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have caught some of them, but it would be speculative to say. We have roughly

Mr. BOEHLERT. We have roughly 250 million nonimmigrant aliens in the country and we don't know how many of them are out of status.

Two things. I think we should know the answers to those questions. There doesn't seem to be a bell that rings anyplace or some sort of mechanism that's triggered that would indicate someone is out of status. We don't have the foggiest idea if some of these nonimmigrant aliens are still here or someplace else. I think what we are learning is we know what we don't know, and what we don't know is a hell of a lot.

Mr. GREENE. I think that's right. Systems were not designed to provide a foolproof way of tracking nonimmigrants who came into the United States. And remember that according to INS estimates, only 50 percent of the people who are considered to be illegal residents in this country come from nonimmigrant visas. I mean the threat, as you know, from-has always been conceived of unrestricted immigration along the southern border.

Mr. BOEHLERT. I am well aware of that.

Mr. GREENE. That has been pretty much where the focus has been for a long time, and it was really the events of the attacks that prompted us to look in a very concentrated way about how do we improve the systems that can track and monitor the people who are coming in here with legal visas.

Mr. BOEHLERT. But we think we have something to improve it, but we don't have any idea how much it is going to cost or when it is going to be implemented. I don't mean to be sort of argumentative.

Mr. GREENE. No, sir, and I don't mean to leave you the impression we don't know. I know what I don't know, and I know the discussions are going on now about how to adjust pacing to finance to the amount of money. We will just give you a full briefing on that when I get back and find out what that is.

Mr. BOEHLERT. I can't expect you to know everything. It would be comforting to me if you had a better idea on this particular one. Mr. GREENE. And I apologize to you on that.

Mr. BOEHLERT. No apologies are in order. We are all on the same team trying for the same thing. We are trying to develop foolproof systems across-the-board. I just want to be helpful.

Mr. GREENE. We can give you a very thorough briefing on that. Mr. BOEHLERT. Thank you so much.

Thank you, Mr. Chairman.

Chairman GRAHAM. Thank you, Congressman Boehlert.

We will now start a third round. I would like to use the history of Khalid al-Mihdhar to probe a few of my questions. Al-Mihdhar was one of the participants in that January 2000 summit of alQa'ida that was held in Malaysia. He then entered into the United States two or three weeks thereafter, and after a brief stay in Los Angeles, moved to San Diego. He was in San Diego by February of 2000.

To follow up on Congresswoman Pelosi's question about what would we do if we had someone who had suspect background in terms of being a terrorist who happened to be in a community with

a major U.S. military facility, well, we now have that situation, someone who we surveilled at a summit of terrorists who is now in a community with major U.S. military interests.

Was whoever was responsible for security of places like the San Diego Naval Air Station and whoever would be responsible for civilian law enforcement in the San Diego area, were they notified of the presence of a person who was a very highly suspect for terrorist activities individual? Do you know, Mr. Pease?

Mr. PEASE. If you are talking about August of 2001

Chairman GRAHAM. In February of 2000, when they arrived in San Diego.

Mr. PEASE. In February of 2000, absolutely not.

Chairman GRAHAM. Why would neither the Department of Defense officials or a local government official have been notified of the presence in their community of someone who just a few weeks earlier had been a participant in a summit of terrorists?

Mr. PEASE. You are asking basically the same question as why do we not have a watch list at the time. I think we covered that in

separate decision made to share it with some rather than others.

We do have our record traffic that says that the visa information, the multiple entry visa information, was passed to the FBI in January of 2001, but that was the extent of our sharing at that time on that particular incident.

Chairman GRAHAM. That was ten months after.

Mr. PEASE. Excuse me, I said 2001. I meant January of 2000. But that was the extent of our sharing at the time on this particular case.

Chairman GRAHAM. Assuming that someone was alert to the characteristics that I have just described, known not only as just a garden variety terrorist, but someone who was high enough up to be invited to this high level meeting in Malaysia who is now in a major U.S. city which happens to also be a very significant defense establishment, if someone were focused on that set of facts and alert, what would they be expected to have done?

Mr. PEASE. I can tell you that under today's standards, we would indeed put out a published intelligence report on Mihdhar's travel and the meeting in Malaysia that indeed would have gone to both Department of Defense and the regional command, in this case Pacific Command, that would have been responsible for the local security of a naval facility in San Diego.

Chairman GRAHAM. Would it have gone to the civilian law enforcement agency?

Mr. PEASE. Indeed, it would have gone to FBI and several other departments.

Chairman GRAHAM. Including Commissioner Norris' counterpart in San Diego?

Mr. PEASE. From our own practices, for that type of information, especially when we would not know whether Mihdhar-where Mihdhar was entering into the United States, it would be up to the FBI to decide which amongst the local police departments would be getting further information. That has been their call. That system

Chairman GRAHAM. I want to ask one more question about Mihdhar. Mihdhar left the United States in the fall of 2000 and in June of 2001 he was in Jidda, Saudi Arabia, where he applied for either a new or renewal of the passport which he had had which had lapsed some time previously.

On his visa application, he was asked this question: Whether he had ever been in the United States. He checked "no." Now, he not only had been in the United States, but he had come through the Los Angeles airport with a valid U.S. passport at that time.

What was the gap in the system that did not pick up the fact that he had just committed perjury by falsely answering the question as to whether he had ever been in the United States, when we must have had some documentation that he had been in the United States, because he had come through our immigration system.

Mr. EDSON. When he applied, we would routinely have searched his old passport for travel patterns. But when he applied for this visa, based now on the automated record, we can only assume he didn't submit the previous passport which would have shown that entry into the United States, so we had nothing in any of our systems to record the entry into the U.S., the departure from the U.S., that would have shown he was on the application.

Chairman GRAHAM. Excuse me for taking another question. Did the people in Jidda have access to the information that this man had previously held a U.S. passport?

Mr. EDSON. Yes, they would have known he had a previous U.S. visa.

Chairman GRAHAM. Is it standard procedure when a person is applying for a new visa or a new passport, the previous one having expired, to ask to see the previous passport?

Mr. EDSON. Sure. If it comes to the attention of the interviewing officer, it would have been standard. It was about three years prior to this reapplication.

Chairman GRAHAM. Is that a standard question that is asked, have you ever had a U.S. passport?

Mr. EDSON. Have you ever had a previous U.S. visa? It is on the application form.

Chairman GRAHAM. But would it have been possible within our data system to have confirmed the correctness of the answer to that question?

Mr. EDSON. Yes.

Chairman GRAHAM. But you assume it wasn't checked in this case?

Mr. EDSON. Right. I would assume it wasn't checked in this case. Chairman GRAHAM. Congressman Goss.

Chairman Goss. Thank you, Mr. Chairman. In the area of breaking news, I have just been informed that there is a 10-year-old who is having a birthday tonight who is maybe a starting pitcher on a local baseball team whose mother happens to be sitting about three feet behind me. I think it would be very important that we wish Brian Hill a happy birthday and make sure his mother is there at the opening of the game. So my questions will be short. The first pitch is at 6:00, which is good news for our panel.

The last series of questions that I wanted to get to was we have had a lot of testimony today about frustration, as a nation of laws and who we are, that sometimes we haven't been able to get the things done that we might have wanted to get done to protect ourselves better and we have perhaps erred a little bit on the side of caution, being a free democratic society that cherishes our civil rights. That is not all bad news. The question is, what improvements can we make if we need to?

Now, if I have got it right in my notes, I believe Mr. Andre said that the laws were not the problem, the policies were the problem, and I think Mr. Greene suggested that we did have some problems with some of the laws, and I suspect that the answer is both, that we do have problems with both.

Then we have had in previous panels a lot of discussion aboutin the Intelligence Community we call it risk aversion, and in the law enforcement community we call it don't rock the boat. In various iterations, as we have gone through our discussions, it has come down to sort of a culture of it is not necessary to go too far down this road, because it is probably a bigger threat to cause a fuss or have a bad photo op, it is going to cause my career more trouble or whatever the case may be, so why don't we just not do it.

Then there are probably very justifiable reasons. What I would like you to tell me is, is that something that we legislate or try and legislate in this country, or is that something that we just try and keep reflecting the will of the people we represent across the board as it changes?

I am very much seized with the impossibility of trying to draw a line somewhere that says we know where the line in the sand is, exactly here, where national security protection comes exactly up against your freedom to do what you want and your civil rights as an American citizen or visitor in our country. I don't know where that line is exactly. I don't believe we have had any testimony that calls for any specific legislation, but if there is, we would like to know, because that is what we do. If there is some way we can encourage the culture change to, I guess, exhort for more common sense, and that might be the operative word, I would like to hear instruction from our consumers.

So the floor is yours until the light is red. Governor Gilmore, do you want to take a shot at that? You have tried it from the executive side.

Mr. GILMORE. Are you asking, Congressman, where the line should be drawn between additional security

Chairman Goss. How much do you think we need to do in Congress to try and draw that line?

Mr. GILMORE. I think that the approach the Congress ought to take is to examine proposals for reforms, because they are coming a mile a minute now after 9/11, different proposals, structurally and otherwise, and always test those against the question of whether or not it is going to mean a loss of civil liberties in the country, or even if it has the potential for such.

For example, we have taken a great deal of time in our commission focusing on the use of the military, not because we think there is anyone evil or bad in the military anywhere, but because 50

years from now if we begin to apply the wrong kinds of structures, somewhere up the road you may run into a problem. So my advice to the Congress would be to always be taking into account the potentialities for the restrictions of civil rights and civil liberties based upon the reforms being urged upon you.

Is that responsive, Congressman?

Chairman Goss. It is responsive. It is a very difficult question for us, as you know, and we want to understand the culture at the front lines of the working agencies and be supportive, and we want them to do their functions and understand their missions. We have given them conflicting orders. We tell one group of people this is all done on a need-to-know basis, and then we sit here and say not so fast on need to know, start to share. We understand there are conflicting signals coming out. I guess I am calling for the political courage to do the right thing based on common sense at the right moment. You can't legislate that, in my view.

Mr. GILMORE. I don't believe people on our commission feel that intelligence-sharing, either horizontally or vertically, is a challenge to the civil liberties of the country.

Chairman Goss. You don't.

Mr. GILMORE. Now it could potentially be, but mostly it is a matter of getting proper information to people and getting them properly cleared. The danger, the more real danger is that we will put into place innovations of privacy or even law enforcement or military applications that will make us more secure, but in the end begin to impinge upon our civil liberties.

For example, within our commission we recommended, for example, that military never be first responder in a first response capacity, but always in support of a Federal civil organization, civilian organization.

We only did that as a safeguard. But we also think, by the way, that is based on a model that actually works.

Chairman Goss. Thank you, Governor. I don't disagree with what you say. I have a slightly different opinion about how hard it is to convince Americans that vertical information flow from the bottom up may not be Big Brother getting into their lives, and vertical flow from the top down may not be Big Brother telling the locals how to do it. But I think those are things we are going to learn to accommodate as we go along.

Thank you.

Chairman GRAHAM. Thank you, Chairman Goss. Congresswoman Pelosi.

Ms. PELOSI. Thank you very much, Mr. Chairman. I know it is a long way from here to that baseball game, so I will try to make my five minutes within the five minutes. I know you will be a good chairman in that regard.

Gentlemen, again, thank you. I want to follow up on my distinguished Chairmen, both of them, their lines of questioning.

First of all, Chairman Graham, I am worried about San Diego as well. I was asking about information sharing to Mr. Andre earlier. But as Mr. Pease said, you have answered that question over and over again about why was the information not passed on.

But it is not just any city, it is a place where we have substantial military installations, and it seems to me in those cases, maybe we

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