S. Hrg. 109-311
ABLE DANGER AND INTELLIGENCE INFORMATION SHARING
=======================================================================
HEARING
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
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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
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
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
WITNESSES
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
ABLE DANGER AND INTELLIGENCE INFORMATION SHARING
----------
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
Biden.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
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
determine.
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
staffs.
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
session.
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
information.
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.
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
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
faithfully.
We have been joined by Senator Kyl, who chairs the
Subcommittee on Terrorism. Senator Kyl, would you care to make
any opening remarks?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
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
testimony.
STATEMENT OF HON. CURT WELDON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF PENNSYLVANIA
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
Appropriations.
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
meetings.
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
that.
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
well?
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
down?
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
accusations.
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
compelling.
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
happened.''
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
want.
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
information.
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
here?
Representative Weldon. No. We would never get into
specifics.
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?
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
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.
[Laughter.]
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.
[Laughter.]
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
Congress.
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
information.
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
Kyl.
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
you.
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
much.
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.
STATEMENT OF MARK S. ZAID, PARTNER, KRIEGER & ZAID, PLCC,
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
classified.
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
today.
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
course.
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
Commission?
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
were.
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
Danger.
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
patriotism.
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
questions.
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
investigations.
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.
STATEMENT OF ERIK KLEINSMITH, FORMER ARMY MAJOR AND CHIEF OF
INTELLIGENCE, LAND INFORMATION WARFARE ANALYSIS ACTIVITY, AND
PROJECT MANAGER FOR INTELLIGENCE ANALYTICAL TRAINING, LOCKHEED
MARTIN, NEWINGTON, VIRGINIA
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
capacity.
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
1999.
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
information?
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
created.
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.
[Laughter.]
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
Comitatus?
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
them.
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
everybody.
Senator Sessions. Go ahead, Mr. Chairman. You have
unanimous support from the Committee.
[Laughter.]
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
line?
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
regulation.
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
information?
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
Defense?
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.
Smith.
Senator Sessions. And these were the individuals involved
in this data mining that had apparently come up with Mr. Atta's
name--
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
them.
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
testimony?
Mr. Zaid. Yes, sir.
Chairman Specter. Why are they not permitted to speak for
themselves?
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
testify?
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
unclassified.
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
know.
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
it?
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
Sessions.
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.
[Laughter.]
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.
STATEMENT OF GARY M. BALD, EXECUTIVE ASSISTANT DIRECTOR,
NATIONAL SECURITY BRANCH, FEDERAL BUREAU OF INVESTIGATION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
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
Defense.
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
needs.
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
information.
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.
STATEMENT OF WILLIAM DUGAN, ACTING ASSISTANT TO THE SECRETARY
OF DEFENSE FOR INTELLIGENCE OVERSIGHT, DEPARTMENT OF DEFENSE,
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
guidelines.
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
information?
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
Act.
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
disseminated.
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
answered--
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
correct?
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
12333.
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
executive.
Mr. Dugan. I believe it is the result of the Executive
Order. I do not believe it is a Posse Comitatus statute issue
that--
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
guidelines.
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,
either.
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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