SEN. KYL: All right. And in next year's appropriation budget we will probably see some requests for more --
funding for more agents to be deployed in other parts of the world too -- is that correct?

MR. FREEH: Yes, sir.

SEN. KYL: Thank you. A final question. I have thought that perhaps one thing we might do is amend the law with
respect to the reward that can be offered for the rendition of terrorists. I think there is a $2 million limit today. And
I know that that isn't always the answer, but in some cases it has in fact worked. And I just wonder what your
reaction to that is.

MR. FREEH: I think it's a positive step. It certainly would be an indication to people who might otherwise not
want to be in that position to assist. I think it's certainly a positive step.

SEN. KYL: Okay, thank you.

Let me call on Senator Feinstein, and at the same time again commend her for her co-leadership of the Technology
and Terrorism Subcommittee, and specifically her leadership in trying to bring people together to resolve the
encryption issue. Senator Feinstein?

SEN. FEINSTEIN: Thanks very much, Mr. Chairman. Let me just follow up Director Freeh just for a moment,
since I watched CNN into the wee hours last night on the terrible tragedy that took place. Is it true that the
airplane was cleared to land at Logan in Boston but for some reason did not?

MR. FREEH: Senator, I heard that report too, and I asked the question this morning and have not gotten an
answer back. So I don't know. As soon as I have that I'll get back to you.

SEN. FEINSTEIN: Thank you very much. I wanted to concentrate my time on two issues. The first is
counterterrorism, and the second is the encryption issue, which Senator Kyl and I have worked on together. With
respect to counterterrorism, I am very supportive of a robust, deep, wide and well-funded counterterrorism effort
with advanced deployment wherever the FBI and others feel it's necessary. I would be hopeful that in the
supplemental you would not hold back on whatever the needs are to develop this kind of counterterrorism effort. I
am also aware of the fact that we have strong laws in place that prohibit the assassination of foreign leaders. How
do those laws relate to non-foreign leaders, but people who are well identified as terrorists, non-state actors? What
is present law with respect to their take-down?

Sep 03, 1998 12:26 ET .EOF

MR. FREEH: With respect to foreign leaders, I think the executive order is clear. I'd have to really go back and
study it. I have not done that analysis, and I don't know whether any of the lawyers in the department have done
so. The question is whether a non-state leader, a non-governmental organizational leader, would be part of that
prohibition. I don't know the answer to that. I think it would require a legal analysis of the order itself.

SEN. FEINSTEIN: Are you prepared then -- and I've read your written text of your statement -- to see that you
have all of the equipment, the intelligence, the military help, whatever is necessary to really put together this
robust counterterrorist effort?

MR. FREEH: Yes, yes. I mean, I've communicated that to the OMB, which is formulating the supplemental. And
-- I have not seen the final result of that, and if there is something that I think we need that is not in there, I'll
come back and tell you.

SEN. FEINSTEIN: Obviously I would hope you'd let the subcommittee through our chairman know if there is
anything that we can be helpful with.

Let me for a moment turn to the subject which was mentioned, which is the encryption. And you know clearly I
think the terrorist attacks against United States citizens really heighten your concern that commercial encryption
products will be misused for terrorist purposes. And I understand that law enforcement is attempting to enhance its
technological capability to respond to the use of strong encryption for criminal purposes. I wanted to follow up on
some of the questions that have been asked. What does the FBI require to enhance that capability -- you
mentioned earlier access with a court order to plain text -- but to be able to crack strong encryption in a timely
enough way?

MR. FREEH: Senator, what we need is a capability which is also a transparent capability -- one that we can talk
about and prove up in court when we have to show what the ones and zeroes mean in plain text. We have to have a
protocol and a methodology that is subject to disclosure and proof. That means we can't use any of the means or
methods that intelligence services might use.

What we have asked for, and what the Congress authorized in the 1996 death penalty act, is a technical center -- in
other words, a law enforcement technical center which would be supported by DOD as well as other agencies and
the private sector, but would give us the in- house court deliverable abilities to not only decrypt, but then to prove
up the plain text in a legally admissible way. We are asking in our current budgets and future budget requests for
the authority to put that technical center on the ground, staff it, and have it up and working. So that's probably the
key part of what we need from a technology point of view.

And, if you remember from our meeting, that was exactly what the CEOs responded to in the sense that if we can't
solve 100 percent of our problems, which we may not be able to do in this area, we will begin solving a couple of
them, and particularly collaborating on some of the technical aspects.

SEN. FEINSTEIN: Well, I know your people are having informal meetings with a number of the companies, and I
think that's extraordinarily helpful. With respect to this sort of TECNET (sp) center, how soon do you think it can
be adequately up and running?

MR. FREEH: We have funding now to do an A&E study which is going to occur in the next year, and the funding
and construction and technical assembly of all the equipment we would need would probably have to be done over
the period of the next two years. And that's what's been outlined in the budget requests. But as soon as we get that
up, the better off we are going to be.

SEN. FEINSTEIN: And that, if I understand it, would provide you with the rapid access -- with a court order to
plain text?

MR. FREEH: Yeah, it would certainly promote that. The other thing we need is we probably need some legislation
that would allow the companies who want to contribute resources to do that, to receive those resources from
private individuals. We will need some legislation. And our people are working, I think with this committee, on
that.

SEN. FEINSTEIN: I think we'd be very interested in helping you in any way we can develop that. And if I might
say, because I've thought a little bit about the meeting since we had it, that it may really offer the best opportunity
to solve the problem without having to get into sensitive issues like key recovery. And at least I hold out the hope
that it will. Do you tend to agree with that?

MR. FREEH: I agree with you 100 percent, Senator. I think, as Senator Kyl said, having that meeting and
organizing it as you did was a very key factor. We're working with the industries represented at that meeting. In
fact, one of the CEOs sent a suggestion to us for a technical solution that we hadn't really contemplated. So some
very good developments have come from that one meeting itself.

SEN. FEINSTEIN: Good. I'm very glad to hear that. And congratulations on the arrests.

Thanks, Mr. Chairman.

SEN. KYL (?): Senator Sessions.

SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman. I appreciate very much your particular interest over a
period of years in this particular subject and your leadership on it.

Director Freeh, first I'd like to say how much I respect you. I first came to see your work when you personally
prosecuted, as a federal prosecutor, the Moody bombing case involving the murder of Judge Vance, and
coordinated a most complex and broad-scale case. I think it showed your skill in terroristic type activities.

I also appreciate your leadership of the FBI. You have displayed the fidelity to duty and courage that's
characteristic of that organization. I am proud that you're there. I appreciate your independence and integrity. And
I mean that most sincerely. And it's important for our nation that we have you where you are.

MR. FREEH: Thank you.

SEN. SESSIONS: It seems to me that we are indeed troubled by terrorism, but our nation is a great nation. And I
suppose it's going to be inevitable throughout our lifetime that we'll be troubled by these type activities. And we
need to be smart, prepared, disciplined and tough in dealing with it. But at the same time, we certainly don't need
to be panicky and uncertain in our response.

Let me ask you this. There were some reports in the press that you were not consulted in advance about the
attacks on Afghanistan and in the Sudan. Is that correct? And would you comment on that?

MR. FREEH: No, I was consulted in advance.

SEN. SESSIONS: Did you -- were you asked for an opinion, and did you express an opinion on the wisdom of those two events?

MR. FREEH: I was consulted on it. And together with the attorney general, we gave our perspective. We gave certainly our law enforcement perspective. But we were not decision-makers, nor were we asked to make a recommendation one way or the other.

SEN. SESSIONS: Who was the decision-making body for that decision?

MR. FREEH: The president was the individual who decided the action that was taken. I think he had a very small group of senior government officials at the cabinet level who were part of that process. I don't actually know who they all were, but I was not one of them.

SEN. SESSIONS: And were you asked for your opinion and recommendation?

MR. FREEH: No, sir.

SEN. SESSIONS: Did you offer it?

MR. FREEH: I offered a law enforcement perspective with respect to the matter that we were confined to, which was the investigation and whether or not, at a certain point in time, we had evidence against people who we could then charge with this offense. And we discussed it from a law enforcement point of view.

SEN. SESSIONS: Was the FBI able to contribute any information that was beneficial to the analysis of this situation?

MR. FREEH: I think so. We've had an investigation of bin Laden and his organization for several years; a lot of evidence, a lot of intelligence we have analyzed together, and we did provide that for them.

SEN. SESSIONS: With regard to that particular organization, was there any other organization more knowledgeable about it than the FBI?

MR. FREEH: The CIA also has had a dedicated project with respect to this organization for several years. We collaborate on that effort, but it is a separate effort in the sense that we're looking at the law enforcement aspect of it and they're looking at the total collection effort.

SEN. SESSIONS: Did you concur in this decision or express reservations about this decision?

MR. FREEH: Well, again, I gave a law enforcement perspective. And the questions did not go to my opinion or my recommendation, and I did not offer them.

SEN. SESSIONS: Would you share -- would you evaluate for us some of the issues that you thought were important in making that decision?

MR. FREEH: Well, again, you know, there's different aspects to it. My concern -- and the question was whether, from an evidentiary point of view, at the point in time when the question was asked, whether we had enough evidence to charge an individual or a group of individuals or an organization with the two bombings. And I gave a response to that based on the evidence as it was developed at that point.

SEN. SESSIONS: It seems to me, in a case like this, you always -- I've supervised a lot of investigations, as I know you have, in which you penetrated a criminal enterprise. And you have to make decisions about when is best to make the arrest and take the organization down. Did you express any reservations about whether this was the appropriate time to, in effect, expose the knowledge we had of this organization?

MR. FREEH: You know, I guess to put it into perspective, it's not inconsistent to have, you know, a national security self-defense plan working contemporaneously and in a non-contradictory fashion with a law enforcement plan. The questions which I was asked were very narrow; the questions of whether we had enough evidence to charge a group of people with a particular crime. I gave a response to that.

With respect to the impact that that action would have on law enforcement action, we discussed that, too, and we gave, you know, our opinion with respect to that. But we were not asked to make a recommendation, nor were we part of that decision-making.

SEN. SESSIONS: Well, with regard to that, it seems to me that your opinion as to whether or not you could utilize more time and exploit the intelligence information that you had to know more and establish more proof about this organization would be very important. Did you give that? And did you express concern about moving quickly, as it was done in this case?

MR. FREEH: Again, I sketched out where our investigation was, what we needed to accomplish in the immediate time frame as well as the long-range time frame, and certainly expressed what I thought was pertinent to other countries who could be affected by the action and how that could relate to the law enforcement efforts. But the law enforcement efforts are a very small and compartmentalized piece of it, and --

SEN. SESSIONS: I recognize that's just one part of it, but would you say that it has complicated your ability to further investigate the case?

MR. FREEH: No, I don't think so. I don't think that's the case. We have gotten, you know, since those events of August 20th, two individuals back from Kenya. We have a number of other individuals in various countries who we are interested in speaking to and which may result in additional charges. The countries relevant to those individuals have been cooperative. So I don't see any negative impact with respect to that.

SEN. SESSIONS: Well, it's a very delicate thing when you make those decisions. And I hope that we made the right one. Thank you.

SEN. KYL (?): Thank you, Senator Sessions. Senator Durbin.

SEN. RICHARD DURBIN (D-IL): Thank you, Mr. Chairman.

Director Freeh, thanks for being here today and thank you for the good job you're doing. A little over a week ago, my wife and I were on vacation in Ireland, and it was our first visit. And we were struck by many things, and probably the first impression was the impact of the Omagh bombing, the terrorist activity there on the people of Ireland and Northern Ireland. I understand the president will be visiting that village this afternoon.

It's interesting to me that not only did the Irish seem to rally around this event, unlike many of the other acts of terrorism in recent memory, but also that the governments of Ireland and of Great Britain have suggested some changes in their law to deal with terrorism in their country.

One of -- I don't know if you've had an opportunity to read about these proposed changes, but several of them relate to the rights of individuals who are accused of terrorist activities, their rights to remain silent, whether their silence can be used against them when it comes to their cooperation with terrorist organizations, and the involvement of others in selling guns and explosive devices to those who might use them for terrorist purposes. Have you had an opportunity to review any of these suggested changes? And do you have an opinion as to whether or not they have any applicability to our own concerns about terrorism in the United States?

MR. FREEH: No, Senator, I haven't reviewed them. I'm aware of them in the generalized manner that you've described them. But, you know, with respect to their relevance or what the importance would be in terms of that situation is really not an assessment we would be in a position to make.

SEN. DURBIN: Your testimony seems to suggest that you feel the current state of the law in terms of death penalty and your investigative practices are adequate at this time to deal with what you consider to be the terrorism threat in this country. Is that correct?

MR. FREEH: I think that's correct. I mean, we could certainly – and this committee is aware of certain areas which we could address. For instance, we could make crimes of terrorism part of the racketeering statute. We could authorize the interception of communications for certain terrorism-related offenses which are not currently in the Title 18 authorities.

We could get authority to do pen registers and trap-and-trace orders with respect to foreign intelligence and international terrorism investigations. We could get access to records of common carriers, public accommodation facilities, physical storage facilities, for use in international terrorism cases. There's a whole series of things we can do and I think we are working to do. But in general, we have certainly enough authorities to perform our counter- terrorism function.

SEN. DURBIN: Could you inform and educate me as to the standard which your agents use when they are involved in renditions? When you are overseas in the midst of an investigation, as you were in Africa, do you continue to apply, and insist on in this case, the standards required by American law in terms of constitutional protections even for foreign nationals?

MR. FREEH: Yes, we do. First of all, all the action that our agents take have to be consistent with our Constitution and our rules and regulations, including our internal rules and regulations. What we did in this particular case was ensure that what we were doing was consistent with our Constitution, but also with Kenyan law, because our Supreme Court has said that if we request a foreign police service or government to acquire evidence and they use methods which are inconsistent with our due process, we can't use that evidence in our courts. So we were very careful, and are always careful with respect to renditions, to make sure we're operating under legal authority.

SEN. DURBIN: You've also made reference to the Khobar Towers incident, which involved the loss of life. I have read, and I want to give you an opportunity to respond, that the Saudis have not been cooperative to the extent that we would like them to be in terms of investigating this matter and in bringing to justice those who might be responsible. What has been the level of cooperation by the Saudi government, as well as any other governmental entity, that might be involved in this incident?

MR. FREEH: Well, you know, the cooperation has been mixed. With respect to some aspects of the investigation, we've had absolutely 100 percent cooperation; for instance, our working on the crime scenes in Saudi Arabia. The Saudi Arabian police forces identified for us an individual who was subsequently arrested in Canada, brought back to the United States.

We have not received all of the information that we've requested and access to witnesses. Under their law, under their (sharia?) law, their process, as they explained it to us, is not amenable to the sharing of information, particularly with respect to witnesses charged and in custody. And we've been trying to work these things out for several months.

So it's different, obviously, from what we've seen in the two countries that I mentioned. But it's also a different system of law, and we have to continue to press for opportunities to get what we need.

SEN. DURBIN: Can you be more specific? In what specific areas have the Saudis refused to provide cooperation or information that might lead to a successful investigation as to the cause of that bombing?

MR. FREEH: Well, we've asked for access to certain witnesses, people that they've questioned. And we've still not received that.

SEN. DURBIN: How long has this request been pending?

MR. FREEH: From early on in the investigation.

SEN. DURBIN: Well, it strikes me as very unsettling that a country which we have dealt with so closely for so many years is an area of lack of cooperation -- has shown a lack of cooperation in something as basic as investigating the loss of American life. Has there been any exploration of the freezing of assets involving this incident?

MR. FREEH: We have a great need to complete our investigation of the Khobar bombing, which does involve access to witnesses and information that we have not heretofore gotten. My judgment is the best way to do that is to continue to work, as we have, very aggressively with our counterparts, and also on the political levels, to find a means, a legal means, acceptable to their system of justice that would give us the information that we need. I've not recommended or really even contemplated any other means. This is a very strong ally of the United States. Their police force has been of tremendous assistance to the FBI, in not just this case, but many other cases, including a recent case where the Mbuahas (sp), which is my counterpart in Saudi Arabia, arrested and interdicted a group of terrorists who were intending to attack Americans.

So, we depend very much on that cooperation. We do good get cooperation. There are some areas of this case where we've not gotten what we want. But we have to work out, between the two sovereignties, a means to get that.

SEN. DURBIN: I think it is because of the strength and history of this alliance, and the fact that we have literally risked American lives to preserve the integrity of Saudi Arabia in the Persian Gulf, that it is all the more troubling to hear your testimony about those breakdowns in cooperation. I applaud those areas where we are making progress with the Saudis. But when it comes to an area as sensitive as the loss of American lives in this Khobar Tower bombing, I find it unacceptable and unforgivable, that they have not come forward to be more helpful.

I hope my colleagues, on a bipartisan basis, will join me in trying to find ways to encourage the Saudis to move very quickly, to complete this investigation. Thank you, Mr. Chairman.

SEN. HATCH: Thank you, Senator Durbin. Senator Thompson.

SEN. FRED THOMPSON (R-Tn): Thank you, Mr. Chairman. Good morning, Mr. Freeh. I want to ask you to give us a little bit better assessment, if you can, as to what we may be in for as a country, as far as terrorist activity is concerned. I know this necessarily must be imprecise, but in light of recent activities, we've been told that bin Laden, for example, has declared war upon us. And I've certainly got the indications that we have declared war on him. And we have -- and perhaps others like him.