Freeh Testimony to 9/11 Commission

VICE CHAIRMAN LEE HAMILTON: Thank you, Mr. Chairman.

Thank you, Mr. Director, for your testimony.

You commented in your opening statements about resources on several occasions, and I was looking at your recommendations at the end of your statement, your printed, your written statement. And I quickly calculated about eight or 11 of those recommendations require additional funding.

Maybe I'm a little sensitive to this because of my experience in the Congress. I took a quick look at the appropriations for the FBI from 1996 to 2001. It went up from $2.3 billion to $3.3 billion, roughly. That's a very, very dramatic increase.

The amount of FBI personnel and funding dedicated to counterterrorism more than tripled between 1993 and 2001. Can't get into the specifics of those figures on counterterrorism because I think they're classified.

But I want to get a sense from you about this resource problem. I can understand in your position how you would constantly see the need for more resources. I'm not really critical of that.

But your sense is -- my sense of your testimony is that you could have done an awful lot better if you'd had a lot more resources. And in fact, you were receiving a lot more resources.

FREEH: No, there's no question we were receiving a lot of resources. I think my position, which was the attorney general's position, is there were not enough resources to work a counterterrorism program as the lead agency for the United States.

As I said in my testimony, the FBI had 3.5 percent of the government's counterterrorism resources.

And as you see in my recommendations -- you know, the FBI only has 200 more agents now than it had back in 1999. It's not just a question of allocating agents from criminal programs to counterterrorism programs. It's really substantially enhancing not just the numbers, but the training, the expertise, the continuity of people in that particular program.

I'll give you examples that have nothing to do with people. The technical support center, which the Congress actually authorized in 1995 -- the purpose of that center was to create a domestic civilian law enforcement facility where we could use technology to solve encryption problems, to solve digital telephony problems, et cetera, et cetera.

But the purpose was to give us and our state and local counterparts a counterterrorism civilian technical ability, in those cases. It wasn't funded until after September 11th.

CALEA was never funded fully after 1994. Example and example of that, which doesn't mean -- and there is nobody more respectful of the budget process than myself, perhaps you -- I know how the budget works and I'm not blaming anybody for not getting these resources.

HAMILTON: I understand that.

FREEH: What I'm saying is that we weren't focused on them the way we are focused on them today.

HAMILTON: I appreciate that approach.

And I listened to a lot of reports from commissions when I served in the Congress and one of the advantages the commission always has over the Congress is we don't have to worry about raising the money. We can just make the recommendations to spend it. And there is a big difference, of course.

A final question relates to the broader responsibility.

Director Mueller has made the pitch over and over again, and he's done it very effectively, that the FBI is changing its focus from law enforcement to the prevention of terrorism. And everybody, of course, nods their head in agreement. That's exactly what ought to be done.

This question goes a little outside the commission's responsibility. But you mentioned a moment ago that we really have not had a large increase in agents. So what's happening is we're shifting a lot of resources, money and agents, from law enforcement, from criminal prosecution to terrorist prevention. And in the environment of today's world, that makes a lot of sense to most of us. But do you worry, then, that the FBI is going to lose its effectiveness in law enforcement, in criminal prosecution?

FREEH: Well, that's an excellent question. I guess I don't believe that investigations are inconsistent with prevention.

I subscribe to the theory that Mary Jo White and I testified to before the Joint Intelligence Committee, and which actually the court of review, in its November 18th opinion noted, investigations do lead to prevention. I don't think there's a dichotomy between them. Manila Air, the millennium, the day of terror in New York were all preventions as a result of good investigation.

So I think that's a false dichotomy between investigations and prevention. If you're doing good investigations, you're developing informants, cooperating defendants like Omar in the Trade bombing case. You are creating a database, you're sharing intelligence with other people.

I do think there's a great danger in taking people off investigations that aren't, again, case- or defendant-specific but are enterprise-specific and, you know, when agents are off the streets, as my bias perhaps as a street agent, they're not making informants, they're not developing sources.

September 11th, had we had the right sources overseas or in the United States, could have been prevented. We did not have those sources. We did not have that telephone call. We didn't have that e- mail intercept that could have done the job. You get that by having sources and you get sources by good investigations. You also prevent terrorism in that regard.

HAMILTON: Thank you, Mr. Chairman.

KEAN: Congressman Roemer?

COMMISSION MEMBER TIMOTHY ROEMER: Thank you, Mr. Chairman.

Welcome, Director Freeh. Nice to see you. And I want to just express my appreciation to you and your family for the sacrifices you made while you served as FBI director, and also for your attention here today.

You probably paid attention to the last several weeks of testimony before the 9/11 commission. We had somebody here by the name of Mr. Clarke and somebody here about a week later called Dr. Rice. They didn't agree on much. They didn't see eye to eye on much. They didn't share many of the same opinions.

They did agree on one thing, and that was that the FBI could have and should have done a better job than they did leading up to 9/11.

I want to point out two instances where we may have had an opportunity to do something about 9/11. Now, I haven't come down on any kind of conclusion whether 9/11 was preventable, but let me throw these out to you and ask you to carefully respond to them.

One's the Phoenix memo, which I'll get to. The other is an instance where you have just talked about the informants of developing informants --getting information, sharing information.

We had an opportunity where we had two of the hijackers have numerous contacts with an active FBI informant. Out of the 19 hijackers, two of them have active contacts with an FBI informant.

Doing the right kind of things, developing that informant, sharing information ahead of time from 9/11, the right kind of training for an FBI agent; why wouldn't this have made a difference leading up to 9/11?

FREEH: OK, let me give you a careful answer. And again I don't know all the facts except again as you note, you know what I've been reading and listening to.

You know, the presence of those two hijackers in San Diego and their intersection with the informant, obviously, you know, a very fruitful opportunity for exploitation -- intelligence information, maybe in the best of all circumstances, leading to prevention.

It would have been helpful for the FBI at that particular point in time to know the names of those two individuals, that the information which was generated in the January 2000 physical surveillance -- not by the CIA, but by a liaison agency -- if that information and the initiation for that surveillance, which were phone calls to a central number, which you're well aware of, which plays an integral role not only in the East African bombings case, but also in the Cole investigation, the, you know, June meeting, when three but not all of the photographs were disclosed to FBI agents, and the subsequent description of those events -- if all of that had worked the way it could have worked and that informant, as well as informants all over the FBI's domain, were tasked to find out information about two specific people, you could have had a completely different result.

Now, some of that's speculation, but some of it is theory.

ROEMER: Later on we'll ask representatives of the CIA and the FBI whether or not that meeting in Kuala Lumpur should have led to the sharing of some of that information and those names.

Let me ask you another question. Here is a declassified copy of the Williams memo. And you said in an answer to a previous question that you thought things might have been handled the proper way.

This agent asked that two things be done. One, that the FBI should accumulate a listing of civil aviation universities and colleges around the country and share these with the appropriate liaison; and, two, that the FBI should discuss this matter with other elements of U.S. intelligence community.

Neither one of those is done.

Now, I agree with you, this is not the road map to 9/11, but it's certainly asking to do two things to New York and headquarters. Neither one of them are done. Why not?

FREEH: Well, I don't know. I can't answer that obviously for the time and space reasons that are obvious.

I can speculate on it. And what I would say is that the simple fact -- or the apparent simple fact -- of getting from all of those civil aviation schools around the United States -- you know, names and identifying information of those students -- first of all, you would have had to overcome a couple of federal statutes that prevent educational institutions from giving that information out without a subpoena or a grand jury request.

Assuming you could have done that...

ROEMER: But Mr. Williams didn't do that in Phoenix, did he? I mean, he found out the trend in Phoenix without having to go around a statute or a law, right?

FREEH: Well, yes. But what he's asking for is a national investigation that would direct itself to thousands...

ROEMER: He's asking them to task...

FREEH: ... and thousands and thousands of students who are from Arab countries who are taking flight lessons in the United States.

I don't -- again, I wasn't -- I'm not privy to the information your staff is privy to. From what I've read and heard and talked to, I don't see how that memo, unfortunately, gets you to prevent the horror of September 11th. I just don't see it in any logical, nonspeculative way.

ROEMER: I'm not sure that it prevents 9/11 either, but it sure points out two or three things that could have been done more efficiently.

Thank you, Mr. Chairman.

KEAN: Our last questioner will be Senator Gorton.

COMMISSION MEMBER SLADE GORTON: Mr. Freeh, you heard just before your testimony the staff report on matters relevant to this hearing. The facts outlined in that staff report are almost certain to find their way into our final report unless someone shows us that in some part they are irrelevant.

I want to read you the one paragraph, it was the subject of Bob Kerrey's question, and ask you whether or not it is accurate.

The staff report reads, The FBI's inability or unwillingness to share information reportedly frustrated White House national security officials. According to the former national counterterrorism coordinator Richard Clarke, the National Security Council never received anything in writing from the FBI whatsoever.

Former Deputy National Security Adviser James Steinberg stated that the only time that the FBI provided the National Security Council with relevant information was during the millennium crisis. Clarke told us that Attorney General Reno was notified that the National Security Council could not run an effective counterterrorism program without access to FBI information.

Is that a correct characterization?

FREEH: I don't think it is.

I can't speak for the frustration of other people, but with respect to sharing information, you know, I didn't provide written memos to Sandy Berger or the president or anybody else at the NSC, but as I said before, the attorney general and I, every two weeks, almost like clockwork in the last 14 or 15 months of our overlapping tenure, sat with Sandy Berger in his office for at least an hour, perhaps two hours, and went over every single piece of counterterrorism, counterintelligence case that we have.

By the way, Dick Clarke was never present at any of those meetings. Why Sandy Berger didn't want him there, I don't know.

But we had detailed discussions of all those matters on a bi- weekly basis. So the notion that we weren't sharing information is, as far as I am concerned, an incorrect characterization.

GORTON: The FBI is a unique institution in the United States of America. You had a fixed term. Because of various activities under your predecessor, J. Edgar Hoover, and attempts, sometimes successful, in earlier administrations to use the FBI for political purposes, there seems to be a certain divorce or distance between the FBI and the White House.

Did you feel an ability to go to the president of the United States or to someone else in the White House during the Clinton administration, freely? Did you feel that the White House felt free to contact you and communicate with you and ask you for information, in a normal manner, outside of the realm of politics, during the Clinton administration? How many people in the White House did you ever see or communicate with?

And then would you answer the same question with respect to the current Bush administration?

FREEH: Yes, I will. I don't feel that I had any restriction or any prohibition or -- certainly no reluctance to discuss and communicate with anybody appropriately in the White House, in the State Department and the Defense Department, with respect to any of the matters we've been talking about today, or any other FBI matters.

There was certainly no distance or separation between the attorney general and I.

FREEH: And we had -- I had in both administrations I think the same relationship. I never felt any restrictions or inhibitions about communicating things. I don't think they did either. And they never expressed any to me at the time.

GORTON: One final question like the first question; another paragraph in the staff report.

The Department of Justice inspector general found that when the FBI designated national and economic security as its top priority in 1998, it did not shift its human resources accordingly. According to another external review of the FBI, by 2000 there were twice as many agents devoted to drug enforcement matters as to counterterrorism. On September 11th, 2001, only about 1,300 agents, or 6 percent of the FBI's total personnel, worked on counterterrorism.

Are those accurate statements of fact?

FREEH: No, they're accurate but, again, I think they have to be balanced with the discussion we've had here today about resources.

And with all due respect to the congressional appropriation process, in 2000, which was the last counterterrorism budget year that I testified for, you know, I asked for $860 million -- I'm sorry, $360 million, 890 positions. I got five positions and $6 million. You can't fight a war with those kinds of resources.

So your report is accurate. I would hope the commission would expand a little bit on the executive director's brief, although accurate, statements about resources and legal authorities.

GORTON: Thank you, Mr. Freeh.

Thank you, Mr. Chairman.

KEAN: Mr. Freeh, thank you very much. Thank you for your testimony. Thank you for your public service, sir.

FREEH: Thank you.