no one knew anything about this.
    And I don't get why the coverup. I mean, I don't get the 
purpose of the coverup. Is it to protect the Clinton 
administration? The Bush administration? Is it to protect 
something that was going on that was illegal under the law? I 
mean, I don't get it. I don't understand why people aren't just 
coming forward and saying, ``Here is the deal. This is what 
    I hope we can get to the bottom of this, Mr. Chairman. I 
would like to be able to submit some questions in writing. When 
I say submit the questions, I was going to ask the witnesses so 
they are on the record as to where I am confused and what I 
want spoken to, anyway.
    I thank you, Mr. Chairman, for your courtesy in allowing 
me, A, to go first and to go over by almost 4 minutes the time 
allotted, and I thank the Chairman of the House for being here.
    Representative Weldon. Thank you.
    Chairman Specter. Senator Biden, your questions will be 
made a part of the record and directed to the witnesses to give 
you responses.
    Congressman Weldon, you commented about threats and 
character assassination. What did you mean as to the threats?
    Representative Weldon. Well, Mr. Chairman, at least two of 
the five people that were going to appear today were threatened 
with removal of their security clearances if they continue to 
talk about this. This is--
    Chairman Specter. Are you at liberty to identify who those 
people are?
    Representative Weldon. I will to you. I would rather do it 
privately, since the Defense Department has chosen not to allow 
anyone to testify, but I will provide that information to the 
Committee, at least on two of them.
    And one of them, and I will state this publicly because it 
happened just on the eve of this hearing, Lieutenant Colonel 
Tony Shaffer had his security clearance officially removed the 
day before this hearing was scheduled to be held, not 
yesterday, but actually it would have been Monday night. He was 
notified. His lawyer will come next and will tell you that his 
security clearance was officially removed. There is no doubt in 
my mind that that was caused by his cooperation in--
    Chairman Specter. How about the character assassination?
    Representative Weldon. Oh, there has been character 
assassination left and right. We had Larry DeRita, the 
spokesman for the Pentagon, question the memories of these 
military people when they came out, and I called Larry DeRita 
on the phone. I said, how can you question an Annapolis 
graduate who was the commander of one of our Naval destroyers 
who risked his entire career after 23 years--
    Chairman Specter. You are talking about Captain Philpott?
    Representative Weldon. I am talking about Captain 
Philpott--to tell this story because the 9/11 Commission 
characterized his work as historically insignificant. How can 
you challenge his memory? Why don't you challenge the memories 
of the other people who said this didn't occur? I mean, that, 
to me, was outrageous.
    There are a number of other examples. I can provide a whole 
list of those, a litany of those character assassinations and 
attempts to intimidate for the Committee.
    Chairman Specter. Would you specify again why you concluded 
that the information was not classified, based upon what DOD 
told you?
    Representative Weldon. At a private briefing that we had 
for members of the Armed Services Committee 2 weeks ago, there 
were probably six members in the room, three Republican, three 
Democrats, and all of our staff, the Legal Counsel for the 
Pentagon, when asked, what about the certification for the 
destruction of this data--
    Chairman Specter. Mr. Haynes?
    Representative Weldon. I don't know the name. I will get it 
for you. I don't recall the name right now, but he was Legal 
Counsel. He said, ``Well, there is no certificate needed if the 
information is not classified or not used in compartmentalized 
work.'' Well, you can't claim that the information is not 
classified on one hand and then come in today when all they are 
going to talk about is open source information--
    Chairman Specter. The representation was made to you that 
this did not involved classified information?
    Representative Weldon. Yes. It was made to the Armed 
Services Committee members.
    Chairman Specter. And is there a transcript of that record?
    Representative Weldon. No, there is not. It was an informal 
briefing. Most of what the Pentagon did was informal. There 
were no minutes kept. There were no witnesses put under oath. 
There were no subpoenas issued. It was not an investigation, 
and that point was raised by members of the Armed Services 
Committee. It was not an investigation.
    Chairman Specter. Since Captain Philpott has been precluded 
from testifying--ordered not to testify. I would have prefered 
to hear him, but in his absence, did you discuss this matter 
with him--
    Representative Weldon. Yes.
    Chairman Specter. [continuing]. Or question him in detail?
    Representative Weldon. I questioned Captain Philpott. He 
was the one who felt--was so incensed about what happened that 
he risked his entire Naval career and came out with a New York 
Times interview that I arranged and he said to the reporter 
with me there listening and witnessing that he would risk his 
entire career and life on the fact that in January and February 
of 2000, he identified absolutely Mohammed Atta as a part of 
the Brooklyn cell.
    Chairman Specter. And with respect to Dr. Eileen Preisser, 
she, too, has been ordered not to testify. Have you discussed 
this matter in detail with her?
    Representative Weldon. I have discussed it with all the 
individuals. She, too, said there were materials that were 
produced that identified Mohammed Atta by name and with a 
facial recognition that the 9/11 Commission said couldn't have 
happened because there were no government I.D. documents, but 
as you will hear--or you won't hear, because J.D. won't be 
allowed to testify--but what he would have said is they 
purchased the photograph of Mohammed Atta from a contractor in 
California. Now, we came very close to identifying that 
contractor and we are still working on it. We know people who 
knew the woman--
    Chairman Specter. And who said that?
    Representative Weldon. One of the 9/11 Commissioners, I 
think it was Tim Roemer, said publicly that there is no way 
they could have had a photograph of Mohammed Atta because there 
were no government records at the time that the Able Danger 
reported, but they didn't get it from government records. They 
got the photograph of Mohammed Atta by purchasing it from a 
source in California, and the witness that was not allowed to 
testify today who is sitting behind me would have stated that 
he was aware of that effort and how they got that photograph.
    Chairman Specter. What information do you have as to the 
allegation on the destruction of records?
    Representative Weldon. You are going to hear testimony 
today from another former Federal employee who again is risking 
his career. He is a private contractor today. But he was 
ordered to destroy--
    Chairman Specter. And his name is?
    Representative Weldon. His name is Kleinsmith, Erik 
Kleinsmith. He is on your witness list. And he will testify 
that he was ordered to destroy all Able Danger material, 2.5 
terabytes, and he will name the person who ordered him to 
destroy that data. And he was further told that if he didn't do 
it, he would lose his job and quite possibly might go to jail.
    He will also testify, and you can ask him this question, 
but it is my understanding he will testify that when he met 
with General Lambert, who was the SOCOM official who was the 
customer for this data, he had never been consulted prior to 
the destruction of this data and when he found out, he was 
livid. For the life of me, I don't understand how someone 
extraneous from that chain of command could order destruction 
of data and not even inform the customer of that data, the 
general at SOCOM, General Lambert.
    Chairman Specter. Thank you, Congressman Weldon. My red 
light went on during the middle of your last answer, so I will 
desist now and turn to Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. I think that most of 
the questions I have are actually for the lawyers who are going 
to testify, but I am not sure what they can testify to, so let 
me ask you a couple of questions.
    Representative Weldon. I don't think Mark Zaid will be 
limited, Jon.
    Senator Kyl. OK, great.
    Representative Weldon. I think you can do whatever you 
    Senator Kyl. I am trying to now, having served on the 
Intelligence Committee for 8 years, I can understand why there 
might be some nervousness about this, so I am going to try to 
put on a hat and be the most restrictive devil's advocate here 
and try to figure out why they might want to restrict this 
    For example, data mining is known to be a method for 
intelligence collection and it is just now beginning to be 
something that is utilized, and this was one of the first 
significant uses of it, as I understand it. That is a method of 
intelligence gathering. What do you know about the point that 
perhaps one of the reasons why they don't want a lot of public 
testimony about this is that it might reveal capabilities, 
methodology that might be relevant to, A, future intelligence 
gathering, and B, might conceivably tip somebody off that they 
may or may not have been a part of an investigation related to 
data mining? From all of your discussions of this, could that 
be part of the reason? And if it is, why would that necessarily 
limit most of the things that you have talked about here?
    Representative Weldon. Well, it wouldn't. It has been a 
reason given, and I share the gentleman's concern for security. 
We served together on the Armed Services Committee for a number 
of years, and as the Vice Chairman of the Armed Services 
Committee, I would never do anything to reveal classified data. 
So that would never be an intent of mine.
    This information was largely open source. From 1999, I 
started pursuing the prototype that the Army had developed at 
our legal facility at Fort Belvoir. I was the oversight 
Chairman of the Committee that funded it. I was enamored with 
their capability and I saw tremendous potential. In fact, I had 
experience in 1999 that I will go into, but it would take some 
time, if you want as to how I saw the CIA and the FBI did not 
have the capability.
    I took a delegation of ten members to Vienna to meet with 
five Russians to find a common foundation in the Kosovo War. 
Before I left, the Russians told me they were bringing a Serb. 
I called George Tenet at the CIA and said, can you run me a 
profile of this Serb. He gave me two sentences. I called the 
Army's Information Dominance Center, which I had a good 
relationship with. I said to the folks down there, Dr. Heath 
and Dr. Preisser, can you run me a profile? They unofficially 
gave me, like, eight or ten pages of information.
    When I came back from that trip, I got a call from the FBI 
and the CIA to debrief them on what I knew about the Serb, and 
the CIA said, Congressman, when I said, why is this so urgent, 
they said, ``We have been tasked by the State Department to 
brief our Ambassador negotiating the end of the war and you met 
with this person, so we want you to debrief our people.'' So I 
had four agents in my office for 2 hours and I gave them all 
that I knew, and when I ended, I said, now, do you know where I 
got my data from? They said, ``Well, you got it from the 
Russians.'' I said, no. ``Well, you got it from the Serb.'' I 
said, no. I said, before I left America, I called the Army's 
Information Dominance Center. They ran me a profile and gave me 
eight to ten pages of open source information. The FBI and the 
CIA said, ``What is the Army's Information Dominance Center?''
    It was then that I developed a nine-page briefing called 
the NOAH, a National Operations and Analysis Hub. John Hamre 
agreed with my assessment that this was critically important, 
and it was developed by intelligence people, not by me. On 
November 4 of 1999, 2 years before 9/11, I had the CIA, the 
FBI, and DOD in my office at John Hamre's suggestion to brief 
them on creating what today exists, the TTIC and now the NCTC. 
And the CIA at the end of the briefing said, ``We don't need 
that. It is not necessary.''
    And so as a result, before 9/11, I felt I did not push hard 
enough against the system to put into place a mechanism that 
today is in place that might have helped us understand what was 
about to happen.
    Senator Kyl. But there is nothing from your knowledge here 
that would prevent testimony in general about what was done 
    Representative Weldon. No. We would never get into 
    Senator Kyl. Sure.
    Representative Weldon. Nothing in general.
    Senator Kyl. And then, just a second, a little bit of time. 
The matter of Posse Comitatus, is it your belief that it was a 
significant factor in the decision both to destroy the 
information and not to provide testimony here that there might 
have been--that there was a concern that perhaps they had gone 
too far in gathering information about people who were legally 
in the United States and that they might not have been 
authorized to do that and that might be one of the reasons for 
the reluctance to testify, as well as the destruction of the--
    Representative Weldon. That might be a reason, but to me, 
that is absolutely unacceptable. I mean, these are terrorists. 
If they are terrorists in the United States and we were 
monitoring them or had information from open sources, then I 
think our law enforcement community had a right to know that. 
We are not--I mean, our Republican and Democrat Parties 
transfer this information to ID voters. It is called Vote 
Smart. I mean, we can use it for voter ID, but we can't use it 
to identify people in this country that are involved in 
terrorism? I mean, cut me a break.
    There is something wrong with this system, and at a 
minimum, we should have been able to discuss that. That is what 
we are all about as policy makers. But to clamp down on this 
and to do it with such venom, to me, it is mysterious. I don't 
understand it.
    Senator Kyl. We will get more into that with the next 
panel. Thank you very much, Representative Weldon.
    Representative Weldon. Thank you.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Grassley?

                         STATE OF IOWA

    Senator Grassley. Mr. Chairman, because of my work with 
Katrina, I am not going to be able to stay here, so I have got 
a statement I want to put in the record--
    Chairman Specter. Without objection, so ordered.
    Senator Grassley. [continuing]. And I have got questions in 
writing for two witnesses, and I do have something that I want 
to say at this point beyond that statement and that is to 
compliment the Congressman for your work.
    It is just so reminiscent of everything I have run into, 
not just with the Defense Department, but bureaucracy generally 
and maybe the Defense Department to some extent, just a little 
bit worse than others. But what you say you don't understand is 
an institutional disease that we have that if the information 
that you want out got out, people would have egg on their face. 
They are just going to try to wait you out.
    I hope that, Senator Specter, you won't let that happen. 
Whatever it takes to get this information out needs to be 
gotten out, not just to back up Congressman Weldon's work, but 
more importantly, just the fact that Congress has to fulfill 
its constitutional responsibility of oversight. We all want to 
brag about the legislating we are doing, but quite frankly, in 
this day and age, I think we do a more responsible job for our 
constituents, what we do through Congressional oversight to 
make sure that these laws are faithfully executed and that 
money spent according to Congressional intent, and in 
particular now when we are in this war on terrorism, we have 
got to get all the information out we can.
    You can't have somebody hiding information from Congress 
under the ridiculous idea that we might be compromising 
national security when you and I can buy that very same 
information. And more importantly, what can be done in a closed 
session of the Congress if it can't be done in open session.
    Really, what is at stake here is not, again, Congressman 
Weldon. What is at stake here is whether or not Congress is 
going to fulfill its constitutional responsibility and whether 
or not we are going to let people that come up here with a lot 
of ribbons and a lot of stars on their shoulders or political 
appointees of the same Department just embarrass us and get 
away with it.
    I know that you are not a Senator that is going to be 
embarrassed, and whatever I can do to help you, count on me 
helping you, because we must get to the bottom of this.
    Thank you for being a great American.
    Representative Weldon. Thank you, Senator.
    Chairman Specter. Thank you, Senator Grassley.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Chairman Specter. I don't often do this, but I associate 
myself with your remarks.
    Chairman Specter. It is not that I don't often associate 
myself with your remarks; it is that I don't often associate 
myself with any remarks.
    Chairman Specter. You and I came here in the same time, in 
the 1980 election, and you have been fierce in oversight and 
whistleblowers and determination and I have joined you all the 
way. You expressed it very well. I don't have to repeat it. 
Thank you. And the questions that you have propounded for other 
witnesses will be made a part of the record and they will be 
submitted to witnesses and we will get answers for you.
    Congressman Weldon, you had testified that at one juncture, 
there was an effort made to turn over this information to the 
FBI. Could you amplify that, please?
    Representative Weldon. Yes. Lieutenant Colonel Shaffer was 
prepared to testify--his lawyer will testify today--that he on 
three occasions set up meetings with the FBI Washington Field 
Office. The woman who set those meetings up is prepared to 
testify. Your staff has met with her and they have interviewed 
with her and she also was prohibited from testifying. But she 
knew the purpose of the meetings. The meetings were designed to 
allow the Special Forces Unit of Able Danger to transfer 
relevant information that they thought important to the FBI 
about the Brooklyn cell, which included Mohammed Atta and three 
of the terrorists. This information was largely gathered from 
open sources. On three separate occasions in September of 2000, 
at the last minute, lawyers, I assume from within DOD, and we 
still haven't determined who made the ultimate decision, but 
lawyers determined that those meetings could not take place and 
they were shut down.
    Chairman Specter. Congressman Weldon, had this information 
been called to the attention of the National Security Advisor?
    Representative Weldon. Mr. Chairman, 2 weeks after 9/11, 
some of the folks at the Army's LIWA and involved in Able 
Danger came into my office and brought me a chart, a chart that 
had Al Qaeda linkages and pan-Islamic terrorist threats, I 
think was the way the chart was categorized. I took that chart 
immediately down to the White House and provided it to Steven 
Hadley and I took with me Dan Burton, Chairman of the 
Government Operations Oversight Committee.
    Chairman Specter. And when was that?
    Representative Weldon. That was 2 weeks after 9/11, so it 
would have been September 25. And I took it down immediately. 
As soon as I got it, I said, I have got to get this down to the 
White House. Steven Hadley's response to me was, ``Where did 
you get this from, Congressman?'' I said, I got it from the 
Army's Information Dominance Center. I said, this is the 
process that has been used, and I have been trying to convince 
the government for 3 years to put into place that the CIA has 
refused to accept, because up until the establishment of the 
TTIC, the Terrorism Threat Integration Center, the CIA was not 
using open source information, which to me was a disaster in 
itself for our National intelligence estimates.
    And so I said to Mr. Hadley, I said, this is a process they 
use to obtain this information, and he said to me, and I 
remember this quote sticks out in my head, and I gave a speech 
at the Heritage Foundation a year later which is still online, 
you can get a copy of it and listen to my speech as it was 
given then, that--he said, ``I have got to show this to the 
man.'' And I said, the man? He said, ``Yes, the President of 
the United States.'' So I gave him the chart.
    Now, some say, why didn't you keep a copy of the chart? 
Well, my goal there wasn't to keep a copy of a chart involving 
something that just happened to destroy the lives of 3,000 
people. I gave it to our Deputy National Security Advisor. That 
information was information gleaned from the work of Able 
Danger and the work being done by the team that wanted to 
testify today.
    Chairman Specter. The FBI agent you referred to a few 
moments ago was Xanthie Mangum?
    Representative Weldon. Yes.
    Chairman Specter. Would you care to testify about those 
large charts you have up here?
    Representative Weldon. Sure, if I could have my staff line 
them up on the side. The first chart is actually a reproduced 
version of what was provided to Steven Hadley. I wanted to 
reproduce this and asked if it could be reproduced, and this is 
what bothers me about the military saying the data was 
destroyed and why I suggested that perhaps the hard drives and 
the servers from the companies who did this work should be 
subpoenaed and brought in.
    This is actually a chart of Al Qaeda and the various cells 
around the world. Much of this data--most of it was obtained 
prior to 9/11 by the work of Able Danger. This was the kind of 
work they did. The link analysis they did on this chart, as you 
see, there is actual photograph of Mohammed Atta--
    Chairman Specter. What does that depict generally?
    Representative Weldon. It depicts the organizational and 
activity associations of Al Qaeda operatives that were involved 
in 9/11 and related events. Much of this data was obtained 
before 9/11 from information that was gathered from the 1993 
attack, the individuals involved in that attack, the attack on 
the U.S.S. Cole, the attack at the African embassies, and what 
they did, they identified five key cells of Al Qaeda worldwide, 
one of which was the Brooklyn cell, and so they were gathering 
this information and basically assembling it in the data mining 
process in 1999 and 2000. When I went to Hadley, the chart that 
I gave him was an assemblage of that information that they had, 
which was massive and which you will hear in a moment as equal 
to one-fourth of all the printed material in the Library of 
    Chairman Specter. And who prepared the chart?
    Representative Weldon. The chart was prepared by a 
corporation, Orion Corporation, and my understanding from your 
staff is that they were not totally forthcoming to you. They 
told your staff initially they only produced two charts. When I 
pulled out 12 charts, because I have 12 charts that I kept on 
my own, your staff went back to the lawyer for Orion, which is 
now owned by another security firm. My understanding, and you 
can check with your staff, is that they have been delivered 
something like 20 charts.
    But the initial response of Orion was they only produced 
two charts and they only produced charts on white backgrounds. 
Well, I have charts in my possession that they produced with 
their name on them, their insignia, their logo, that are in 
black, that are in green, that are in all kinds of colors. They 
were charts that dealt with Chinese proliferation, corruption 
in Russia, corruption in Serbia, charts that dealt with drug 
cartels and drug cells. All of this work was done by Orion. So 
Orion was the corporation.
    And, in fact, one of the witnesses was an executive, I 
believe the Vice President of Orion, is that correct? He was 
the Vice President of Orion. He was a senior officer at Orion 
Corporation, and he was one of the people scheduled to appear 
before you today.
    The second chart, Mr. Chairman, is for me the most 
important. This is what we have to have. This is Al Qaeda 
today. Now, I have been told by the military liaisons of the 
NCTC that our NCTC cannot do this kind of massive data analysis 
and link chart analysis that has been done by our Information 
Dominance Centers, so what I have been working with is the Army 
and the Navy in generating a next-generation capability called 
Able Providence. In fact, the Navy has even supplied us the 
budget numbers and the line where they would want the money 
submitted so that we could create this kind of additional 
capability. This gives you a massive effort worldwide of what 
Al Qaeda is doing.
    Mr. Chairman, to win the war on terrorism, it is not about 
classified information, and when I try to convey to the CIA 
against a road block of their mindset, which Senator Grassley 
referred to, they just didn't want to hear it. They didn't want 
to use open sources of information. And the bulk of the good 
information about terrorists, in fact, comes from open source 
    I will be glad to provide charts for the Committee so you 
have permanent records of each.
    Chairman Specter. Thank you. My red light went on during 
your answer.
    Senator Kyl? Senator Kyl raises a good point. Who prepared 
the charts? I would ask you that.
    Senator Kyl. Mr. Chairman, I think there might have been a 
miscommunication. When you asked about the chart, I immediately 
sensed a disconnect here. I believe that Representative Weldon 
was talking about who prepared the charts that were allegedly 
destroyed or may, in fact, have been destroyed that he took to 
Mr. Hadley. You may have been referring to this chart here, and 
perhaps that should be cleared up.
    Chairman Specter. Thank you for the suggestion, Senator 
    Congressman Weldon, who prepared those charts and when?
    Representative Weldon. All the charts that I had that were 
given to me during the process that was being done by the LIWA, 
including the Able Danger charts, were prepared by the Orion 
Corporation and they had their insignia on the bottom. Now, 
there may have been other charts that were not prepared by 
Orion that I am not prepared to talk about.
    Chairman Specter. Did Orion prepare the charts you have 
just referred to?
    Representative Weldon. The charts that I have here were 
prepared by one of the Information Dominance Centers, which 
continues to operate today. I will have to give you the exact 
name of the producer of these charts. And these were made back 
in June of this year.
    Chairman Specter. Senator Kyl?
    Senator Kyl. Might I just ask one more question? You 
remember the chart that you gave to Mr. Hadley and the first 
chart that you showed us there, you have just testified to. 
What degree of similarity or overlap--can you make a comparison 
of those two charts for us, just so we will have an idea of 
what Mr. Hadley saw?
    Representative Weldon. It is hard to recollect, and I can 
tell you this. I talked to Mr. Hadley 3 months ago when I 
briefed him on another issue and I said, remember that chart 
that I gave you, and he said, ``Yes, I remember it.'' Now, I 
don't know whether the White House still has it. They probably 
don't. It has been 4 years.
    I can tell you my recollection of that chart is it was very 
similar to this, but not as comprehensive. This chart includes 
post-9/11 data, so obviously the chart that I gave them did not 
have post-9/11 data, but it was significant. It identified the 
cells, the five key cells they were working on, and to the best 
of my recollection, identified Mohammed Atta on the chart.
    Chairman Specter. Thank you very much, Senator Kyl, and 
thank you, Congressman Weldon. I think you performed a real 
public service with what you have done here and what your 
analysis has been.
    Representative Weldon. Thank you.
    Chairman Specter. Perhaps when the Department of Defense 
knows the extent of your testimony and the questions raised, 
they will be responsive.
    One final question. Do you think there is any need to 
modify the Posse Comitatus legislation?
    Representative Weldon. You know, I will leave that up to 
you, Mr. Chairman. I am not an attorney. I respect your 
judgment. I certainly respect Jon Kyl's judgment as a former 
colleague of mine. I am still developing my own feelings, but 
as an attorney, I would respect your insights into that. From a 
policy standpoint, I have thoughts, but I would rather not 
convey them yet until I know the full parameters of what really 
happened here.
    And I want to thank you, because I realize that putting 
this hearing on was not something--and there were people that 
were criticizing your intentions or perhaps my intentions. I 
have no intentions, Mr. Chairman, here, except to have the 
truth be known. I have made no public allegations against any 
person. I have not questioned the character or integrity of any 
Commissioner. I would never do that. In fact, I talked to two 
Commissioners. I was the one that brought the Defense 
Department in, Mr. Chairman, to give them a chance to get the 
information I had.
    All I asked them was to protect the military personnel that 
were cooperating, and Jon, you went through this during the 
1990s, where we saw whistleblower after whistleblower have 
their careers ruined, and now, unfortunately, it is happening 
in this administration. Tony Shaffer's career has been ruined, 
and to me, that is outrageous. It is unacceptable. That was my 
main concern.
    Now, Mr. Chairman, if I might add one additional point, I 
did all this work, and I am not boasting because it was just 
something I had to do for 6 weeks, but I couldn't have done it 
without one person. I only had one staffer work it. My Chief of 
Staff, Russ Caso, who is in the room, a former Navy liaison for 
the U.S. Navy, did yeoman's work in tracking down all of these 
meetings and contacts, and I brought in, again as a volunteer, 
Jim Woolsey. Jim Woolsey is a close friend of mine. Jim Woolsey 
sat in on a number of meetings with these people early on to 
make sure that I wasn't going off the deep end and to counsel 
me to make sure that I wasn't jumping to conclusions, and so I 
would like to thank both Russ Caso and Jim Woolsey publicly for 
their outstanding cooperation in assisting in this effort.
    This is not about embarrassing anybody. It is about 
answering the questions of what happened before 9/11. Thank 
    Chairman Specter. Congressman Weldon, do you think that DOD 
acted in this matter, if the allegations are true as to 
destruction of documents, because of their concern about 
violating Posse Comitatus?
    Representative Weldon. No, I don't believe that is the 
reason right now that they did that.
    Chairman Specter. OK. Thank you very much. Thank you very 
    Without objection, we will admit to the record the 
statement of Senator Leahy, who, as I announced earlier, was 
scheduled this morning to speak on the nomination of Judge 
Roberts for Chief Justice, and also without objection, the 
letter from former Senator Slade Gorton to Senator Leahy and 
myself dated September 20.
    Chairman Specter. We now call the second panel. Mark Zaid, 
Esquire, and Mr. Erik Kleinsmith.
    Mr. Mark Zaid is the managing partner of the Washington law 
firm Krieger and Zaid, specializing in litigation, also the 
Executive Director of the James Madison Project, a nonprofit 
organization which educates the public on issues relating to 
intelligence, and a former board member of the Public Law 
Policy Group of the International Law Students Association. He 
is a graduate of Albany Law School, where he was Associate 
Editor of the Law Review, and a cum laude graduate of the 
University of Rochester.
    Thank you for joining us, Mr. Zaid, and we look forward to 
your testimony.

                        WASHINGTON, D.C.

    Mr. Zaid. Thank you, Senator. Mr. Chairman, distinguished 
members of the Committee, thank you for this opportunity. I 
have my law partner, Roy Krieger, next to me. I would 
respectfully ask for my full written statement to be placed 
into the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Mr. Zaid. I would like to first compliment Congressman 
Weldon. Were it not for his tenacious efforts, we would not be 
here today, and this is a very important day. Unfortunately, I 
am here as a surrogate speaker for several of the witnesses 
that were scheduled to appear and I put this testimony together 
hastily in a matter of a few hours yesterday.
    As you said, I am a partner in the law firm of Krieger and 
Zaid. We primarily handle national security cases. Most of our 
clients are within the covert community and the military and 
the intelligence world. In particular, we represent Lieutenant 
Colonel Anthony Shaffer, a civilian employee of the Defense 
Intelligence Agency and a reserve officer in the Army, and Mr. 
James Smith, a defense contractor formerly with the company of 
Orion Scientific Systems. Both men, as was heard, are sitting 
behind me and were prepared to testify today and both worked 
for or with what is now known as Able Danger.
    I am here to impart at least some degree of knowledge of 
certain aspects of Able Danger, what it accomplished, what it 
identified, and some crucial questions surrounding it. I have 
not had access to classified information on this. I haven't 
even had access to the full scope of unclassified information, 
so my testimony is not intended to provide a complete picture. 
I guarantee you I am only providing a couple of facets of a 
multi-facet diamond, and to be sure, most of my testimony is 
either hearsay, since I am basing it on what I have been told 
by individuals associated with Able Danger or through the 
government, except to the extent that I participated in 
specific events.
    My value, though, of the testimony doesn't come from the 
truth of the statements but from the ability to use this as a 
steppingstone to go forward.
    This is not a partisan issue. There is enough blame to go 
around, and I am confident once the whole story of Able Danger 
comes out, you are going to see that much of the coverup that 
we are now seeing occur, particularly from the Department of 
Defense, is probably more typical Washington, D.C., you know, 
what we call CYA, than anything associated with the substantive 
work of Able Danger.
    I want to make it clear I am not waiving attorney-client 
privilege. I am basing my statements on statements my clients 
have made publicly with third parties or from other sources. 
Nothing, as you said, is classified. I should say I have been 
involved with the Defense Department and DIA for weeks of this 
case. Not once has any official in the Department told me that 
they were concerned that my clients were saying anything 
    Let me tell you a little bit about Able Danger, and I will 
try not to repeat anything that Congressman Weldon said. Formed 
in 1999, primarily working through SOCOM and LIWA, as you 
heard, which supports INSCOM. In the initial days, most of what 
they were doing was unclassified, and that is what I am going 
to focus on. There were two phases, a first phase that went 
from 1999 to mid-2000, and then mid-2000 into a little bit of 
2001. That first phase was primarily unclassified, particularly 
with respect to Orion, and the second phase had much more to do 
with classified information, which we are not going to discuss 
    In the simplest and most understandable terms, the aspects 
of Able Danger that led to the infamous chart and charts to be 
created dealt with the searching and compiling of open sources 
of publicly available information regarding specific Al Qaeda 
targets or tasks that were connected through associational 
links--no classified information, no government data bases. The 
search and compilation efforts were primarily handled by the 
defense contractors, such as Mr. Smith, who didn't even know 
they were working with Able Danger at the time. That 
information was then given to Able Danger and they were to use 
it for whatever planning purposes they perceived.
    The starting points, as was said, 1993 World Trade Center 
attack, 1998 bombings, the New York City plots, Sheik Omar 
Abdel-Rahman, known as the Blind Sheik. They took those names, 
they plugged them into the systems, and they created 
associational links like you see on the charts. By that, I mean 
they looked for who was the Sheik associated with? Person A. 
Who was Person A associated with? Person B, and so on and so 
on. Think of ``Six Degrees of Kevin Bacon.'' This was the ``Six 
Degrees of Sheik Rahman,'' essentially. Those links could have 
been nefarious. They could have been innocuous.
    Every link on those charts had a drill-down capability. 
Those are from actual computer programs. So if you clicked on a 
name, there would be supporting data underneath, and what they 
would do is they would print out each of those charts and every 
bit of underlying data and hand those over to the Able Danger 
team members for them to use as necessary.
    We heard about the attempts to go to the FBI and the 
preclusion of that. If a wall existed, whether due to Posse 
Comitatus or some other regulations, that is a wall that this 
Committee needs to explore fully within its jurisdiction, of 
    By the end of 2000, for a number of reasons, documents were 
all destroyed, not only by LIWA and those involved with Able 
Danger, which we will hear a little bit more, but also with the 
Defense Intelligence Agency.
    I want to clear up two misconceptions that have been 
perpetrated within the press to some extent. At no time did 
Able Danger identify Mohammed Atta as being physically present 
in the United States, and no information at the time that they 
obtained would have led anyone to believe that criminal 
activity had taken place or that any specific terrorist 
activities were being planned. All they developed were 
associational links. It was impossible to tell, particularly 
using the unclassified work that was being used at the time, 
that those associations went anywhere further than that.
    Let me just go through a couple of points as the time would 
end, Mr. Chairman.
    Chairman Specter. Mr. Zaid, would you please summarize your 
testimony at this point.
    Mr. Zaid. For one, as you heard, Lieutenant Colonel Shaffer 
did meet with the staff of the Commission in Afghanistan in 
2003, provided over information. They took that quite 
seriously. They tasked DOD to provide them information. 
Whatever DOD provided them, and that is a question for DOD, 
whatever was in there didn't indicate or support what 
Lieutenant Colonel Shaffer had told them.
    The issue that we have fought with the Commission, though, 
is if they had only gone back to Lieutenant Colonel Shaffer and 
asked him, how else could you support your information--
    Chairman Specter. Are you talking about the 9/11 
    Mr. Zaid. Correct, sir. He could have identified for them 
the additional members of the team or those who were working 
with them--Captain Philpott, Mr. Smith. And at the time, if the 
Commission had looked into this in early 2004, the charts that 
had Mohammed Atta on it still existed. There was a chart in Mr. 
Smith's office. There was the chart that still should have been 
in the Defense Intelligence Agency because it wasn't destroyed 
within Lieutenant Colonel Shaffer's flies until the spring of 
2004, the same with the chart that Mr. Smith had, which was 
about the same size.
    You heard Congressman Weldon mention that Lieutenant 
Colonel Shaffer's clearance was revoked. It was suspended 
shortly after it was made known that he had testified or 
provided information to the 9/11 Commission. It was revoked 
just 2 days ago. I have been authorized, and I am happy to go 
through any details with respect to the security clearance 
revocation, what the allegations were, and what our responses 
    What I would like to submit in closing, the primary concern 
we should focus on as far as not who to blame for the obvious 
disconnect that occurred with respect to sharing information--
we know that problem existed, it still does. Instead, the focus 
should be on identifying the current location of the other 
several dozen possible terrorists that were on that Mohammed 
Atta chart as to whether or not they are planning to commit 
terrorist acts against the United States today, as well as to 
reconstitute the successful work initially started by Able 
    I applaud the Committee's tenacity in pursuing this topic--
    Chairman Specter. Mr. Zaid, are you just about finished?
    Mr. Zaid. I have got two sentences more, sir.
    I truly hope you will help educate the country to the truth 
and ensure that the images of those associated with Able Danger 
are not tarnished by governmental spin when they should instead 
be rewarded with the accolades they deserve for their 
    Thank you for this opportunity. I will try my best to 
answer questions.
    Chairman Specter. Thank you, Mr. Zaid.
    [The prepared statement of Mr. Zaid appears as a submission 
for the record.]
    Chairman Specter. Senator Kyl has other commitments and I 
yield to him at this time.
    Senator Kyl. Thank you very much. At 10:45, I am supposed 
to be someplace else. I will just ask you one or two quick 
    Obviously, it would be better if we had the best evidence, 
the people who were directly involved that could give us the 
first, or their direct knowledge of the facts. As a lawyer, 
other than the matters relating to the revocation of the 
security clearance with which you have been involved, do you 
have the firsthand knowledge of any of these facts, the things 
that you have stated here, or are they representations of what 
has been told to you by others?
    Mr. Zaid. Unfortunately, Senator, they are representations 
of what I have been told by others--several of the team 
members, those associated, those on the Hill who have done 
    Senator Kyl. So the best evidence of that obviously comes 
from them--
    Mr. Zaid. Absolutely.
    Senator Kyl. And we would need to hear from them.
    Mr. Zaid. And all of them, as I understand, were willing to 
testify today.
    Senator Kyl. I appreciate that very much and I regret that 
I have to go right now, but I will perhaps submit some 
questions to you for the record.
    Mr. Zaid. I would be happy to address them.
    Senator Kyl. Thank you all for being here.
    Mr. Zaid. Thank you very much, Senator Kyl.
    Chairman Specter. Our next witness is Mr. Erik Kleinsmith, 
Project Manager for Intelligence Analytical Training with the 
Lockheed Martin Company. He has a very extensive resume in 
intelligence activity, a number of commendations, including a 
Meritorious Service Medal, Army Commendation Medal, Armed 
Forces Expeditionary Medal, and the National Defense Service 
Medal. He had been a member of the United States Army from 1988 
to 2001 with the rank of Major.
    Thank you very much for joining us, Mr. Kleinsmith. I 
appreciate your coming forward under difficult circumstances. 
The floor is yours.


    Mr. Kleinsmith. Thank you, Mr. Chairman. As you said 
before, currently, I am an employee of Lockheed Martin 
Information and Technology, although my employment with 
Lockheed Martin has nothing to do with my involvement in Able 
Danger beyond my passion to continue to do this work as a 
private citizen.
    I do have an intelligence analysis training team of about 
20 instructors. Five of them are on the ground in Iraq today 
training intelligence analysis with data mining technology. My 
primary customer is the U.S. Army Intelligence and Security 
Command, to include the Information Dominance Center and the 
Information Operations Center and its extensions. I also teach 
a counterterrorism analysis course for INSCOM.
    From March 1999 until February of 2001, I was an active 
duty Army Major and the Chief of Intelligence of the Land 
Information Warfare Activity. My branch provided as a typical 
mission analytical support to Army information operations, but 
because of the data mining capabilities that we possessed in 
the Information Dominance Center, we routinely provided direct 
analytical support to several combatant commands, as well as 
other customers.
    And as Congressman Weldon alluded to earlier, one of our 
most prominent operations was in support of a data mining proof 
of concept demonstration for, from our level, the Assistant 
Secretary of Defense for Command, Control, Communications, and 
Intelligence, or ASDCIII. That was called the JCAG project. It 
demonstrated how data mining and intelligence analysis could be 
conducted in a counterintelligence and technology protection 
    That project ran through the latter half of 1999 and our 
results were ultimately subpoenaed by Congressman Dan Burton's 
office through the House Reform Committee on November 16 of 
    In December 1999, we were approached by U.S. Special 
Operations Command to support Able Danger. I assigned the same 
core team of analysts that worked the JCAG project, along with 
Dr. Eileen Preisser as the analytical lead. Four of us 
conducted data mining analysis on the Al Qaeda terrorist 
network, coordinating with SOCOM and other organizations 
throughout that time. In the months that followed, we were able 
to collect an immense amount of data for analysis that allowed 
us to map Al Qaeda as a worldwide threat with a surprisingly 
significant presence within the United States.
    In approximately April of 2000, from my recollections, our 
support to Able Danger became severely restricted and 
ultimately shut down due to intelligence oversight concerns. I 
was supported vigorously by both the LIWA and the INSCOM chain 
of commands and we actively worked to overcome this shutdown 
for the next several months. In the midst of this shutdown, I, 
along with one of my analysts, Chief Warrant Officer 3 Terri 
Stephens, were forced to destroy all data, charts, and other 
analytical products that we had not already passed on to SOCOM-
related Able Danger. This destruction was dictated by and 
conducted in accordance with the intelligence oversight 
procedures that we lived by.
    Ultimately, we were able to restart our support to SOCOM at 
the end of September of 2000. Additionally, the bombing of the 
U.S.S. Cole on October 12 brought U.S. CENTCOM to the IDC and 
who became our primary customer until my departure from active 
duty on April 1, 2001.
    I thank you for the opportunity to appear, sir, and 
understand that I can only talk in an unclassified nature in 
terms of the operations and administrative coordination that 
was conducted, not the actual analytical results or anything 
that would jeopardize classifications.
    Chairman Specter. Thank you very much, Mr. Kleinsmith.
    [The prepared statement of Mr. Kleinsmith appears as a 
submission for the record.]
    Chairman Specter. Mr. Kleinsmith, what knowledge, if any, 
do you have about the allegation of a destruction of documents?
    Mr. Kleinsmith. The allegation of destruction of documents 
is correct. I am the one who deleted all the documentation that 
we had gathered at the IDC.
    Chairman Specter. And you deleted the data?
    Mr. Kleinsmith. Yes, sir.
    Chairman Specter. Precisely what do you mean by that?
    Mr. Kleinsmith. We had collected data from all of our 
different harvests and we had two different sets, so we had an 
unclassified or Internet polls that we had done. We also had 
what we termed as all-source, and this is data that was 
combined together from both classified and unclassified 
sources. We also had printouts or charts that we had produced, 
as well as some--I take that back--charts that we had produced 
as well as one chart or two that Orion Scientific had provided 
to us. But we had already gone beyond their analysis. So all, 
both soft copy and hard copy, was deleted or destroyed.
    Chairman Specter. What kind of information was deleted?
    Mr. Kleinsmith. Everything, everything that we had--
    Chairman Specter. What was the essential substance of it?
    Mr. Kleinsmith. We had done Internet polls related to a 
preliminary analysis of Able Danger, and what I mean by that is 
we were trying to get a worldwide perspective of exactly where 
this organization functioned and operated, just as a start, and 
that was in terms of Al Qaeda.
    Chairman Specter. And did part of that involve operations 
within the United States?
    Mr. Kleinsmith. No specific operation in the United States, 
only a presence that was known, and we were unable to get to 
the details for specific persons or information in the United 
States before we were shut down.
    Chairman Specter. And when was that information deleted?
    Mr. Kleinsmith. I deleted that information roughly May-June 
timeframe of 19--I am sorry, 2000.
    Chairman Specter. May-June of 2000?
    Mr. Kleinsmith. Yes, sir.
    Chairman Specter. Did somebody instruct you to delete the 
    Mr. Kleinsmith. We were visited by our--the INSCOM's 
General Counsel, and the man was named Tony Gentry. But he was 
only there 10 days prior to remind me of the intelligence 
regulations that we were operating under. With that, the 
intelligence oversight regulation we referred to was Army 
Regulation 381-10, and in that--I brought a copy with me--we 
are allowed to--under Procedure 3, allows us to temporarily 
retain information about United States persons, may be retained 
temporarily for a period not to exceed 90 days solely for the 
purpose of determining whether that information may be 
permanently retained under the other procedures.
    So while we were shut down, we were unable to do any 
further analysis, vetting of data, or investigation into the 
data that we had pulled. Because of that, the 90-day mark had 
hit and he came back down to remind me again, and it was more 
of a friendly visit, not an adversarial visit, and that was 
actually when he told me jokingly to remember, just delete this 
data or you guys will go to jail. Ha, ha, very funny, 
understanding completely we abide by the regulation, so we 
deleted the data and destroyed the charts that we had also 
    Chairman Specter. When you say, abide by regulations, what 
do you mean by that?
    Mr. Kleinsmith. We had to abide specifically by the Army 
intelligence oversight regulations that said we could only 
retain this information for 90 days.
    Chairman Specter. Is there some relationship between those 
regulations and the Posse Comitatus Act?
    Mr. Kleinsmith. The Army regulation was in direct 
correlation with DOD Regulation 5140-point-R, which follows 
Executive Order 12333.
    Chairman Specter. You are giving me a lot of--
    Mr. Kleinsmith. Yes, and I apologize--
    Chairman Specter [continuing].--documents. That is OK--
    Mr. Kleinsmith. It is more of a--
    Chairman Specter. Excuse me. Does any of it trace back to 
the Posse Comitatus Act?
    Mr. Kleinsmith. Only from an intelligence analysis 
perspective, not from an operational or mission perspective.
    Chairman Specter. Well, what do you mean by that, 
intelligence but not operational?
    Mr. Kleinsmith. It allowed us to--
    Chairman Specter. I was only a first lieutenant, so you are 
going to have to explain it to me.
    Mr. Kleinsmith. Yes, sir. It allowed us to conduct 
intelligence analysis and to incidentally collect information 
on U.S. persons. We didn't consider, or Posse Comitatus was 
never brought up at our level that we had worked at. We stayed 
strictly with AR 381-10--
    Chairman Specter. Was there any reason for you to conclude 
that the deletion order for these documents went up the chain 
of command to officials relying on the regulations and Posse 
    Mr. Kleinsmith. Not from my perspective or from my level, 
and I can't answer that fully, sir.
    Chairman Specter. Are you in a position to evaluate the 
credibility of Captain Philpott, Colonel Shaffer, Mr. Westphal, 
Ms. Preisser, or Mr. J.D. Smith, as to their credibility when 
they say they saw Mohammed Atta on the chart?
    Mr. Kleinsmith. Yes, sir. I believe them implicitly from 
the time that I had worked with all of them, and everyone you 
had mentioned was part and I had contact with during this time. 
I cannot--
    Chairman Specter. You had contact with all of them?
    Mr. Kleinsmith. Yes, sir. I cannot corroborate them 
completely and say that, yes, they saw it, because I myself do 
not remember seeing either a picture or his name on any charts, 
but I believe them implicitly. When they say they do, I believe 
    Chairman Specter. My red light just went on, but I am going 
to take the liberty of asking one more question, 
notwithstanding my insistence on adherence to the red light by 
    Senator Sessions. Go ahead, Mr. Chairman. You have 
unanimous support from the Committee.
    Chairman Specter. That is extensive license, more than I 
really have as Chairman.
    I have a report that you feel very strongly about this 
matter, so strongly that you were quoted as saying--and I want 
to know if this is an accurate quote--that every night when you 
go to bed, you believe that if the program had not shut down 
the U.S. intelligence on these subjects, that 9/11 could have 
been prevented.
    Mr. Kleinsmith. That is not completely accurate. What I had 
said is, yes, I do go to bed every night, and other members of 
our team do, as well, that if we had not been shut down, we 
would have been able to at least present something or assist 
the United States in some way. Could we have prevented 9/11? I 
don't think--I can never speculate to that extent we could have 
done that.
    Chairman Specter. But you think you might have been able to 
glean some intelligence that could have been helpful along that 
    Mr. Kleinsmith. Yes, sir.
    Chairman Specter. Senator Sessions?
    Senator Sessions. Thank you. Major Kleinsmith, you are not 
a lawyer and have not studied the origins of all these 
regulations, is that what I hear you saying?
    Mr. Kleinsmith. Yes, sir.
    Senator Sessions. You simply, as an officer, were bound by 
AR 381-10, as you understood it?
    Mr. Kleinsmith. Yes, sir.
    Senator Sessions. And do I understand you to say that AR 
381-10, for whatever good reason somebody may have had for 
passing it, was the culprit that got you into this or required 
these deletions, or do you think that the deletions could have 
been--were not necessary even under the Army regulation?
    Mr. Kleinsmith. Sir, I am actually the one who made the 
decision to delete the documents, and so if it came to the 
point where, was I ordered, I was ordered by whoever wrote the 
regulation, and I understood that the regulation was written 
before the Internet, before data mining, and so it was a 
natural result. Yes, I could have conveniently forgot to delete 
the data and we could have kept it, but I would have been in 
violation and I knowingly would have been in violation of the 
    Senator Sessions. I would just like to first say that one 
moment, we are giving the military a hard time because they 
don't follow the regulations, and the next minute, we give you 
a hard time for following the regulations. Is it your 
understanding from the Legal Counsel that--you discussed this 
with Legal Counsel at some point before you deleted the 
    Mr. Kleinsmith. Yes, sir.
    Senator Sessions. And they can confirm that, in their view, 
that it was your obligation to delete this, to comply with it--
    Mr. Kleinsmith. Yes, sir.
    Senator Sessions. And at this time, who was Secretary of 
    Mr. Kleinsmith. I am sorry, I think it was William Cohen at 
the time.
    Senator Sessions. It wasn't Mr. Rumsfeld during any of 
this. And do you think, or just from your perspective, having 
been there and worked on this, do you feel like that the 
regulation and the policies behind it should be modified to 
allow this kind of activity and that it would not adversely 
impact our traditional view that the military should not be 
involved in domestic law enforcement?
    Mr. Kleinsmith. Sir, again--yes, you are correct, I am not 
a lawyer. I would only, if I had one recommendation to make, is 
that a review would be conducted that involved data mining and 
the technology and the capability, but I could not give you an 
answer on how it should be changed specifically.
    Senator Sessions. Mr. Zaid, would you want to comment on 
that point, on what the policy ought to be and--
    Mr. Zaid. Sure, Senator. One of the questions--
    Senator Sessions. And you represent--
    Mr. Zaid. I represent Lieutenant Colonel Shaffer and Mr. 
    Senator Sessions. And these were the individuals involved 
in this data mining that had apparently come up with Mr. Atta's 
    Mr. Zaid. Correct.
    Senator Sessions. and information about that. As a lawyer, 
have you, recognizing our concern about--and I take this very 
seriously, the Posse Comitatus Act. I don't think we would 
blithely change that Act. But as to this data mining and the 
kinds of things that they did, do you think we ought to change 
that policy?
    Mr. Zaid. Let me say, first, understand that much of the 
data mining, and there are differences as to the technical 
definitions as to what exactly was happening with respect to 
that, were done by the contractors, the defense contractors. 
The rules are somewhat different for them. They have no 
restrictions as far as what data they are maintaining.
    The other aspect is that we are not entirely sure what 
specific legal interpretations were being applied in this case 
other than obviously with respect to the destruction on the 
Army side. I would encourage the Committee, if they haven't 
already, to try and obtain the undoubted legal memoranda that 
exists within the Department of Defense. This wasn't the first 
time, obviously, the issue came up.
    Plus, from my somewhat understanding of Posse Comitatus--I 
represent military officers all the time but I have never been 
a military lawyer--Posse Comitatus, of course, pertains to law 
enforcement activities of the military. In the aftermath of 
Waco, the Army took a PR hit because it had apparently helped 
support or provide activities, more than they were supposed to, 
with respect to the FBI raid on the Waco compound.
    Senator Sessions. Well, let us talk about that. So the Army 
provided information that assisted ATF and FBI in the Waco 
activity, is that correct?
    Mr. Zaid. And I don't remember the specifics--
    Senator Sessions. But they were criticized for not staying 
within their role.
    Mr. Zaid. Absolutely.
    Senator Sessions. So it is a matter you took seriously--the 
military, Major Kleinsmith, I mean, the military takes the 
rules they are given seriously.
    Mr. Kleinsmith. Yes, sir. This is a requirement to be 
trained on intelligence oversight every year for every 
intelligence soldier and it is tracked.
    Mr. Zaid. But there is case law and there are DOD 
regulations that pertain to the sharing of information compiled 
by the military with law enforcement. What my understanding of 
Able Danger's activities, it does not appear as if it would 
have crossed over that line. Now, whether there is an 
inconsistency between this Army regulation and other DOD 
regulations and the case law is something this Committee could 
obviously look at within its jurisdiction. It doesn't appear 
that there would have--there should have been any conflict. So 
it is not--
    Senator Sessions. So to sum up--my time is expiring--to sum 
up, you would say that--
    Chairman Specter. You can take some more time, Senator.
    Senator Sessions [continuing]. It may have been in 
violation of AR 381-10, but not necessarily in violation of the 
case law or the Posse Comitatus theories that we have tried to 
operate under?
    Mr. Zaid. There is absolutely evidence of that, plus there 
is a concern that this was too zealously applied. Those within 
Able Danger were confident they actually weren't compiling 
information on U.S. persons. They were potentially people 
connected to U.S. persons. Again, I said they never identified 
Mohammed Atta in the United States. Apparently, the problem 
that came up was on the chart where his image was, he was 
listed under Brooklyn, New York, or something to that effect. 
It had Brooklyn, and those within the Army, either in the legal 
level or some of the policy levels, were apparently showing 
apprehension and concern that somehow that was then linking to 
data compilation of U.S. persons, whether that is U.S. citizens 
or individuals, foreigners here legally.
    Now, the other thing I should add as far as the 
destruction, Lieutenant Colonel Shaffer was the liaison between 
the DIA, Defense Intelligence Agency, and Able Danger. Because 
he was located here in Washington/Arlington, he maintained an 
extensive amount of files that pertained to the work that Able 
Danger was compiling in Orion Scientific. That data was not 
destroyed by Major Kleinsmith. That data, which may very well 
have included this Mohammed Atta chart, sat in his office at 
the Defense Intelligence Agency until some time in the spring 
of 2004, when DIA destroyed it. We have no idea why.
    By that time, Lieutenant Colonel Shaffer had been suspended 
and put on administrative leave because his clearance had been 
suspended. DIA apparently claims that they sent him an e-mail 
asking, well, what do you want us to do with all these boxes of 
documents? He never--I don't know if they did send it. I can 
tell you he never received the e-mail. I don't understand why 
they would have destroyed any documents, particularly if they 
were classified, and there was classified information within 
these boxes, why would they destroy any documents presuming he 
would get a fair shake at challenging his clearance suspension 
and ultimately come back to work within the DIA and hopefully 
use the documents again. So those documents were not 
necessarily subject to AR 381-10 and the DIA should be required 
to explain who destroyed the documents and why they destroyed 
    Senator Sessions. Good point. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Sessions.
    Mr. Zaid, you are representing Lieutenant Colonel Shaffer 
and Mr. J.D. Smith?
    Mr. Zaid. Correct.
    Chairman Specter. And they are present in the hearing room 
this morning?
    Mr. Zaid. They are, sir. Lieutenant Colonel Shaffer is in 
uniform and Mr. Smith is right next to him.
    Chairman Specter. Would you gentlemen mind standing, 
please? OK. Would you, for the record, identify Lieutenant 
Colonel Shaffer?
    Mr. Zaid. Sure. Lieutenant Colonel Shaffer is to the left 
in the uniform, of course, and Mr. J.D. Smith is here in his 
business attire.
    Chairman Specter. You may be seated, gentlemen.
    You speak as their counsel?
    Mr. Zaid. Yes, sir.
    Chairman Specter. And they have consented to your 
    Mr. Zaid. Yes, sir.
    Chairman Specter. Why are they not permitted to speak for 
    Mr. Zaid. Because the Defense Department has prohibited. I 
received both phone calls and a letter from the Defense 
Intelligence Agency, as well as the Department of Defense 
General Counsel's office, specifically prohibiting Lieutenant 
Colonel Shaffer from testifying. Mr. Smith admittedly has not 
been explicitly prohibited, but being an individual who still 
works within the classified environment with numerous agencies 
of the Federal Government, I advised him it would be preferable 
not to testify until the classification issue with the 
Department is taken care of.
    Chairman Specter. And was any effort made to have you not 
    Mr. Zaid. I am not aware of any, no indication from the 
Department of Defense or DIA that I not testify. And as I said 
earlier, I never have been told, and I work with these 
attorneys over in the agencies all the time, never have I been 
told that there was any concern that Lieutenant Colonel Shaffer 
specifically had been saying anything classified within his 
public comments, and I have routinely been told by agencies of 
the Federal Government, particularly when we represent 
intelligence officers, when one of them has potentially crossed 
the line and we have been told to reel them back.
    Chairman Specter. But you are saying that there has never 
been any suggestion, either as to Lieutenant Colonel Shaffer or 
Mr. Smith, that the DOD was concerned about the disclosure of 
classified information?
    Mr. Zaid. At least with respect to what they have publicly 
stated to the press, to the Committees, et cetera. Without a 
doubt--well, I should say two things. J.D. Smith's contract 
with Orion through whichever part of the Defense Department 
engaged him was completely unclassified, no questions about 
that. Lieutenant Colonel Shaffer and Able Danger, of course, 
did have access to classified information, but the work that 
prepared or led to the creation of the Mohammed Atta chart was 
    Chairman Specter. And the information which has been in the 
public domain, which is what this Committee was looking for, 
was not classified?
    Mr. Zaid. It is all of our indications that nothing was 
classified. It could certainly have been spoken to today and 
then elaborated on in executive session.
    Chairman Specter. Obviously, it would be preferable, as 
Senator Kyl pointed out, to have the witnesses testify 
firsthand, but in the absence of that, we can hear hearsay. 
What would Lieutenant Colonel Shaffer have testified to had he 
been permitted to do so?
    Mr. Zaid. Predominately, he would have testified to the 
fact of the work that Able Danger had been doing, both in the 
certainly unclassified environment, that they had created 
numerous charts that had dealt with Al Qaeda, one of which had 
identified Mohammed Atta, had a photograph of him. That 
photograph was not the same photograph that we have all seen in 
the news, not a photograph released by a U.S. Government agency 
or the 9/11 Commission. It was a very grainy photograph. He 
remembers it specifically because of the essentially evil death 
look in Mohammed Atta's eyes and his narrow, drawn face. Of 
course, the name itself didn't necessarily mean anything to 
them until after 9/11. He conversed with other members of his 
team, found that they had gone to meet with Mr. Hadley and turn 
over the chart, thought, well, my job is taken care of. The 
information has been passed.
    He would have talked about the capabilities that LIWA and 
the contractors were undertaking and the successful enterprises 
they were doing that was revelation and novel within the 
intelligence and military community.
    He also would have indicated that, finally, he came and he 
met with members of the 9/11 staff, to include its Executive 
Director, while he was on active duty risking his life in 
Afghanistan, that he had told them that his team had identified 
two of the successful cells of 9/11, to include Atta. That 
statement, of course, is in dispute by the 9/11 staff that were 
present. There were also DOD staff that were present there, who 
have not come forward and have not been questioned so far as we 
    He also would have indicated that after that, he met Mr. 
Zelikoff, gave him his business card, and said, ``I want you to 
call us when you get back to the United States so we can follow 
this up.'' He did so in January of 2004. He called the 
Commission and said, ``Mr. Zelikoff told me to call. I would 
like to come in and give more information.'' They never called 
him back. A week later, he called again and was told, ``That is 
OK, we don't need to talk to you.''
    Chairman Specter. My red light went on during your answer. 
Senator Sessions?
    Senator Sessions. I just briefly, Mr. Chairman, would 
followup with Mr. Kleinsmith. We found in the PATRIOT Act work 
that we did that there were clear prohibitions, unbelievable 
prohibitions, on the sharing of information such as an FBI 
investigation involving a grand jury could not share with a CIA 
matters and vice-versa. The CIA felt they couldn't share 
information in certain ways. I guess I want to ask again, did 
you think, when this lawyer talked to you about your 
requirement to destroy this information, that--I believe you 
said you felt that was--that the advice was existing with the 
existing Army regulations, did you not?
    Mr. Kleinsmith. Yes, sir.
    Senator Sessions. Mr. Zaid, were you saying that you felt 
your clients did not feel that the existing regulations 
required the deletion of that information, or at least some of 
    Mr. Zaid. From my discussions with those involved with Able 
Danger, they were well aware of this concern and they felt they 
had put into place numerous safeguards that would ensure that 
that concern would not rise to a significant level of 
necessitating the destruction. They were all ensure--they said 
they were taking, in fact, numerous steps beyond what they felt 
were even necessary to allay any concerns by the attorneys. But 
obviously, as you heard, at the end of the day, I guess the 
attorneys won out.
    Senator Sessions. I think it is important for us to review 
these matters. The first thing I would like to say, and I think 
it is very important for the American people to understand, 
somehow, there is a belief in this country that we give 
regulations and directives to the military and that they think 
we don't comply with them, that the military does not comply 
with them. I used to have to teach in the Army Reserve and 
certify every year or every other year that I taught the Geneva 
Conventions to Army Reserve privates in a transportation unit.
    The military does what we tell them to do, and when we have 
these kind of crazy rules that do this, I think it is us in the 
Congress that really deserve the criticism here, first. And 
second, if a lawyer was too aggressive in requiring the 
deletion of things that they shouldn't, I think we need to look 
into that.
    Mr. Chairman, I will yield back my time to you.
    Chairman Specter. Thank you. Thank you very much, Senator 
    Mr. Zaid, just one final question. Again, we would like to 
hear from Mr. Smith, but we are precluded. If he were to 
testify, what would he say?
    Mr. Zaid. Mr. Smith would have indicated that he was tasked 
by individuals associated with Able Danger, again, not knowing 
it was Able Danger, to compile unclassified information that 
they then can put into charts like Congressman Weldon had 
brought today, looked somewhat similar--some were that size, 
some were smaller--containing massive amounts of data, that 
these were associational links, that at least one chart in 
particular which he, in fact, kept on his office wall until the 
summer of 2004, when it had been destroyed after he tried to 
move it for an office move and then junked it, had Mohammed 
Atta and potentially, according to other team members--he 
doesn't recall this--three others of the 20 hijackers of 9/11, 
in fact, as well.
    He would have made one mention that at some point in time--
he was not there at this time--that government--Federal agents, 
armed Federal agents came to Orion in around March or April of 
2000 and confiscated many or much of the data that Orion had 
compiled with respect to this contract. They never obtained his 
data or his charts because given that it was unclassified, they 
actually were in the trunk of his car, and so that is why he 
was able to maintain these charts.
    After the summer of 2000 or even the spring of 2000, that 
contract ceased to exist, so he no longer participated in any 
of the efforts.
    Chairman Specter. When you say Mohammed Atta, is it the 
Mohammed Atta who turned out to be the hijacker?
    Mr. Zaid. Yes. Without a doubt, his recollection is that, 
again, by the photograph--and he obtained the photograph 
through a subcontractor that Congressman Weldon mentioned, 
bought through, and he understood it to be a foreign source, 
and it was the look of this photograph--it wasn't the same 
photograph that we have all seen, and he, post-9/11, when he 
had this chart on his wall in his office, would bring in 
anybody who would come by and say, ``Look what we had. Look 
what we had compiled.'' They would be shown, here was the 
photograph of Mohammed Atta, and he would just shake his head, 
what if, what if, what if.
    Chairman Specter. Do you know where the chart is now?
    Mr. Zaid. The chart, unfortunately, was destroyed. I am not 
sure what the paper is of those, but many of the charts were on 
a type of paper almost like tissue paper to some extent, from 
what I understand, and he had it taped to the wall, and when he 
tried to take it down, it had become so torn and tattered 
after, at that time, 3 years that he threw it out.
    Chairman Specter. Anything further, Senator Sessions?
    Senator Sessions. No, Mr. Chairman.
    Chairman Specter. Thank you very much, Mr. Kleinsmith. 
Thank you very much, Mr. Zaid. And in absentia, though present, 
thank you very much, Colonel Shaffer and Mr. Smith. It is 
pretty hard to be in absentia and present at the same time, but 
you are.
    Chairman Specter. We now call our third panel, Mr. Gary 
Bald and Mr. William Dugan. Mr. Gary Bald is Executive 
Assistant Director of the FBI for the National Security Branch, 
appointed on August 12 of this year, a branch created at the 
recommendation of the Commission on Intelligence Capabilities 
of the WMD Commission, responsible for integrating the FBI's 
national security mission with the Director of National 
Intelligence. He has been in the FBI since 1977 and has a very 
extensive, laudatory record there. He has a Bachelor of Science 
from the University of South Carolina and a Master's in 
forensic science from George Washington University.
    Thank you for joining us, Mr. Bald, and we look forward to 
your testimony.


    Mr. Bald. Thank you, Senator. Thank you, Chairman. I have 
submitted a written statement, if I could ask that it be made a 
part of the record, and I will briefly--
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Mr. Bald. Thank you, sir. Good morning, Mr. Chairman, 
Senator Leahy, and members of the Committee. Thank you for this 
opportunity to update you on the progress the FBI has made 
since 9/11 in sharing information with our partners in law 
enforcement and the intelligence community. As you requested, I 
will focus my remarks on collaboration with the Department of 
    I am testifying today in my new capacity as Executive 
Assistant Director of the National Security Branch of the FBI, 
which was established on September 12, pending final 
administration approval. Created in response to the President's 
directive to implement the recommendations of the Weapons of 
Mass Destruction Commission, the National Security Branch 
combines the resources, missions, and capabilities of the 
counterterrorism, counterintelligence, and intelligence 
elements of the FBI and in doing so will help us build on the 
tremendous strides that we have already made since 9/11 in 
strengthening our intelligence and information sharing 
capabilities and coordinating with other intelligence agencies.
    Before 9/11, our ability to share information was hampered 
by legal and procedural restrictions, often referred to as the 
wall that separated intelligence and criminal investigations 
within the FBI. Those restrictions contributed to a situation 
in which our relationships with other intelligence agencies on 
counterterrorism investigations were driven by case-specific 
    Since 9/11, the passage of the PATRIOT Act, and other major 
legal developments eliminated the wall between criminal and 
intelligence investigations within the FBI and these actions 
removed real and perceived barriers to coordination among the 
FBI and other intelligence agencies and changed the way the FBI 
conducts international terrorism investigations.
    In addition, the FBI now places great emphasis on producing 
intelligence reports and disseminating them through our 
partners in the intelligence and law enforcement communities. 
Our policy is to share by rule and withhold by exception. To 
ensure that this policy is implemented, we have created a 
senior-level Information Policy Sharing Group to provide 
guidance within the FBI for internal and external information 
sharing initiatives.
    The FBI has also developed a National Information Sharing 
Strategy as part of the Department of Justice's Law Enforcement 
Information Sharing Program, which aims to ensure that those 
charged with protecting the public have the information that 
they need to take action.
    There are three components of this strategy, the National 
Data Exchange, or what we refer to as N-DEx, which will provide 
a nationwide capability to exchange data from incident and 
event reports with other agencies; the Regional Data Exchange, 
or as we refer to it as R-DEx, which will enable the FBI to 
join participating Federal, State, tribal, and local law 
enforcement agencies in regional, full-text information sharing 
systems; and our Law Enforcement Online, which provides a Web-
based platform for the law enforcement community to exchange 
    The FBI also participates in a variety of interagency 
centers, working groups, and committees that were established 
to improve information sharing. In each of the FBI's 56 field 
offices and in most major United States cities, we now have a 
Joint Terrorism Task Force, which combines the resources of the 
FBI, other Federal agencies, with the expertise of the State 
and local law enforcement agencies in those areas to prevent 
acts of terrorism and investigate the activities of terrorists 
in the United States.
    To support the Joint Terrorism Task Forces throughout the 
country and to provide a point of fusion for terrorism 
intelligence, we also created the National Joint Terrorism Task 
Force. The Department of Defense is strongly represented in the 
Joint Terrorism Task Forces and on the National Joint Terrorism 
Task Force.
    The FBI also has a significant complement of personnel 
working at the interagency National Counterterrorism Center, 
which integrates the Federal Government's intelligence and 
analysis and presents a comprehensive view of the terrorist 
threat for the President and other senior policy makers.
    The FBI is proud of its efforts in partnership with the 
Department of Defense. We are working together on numerous 
fronts to share information to support the global war on 
terrorism, and as an example of our joint activities, the FBI's 
Criminal Justice Information Services Division has been working 
with the Department of Defense's Biometric Fusion Center to 
store and disseminate data collected by military troops 
deployed overseas. The data consists of fingerprints, 
photographs, and biographical data of enemy prisoners of war or 
individuals of interest as national security threats. The FBI 
currently has special agents assigned as liaison officers to 
several Department of Defense combatant commands and additional 
FBI personnel are embedded with the Department of Defense in 
military operations in Iraq, Afghanistan, and Guantanamo Bay.
    The Department of Defense and FBI are also collaborating on 
the Foreign Terrorist Tracking Task Force, which uses analytic 
techniques and technologies to enable terrorist identification 
and tracking. In addition, the two agencies share information 
as participants in the Terrorist Explosive Device analytic 
Center, which coordinates and manages a unified national effort 
to gather and technically and forensically exploit terrorists 
who improvise explosive devices worldwide.
    With the intelligence gathered throughout these and other 
partnerships as well as her own investigations, the FBI 
produces intelligence products that we disseminate to the 
intelligence and law enforcement communities, primarily through 
six information sharing networks: The FBI Intranet, INTELINK 
top secret, INTELINK secret, Law Enforcement Online, the 
Homeland Security Information Network, and a secure automated 
message network.
    Over the past several years, the FBI has significantly 
increased the number of intelligence products disseminated via 
these networks. A primary route for the Department of Defense 
components to receive FBI intelligence products is through the 
Defense Intelligence Agency--
    Chairman Specter. Mr. Bald, could you summarize your 
testimony at this point, please?
    Mr. Bald. I will, sir. Thank you. Through the Defense 
Intelligence Agency, which is the primary distribution list for 
FBI intelligence products.
    In conclusion, Mr. Chairman and members of this Committee, 
the FBI has made significant progress in our efforts to share 
information with our partners in the intelligence and law 
enforcement communities. We have established policies and 
developed tools that make it easier for us to disseminate 
intelligence and provide access to those who need it, and we 
are working collaboratively on many fronts with the Department 
of Defense and other agencies to develop the capabilities we 
need to succeed against the threats of the future.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Mr. Bald.
    [The prepared statement of Mr. Bald appears as a submission 
for the record.]
    Chairman Specter. We turn now to Mr. William Dugan, Acting 
Assistant Secretary of Defense for Intelligence Oversight. Mr. 
Dugan is a retired Air Force Colonel and has served as a 
Minuteman missile combat crew commander. He has a Bachelor of 
Arts degree from the University of Florida, a law degree from 
the University of Kansas, and is also a graduate of the Army 
War College.
    The floor is yours, Mr. Dugan.

                        WASHINGTON, D.C.

    Mr. Dugan. Thank you, Mr. Chairman. Good morning. Senator 
Sessions, members of the Committee, it is my privilege to 
appear before you today. I am Bill Dugan. I am the Acting 
Assistant to the Secretary of Defense for Intelligence 
Oversight and I am here to discuss the intelligence oversight 
program in the Department of Defense and also to talk about 
information sharing.
    I am responsible to the Secretary and the Deputy Secretary 
for the DOD's Intelligence Oversight Program, and the purpose 
of the Intelligence Oversight Program is to enable DOD 
intelligence components to carry out their authorized functions 
while at the same time ensuring that their activities that 
affect U.S. persons, United States persons, are carried out in 
a manner that protects their constitutional rights and privacy.
    Now, I have used the term ``United States persons,'' and I 
would like to define it because it is an important term. It is 
a broad term. It refers to more than just United States 
citizens. The term also includes permanent resident aliens, 
corporations incorporated in the United States unless directed 
or controlled by foreign governments, and associations composed 
of permanent resident aliens and United States citizens. So you 
can see it is broader than just U.S. citizens.
    We operate under Executive Order 12333, entitled United 
States Intelligence Activities, which was issued by President 
Reagan in December 1981. The DOD implementing regulation is DOD 
5240.1-R, entitled Procedures Governing the Activities of DOD 
Intelligence Components that Affect United States Persons. This 
DOD regulation was approved by the Attorney General and was 
issued in December 1982. So these are the Attorney General-
approved guidelines for the DOD intelligence community 
regarding activities that affect United States persons and they 
have been in place for more than 20 years.
    The Office of the Assistant to the Secretary of Defense was 
established in 1976 to implement the original Executive Order, 
which was one issued by President Ford, and that was in 
response to the investigations, including those done by this 
Committee, that revealed the misuse of intelligence assets, 
both DOD and non-DOD, to collect information on civil rights 
protestors, anti-Vietnam War demonstrators, community and 
religious leaders, et cetera. The lack of clear rules, mission 
creep, and the lack of meaningful oversight caused an abuse of 
the constitutional rights of United States persons by Defense 
intelligence and counterintelligence personnel. The result, 
President Ford's first Executive Order and the one we operate 
under currently by President Reagan in 1981.
    I would like to describe how the process works regarding 
the collection of United States person information by DOD 
intelligence components. First, no one in DOD intelligence has 
a mission to collect information on United States persons. What 
we have are missions such as foreign intelligence, 
counterintelligence, counterterrorism, signals intelligence, 
and the like. In the course of performing our mission, we run 
across or find information that identifies United States 
persons. That is when the rules in the DOD regulation that I 
mentioned, 5240.1-R, kick in, the Attorney General-approved 
    If the information is necessary to the conduct of the 
mission, as I just described, for example, counterterrorism, 
and if it falls within one of the 13 categories prescribed by 
the Executive Order and the DOD regulation, then the 
intelligence component can collect it. The 13 categories, I 
won't list them all. They are in my prepared remarks. But the 
ones most likely to be used in the war on terrorism are 
information obtained with consent, publicly available 
information, foreign intelligence, counterintelligence, and 
threats to safety from international terrorist organizations.
    If the intelligence component is unsure if the information 
they have obtained is proper for them to keep regarding U.S. 
persons, the intelligence oversight rules allow them to 
temporarily retain the information for up to 90 days solely to 
determine whether it may be permanently retained, and thus, we 
have intelligence components who have properly collected U.S. 
person information in their holdings.
    Finally, if an intelligence component is in receipt of 
information that pertains to the function of other DOD 
components or agencies outside DOD, such as the FBI, the 
intelligence component can transmit or deliver the information 
to them for their independent determination whether it can be 
collected, retained, or disseminated in accordance with their 
governing policy.
    Thank you.
    Chairman Specter. Thank you, Mr. Dugan.
    [The prepared statement of Mr. Dugan appears as a 
submission for the record.]
    Chairman Specter. Mr. Dugan, you were present during the 
entire hearing today?
    Mr. Dugan. Yes, I was.
    Chairman Specter. I didn't hear you object to any 
classified information being presented.
    Mr. Dugan. Sir, I listened to your reading of the statement 
from your legal counsel regarding my responsibility to object 
if there was classified information revealed. My knowledge of 
Able Danger is very limited. The information that I heard 
discussed by the previous two panels, based on my limited 
knowledge of Able Danger, did not cause me to rise and say that 
I thought classified information was being revealed. Had I--
    Chairman Specter. So you didn't--
    Mr. Dugan. Had I believed so, I would have done so.
    Chairman Specter. OK. So you didn't hear any classified 
    Mr. Dugan. No, I didn't hear what I believe to be 
classified information.
    Chairman Specter. Well, we are not looking for anybody 
else's belief. Is there anybody else present from the 
Department of Defense here today?
    Mr. Dugan. I have some folks from the OSD Legislative 
Affairs, but I don't believe they are in a position--
    Chairman Specter. But it was your job to object if you 
heard something you thought was classified?
    Mr. Dugan. Yes, sir, that is correct.
    Chairman Specter. Is there anything in Posse Comitatus 
which would have prevented the Department of Defense from 
telling the FBI about an Al Qaeda cell and Mohammed Atta?
    Mr. Dugan. No, sir, I don't think so. I don't think this is 
a Posse Comitatus issue. I think this is an intelligence 
oversight, Executive Order 12333 compliance issue. The Army 
regulation that previous speaker referred to, Army Regulation 
381-10, is an implementation of the DOD regulation, which is an 
implementation of the Executive Order, and that is what they 
followed. Posse Comitatus, I don't think bears on this.
    Chairman Specter. Well, is there any basis under Posse 
Comitatus for the deletion of materials as testified by Mr. 
Kleinsmith or the destruction of other records relating to 
Mohammed Atta and the charts?
    Mr. Dugan. I don't think so, under Posse Comitatus.
    Chairman Specter. Any basis for the destruction of those 
records or deletion on any ground?
    Mr. Dugan. Well, perhaps under the intelligence oversight 
rules and the 90-day retention determination period that I 
spoke of. That is, under the DOD guidance, the Attorney 
General-approved guidelines, if information identifies a U.S. 
person, the intelligence component concern has 90 days to 
determine if they have a reasonable belief that it can be 
related to one of the 13 categories in Procedure 2 of the DOD 
directive. The Army directive is the same.
    Chairman Specter. In the rather extensive record for this 
Committee today, albeit by hearsay, to some substantial extent, 
Congressman Weldon's testimony and the other testimony has 
established the existence of intelligence information in the 
hands of the Department of Defense, including the identity of 
Mohammed Atta. That evidence having been presented and 
factually ascertainable, did the Department of Defense make a 
mistake in not telling the FBI about that prior to 9/11?
    Mr. Dugan. Not having reviewed the evidence that--
    Chairman Specter. Well, you were here today and you heard 
all the testimony.
    Mr. Dugan. Yes, sir, I was.
    Chairman Specter. You heard a lot of testimony that there 
was a cell uncovered on Al Qaeda and that Mohammed Atta was 
identified--the same Mohammed Atta who later turned out to be a 
ringleader. Now, I don't know whether it is true or not because 
we haven't had the firsthand testimony, but we have to accept 
what we can get. That is for a first hearing. We may have some 
more hearings.
    Mr. Dugan. Certainly.
    Chairman Specter. The Secretary of Defense is coming in to 
brief the Senate this afternoon at four o'clock. He may have 
some extra time. He may be able to lend some substance to what 
we have heard here today. But all we can do is accept the 
testimony we have heard. Now, accepting that testimony, if the 
Department of Defense knew about an Al Qaeda cell and about 
Mohammed Atta, the ringleader, wasn't it a mistake not to turn 
that over to the FBI?
    Mr. Dugan. If the INSCOM folks, following the regulation 
and their intelligence oversight rules, found that the 
information was properly collected and collectable, then it is, 
under the Attorney General-approved guidelines, they can retain 
it and disseminate it, and it the dissemination under Procedure 
4 of the regulation would be lawful to the FBI.
    Chairman Specter. Should it have been disclosed? That is my 
question. Your last answer was circuitous and not to the point. 
Should it have been disclosed if it might have prevented 9/11?
    Mr. Dugan. If it was properly collected, yes.
    Chairman Specter. Well, it wasn't properly collected?
    Mr. Dugan. I don't know, sir.
    Chairman Specter. Well, you say there is nothing that you 
heard about which puts it at variance with the Posse Comitatus 
    Mr. Dugan. Correct, but I haven't heard testimony whether, 
and from the Army, and I understand they are not here and the 
reasons for that, but as to what they collected, how they 
collected it, and why they determined it was not properly 
collectable, and when it then could not be retained and then 
    Chairman Specter. Do you know why the decision was made not 
to retain it?
    Mr. Dugan. I assume, based on the previous testimony of the 
previous panel, and from what he said was that the 90-day 
period had run, and since the 90-day period had run, they had 
not made a collectability determination that it fit into one of 
the 13 categories, that it was excluded.
    Chairman Specter. Since you are the only representative 
from the Department of Defense here, we can only ask you to 
respond to the Committee and to make a determination as to 
whether, No. 1, the Department of Defense had information about 
an Al Qaeda cell and Mohammed Atta, the ringleader. That is 
question No. 1. Did they have that information? If so, was 
there any reason under Posse Comitatus why they could not 
disclose it to the FBI or other intelligence agencies? And 
question No. 3, was it a mistake not to make that information 
available to prevent 9/11 or perhaps contribute to the 
prevention of 9/11?
    Mr. Dugan. Mr. Chairman, with respect to your first 
question, did we have information that identified Mohammed 
Atta, I have heard the testimony here, but I don't know.
    Chairman Specter. The question was, since you are the only 
representative of DOD here, the Committee would like you to 
find out the answers to those questions.
    Mr. Dugan. Very good. May I take--
    Chairman Specter. If we had the Secretary here, we would 
ask him. If we had somebody with knowledge of Able Danger, like 
General Schoomaker, who was very intimately involved in it--he 
is not too far away, he is the Chief of Staff. He was confirmed 
by the Senate the last time he was up. If we had somebody who 
knew more about the matter, we would ask him. I understand that 
you were sent over in a very limited capacity with perhaps a 
calculation that you didn't have this information. But those 
are the questions which the Committee would like to have 
    Mr. Dugan. Yes, sir.
    Chairman Specter. And if you would undertake the task of 
finding out the answers or having your superiors find out the 
answers, the Committee would appreciate it.
    Mr. Dugan. Yes, sir. Thank you.
    Chairman Specter. Senator Sessions?
    Senator Sessions. Mr. Dugan, to get this ancestry of how we 
get into these walls that make life in government more 
difficult, there were Church hearings and other abuse hearings 
that resulted in President Reagan--President Ford and then 
President Reagan issuing directives to constrain the activities 
of the Department of Defense in things that could be considered 
domestic investigations or domestic law enforcement, is that 
    Mr. Dugan. Yes, sir, that is correct. There was also an 
intervening order from--Executive Order from President Carter.
    Senator Sessions. And as a result of that, DOD Regulation 
12333 was issued?
    Mr. Dugan. I believe you are referring to Executive Order 
    Senator Sessions. All right.
    Mr. Dugan. That was issued by President Reagan.
    Senator Sessions. And you referred in your remarks here to 
a DOD regulation that governed the issue, and is that the 
regulation from which Major Kleinsmith referred when he talked 
about AR 381-10?
    Mr. Dugan. Yes, sir, I believe it is.
    Senator Sessions. So the Army implemented that DOD 
regulation and that became, for the officers and men and women 
in the Army, their binding authority?
    Mr. Dugan. Yes, sir, that is correct. All the other 
services have a similar regulation, as well as the Defense 
Intelligence Agencies.
    Senator Sessions. And is your understanding that that 
regulation really was not founded on the Posse Comitatus Act, 
but some other principle or concern to the executive and 
legislative branches that led to that?
    Mr. Dugan. Yes, sir, that is correct.
    Senator Sessions. Are there any statutory provisions that 
underlay this Executive Order and the AR 381-10?
    Mr. Dugan. The provisions in President Reagan's Executive 
Order grow out of the abuses committed by DOD and non-DOD 
intelligence organizations during the 1960s and 1970s, as I 
explained, and investigated by Senator Ervin, Senator Church, 
the Church Committee, Representative Pike, as well as the 
Rockefeller Commissioner. So it is a fear that you have the 
military collecting intelligence on, let me use the term U.S. 
citizens, but U.S. persons within this country.
    Senator Sessions. I think that is a big issue. I think it 
is an important issue. I don't dispute that, and I am not for 
eroding that principle in any significant way. But the Chairman 
is, I guess--I think we need to ascertain whether or not there 
was any statutory requirement that resulted in 381-10 that 
impacted this particular matter, or was that the results purely 
of an Executive Order which could be changed by the chief 
    Mr. Dugan. I believe it is the result of the Executive 
Order. I do not believe it is a Posse Comitatus statute issue 
    Senator Sessions. And you are not aware of any statutory 
requirement that requires this?
    Mr. Dugan. No.
    Senator Sessions. Now, with regard to--let me see if I can 
followup on the Chairman's question about sharing this 
information. There was this 90-day rule that the Major and 
others, I guess, felt they were confronted with. Do you have an 
explanation of why they couldn't just call Mr. Bald at the FBI 
and say, we can't hold these documents anymore. We turn them 
over to you. What would be the difficulty in doing that?
    Mr. Dugan. We are a lot smarter now than we were in 1999 
and 2000 and we think we could do that, give them--provide that 
information to the FBI and say, you need to review this with 
your authorities in mind to determine whether it is lawful for 
you to keep. Now, we are faced with that same situation when 
law enforcement information is given to us for us to look at, 
and we look at that information in the light of the Executive 
Order and the DOD directive and say, is it proper for us to 
keep this information? Is this of intelligence value to us, and 
we make our decision and determination in accordance with the 
DOD directive or the Army regulation.
    Senator Sessions. Well, so those decisions were made, and I 
guess we will follow up, and the Chairman has asked, what about 
this ultimate destruction of the documents? Was that called for 
under the regulations or was that necessary?
    Mr. Dugan. The 90-day rule is what is referred to as a 
collectability determination. I have this information. I don't 
know if I have a reasonable belief relating to U.S. person 
information, relating to U.S. persons, and they have this 90-
day period within which to make a determination. If the 
determination after day ten is this does not relate to one of 
the 13 categories that I have just described, then the 90-day 
clock stops, but they have a full 90 days to make that 
determination. Once that 90-day period goes by and they have 
not made the information, then it is not properly collected.
    Senator Sessions. Is it deemed not to be properly 
collected, and under criminal law, when the police officer 
improperly collects something, he does not have to destroy the 
evidence, but he can't utilize it--
    Mr. Dugan. We destroy it.
    Senator Sessions. So you destroy. So if you delay and 
haven't made your determination in 90 days, it is to be 
destroyed? Could it not be shared? It can't be shared? What if 
it is improperly gathered, so it can't be maintained? Can it 
then be shared?
    Mr. Dugan. We think the information can be shared, for 
instance, with the FBI, as I indicated earlier, for them to 
review it with their authorities and to make a similar decision 
or determination of whether, for their agency, they can. Now, 
why wasn't it done in this case? I can't tell you. Information 
sharing obviously has increased in significance and importance 
since the 2001 attacks. We are doing a better job of sharing 
information, both from law enforcement to intelligence and 
intelligence to law enforcement. I am sure there are plenty of 
areas necessary and open for improvement, but in 1999-2000, I 
guess I wish to convey to the Committee that U.S. person 
information is something that we are skittish about in the 
Defense Department. We follow the rules strictly on it and we 
want to do the right thing and follow the Attorney General 
    Senator Sessions. Thank you. Mr. Chairman, I had the honor 
to serve with Congressman Weldon on the Armed Services 
Committee, he in the House and I in the Senate, and there is no 
stronger proponent of America's defense, no stronger supporter 
of the United States Army and the Defense Department and a 
healthy, strong America. Congressman, thank you for your 
leadership and for you information you have provided us.
    Chairman Specter. Thank you, Senator Sessions.
    Mr. Dugan, Mohammed Atta was not a U.S. person, was he?
    Mr. Dugan. Based on what I have read in the press since 
September 11, 2001, I don't believe he was. He wasn't a 
permanent resident alien. He wasn't a U.S. citizen. He wasn't 
in any of the other categories. He wasn't in the country 
lawfully. For instance, a student visa or a tourist visa, that 
is not the same thing as a permanent resident alien. So--
    Chairman Specter. Mr. Dugan, you are the Acting Assistant 
Secretary of Defense for Intelligence Oversight. Can't you give 
us a more definitive answer to a very direct and fundamental 
and simple question like, was Mohammed Atta a U.S. person?
    Mr. Dugan. No, he was not.
    Chairman Specter. Well, maybe we ought to continue, since 
we got a direct answer. Mr. Dugan, I know you were sent here by 
your superiors to do the best you could. I think the Department 
of Defense owes the American people an explanation as to what 
went on here. There are very credible questions which have been 
raised, and these credible questions have been raised by 
Congressman Weldon, whose reputation is impeccable as to 
credibility and thoroughness, and these questions have also 
been raised by five witnesses, all of whom have been prohibited 
from testifying.
    We are not dealing here with a matter of minor consequence. 
We are dealing with the intelligence gathering data of the 
Department of Defense and prima facie reasons to believe that 
there was credible evidence as to Mohammed Atta, the Mohammed 
Atta, the ringleader, and an Al Qaeda cell. Had that 
information been shared--and the FBI was trying to get it--9/11 
might have been prevented.
    The other Senators have expressed the same point of view. 
Senator Biden finds it inexplicable, can't figure out why the 
Department of Defense is stonewalling this, and I can't, 
    I hope you will go back and talk to the Secretary and tell 
him that the American people and this Committee are entitled to 
some answers, because if there is a problem with Posse 
Comitatus, it is our duty to try to correct it.
    I want to thank the staff especially for pursuing this 
investigation and this hearing. This hearing preparation was 
one of the most difficult that I have seen, and I am in my 25th 
year and no stranger to investigations. I spent a lot of time 
investigating the Mafia, organized crime, and racketeers of all 
sorts and never faced a more fundamental question than fighting 
terrorism, which is the No. 1 problem we have here today. We 
need answers.
    I want to thank Ivy Johnson, Adam Turner, Adam Caudle, John 
Noor, Kathy Michalko, and Josh Latourette, and especially 
Carolyn Short, General Counsel, and Evan Kelly for the work 
they have done here.
    We are going to suspend the hearing on this subject at this 
point in the hopes that we will get some better answers.
    [Whereupon, at 11:50 a.m., the Committee was adjourned.]
    [Submissions for the record follow.]

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