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In the course of the investigation, you've said that the Patriot Act is important. In what way?
Prior to the passage of the Patriot Act, it was very difficult -- often impossible -- for us to share information with the Central Intelligence Agency, with NSA, with the other intelligence agencies, and likewise, for them to share information with us. The principal benefit to us of the Patriot Act is to break down that wall, and allow that sharing of information.
In the course of this investigation, we had CIA analysts in Buffalo who were working with us. The investigation spanned not just New York, but also other countries, such as Bahrain and Pakistan, Afghanistan, and most particularly Yemen. In order for us to be effective in this day and age where the globe has gotten smaller, where terrorists can move effectively across borders, we have to effectively exchange information with the intelligence counterparts who have the principal mission of developing intelligence overseas.
You say sharing information. But what you were doing was using, if you will, the secret court, intelligence wiretaps. There's no way for us to monitor what you were doing. There's no way for the defendants, for instance, in this case, to get access to the information. Is that why you were doing it?
Well, no, no, no, that's not why we were doing it. It's because we need to determine who in this country is poised, positioned to commit terrorist acts. Often it's before a crime has been committed. But the potential for an attack on our security is such that a court, the FISA Court, determines that we've established the requisite probable cause to utilize that technique. We used it in this case, as we'd used it in years past, and will use it in the future.
So you could've done it with the FISA Court with this procedure in the past. You could have done it in this case, as well.
Yes. With that information, if we'd gotten information from that particular technique, we could not have shared it with the criminal investigators. We couldn't have shared it necessarily with those who were developing a criminal case. So you could not put together all the information you have on these individuals, on this group, on this group of individuals, along with the information in the United States, along with the information that you have overseas.
There aren't that many critics of what you actually did in Lackawanna. But the critics say that this is the beginning, or opening for a potential for abuse, because there's no way to review, in that case, what happens, and what the basis is for these investigations.
[To] everyone who says that, I say, you have the judiciary reviewing our work. We cannot go up on a wire. We cannot do a search without a judge on the FISA Court approving it and determining that we have met the standard that has been set forth by Congress in order to utilize these techniques.
But on May 17, 2002, the FISA Court itself, in one of its rare published opinions, said that your system was a way to end run the court itself, and oversight.
I'm not familiar with that particular quote from the court. The court sees itself as a monitor of the civil liberties of the United States. That's what the court is there for: to assure and to review our submissions, to determine where we wish to utilize this technique. It is appropriate under the statutes, under the Constitution, and given the discretion of a judge, reviewing it. So to the critics who say that this is opening up an abuse of civil liberties and the like, [that] there is no review -- there is review. There is court review. We have court reviews with Title IIIs on the criminal side. ...
OK. There was an individual in this case, whose name was removed, actually, from the complaint on Sept. 13 of last year. Six people were named. Two were indicated with an A, and a B. One is, it turns out to be, Mr. Elbaneh. But the other one still, apparently, your department, or no one can name or talk about.
That may well be the case.
Mr. Derwish. Do you know the name?
Yes, I've heard the name.
Kamal Derwish. Do you know why no one would talk with us about Kamal Derwish?
No. There are certain parts of the investigation that are still not made public.
Does it have anything to do with the fact that he was apparently killed in Yemen?
As I said, there are portions of the investigation that I can't get into.
Let me go back for a second on information sharing. This was a shakedown in many ways, right? I mean, this was the first time you were really sharing information.
I do not think that is a fair word. Shakedown is not a fair description of what happened in this case. What happened in this case is, I think it was an effective, efficient investigation that brought together the information overseas -- it may have been developed by the CIA, or NSA -- coupled with investigations and information that had been developed in the course of our investigations here in the United States, along with the resources that were necessary -- language specialists, surveillance specialists and the like -- to conduct an intelligence, and ultimately a criminal investigation that disrupted potentially what could have been a cell poised to undertake an attack against the United States. It's not -- and was not -- a shakedown.
OK. Well, two questions about that. One, there seem to have been, in the course of the investigation, because the intelligence agencies had access to all the information that the FBI was developing, certain analyses that came back that FBI agents in the field, [that] others felt were extreme, or inaccurate, or misinterpreted some of the information. You may remember some of those incidents.
I would say in just about every investigation we have, there will be differences of opinion, where you have partial facts, as to what those facts mean. That has happened in that case. It happened in another case, where you have partial facts, whether it be within the United States, or developed overseas. And you try to put them together. But you do not have a clear picture, and what you're trying to do is see what that picture means.
There'll be differences of opinion in just about every intelligence analysis that you make. In this particular investigation, there was some. But rare is the investigation where you don't have competing interpretations of the facts, until you get to a particular point where the picture is much more fulsome.
But in the summer of 2002, this was the top priority investigation in this area, as far as we know.
Well, that may well be, because you don't know what other investigations we had.
Right.
I wouldn't say that this was the top priority investigation. We had any number going at that time.
Was it the subject of discussion in the White House?
What I can tell you is I brief the president every day on investigations that are important, along with George Tenet and Tom Ridge. So without getting into the specifics, I can tell you that to the extent that investigation is a relatively important investigation and meaningful, the president would have been periodically briefed.
Tom Ridge has talked with us about your briefing the president on this case.
That's not necessarily an entrèe for me to talk any more than what I've said.
All I'm getting at is that there appeared to have been some controversy about how imminent the threat was from this group in Lackawanna in the summer, that the analysts at the agency presented a perspective. They interpreted some of the e-mails as saying there might be an imminent attack. But no one had checked with the office in Buffalo, to find out, for example, that there had been a wedding, and the wedding didn't necessarily mean attack.
I would hesitate to make conclusions on partial facts that you may be picking up. As I said before, there are often disagreements as to what a particular set of facts mean. That is not at all unusual, and one shouldn't read into it more than is there.
Well, enlighten me, because, I mean, in fact, I'm at a disadvantage. The investigations take place in, necessarily to a certain extent, in secret, or in some in camera form. We're trying to figure out what happened.
All I'm going to tell you is investigations, whether it be this and others, where you have partial facts, analysts, agents are always trying to interpret what those facts mean, extrapolate from them what they mean. There are differences of opinion. You can have a set of facts that changes daily, because you got new facts in, based on the investigation. It may be urgent one day and not so urgent the next day as you get more facts. It's not unusual. It's not something that, in my mind, is tremendously controversial. ...
The interesting [thing] to us is that the main complaint of the defense attorneys who were involved in this case is not that you shouldn't have conducted the investigation, that you shouldn't have surveilled their clients, that you shouldn't have investigated. Their complaint was the publicity that took place afterwards. Right when the arrest takes place, the deputy attorney general calls this a terrorist cell that's been destroyed in America.
Yes. I think that's fair.
The national security adviser, the vice president, and finally the president, in the State of the Union address, says that we destroyed a terrorist cell in the United States. But these defendants have never even gone to trial, much less to any real hearing.
I think in the wake of Sept. 11, it's important for the American public to understand that to the extent that there are individuals within the United States who would undertake terrorist attacks, that we are doing something to address that.
Was there ever any evidence that these individuals were going to undertake a terrorist attack? Have any of the six pled guilty?
Without getting into that which has not been made a matter of public record, and I'm not certain how much has ... we did not find explosives. We did not find that they'd bought a car to put explosives in. At points in the investigation, there were pieces of evidence and information that gave us some sense of urgency that this group of individuals might be poised to commit an attack.
"Might be poised--"
Might be poised to commit an attack.
Based on our interviews in Buffalo, and with one of these defendants, and one of the FBI agents who debriefed Mr. al-Bakri in Bahrain, there doesn't seem to be any substantive information that they were going to do anything.
Do you and the American people want us to take the chance, if we have information where we believe that a group of individuals is poised to commit a terrorist act in the United States that'll kill Americans? Should we take the chance where we believe we have intelligence, we have information, we have evidence, that they're poised to commit an attack, and we just should let it go and wait for the attack, and then conduct our investigation after the fact? I think not. I think the American people expect us to investigate, to develop the intelligence, and to prevent the next attack.
I think the question is, if four of the six, or two of the six, after you arrest them, or after you complete your investigation, appear to definitely be involved in being enemies of the state, or enemies of the United States--
They pled guilty. They pled guilty.
Well, to hear them, they pled guilty to material support.
Material support of a terrorist organization.
OK. And in this case, that meant they went to an Al Qaeda camp.
Yes, and were trained as terrorists.
Well, one of them got out after 10 days.
Trained as terrorists.
Another one is--
Trained as terrorists. They pled guilty to, as you say, material support of a terrorist organization. That is a crime. Congress has passed a statute. It's constitutional. They pled guilty.
So the idea that they might not be a cell, that it might not be all equally guilty, in the sense of actually planning an attack or being willing to do something?
In planning an attack, persons have various roles. The 19 hijackers that came over here to commit the attack on Sept. 11, there were those that were at the bottom of the line. There were those who were the principal conspirators. There were those who were the pilot. Everybody has a role. Not everybody has an equal role. Not everybody has an equal say. What you're looking for is a group of individuals who, together, have the capability of undertaking an attack.
I'm only reflecting on what, as I understand it, is not contradicted in their debriefs or their pleas -- that at least two of the individuals involved had no contact with the rest of the people after they came back, had no further conversations, and have been forthright in saying, once they realized where they were in Afghanistan, they wanted to get out of there, and did.
Mr. Bergman, they plead guilty to providing material support to a terrorist organization.
It's that simple?
Yes.
Has there been any other group as large as this group that the FBI has apprehended that's actually been to the camps? ... Are they unique in this case in that sense, do you think?
You probably have followed some of our other investigations that have been made public -- in Portland, Oregon, elsewhere -- where we have picked up individuals. Some may have been picked up. Some [we] may still be watching. It's very hard to answer that question. I mean, I can't answer it definitively. You have six persons who have been convicted in this particular prosecution. We've had other prosecutions around the country. I'm not certain to the numbers, and it would take some looking at those cases, and comparing them to this, to reach some definitive answer.
No, I'm just trying to get a sense of, in your minds, does this represent the major triumph of FBI in terms of Al Qaeda here in the United States?
I think as an example of work well done by the FBI, and the agents, in conjunction with the CIA, and our international institutional counterparts. But it's an example of the number of cases that we've done equally well around the United States.
At the time that this case takes off, which is about May in our chronology, of 2002, it's the time of [Colleen Rowley] giving her testimony. It's a time of a lot of controversy about the FBI and criticism of the FBI. What was that period like for you? I mean, there was all this talk of a domestic intelligence agency, of taking these powers away from the FBI.
The period was not unlike it is today. The FBI's principal priority right now is protecting the United States against another terrorist attack. It was when I came on board. It was certainly in the wake of Sept. 11. It was in May 2002, and it is today. What all of us in the FBI -- it's not just me -- all of us in the FBI are concerned about is protecting American people against another attack. We do it shoulder to shoulder with our brothers and sisters at the CIA, the NSA, and the military. Our other responsibilities are important, but not as important as that mission. It was then; it is now.
Well, granted, you've moved a lot of resources into the counterterrorism area. But there are people in the intelligence community who just simply say the FBI is not up to this job; [that] you have a law enforcement, case-oriented view of things.
I disagree with that. I think what we have moved to do is increase our analytical ability, to take the information we have had from our various offices where, in the past, that information has ... not gotten into headquarters, and we have not had the capability of analyzing that information, and then disseminating that information. I think we've turned that around.
Secondly, not only have we put additional agents on counterterrorism, but we've also built up our analytical structure so that we're better positioned to analyze the information we have.
Lastly, in order to do it and do it effectively, you need information technology. We're putting in place, and have put in place, those pieces that will enable us to do a better job than we have in the past, of not only gathering the information -- which I think we do exceptionally well -- but centralizing that information, analyzing that information and disseminating that information.
So is it fair to say you're recreating the FBI's ability to do domestic intelligence operations?
No. What I am doing is setting up in the FBI a core analytical function, within the bureau, to take the information we've had for years -- which we gather day in and day out in our various field offices and put it in databases -- so it can be available to analysts to analyze, be predictive in terms of the next attacks, and then disseminated to others.
I guess I was just remembering, Dale Watson, who was the head of counterterrorism at the time, told us that at that time, he heard the analysis that this was the most dangerous terrorist cell in America. At that time, that was the intelligence community analysis. Do you remember that?
No. That particular analysis, no. It may have happened. I just don't have any recollection of it now. ...
I just have to come back to the issue of going to FISA, going to the Foreign Intelligence Surveillance Court, that it's easier now, by going that route to that court, to gather information, and then use that information in a criminal case. Is that correct?
... Every time we do, under the statute, I have to certify that a significant purpose, of this interception is foreign intelligence. It's not for criminal purposes. Every one of them. So there is a foreign intelligence purpose for every one of our FISA warrants. I certify that to the court. The court looks to that, and understands that we're doing this for national security purposes.
But if you get criminal violation information in the course of that investigation?
Yes, we can go criminally.
And it's easier?
It's easier. Yes. It is.
You don't have to go through the same procedures to get--
That's true. What happened in the past is the procedures were such as to protect against that happening, there was a wall. You could not share.
Why was there a wall?
Because the court, [in] an interpretation of the FISA Act prior to that, had deemed that you could not share that information.
Because there had been abuses?
Right.
I mean, you're old enough, and I'm old enough to remember when there were those hearings.
I know. I think it was a misinterpretation of the statute. I think with the FISA Court, when it went up on appeal, if you recall, I think that was made public, [it ruled that] this interpretation that had been there for so long is wrong. The Patriot Act is additional substantial support for that fact.
I just want to make sure I understand. So the lack of these involved procedures being taken out in order to share information that existed before, there was a way to share. But you had to go through a variety--
In some areas, there was not a way to share.
At all?
No.
OK. So to make sure there's no abuse in the future, that depends upon you, the attorney general, and this court?
Yes.
But see, we don't have access to the court. We can't see what their decisions are. That's the apprehension.
You have federal judges appointed for a lifetime who are sitting on this court, making the determination as to whether or not we have satisfied the probable cause requirements of the statute before they issue the order that we seek. ...
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