SUGGESTED QUESTIONS FOR JOHN ASHCROFT

Designated Commissioners: Richard Ben-Veniste and James Thompson

1. Your understanding of the terrorist threat when you assumed office. During the
years prior to your becoming Attorney General in early 2001, the United States suffered a
dramatic series of terrorist attacks, beginning with the first World Trade Center bombing
in 1993, continuing through the 1996 Khobar Towers attack, the 1998 East African
embassy bombings, and the October 2000 attack on the U.S.S. Cole.

• At the time you assumed office, what was your assessment of the seriousness of the
terrorist threat facing this country? Where did terrorism rank among your priority
areas of attention when you assumed office?

• According to your biography on the official Department of Justice website, you

pledged to renew the war on drugs, reduce the incidence of gun violence and combat
discrimination upon your confirmation by the Senate. You testified in May 9, 2001
before the Senate Appropriations Committee on department efforts to combat
terrorism, but you did not list counterterrorism as one of the Department's goals and
objectives for preparing the FY 2003 budget dated May 10, 2001. Is there a
discrepancy here? Where did you see counterterrorism fitting into the Department's
budget priorities?

• Did FBI Director Louis Freeh brief you on terrorism and the FBI's counterterrorism
mission when you first took office? What did he tell you about the nature of the
terrorist threat at that time?

• The United States Attorney's Office for the Southern District of New York was
heavily involved in investigating and prosecuting al Qaeda terrorism during the late
1990s - when you assumed office did you seek input from the U.S. Attorneys'
Offices around the country on recommendations as to priorities and resource
allocation at the Justice Department?

• As with any new administration, you appointed new personnel to key policy positions
within the Justice Department. Was experience on counterterrorism a consideration
as you chose appointees?

• In your first view months in office, did you meet with any officials from the National
Security Council, the Central Intelligence Agency, or any other agency or department
to discuss terrorism? Were you ever briefed by the FBI's Assistant Director for
Counterterrorism Division on terrorism before July 2001?

• Prior to July 2001, did you meet with any officials from the National Security
Council, the Central Intelligence Agency, or any other agency or department to
 discuss terrorism? Were you ever briefed by the FBI's Assistant Director for
Counterterrorism Division on terrorism before July 2001?

2. Briefings and consultations on terrorism with Clinton administration officials.

We have heard testimony from Clinton administration officials that at the time they left
office they considered foreign terrorists, and particularly al Qaeda, to be the number one
threat to national security.

• When you first took office did you have any briefings with outgoing Clinton
administration officials such as Attorney General Reno at which terrorism was
discussed? What was said? How was the threat described?

3. Your involvement in terrorism issues during the summer of 2001. A few months
after you were confirmed as Attorney General, the U.S. intelligence community began
receiving an unusually large amount of information from various sources indicating a
major terrorist attack might be coming. Concern was especially high in early July.

• What knowledge, if any, did you have of the heightened threat level in the
summer of 2001?

• Did you direct that any steps be taken, at the Justice Department or at the FBI, to
respond to the heightened threat level?

• What were the steps you directed?

• When FBI Director Louis Freeh resigned May 1, 2001, he thanked Attorney
General Reno for her support to the FBI, "particularly in our expanded efforts to
combat cyber-crime, terrorism, and international organized crime." Did Director
Freeh ever communicate anything to you about the need for continued support of
the FBI's "expanded efforts" to combat terrorism?

• What contact did you have with Thomas Pickard when he was Acting Director of
the FBI? Did you meet with him more or less frequently than you met with
Director Freeh? Was the threat of terrorist attack discussed at these briefings?
Did he or others at the FBI request your assistance with the FBI's
counterterrorism program?

• Did you understand that efforts were underway in the summer of 2001 to expand
the FBI's ability to combat terrorism? What was being done at the FBI to
accomplish that goal?

• Did the FBI request additional funding for its counterterrorism program in the
budget process taking place over the summer of 2001? Did you reject this
request? What programs did you consider more deserving of increased funding?
 • On July 26, 2001, CBS News report stated that you had flown a chartered
government jet to Missouri the previous weekend. The report states that you were
flying a chartered jet, rather than a commercial flight, because of an FBI "threat
assessment." Both you and the FBI declined to describe the nature of the threat to
CBS News. What was the nature of that threat assessment? Did it relate to
terrorism?

• During the summer of 2001, did you take any action, or direct that any action be
taken, either at the Justice Department or at the FBI in response to heightened
threats of a possible terrorist attack on the U.S?

4. Warnings in the summer of 2001 and lessons learned. We now know that there
were specific cases in the summer of 2001 that involved information that was not
elevated prior to the attacks. The staff statement this afternoon highlights the failed
search for al Hazmi and al Mihdhar and the Moussaoui case.

• What steps have you taken to ensure that relevant information about potential
terrorist threats, at whatever level within the FBI, is properly disseminated and
acted upon?

• Are the systems that are now in place adequate, or does more work need to be
done? Where can further improvements be made?

• What about information technology and computer systems - how much progress
has the FBI made in this area since 9/11? Are you confident that everything
possible, within reason, is being done, and being done as quickly as possible to
address deficiencies at the FBI?

• What are your conclusions about why there was not more recognition prior to
9/11 of the possibility that there could be a serious terrorist attack within the U.S.?
Do you believe that not enough information was collected, analyzed, and
disseminated?

• Do you any of your conclusions suggest the need for a more focused federal
government agency to be responsible for counterterrorism investigations inside
the U.S.?

• In your view, are the roles and missions of the FBI, CIA, and Department of
Homeland Security sufficiently distinct and rationalized so that government
counterterrorism efforts are both efficient and effective?

6. FBI Reform. We have devoted a great deal of attention to reform efforts that are
currently underway at the FBI. We know that the FBI is working hard to improve its
counterterrorism intelligence collection and analysis capabilities. We know that it is
working to improve its information technology and its ability to disseminate terrorism
information. We also know that Director Mueller has made fighting terrorism and
preventing terrorist attacks the number one priority of the FBI.

• What has been your involvement in the reform efforts at the FBI? Are you
supervising or reviewing those efforts?

• Some say Director Mueller has shifted the FBI away from a reactive, law-
enforcement approach to terrorism toward a proactive, intelligence-oriented
approach. Do you agree with that assessment?

• How much progress has been made, and how much remains to be done? What are
the areas that require the greatest attention and resources? What performance
measures are you using?

• Should there be more involvement and direction by Main Justice in the FBI's
counterterrorism programs? Have you made any changes in management or
reporting to increase the involvement of the Justice Department?

• Do you have any concerns that the other missions of the FBI, in particular
investigation of complex white collar crime, will suffer under the current
priorities of the FBI? How do you satisfy yourself that the right balance is being
struck?

• FBI agents are usually generalists who rotate through different squads and
assignments - do you think this aspect of the FBI's culture provides sufficient
opportunity for agents to develop expertise in counterterrorism?

• The FBI is largely divided between agents and support personnel. Some of those
support personnel, particularly analysts and translators, play a crucial role in
counterterrorism. Are internal changes needed to recognize the importance of
those roles and to attract and retain the best people for those critical roles?

• Are you aware of any areas at the FBI where resources are inadequate to respond
to the increasing threat of terrorism? For instance, do you believe the FBI has
enough translators in Arabic and Middle Eastern languages? If not, what is being
done to address the problem and how long will it take to resolve it?

• Does the FBI have enough analysts working on counterterrorism? If not, what is
being done to address the problem and how long will it take to resolve it?

• Do you believe there are "cultural issues" that should be addressed at the FBI to
improve its ability to prevent terrorist attacks? Do you think the FBI has too
much of a law enforcement focus that makes it difficult for it to collect and share
intelligence?
 • How can we be sure that the FBI will retain its focus on the prevention of
terrorism in light of its other important responsibilities? Do we need a domestic
intelligence collection agency that is focused solely on terrorism as its permanent
mission?

7. Legal Authorities. You have been a strong advocate of the USA PATRIOT Act and
have stated strongly your belief that it is essential to successfully fighting terrorism.
Some of the most important provisions of that law will "sunset" in 2005 if Congress does
not act to extend them.

• Are there any provisions in the PATRIOT Act that are particularly important to
the war against terrorism that should not be allowed to sunset in 2005? Which
ones? What will be the consequence if they are not reenacted? How have these
provisions been used over the last two years?

• One of the changes made by the PATRIOT Act was the elimination of the so-
called "wall" between intelligence collection under the Foreign Intelligence
Surveillance Act of 1978 ("FISA") and criminal prosecutors. The provisions of
the Act that eliminated the "wall" requirement [sections 218 and 504] will
"sunset" in 2005 [see section 224]. How important is it that Congress act to make
those provisions permanent?

8. FISA. The USA PATRIOT Act (sec. 218) and the FISA Court of Review opinion
now make it possible for FISA electronic surveillance and searches to be used in any
investigation in which the government certifies to the FISA Court that obtaining foreign
intelligence information is "a significant purpose" of the surveillance or search. A U.S.
person can be the subject of the surveillance or search if there is evidence that he or she is
an "agent of a foreign power." Information obtained in the FISA surveillance or search
could be used to criminally prosecute the subject, even though FISA does not have the
same standards and procedures as the Title III criminal wiretap statute.

• The Supreme Court has not addressed this issue - do you have any concerns as to
whether the current laws and practices satisfy constitutional requirements?

• Another area of concern is whether special powers intended to be used to fight

terrorism, such as FISA surveillance under the PATRIOT Act "significant
purpose" standard, could end up being used in non-terrorism law enforcement
investigations. [An analogy here is the RICO statute, which was intended to
combat organized crime but came to be widely used for everything from business
crimes to abortion protests.] Do you believe these concerns have any merit? Is
there anything to prevent this from occurring?
9. Attorney General Guidelines. You implemented new Attorney General Guidelines
that increase the ability of FBI agents to take certain investigative steps in terrorism
investigations, such as accessing publicly available information about individuals from
the Internet or other sources and conducting surveillance of persons engaging in religious
and political activities (so long as those activities are not the sole basis for investigative
actions).

• How effective have these changes been? How can the public be assured that
individual liberties will not be compromised in the name of fighting terrorism?

10. Enemy Combatants. An area of great controversy has been the detention of U.S.
citizens as unlawful enemy combatants.

• What is the process by which the Justice Department evaluates cases and provides
advice to the President with respect to the determination of whether to deem an
individual an "enemy combatant"?

• Has the Department's view on these questions consistently prevailed? Do you

have any concerns about future use - and potential abuse - of this extraordinary
action?

11. Administrative Law Subpoena. The President has said that Congress should pass a
statute giving the FBI administrative subpoena power in terrorism investigations. The
FBI already has authority to issue "National Security Letters" in terrorism investigations
to obtain three categories of information - telephone billing information, consumer credit
information, and financial institution information (now broadly defined to include
casinos, pawnshops, travel agents, vehicle sales, loan and finance companies, and other
kinds of personal financial records):

• Why is the existing NSL authority inadequate? Why is it essential that the FBI
also be given administrative subpoena power?

• Would the proposed administrative subpoena power be even broader than the
controversial power under section 215 of the USA PATRIOT Act to obtain
records from businesses, libraries, etc. -- in that no prior judicial approval would
be required for an administrative subpoena, while section 215 requires prior
approval by the FISA Court?

12. The MI-5 issue. Some experts argue that law enforcement agencies are better
versed in the legal and constitutional provisions that apply to collecting information about
citizens. Some point out that having law enforcement agencies act as domestic
intelligence collectors is a good policy because law enforcement powers, particularly the
threat of criminal prosecution, give law enforcement agencies an ability to compel
information that intelligence agencies lack. Other experts argue that intelligence
collection and law enforcement are very different, and a focus on prosecution and the
collection of admissible evidence for trial hampers law enforcement agencies that also
collect intelligence.

• What are your views on the advantages and disadvantages of assigning a domestic
intelligence counterterrorism function to a new agency that does not have law
enforcement authority and arrest power?

• Are there reasons why a law enforcement agency can be more effective in
performing this function? Is there potential for abuse of law enforcement powers
that will increase as more domestic intelligence collection efforts are undertaken?

• What do you think about the idea of creating a separate entity - but still within the
Department of Justice and subordinate to the Attorney General - with
responsibility for the counterterrorism and domestic intelligence mission currently
assigned to the FBI?

• What do you think of creating a "service within a service" at the FBI with a
separate career track and chain of command for personnel working on
counterterrorism?

9-11 Detainees. Shortly after September 11, both the INS and FBI sent out written
policy statements mandating that aliens on the INS custody list - the so-called "9-11
detainees" - would be held without bond until they were cleared of terrorist connections
by the FBI and other agencies. In all, some 768 of these detainees were subject to this
"hold until cleared policy." According to the Justice Department Inspector General, the
average amount of time they were detained was 80 days. It is our understanding that,
eventually, most of the 768 were cleared of having any connection with terrorism.

• Did you set the "hold until cleared" policy applied to the 9-11 detainees? If so,
when and under what circumstances did you set this policy? Why did you never
put it in writing?

• Were you aware that the 9-11 detainees were being detained for extended periods
without being cleared? If so, when did you learn this and what did you do about
it?

• Please tell us as precisely as you can in open hearing what counterterrorism,

intelligence, and law enforcement benefit was derived from the arrests of the 9-11
detainees? [Note: The Commission has requested, but not yet received, this
information from the Department of Justice.}

• The Justice Department Inspector General recommended a number of things to

improve the government's response to any future terror attack by, for example,
reducing the number of aliens arrested for little or no connection to terrorism.
What has Justice done to implement the IG's recommendations in the event of a
 future attack on U.S. soil, and specifically, what has Justice done to reduce the
likelihood that aliens will be detained based on some "undetermined interest" by
the FBI?

Risk Management. One criticism of the Department of Justice since 9-11 has been that
it pushed the development of programs - CONDOR and NSEERS, for example - with
little apparent counterterrorism benefit, but significant cost, including cost to U.S. foreign
relations and economic strength.

• Does the Deparment believe it is appropriate to use risk management analysis

with regard to the terrorist threat? Do you think there are ways to use risk
management practices in deciding on law enforcement priorities?

• If so, how does the Department justify a program that checks 130,000 requests for
visas with no denials on terrorism grounds?

Immigration Law Enforcement. Just prior to the creation of the Department of

Homeland Security, you acted to delegate legal authority to enforce immigration law to
the FBI. We understand that the FBI has proposed setting up a team of 20 lawyers for the
purpose of pursuing immigration law enforcement.

• Why did you delegate to the FBI legal authority to enforce administrative
immigration laws?

• How do you envision the FBI interacting with DHS agents and lawyers with
regard to immigration law enforcement in the event of another terror attack here
in the U.S.? What will be the role of each agency?

• Will FBI agents make administrative, immigration-related arrests? What would

be the role of FBI immigration lawyers?

Terrorist Travel. Our hearings in January underscored the importance of terrorist

mobility issues.

• Does the FBI have any unit focused on investigating terrorist travel facilitators?

Saudi Flights. Shortly after 9/11, several flights containing Saudi nationals left the
United States.

• Were you aware of their departure? Could you explain steps taken to ensure that
persons of investigative interest were not being allowed to leave this country?

• Did the FBI report to you or anyone at the Justice Department before the flights
departed? Did you report to anyone at the White House on this matter?