[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF JUSTICE'S HANDLING OF
KNOWN OR SUSPECTED TERRORISTS ADMITTED
INTO THE FEDERAL WITNESS SECURITY PROGRAM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JUNE 4, 2013
__________
Serial No. 113-41
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
SPENCER BACHUS, Alabama Virginia
J. RANDY FORBES, Virginia PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona JUDY CHU, California
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
JUNE 4, 2013
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 3
WITNESSES
The Honorable Michael E. Horowitz, Inspector General, U.S.
Department of Justice
Oral Testimony................................................. 5
Prepared Statement............................................. 8
David Harlow, Assistant Director, U.S. Marshals Service, U.S.
Department of Justice; and Paul O'Brien, Deputy Assistant
Attorney General, Criminal Division, U.S. Department of Justice
Oral Testimony................................................. 14
Joint Prepared Statement....................................... 16
APPENDIX
Material Submitted for the Hearing Record
DoJ Interim Report............................................... 29
DEPARTMENT OF JUSTICE'S HANDLING OF KNOWN OR SUSPECTED TERRORISTS
ADMITTED INTO THE FEDERAL WITNESS SECURITY PROGRAM
----------
TUESDAY, JUNE 4, 2013
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in room
2141, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr., (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Scott,
Conyers, and Bass.
Staff present: (Majority) Allison Halataei, Parliamentarian
& General Counsel, Sarah Allen, Counsel; Alicia Church, Clerk;
and (Minority) Aaron Hiller, Counsel.
Mr. Sensenbrenner. The Subcommittee will come to order.
Without objection, the Chair will be authorized to declare
recesses during votes on the Floor of the House.
The Chair will make an opening statement and then yield to
Mr. Scott.
Last month the Justice Department's Inspector General
released a report that should have sent chills through everyone
who read it. The report was titled ``The Department of
Justice's Handling of Known and Suspected Terrorists Admitted
Into the Federal Witness Security Program,'' but it just as
easily could have been the Department of Justice's mishandling
of this program.
The Witness Security Program, often called WITSEC, is a
critical prosecutorial tool that has been in existence since
1971. The program protects witnesses who agree to testify in a
variety of different types of criminal cases, including drug
trafficking, organized crime, and in recent years terrorism
cases. For example, the witnesses involved in the 1993 World
Trade Center bombing and the blind sheik prosecutions have been
included in the WITSEC program. In order to protect them from
harm stemming from their testimony, participants are relocated
to a new community by the Justice Department, afforded
financial assistance, and provided a new name and
identification documents.
While conducting its periodic oversight of the WITSEC
program, the IG discovered the Department, specifically the
U.S. Marshals Service and the Criminal Division's Office of
Enforcement Operations, or OEO, had little or no safeguards in
place to make sure that the American people were protected from
these potentially dangerous individuals. While most of the
details of what the IG discovered are contained in a much
longer non-public and classified report, the six-page public
summary alone paints an extremely troubling picture.
For example, the IG discovered the Department did not
actually know how many terrorists had been admitted into
WITSEC. It had lost track of at least two terrorists in the
program. It was not sharing critical information about
potential terrorist activities by WITSEC participants with our
national security stakeholders, including the FBI, and the
Department was not providing the witnesses' new identities to
the Terrorist Screening Center, which meant that these new
names were not included in the Transportation Security
Administration's No-Fly List. Accordingly, known terrorists who
were trained in aviation and explosives and who were banned
from flying were free to fly commercially at their whim. I
would say this sounds like the plot of a Naked Gun movie if it
were not so terrifying and true.
One of the most important lessons after September 11th was
the critical need for better information sharing among our
national security and law enforcement entities. The IG's report
makes it clear that there is still much work to be done in this
regard. Today I expect to hear from the Justice Department how
this mismanagement was allowed to happen, how the Department
intends to mitigate the potential harm to our national security
that has already been done, and what it is doing to make sure
this thing does not happen again.
It is now my pleasure to recognize for his opening
statement the Ranking Member of the Subcommittee, the gentleman
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Over the course of its 40-year history, the Witness
Security Program has proven an invaluable law enforcement and
counterterrorism tool for the Department of Justice. The
program has enabled us to secure the cooperation of witnesses
who have provided key testimony against some of the most
egregious criminals in modern history, including the
perpetrators of the 1993 World Trade Center bombing, the attack
on our embassies in East Africa in 1998, and the 2009 attempted
bombing of New York City's subway system.
But on May 16 of this year, the Office of the Inspector
General issued its Interim Report on the Department of
Justice's Handling of Known or Suspected Terrorists Admitted to
the Federal Witness Security Program. The report raises a
number of deeply troubling questions about the government's
handling of individuals who are linked to terrorist activities
and admitted to the Witness Security Program.
For example, it appears that until recently the Department
had no mechanism in place to notify the FBI or the Terrorist
Screening Center of new identities the government had provided
to suspected terrorists admitted to the program. Without that
notice, TSC was unable to update the terrorist watch list to
reflect these new identities. As a consequence, at least some
of those new identities were left off the no-fly and selectee
list, enabling these individuals to fly freely on commercial
aircraft and evade our principal method for tracking the
movement of known and suspected terrorists. In fact, it appears
that in some cases, the United States Marshals Service
expressly permitted these individuals to fly unescorted on
commercial aircraft.
In another troubling instance the OIG report suggested that
the government altogether lost track of two known or suspected
terrorists who at some point left the program on their own
accord. In short, the report has identified several critical
flaws in the Witness Security Program that should never have
been allowed to develop and must be addressed immediately, to
the extent that they have not already been addressed.
One thing that is missing from the report and I think we
should gain from the discussion today is a better sense of the
timing of these incidents. Given the kinds of security flaws
found in the audit, I can certainly appreciate the sense of
urgency expressed by the Inspector General in his interim
report and that the Chairman reflected in his opening
statement. But it appears that the Department became aware of
these problems years ago and has already taken substantial
steps to address them, even before the OIG began its audit.
Of the 16 recommendations listed in the report, apparently
15 were completed by March 2013, 2 months before the report was
circulated to our offices. If it turns out that any gaps remain
in this program, I expect our witnesses to tell us how we can
repair them immediately, and if those concerns have already
been addressed, I expect to learn how they have been addressed
and to be assured that the defects of this kind will not happen
again.
Before I conclude, Mr. Chairman, it seems worth noting in
advance that our discussion today will be somewhat limited by
the public forum. When you talk about these things, there is a
lot of sensitive information that cannot be discussed in an
open forum, and I appreciate you holding an open session, but
if necessary I hope we can have a more private setting where we
might get more classified information.
But I look forward to our discussion today and thank our
panelists for being with us.
Mr. Sensenbrenner. To respond to the gentleman from
Virginia, I think we will make that decision after we find out
what the testimony is in the open session.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Sensenbrenner. The Chair now recognizes the gentleman
from Virginia, Mr. Goodlatte, the Chair of the full Committee.
Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your
holding this hearing.
The Inspector General's recent report on the appalling
handling of known and suspected terrorists in the Federal
Witness Security Program raises serious concerns about whether
this traditional law enforcement program should be used to hide
and relocate suspected terrorists.
The IG report found that the number of known or suspected
terrorists admitted to the Witness Security Program is unknown
to the Department, that the Department has lost track of two
suspected terrorists in the program, and that critical national
security information is not being shared with other agencies.
For example, the Inspector General found that after the
known or suspected terrorists received a new name and necessary
identity-related documents, their new names were not placed on
the Transportation Security Administration's No-Fly List, even
though their previous names had been listed because they pose a
threat to our national security.
As a result, there was nothing to stop these terrorists
from joining the general public on commercial airplanes here in
the United States. In some cases, witnesses on the No-Fly List
were even permitted to fly commercially with the Department's
approval.
All of this is especially problematic since the IG report
found that terrorists admitted to the program include persons
who have been trained in aviation and explosives, and
individuals who have been involved in bombing attacks.
The Department's mismanagement of the WITSEC program has
put American lives needlessly at risk, which simply cannot be
tolerated. As we saw in regard to the recent Boston bombings,
the IG's report highlights that a lack of robust information
sharing persists more than a decade after the 9/11 terror
attacks.
The terror threat has not diminished since 9/11. It is
ever-present and evolving, and requires effective counter-
terrorism programs. I look forward to hearing from our
witnesses today on the steps the Department has taken and will
take to make sure that appropriate interagency coordination is
occurring within the WITSEC program, across the Department and
the Administration.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Mr. Sensenbrenner. Without objection, other Members'
opening statements will be included into the record at this
point.
It is the policy of the Committee to swear in all of the
witnesses.
Would each of the witnesses please rise and raise your
right hand?
[Witnesses sworn.]
Mr. Sensenbrenner. Let the record show that each of the
witnesses has answered in the affirmative.
The Chair will now introduce each of the witnesses.
The first witness today is the Honorable Michael E.
Horowitz, who was sworn in as the fourth confirmed Inspector
General of the Department of Justice on April 16, 2012. In this
capacity, he oversees a nationwide workforce of approximately
450 special agents, auditors, inspectors, attorneys, and
support staff whose mission is to detect and deter waste,
fraud, abuse and misconduct in DOJ programs and personnel, and
to promote economy and efficiency in Department operations.
Mr. Horowitz most recently worked as a partner at
Cadwalader, Wickersham & Taft, LLP, where he focused his
practice on white-collar defense, internal investigations and
regulatory compliance. He also served as a commissioner on the
U.S. Sentencing Commission, where he was instrumental in re-
writing the guidelines for corporate compliance program and for
fraud, anti-trust, intellectual property, and money laundering
offenses. He previously worked for DOJ in the Criminal Division
at main Justice from 1999 to 2002, and as an Assistant U.S.
Attorney for the Southern District of New York from 1991 to
1999. He received a Bachelor of Arts degree from Brandeis
University and his law degree from Harvard Law School.
David Harlow is the Associate Director for Operations for
the U.S. Marshals Service. In this capacity, he is responsible
for the development of the Behavioral Analysis Unit within the
National Sex Offender Targeting Center, which assists with the
prioritization and targeting of non-compliant and fugitive sex
offenders and the safeguarding of Marshal Service employees. He
joined the Marshals Service in December 1983 in the Northern
District of Ohio, where he was promoted to Chief Deputy U.S.
Marshal.
During his tenure in Ohio, Mr. Harlow created the first
Cooperative Fugitive Apprehension Team comprised of multiple
law enforcement agencies in the Toledo metropolitan area. He
was then transferred to the Eastern District of Virginia, where
he served as Chief Deputy U.S. Marshal. Most recently, he
served as Assistant Director for the Investigative Operations
Division. He received his Bachelor's degree in Law Enforcement
Administration from Western Illinois University.
Paul O'Brien is the Deputy Assistant Attorney General of
the Criminal Division of the U.S. Department of Justice. He
joined the Department in 1995 as an Assistant U.S. Attorney for
the Western District of Tennessee. In 2003, he joined the U.S.
Attorney's Office in Nashville, where he served as Narcotics
Chief, Criminal Chief, First Assistant U.S. Attorney, and
Interim U.S. Attorney. In 2008, he was appointed Chief of the
Narcotics and Dangerous Drugs Section and served in that
capacity through his appointment as the Director of Enforcement
Operations in February 2010. He is a graduate of Texas A&M
University and earned his law degree from the University of
Memphis.
We will now proceed under the 5-minute rule. All of you
know that we like to have your written testimony summarized.
Without objection, the full written testimony will appear in
the record.
During your testimony, the green light says go, the yellow
light says a minute, and the red light says yield the floor.
And, Mr. Horowitz, you are first.
TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ, INSPECTOR
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Horowitz. Thank you, Mr. Chairman, and thank you for
inviting me to testify today about the Office of the Inspector
General's Interim Report on the Department's Handling of Known
or Suspected Terrorists in the Federal Witness Security
Program. My comments today will be limited to the information
contained in our public summary report.
Our audit found significant deficiencies in the operation
of the WITSEC program due to the failure of the WITSEC program
to consult with national security stakeholders such as the
FBI's Terrorist Screening Center, or TSC, when admitting and
monitoring known or suspected terrorists into the WITSEC
program. For example, we found that the Department did not
definitively know how many known or suspected terrorists had
been admitted into the WITSEC program.
In response to our review, the Department began an analysis
of its WITSEC program case files to determine how many known or
suspected terrorists were admitted into the WITSEC program.
Additionally, at our recommendation, the Department compared
the true names, aliases and government-provided identities for
the over 18,000 WITSEC program participants and their
dependents to the TSC's consolidated terrorist watch list. This
comparison identified additional known or suspected terrorists
who were not identified in the Department's initial WITSEC
program case file reviews.
The failure to adequately monitor WITSEC program
participants was evidenced by the fact that the Department
informed us during our review that it was unable to locate two
former WITSEC participants identified as known or suspected
terrorists, and that through its investigative efforts it has
concluded that one individual was and that the other individual
was believed to be residing outside of the United States.
We also found that the Department was not disclosing to the
TSC the new identities provided to known or suspected
terrorists and their dependents in the WITSEC program. As a
result, until we brought this matter to the government's
attention, the new government-provided identities of known or
suspected terrorists were not included on the TSC's
consolidated terrorist watch list. This failure meant that
known or suspected terrorists could evade one of the
government's primary means of identifying and tracking
terrorists' movements and actions.
It also meant that known or suspected terrorists in the
WITSEC program who the TSC had prohibited from flying on
commercial airlines were allowed to fly on commercial flights
using their new identities with WITSEC program officials'
knowledge and approval. Moreover, these individuals, on their
own accord, could have flown without WITSEC program officials'
knowledge and approval.
Lastly, as a result of our review, we developed concerns
about inconsistent, informal, and inadequate information
sharing and coordination by the WITSEC program with national
security stakeholders. Of particular concern, we found that
prior to May 2012, the WITSEC program did not have a formal
process to share WITSEC terrorism-related information with the
FBI, and that the WITSEC program did not always share such
information that could have been of potential value to the FBI.
We believe that such information must be shared with the
FBI immediately so that the FBI, which has the primary
responsibility for assessing national security threats, can
determine the appropriate action to take.
In conclusion, the operations of the WITSEC program in
general and the corrective actions, the 16 that we identified
and recommended in our non-public interim report, require
ongoing attention. A program that was designed to protect
cooperating witnesses must be operated in a manner that also
ensures the public safety. We look forward to working closely
with the Department and the Congress to ensure that the
national security vulnerabilities and other issues identified
during our review are addressed quickly and appropriately.
I would be pleased to answer any questions the Subcommittee
may have.
[The prepared statement of Mr. Horowitz follows:]
__________
Mr. Sensenbrenner. Thank you, Mr. Horowitz.
Mr. Harlow?
TESTIMONY OF DAVID HARLOW, ASSISTANT DIRECTOR, U.S. MARSHALS
SERVICE, U.S. DEPARTMENT OF JUSTICE; AND PAUL O'BRIEN, DEPUTY
ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT
OF JUSTICE
Mr. Harlow. Thank you for inviting me here today, Mr.
Chairman. Mr. O'Brien will be speaking on behalf of both of our
parties.
Mr. Sensenbrenner. Mr. O'Brien.
Mr. O'Brien. Chairman Sensenbrenner, Ranking Member Scott,
and distinguished Members of the Subcommittee, thank you for
inviting me here today to share the views of the Justice
Department on the admission of former known or suspected
terrorists into the Witness Security Program. Together with my
colleague David Harlow from the United States Marshals Service,
we are honored to represent the Department at this hearing.
Over its more than 40-year history, the Witness Security
Program has played a crucial role in the protection of
witnesses in organized crime prosecutions, enabling prosecutors
and law enforcement to bring to justice some of the world's
most dangerous and violent criminals, convictions that would
not have been possible without testimony from the witnesses
being protected by the program. As then Acting Assistant
Attorney General John C. Keeney testified to Congress,
``Obtaining the cooperation of insiders is crucial to the
successful prosecution of traditional organized crime groups,
international narcotics traffickers, and violent street
gangs.'' That was true when Mr. Keeney testified in 1996; it is
equally true today.
The Witness Security Program has evolved to include
witnesses in domestic and international terrorism prosecutions.
These witnesses are individuals close enough to terrorists to
have information about them, their organizations, and their
plans. They necessarily include a small number of former or
known suspected terrorists. Cooperation from these witnesses is
vital to successfully prosecute those who pose the most
significant threat to our national security.
In deciding whether to admit these witnesses into the
Witness Security Program, our paramount priority is the safety
of the American public and of the United States. Among other
investigations and prosecutions, participants in the Witness
Security Program have provided essential cooperation and
testimony regarding the 1993 World Trade Center bombing, the
1995 Oklahoma City bombing, the 1998 East Africa embassy
bombings, and the 2007 plot to bomb the John F. Kennedy
International Airport.
As these cases illustrate, the Witness Security Program is
a critical tool for securing the cooperation from witnesses who
are necessary to the successful prosecution of cases that are
important to the government's counterterrorism mission and to
the security of the United States. To date, the FBI has not
identified a national security threat tied to the participation
of terrorism-linked witnesses in the Witness Security Program.
Nevertheless, in 2010, the Department recognized that the
program's handling of terrorism-linked witnesses needed to be
improved and began instituting a series of corrective measures
aimed at, among other things, ensuring more robust information
sharing with our national security stakeholders. Thereafter,
the Department's Office of the Inspector General also found
areas in which the program's handling of terrorism-linked
witnesses needed to be enhanced.
Since that time, the Department has worked closely with the
Office of the Inspector General to develop and implement
changes to the Witness Security Program to maintain its
reliability and value while simultaneously protecting our
citizens and our Nation from harm. Indeed, the Department has
already complied with 15 of the 16 recommendations made by the
Inspector General and has made significant progress toward
completing the last recommendation.
Among the changes made by the Department is the institution
of formal protocols that provide for special handling of former
known or suspected terrorists admitted into the Witness
Security Program. These protocols ensure full cooperation and
information sharing between the Department, the United States
Marshals Service, the FBI, the Terrorist Screening Center, and
the National Joint Terrorism Task Force. They mandate
notification to the FBI when a former known or suspected
terrorist enters the Witness Security Program, and they require
careful supervision of each terror-linked program participant
who is currently in the program.
The Department is committed to closely monitoring the
Witness Security Program, maintaining the security of the
witnesses who provided critical assistance to the United
States, and above all preserving the safety of the American
public. Thank you for allowing me the opportunity to appear
before you. Although I may be somewhat limited in those aspects
of the program that I can discuss in this setting, I am pleased
to answer any questions you may have either here or in a more
appropriate forum. Thank you.
[The joint prepared statement of Mr. Harlow and Mr. O'Brien
follows:]
__________
Mr. Sensenbrenner. Thank you very much, Mr. O'Brien.
The Chair would remind Members of the Subcommittee that the
5-minute rule will be in effect. Also, the Chair will place on
the record that non-Members of the Subcommittee will be allowed
to sit on the dais but will only be allowed to ask questions
should Members of the Subcommittee yield them some of their
time.
Mr. Horowitz, your public report revealed a systematic lack
of information sharing among DOJ entities that directly touches
upon our national security. And we also found that out relative
to information sharing about the Boston attacks, which are not
the subject of this report.
Can you comment on what you found in this respect, and are
you satisfied, as Mr. O'Brien has said, but the holes have been
patched in the Justice Department's information sharing?
Mr. Horowitz. Well, we found in the course of this review
that information was not being shared. The primary protectors
and organization that the Congress and the executive branch
have assigned to deal with these issues is the FBI and its
Terrorist Screening Center. They were not receiving the
information they needed to receive. That did not happen until
2012.
We believe as a result of the audit that protocols have now
been put in place that, if followed, will in fact address the
holes, but we have not audited against the steps that have been
taken. So the recommendations are not yet closed, and we will
go back and follow up and ensure that the steps that we have
recommended, that the Department has said they have taken, were
in fact taken.
Mr. Sensenbrenner. Now, the public summary of your audit
indicates that a U.S. Marshals inspector was concerned that a
witness was collecting information from militant Muslim groups,
but that information was not being shared with the FBI for at
least 2 years. Has this hole been plugged?
Mr. Horowitz. Again, our understanding is the protocols
should address that issue, if followed, and we will do a
follow-up audit and issue a report that determines whether, in
fact, the steps have been taken.
Mr. Sensenbrenner. Okay. Either Mr. Harlow or Mr. O'Brien,
the Marshals Service, which is tasked with fugitive
apprehension, lost at least two known terrorists who were under
your supervision. Why did that happen, and have you found them?
Mr. Harlow. Mr. Chairman, thank you. It is important to
note that the Witness Security Program is a voluntary program,
and the two witnesses in question left the program years ago--
in fact, one more than 25 years ago--left the country years
ago. They have since been located, and our investigative
efforts have shown that they have not tried to reenter the
country, and the FBI has determined that they have not posed a
threat to the United States.
Mr. Sensenbrenner. Do you know if their names and whatever
relevant data we know of has been entered in the State
Department watch list so that they would not be granted a visa
and given to Homeland Security so that if they did show up at
the airport they would be denied entry?
Mr. Harlow. Yes, sir. Those steps have been taken.
Mr. Sensenbrenner. Okay. Now, another question that I have
of both of you is are local law enforcement officials notified
when someone under the Witness Protection Program is placed in
their community?
Mr. Harlow. Mr. Chairman, local law enforcement is notified
on a case-by-case basis depending on the specifics of that
witness' history.
Mr. Sensenbrenner. Okay. And can you say which types of
history would require notification of local law enforcement and
which would not?
Mr. Harlow. Yes, Mr. Chairman. Many times, when a
particular witness has an extensive criminal history, local law
enforcement might be notified that they are going to be placed
in their area.
Mr. Sensenbrenner. And which would not?
Mr. Harlow. General witnesses involved in the program
without that extensive criminal history.
Mr. Sensenbrenner. Well, what about a terrorist who was not
indicted or charged with any type of terrorist-related offense?
Would local law enforcement be knowledgeable about the fact
that that person was in the community?
Mr. Harlow. Mr. Chairman, under our new protocols, the
Joint Terrorism Task Force would be notified. The FBI would
have the lead for distributing that information as they see
fit.
Mr. Sensenbrenner. And are they doing it with people who
are known terrorists who are in the program now?
Mr. Harlow. I am sorry, sir. I do not know that answer.
Mr. Sensenbrenner. Okay. Mr. O'Brien, do you know that
answer?
Mr. O'Brien. Mr. Chairman, thank you for the question.
First, the new protocols mandate that we share all information
with the FBI when a former known or suspected terrorist is
admitted to the program.
Mr. Sensenbrenner. What about those that are already in the
program prior to the new protocol?
Mr. O'Brien. We have shared that information with the FBI,
and the FBI has access to the files both at the Department and
the Marshals Service.
Mr. Sensenbrenner. Thank you. My time is up.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Following up on that last question about notifying local
law enforcement, it seems to me that the more people you tell
about the presence of somebody, the more likely there may be a
breach. Who in the local law enforcement, if you tell them,
will get this information?
Mr. O'Brien. Congressman, the protocols mandate that we
notify the FBI both in the new location area where the witness
is placed, and we also notify the FBI on the national level to
make sure that there is redundancy built into the notification
system.
One thing that we also have been doing----
Mr. Scott. What about local police?
Mr. O'Brien. So we take the lead. If the FBI determined
that they needed to share this information with the local
police, that is certainly something we would consider. I think
it is important to note that these individuals are watch
listed.
Mr. Scott. So when you say the local, you are talking about
the local FBI. You were not talking about local law
enforcement.
Mr. O'Brien. That is correct. That is correct, Mr.
Chairman, Congressman.
Mr. Scott. Okay. Let me ask another question. How important
is the Witness Protection Program to the Department?
Mr. O'Brien. The Witness Protection Program is one of the
most important tools prosecutors have to tackle organized
crime, whether it is traditional organized crime, international
narcotics cases, or a violent street gang. It has been one of
the most effective tools that we have utilized in the
Department to bring these individuals to justice, individuals
that pose some of the most significant harm to our communities.
Mr. Scott. How many of the people in the program are
dangerous criminals, and how many just happened to be
bystanders that would otherwise be reluctant to testify?
Mr. O'Brien. Thank you, Congressman. I think that is an
important question. The program has effectively not only safely
protected witnesses who have criminal histories and have
cooperated with the government, those individuals that have
cooperated against the organizations which they are members of,
but the program also protects family members and innocent
bystanders, those individuals that are also placed in peril as
a result of, say, for example, a family member's cooperation
with the United States. So the program is designed to not only
protect those individuals that are testifying on behalf of the
United States but family members that could face retribution as
a result of the cooperation of a family member as well.
Mr. Scott. How many people do you have in the program? Is
that a public number?
Mr. O'Brien. Congressman, I believe in the public summary
there are approximately 700 individuals actively in the
program. But as we stated, through the history of the program,
the Marshals Service has effectively protected thousands of
individuals.
Mr. Scott. Now, you used the term ``known or suspected
terrorists.'' Many of these have not been convicted of
anything; is that right?
Mr. O'Brien. That is correct.
Mr. Scott. And they are free to just up and leave. There
are no restraints on them; is that right?
Mr. O'Brien. The program is a voluntary program, and
individuals can leave the program at their choosing.
Mr. Scott. And what is your response to somebody that just
up and leaves and just disappears?
Mr. O'Brien. Well, Congressman, the protocols address that,
and one thing that we have implemented is that when an
individual leaves the program, that we will provide that
information to the FBI and notify the FBI that the individual
has left the program.
Mr. Scott. Do you have any estimate of how many staff
people you have to assign to each protectee?
Mr. O'Brien. Congressman, I think that is a question better
left for the Marshals Service. They may not be at liberty to
discuss those operational issues.
Mr. Harlow. Congressman, Mr. O'Brien is correct.
Mr. Scott. If you do not want to do it in general, are
their budget implications to keeping track of these people?
Mr. Harlow. Yes, sir.
Mr. Scott. Okay. Mr. O'Brien, we have been advised that 15
of the 16 recommendations from the Inspector General's report
have been addressed. What is left undone?
Mr. O'Brien. Congressman, there is one recommendation that
we are working on. In an abundance of caution, we have decided
to audit every WITSEC file to review those files to ensure that
there are no other known or suspected terrorists that entered
in the program, and if we do notice those individuals, we will
provide that information to the FBI. That audit is underway. We
have reviewed approximately 20 years' worth of files, and that
process is ongoing, and we are going to continue to work on
that recommendation to see to its conclusion.
Mr. Scott. The other recommendations have been--you have
completed those recommendations?
Mr. O'Brien. The other recommendations that were in the
report, we believe we have completed 15 of the 16.
Mr. Scott. Okay. Mr. Horowitz, is that your understanding?
Mr. Horowitz. The Department has reported to us that it has
addressed 15 of the 16. As I said, until we audit against it
and determine that, in fact, the steps were taken and that they
were effective, we can not close the recommendation.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Inspector General Horowitz, your office discovered the
practice of admitting known and suspected terrorists into the
Witness Security Program while doing a routine audit of the
program and decided to issue an interim report on the issue. Is
it common for you to find something so alarming that you need
to issue an interim report to stop it?
Mr. Horowitz. Fortunately, it is not. We thought this was
of such importance that we needed to issue the report and make
sure steps were taken because the gaps were still there when we
started this audit.
Mr. Goodlatte. Assistant Director Harlow, specifically why
did not the Department share the new names and identities that
provided known terrorists with the FBI's Terrorist Screening
Center?
Mr. Harlow. Mr. Chairman, the success of this program for
many, many years was built on the compartmentalization of
information. As the program evolved, we failed to evolve our
procedures and protocols. We have now changed those procedures
and protocols and we actively embrace them. It is also
important to note that the FBI is the sponsoring agency in more
than 80 percent of these types of cases.
Mr. Goodlatte. So it was an intentional decision based upon
a flawed protocol.
Mr. Harlow. We recognized the problem with new leadership
in May of 2010 and started to make those changes. Yes, sir.
Mr. Goodlatte. Deputy Assistant Attorney General O'Brien,
the Department's response to the IG's report calls the
participants in question ``former known and suspected
terrorists.'' Can you tell us what a former terrorist is? Is
there any guarantee that the participants have given up their
bad ways when they join the program?
Mr. O'Brien. Mr. Chairman, I think it is important to note
that these individuals, before they are admitted into the
program, go through extensive vetting. That vetting includes a
risk analysis by the sponsoring law enforcement agency, and
approximately 80 percent of the former terrorists that were
admitted into the program, they were admitted after a
recommendation or a sponsor by the FBI. These are individuals
that turn on their organizations, and many of these individuals
testified publicly against the organizations which they were
members of.
So we go through a very careful vetting before they are
admitted to the program, which includes a risk assessment by
the sponsoring law enforcement agency. And one thing we have
done to ensure that there are no gaps in this risk analysis is
that if it is a case in which an agency is sponsoring a witness
into the program other than the FBI, we will ask the FBI to
perform a risk assessment.
Lastly----
Mr. Goodlatte. I understand that some of them are still on
the FBI's terrorist watch list. Is that another failure to
share information, or is that because they disagree with your
assessment of the individuals? What would be the reason for
that?
Mr. O'Brien. Some of the individuals, not all, are still
watch listed. Some of them are watch listed in varying degrees
of status on the watch list. I will say that the FBI, when we
looked at this issue and began looking at this issue, the FBI
performed risk assessments of these individuals, and as I said
in my opening statement, currently the FBI has determined that
there is no threat to public safety based on their program
participation.
That being said, Mr. Chairman, I think it is fair to say
that we admit that the suitability and monitoring requirements
historically employed by the program needed to be enhanced. One
thing that we are doing now, which I think is very effective,
is that we have quarterly meetings with the FBI and the
Terrorist Screening Center, the Marshals Service and the
Department, and we go over the list of individuals that we have
identified as being former known or suspected terrorists and we
share that information to make sure that we all have the
requisite information that we need.
From the beginning, we have been talking to the FBI about
having greater involvement with the FBI with this program, and
the FBI has unfettered access to the files both of the Marshals
Service and the Department. So that type of robust information
sharing is now in place.
Mr. Goodlatte. Let me ask you a couple more questions
before my time expires. First of all, does the fact that two of
the people in the program disappeared, and I now understand
they have been located but located outside the United States,
does that call into question the soundness of the screening
process that they were no longer a risk as a terrorist and
could be called a former terrorist, or does it indicate that
they cooperated in order to get away from everything and maybe
back engaged in terrorist activities again? Do we know the
answer to that?
Mr. O'Brien. Well, certainly, Mr. Chairman, we have no
information to believe that these two individuals which you
have referenced have engaged in acts of terrorism.
Mr. Goodlatte. Why did they leave unaccounted for?
Mr. O'Brien. One individual voluntarily chose to leave the
program after being in the program for a short period of time.
That individual left the program over 25 years ago. The second
individual, it is my understanding, was terminated from the
program when he no longer decided to cooperate.
Mr. Goodlatte. All right.
Thank you, Mr. Chairman. My time has expired.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner.
Welcome to the witnesses.
Is it accurate to say, Deputy Assistant Attorney General
O'Brien, that the Witness Security Program is critical to two
missions of the Department, law enforcement and
counterterrorism?
Mr. O'Brien. I think that is a fair and accurate statement.
Many of these witnesses who have cooperated not only have
provided public testimony and cooperation in cases that were
prosecuted in our Federal courts, but they have also provided
information and intelligence about the organizations in which
they were previously members of. So I think that is a fair
statement.
Mr. Conyers. Inspector General Horowitz, by all accounts,
none of the operational flaws identified in the Inspector
General's report represent a current threat to public safety or
national security. Can we conditionally agree with that, or can
we not make that statement at this time?
Mr. Horowitz. Well, as we indicated in our report, the
Department has advised us that it has taken the steps that we
have recommended in 15 of the 16 instances. Until we audit
against that, though, we are not prepared to make a statement
that the recommendations are, in fact, closed.
Mr. Conyers. So then we will be waiting to find how your
audit of the 15 items that have been completed before the
interim report before we will know exactly how things have
turned out.
Mr. Horowitz. That is correct.
Mr. Conyers. Now, one of the more disturbing aspects of the
report is the suggestion that individuals on the no-fly list,
Mr. Harlow, Assistant Director of Marshals, that there were
individuals on the no-fly list that were allowed to fly on
commercial airlines. When did the Department of Justice become
aware of this problem?
Mr. Harlow. Congressman, for several years now people on
the no-fly list have not flown on commercial planes. We embrace
the recommendations of the Inspector General's report and we
have applied those protocols.
Mr. Conyers. Is it possible that these individuals could
escape detection by TSA today?
Mr. Harlow. Sir, all members have been put on the terrorist
screening watch list and are on the flying watch list.
Mr. Conyers. Mr. Chairman, those are the questions that I
have. I yield back the balance of my time.
Mr. Sensenbrenner. I thank the gentleman from Michigan.
This concludes today's hearing, and I want to thank all of
the witnesses for attending.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
The Chair says he will talk to Members on both sides of the
aisle to see if we want to have you come back for a classified
hearing.
And without objection, this hearing is adjourned.
[Whereupon, at 10:43 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record