NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES

Public Hearing

Tuesday, January 27, 2004

Hart Senate Office Building
Washington, DC

CHAIRED BY: THOMAS H. KEAN

PANEL I:

JANE F. GARVEY, FORMER ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION;

CATHAL L. "IRISH" FLYNN, FORMER ASSOCIATE ADMINISTRATOR OF CIVIL AVIATION SECURITY, FEDERAL AVIATION ADMINISTRATION;

CLAUDIO MANNO, ASSISTANT ADMINISTRATOR FOR INTELLIGENCE, TRANSPORTATION SECURITY ADMINISTRATION;

PANEL II:

EDMOND L. SOLIDAY, FORMER VICE PRESIDENT OF SAFETY, QUALITY ASSURANCE, AND SECURITY, UNITED AIRLINES;

ANDREW P. STUDDERT, FORMER CHIEF OPERATING OFFICER, UNITED AIRLINES;

GERARD J. ARPEY, CHIEF EXECUTIVE OFFICER, AMERICAN AIRLINES;

TIMOTHY J. AHERN, VICE PRESIDENT - DFW HUB, AND FORMER VICE PRESIDENT OF SAFETY, SECURITY, AND ENVIRONMENTAL, AMERICAN AIRLINES;

PANEL III:

NYDIA GONZALEZ, MANAGER, SOUTHEAST RESERVATION CENTER, AMERICAN AIRLINES;

PANEL IV:

JAMES M. LOY, DEPUTY SECRETARY, DEPARTMENT OF HOMELAND SECURITY

MR. THOMAS H. KEAN: I'd like to call the hearing to order. First I would like to enter into the record a statement on aviation security by Carol Ashley. Ms. Ashley is a member of the Family Steering Committee and if there's no objection, so ordered.

Yesterday we heard testimony about how the 9/11 terrorists were able to circumvent the border controls the United States had in place at the time. Today, we will look at what confronted them in the final stage of their mission of mass murder: the American civil aviation security system as it existed in early September 2001.

Both yesterday and today we looked at the system's vulnerabilities. We will start by examining two of the most important components of that system, the Federal Aviation Administration that regulated it and the airlines which had the responsibility of implementing some of its key elements. Our witnesses will be expected to shed some light not only on the systematic issues but on specifics of the 9/11 hijackings themselves.

After these panels, we'll hear about one of the real heroes of Flight 11, Flight 11 attendant Betty Ong, from who's work on that day reflects well on her professionalism -- from another, rather, who's work on that day reflects well on her professionalism and her humanity, Ms. Nydia Gonzales. We will conclude with testimony from Admiral James Loy, deputy secretary of the Department of Homeland Security and formerly head of the Transportation Security Administration as well as commandant of the Coast Guard. We will focus on one key question with Admiral Loy, how do we, or should we, determine our priorities for homeland security, especially in the transportation sector.

In order to provide commissioners and the listening public with context for the testimony we are about to receive, we will once again begin by hearing from the 9/11 Commission staff and what it has learned to date relevant to today's proceedings. I would caution our listeners to bear in mind that this statement is still a work in progress. It addresses the various civil aviation defense layers and how the hijackers beat them in gaining entry to the aircraft.

The Commission staff will present a second staff statement immediately preceding Ms. Gonzales’ testimony. That statement will take up the story of the four hijacked flights. It too is a preliminary report, making public what our staff has learned to the present time. I want to caution our audience, especially the families and friends of the victims of 9/11, that today we will be presenting a number of the harrowing facts, sights, and sounds of that particular day.

On another note, today's session will not focus on the situational awareness of air traffic control system and the Department of Defense including NORAD. The Commission will deal with that important topic in another public hearing, this spring. I would like to call on Mr. Zelikow, executive director of the Commission, Mr. John Raidt and Mr. William Johnstone, who will present the statement of the Commission staff.

MR. PHILIP D. ZELIKOW: Thank you, Mr. Chairman.

Members of the Commission, working with you, your staff has developed initial findings on how the individuals who carried out the 9/11 attacks defeated the civil aviation security system of the United States. We continue our investigation into the status of civil aviation security today and for the future. These findings and judgments may help your conduct of today's public hearing and will inform the development of your recommendations.

The findings and judgments we report today are the results of the work so far. We remain ready to revise our understanding of these topics as our work continues. This staff statement represents the collective effort of the staff team on aviation and transportation security. Our staff was able to build upon investigative work that has been conducted by various agencies, including the Federal Bureau of Investigation.

The Department of Homeland Security's Transportation Security Administration is fully cooperating with our investigators, as are the relevant airlines and the Federal Aviation Administration.

I'd now like to turn to John Raidt to continue.

MR. JOHN RAIDT: Thank you, Philip.

Mr. Chairman and members of the Commission, before September 11th, 2001 the aviation security system had been enjoying a period of relative peace. No U.S. flagged aircraft had been bombed or hijacked in over a decade. Domestic hijacking in particular seemed like a thing of the past, something that could only happen to foreign airlines that were less well protected. The public's own threat assessment before September 11th was sanguine about commercial aviation safety and security.

In a Fox News opinion dynamic survey conducted at the end of the 1990s, 78 percent cited poor maintenance as a greater threat to airline safety than terrorism. The demand for airline service was strong and was beginning to exceed the capacity of the system. Heeding constituents calls for improved air service and increased capacity, Congress focused its legislative and oversight attention on measures to address these problems including a passenger bill of rights to ensure a more efficient and convenient passenger experience.

The leadership of the Federal Aviation Administration, FAA, also focused on safety, customer service, capacity and economic issues. The agency's security agenda was focused on efforts to implement a three-year-old congressional mandate to deploy explosive detection equipment at all major airports and complete a nearly five-year-old rule-making effort to improve checkpoint screening. This staff statement will not address certain security performance issues leading up to 9/11 at the airports from which the hijackers' planes departed. Such work is still ongoing.

It should be noted that the airports themselves did not have operational or enforcement jurisdiction over checkpoint screening operations, passenger pre-screening and checkpoint screening, based on regulations from the FAA these were the responsibility of the air carriers. Nevertheless, airport authorities do play a key role in the overall civil aviation security system.

Before September 11th, federal law required the FAA to set and enforce aviation security policies and regulations that would quote, "Protect passengers and property on an aircraft operating an air transportation or intrastate air transportation against an act of criminal violence or aircraft piracy." This layered system, one that recognized that no single security measure was flawless or impenetrable, was designed to provide a greater number of opportunities to foil those intending to do such violence.

The civil aviation security system in place on September 11th was composed of seven layers of defense including: Intelligence, passenger pre-screening, airport access control, passenger checkpoint screening, passenger check baggage screening, cargo screening and onboard security. The civil aviation security system in place on September 11th no longer exists. We will document serious shortcomings in that system's design and implementation that made the 9/11 hijackings possible.

We want to make clear that our findings of specific vulnerabilities and shortcomings do not necessarily apply to the current system. Two of the layers of defense, checked baggage screening and cargo screening are not relevant to the 9/11 plot, they are not addressed in this statement. A third layer, airport access control is still under investigation and also will not be addressed in detail here.

Compelling evidence, including video tape of hijackers entering through checkpoint screening stations, suggest that the hijackers gained access to the aircraft on September 11th through passenger checkpoints. What we do know is that the hijackers successfully evaded or defeated the remaining four layers of the security system. We approached the question of how the aviation security system failed on September 11th by starting from the perspective of the enemy, asking: What did al Qaeda have to do to complete its mission?

Sometime during the late 1990s the al Qaeda leadership made the decision to hijack large commercial multi-engine aircraft and use them as a devastating weapon, as opposed to hijacking a commercial aircraft for use as a bargaining tool. To carry out that decision required unique skill sets. Among them, terrorists trained as pilots with specialized skill and confidence to successfully fly a large multi-engine aircraft already airborne into selected targets; tactics, techniques and procedures to successfully conduct in-flight hijacking; and three, operatives willing to die.

To our knowledge, 9/11 was the first time in history that terrorists actually piloted a commercial jetliner in a terrorist operation. This was new. This could not happen overnight and would require long term planning and sequenced operational training. The terrorists had to determine the tactics and techniques needed to succeed and hijack an aircraft within the United States. The vulnerabilities of the U.S. domestic commercial aviation security system were well advertised through numerous unclassified reports from agencies such as the General Accounting Office and the Department of Transportation's inspector general. The news media had publicized those findings.

The al Qaeda leadership recognized the need for more specific information though. Its agents observed the system first hand and conducted surveillance flights both internationally and within the United States. Over time, this information allowed them to revise and refine their operational plan. By the spring of 2001, the September 11 operation had combined intent with capabilities to present a real and present threat to the civil aviation system. As long as operational security was maintained the plan had a high probability of success in conducting multiple near simultaneous attacks on New York City and Washington, DC.

Let us turn now to a more specific look at the security system in place on September 11th, related to anti-hijacking. We'll begin with intelligence. The first layer of defense in aviation security was intelligence. While the FAA was not a member of the U.S. Intelligence Committee per se, the agency maintained a civil aviation intelligence division that operated 24 hours per day. The intelligence watch was the collection point for a flow of threat related information from federal agencies, particularly the FBI, CIA and State Department.

FAA intelligence personnel were assigned as liaisons to work within these three agencies to facilitate the flow of aviation related information to the FAA and to promote inter-departmental cooperation. The FAA did not assign liaisons to either the National Security Agency or the Defense Intelligence Agency but maintained intelligence requirements with those agencies.

Intelligence data received by the FAA went into preparing intelligence case files. These files tracked and assessed the significance of aviation security incidents, threats and emerging issues. The FAA's analysis of this data informed its security policies, including the issuance of FAA information circulars, security directives and emergency amendments to the industry. Such security directives and emergency amendments are how the FAA ordered air carriers and/or airports to undertake certain extraordinary security measures that were needed immediately above the established base line.

While the staff has not completed its review and analysis as to what the FAA knew about the threat posed by al Qaeda to civil aviation, including the potential use of aircraft as weapons, we can say the following. First, no documentary evidence reviewed by the Commission or testimony we have received to this point has revealed that any level of the FAA possessed any credible and specific intelligence indicating that Usama bin Laden, al Qaeda, al Qaeda affiliates or any other group were actually plotting to hijack commercial planes in the United States and use them as weapons of mass destruction.

Second, the threat posed by Usama bin Laden, al Qaeda and al Qaeda affiliates, including their interest in civil aviation, was well known to key civil aviation security officials. The potential threat of Middle Eastern terrorist groups to civil aviation security was acknowledged in many different official FAA documents. The FAA possessed information claiming that associates with Usama bin Laden in the 1990s were interested in hijackings and the use of an aircraft as a weapon.

Third, the potential for terrorist suicide hijacking in the United States was officially considered by the FAA's Office of Civil Aviation Security, dating back to at least March 1998. However, in a presentation the agency made to air carriers and airports in 2000 and early 2001, the FAA discounted that threat because, quote, "Fortunately we have no indication that any group is currently thinking in that direction." It wasn't until well after the 9/11 attacks that the FAA learned of the Phoenix EC. This was an internal FBI memo written in July of 2001 by an FBI agent in the Phoenix field office suggesting steps that should be taken by the Bureau to look more closely at civil aviation education schools around the country and the use of such programs by individuals who may be affiliated with terrorist organizations.

Fourth, the FAA was aware prior to September 11th, 2001 of the arrest of Zacarias Moussaoui in Minnesota, a man arrested by the INS in August of 2001, following reports of suspicious behavior in flight school and the determination that he had overstayed his visa waiver period. Several key issues remain regarding what the FAA knew about Moussaoui, when they knew it, and how they responded to the information supplied by the FBI, which we are continuing to pursue.

Fifth, the FAA did react to the heightened security threat identified by the intelligence community during the summer of 2001, including issuing alerts to air carriers about the potential for terrorist acts against civil aviation. In July 2001, the FAA alerted the aviation community to reports of possible near-term terrorist operations, particular in the Arabian Peninsula and/or Israel. The FAA informed the airports and air carriers that it had no credible evidence of specific plans to attack U.S. civil aviation.

The agency said that some of the currently active groups were known to plan and train for hijackings, and had the capability to construct sophisticated improvised explosive devices concealed inside luggage and consumer products. The FAA encouraged all U.S. carriers to exercise prudence and demonstrate a high degree of alertness. Although civil aviation security officials testified that the FAA felt blind when it came to assessing the domestic threat, because of the lack of intelligence on what was going on in the American homeland as opposed to overseas, FAA security analysts did perceive an increasing terrorist threat to the U.S. civil aviation system at home.

FAA documents including agency accounts published in the Federal Register on July 17th, 2001 expressed the FAA's understanding that terrorist groups were active in the United States and maintained an historic interest in targeting aviation, including hijacking. While the agency was engaged in an effort to pass important new regulations to improve checkpoint screener performance, implement anti-sabotage measures and conduct ongoing assessments of the system, no major increases in anti-hijacking security measures were implemented in response to the heightened threat levels in the spring and summer of 2001, other than general warnings to the industry to be more vigilant and cautious.

Sixth, the civil aviation security system in the United States during the summer of 2001 stood as it had for quite some time, at an intermediate aviation security alert level, tantamount to a permanent code yellow. This level and its corresponding security measures was required when "information indicates that a terrorist group or other hostile entity with a known capability of attacking civil aviation is likely to carry out attacks against U.S. targets, or civil disturbances with a direct impact on civil aviation have begun or are imminent." Without actionable intelligence information to uncover and interdict a terrorist plot in the planning stages or prior to the perpetrator gaining access to the aircraft in the lead-up to September 11, 2001, it was up to the other layers of aviation security to counter the threat.

We conclude this section with a final observation. The last major terrorist attack on a U.S. flagged airliner had been with smuggled explosives in 1988 in the case of Pan Am 103. The famous Bojinka plot, broken up in Manila in 1995, had principally been a plot to smuggle explosives on airliners. The Commission on Aviation Safety and Security, created by President Clinton in 1996, named the Gore Commission for its chairman, the Vice President, had focused overwhelmingly on the danger of explosives on aircraft. Historically, explosives on aircraft had taken a heavy death toll, hijackings had not. So despite continued foreign hijackings leading up to 9/11, the U.S. aviation security system worried most about explosives.

After intelligence the next level is pre-screening. If intelligence fails to interdict the terrorist threat, passenger pre-screening is the next layer of defense. Passenger pre-screening encompasses measures applied prior to the passenger's arrival at the security checkpoint. Pre-screening starts with the ticketing process and generally concluded with passenger check-in at the airport ticket counter. The hijackers purchased their tickets for the 9/11 flights in a short period of time at the end of August 2001, using credit cards, debit cards or cash.

The ticket record provided the FAA and the air carrier with passenger information for the pre-screening process.

The first major pre-screening element in place on 9/11 was the FAA listing of individuals known to pose a threat to commercial aviation. Based on information provided by the intelligence community, the FAA required air carriers to prohibited listed individuals from boarding aircraft, or in designated cases, to assure that the passenger received enhanced screening before boarding. None of the names of the 9/11 hijackers were identified by the FAA to the airlines in order to bar them from flying or subject them to extra security measures. In fact, the number of individuals subject to such security instructions issued by the FAA was less than 20 people, compared to the tens of thousands of names identified in the State Department's TIPOFF watchlist, which the Commission discussed yesterday.

The second component of pre-screening was a program to identify those passengers on each flight who may pose a threat to aviation. In 1998, the FAA required air carriers to implement an FAA-approved computer assisted passenger pre-screening program known as CAPPS, designed to identify the pool of passengers most likely in need of additional security scrutiny. The program employed customized FAA approved criteria derived from a limited set of information about each ticketed passengers in order to identify selectees.

FAA rules require that the air carrier only screen each selectee's checked baggage for explosives using various approved methods. However, under the system in place on 9/11, selectees, those who were regarded as a risk to the aircraft, were not required to undergo any additional screening of their person or carry-on baggage at the checkpoint. The consequences of selection reflected FAA's view that non-suicide bombing was the most substantial risk to domestic aircraft.

Since the system in place on 9/11 confined the consequences of selection to the screening of checked bags for explosives, the application of CAPPS did not provide any defense against the weapons and tactics employed by the 9/11 hijackers. On American Airlines Flight 11, CAPPS chose three of the five hijackers as selectees. Since Waleed al Shehri checked no bags, his selection had no consequences. Waleed al Shehri and Satam al Suqami had their checked bags scanned for explosives before they were loaded onto the plane. None of the Flight 175 hijackers were selected by CAPPS.

All five of the American Airlines Flight 77 hijackers were selected for security scrutiny. Hani Hanjour, Khalid al Mihdhar and Majed Moqed were chosen via the CAPPS criteria, while Nawaf al Hazmi and Salem al Hazmi were made selectees because they provided inadequate identification information. Their bags were held until it was confirmed that they had boarded the aircraft. Thus for hijacker selectees Hani Hanjour, Nawaf al Hazmi and Khalid al Mihdhar, who checked no bags on September 11th, there were no consequences for their selection by the CAPPS system.

For Salem al Hazmi, who checked two bags, and Majed Moqed who checked one bag, the sole consequence was that their baggage was held until after their boarding on Flight 77 was confirmed. Ahmad al Haznawi was the sole CAPPS selectee among the Flight 93 hijackers. He checked his bag, was screened for explosives, and then loaded the plane.

I'd now like to turn it over to my colleague, Bill Johnstone.

MR. BILL JOHNSTONE: Next we come to checkpoint screening. With respect to checkpoint screening, federal rules required the air carriers to conduct screening to prevent or deter the carriage aboard airplanes of any explosive, incendiary, or a deadly or dangerous weapon on or about each individual's person or accessible property, and the carriage of any explosive or incendiary in checked baggage.

Passenger checkpoint screening is the most obvious element of aviation security. At the checkpoint, metal detectors were calibrated to detect guns and large knives. Government-certified X-ray machines capable of imaging the shapes of items, possessing a particular level of acuity were used to screen carry-on items. In most instances, these screening operations were conducted by security companies under contract with the responsible air carrier.

As of 2001, any confidence that checkpoint screening was operating effectively was belied by numerous publicized studies by the General Accounting Office, the Department of Transportation, the Office of the Inspector General. Over the previous 20 years, they had documented repeatedly serious chronic weaknesses in the systems deployed to screen passengers and baggage for weapons and bombs. Shortcomings with the screening process had also been identified internally by the FAA's own assessment process.

Despite these documented shortcomings of the screening system, the fact that neither a hijacking nor a bombing had occurred domestically in over a decade was perceived by many within the system as confirmation that it was working. This explains in part the view of one Transportation Security official who testified to the Commission that the agency thought that it had won the battle against hijacking. In fact, the Commission received testimony that one of the primary reasons that the CAPPS consequences were restricted was because officials thought that checkpoint screening was working.

The evolution of checkpoint screening illustrates many of the systemic problems that faced the civil aviation security system in place on 9/11. The executive and legislative branches of government and the civil aviation industry were highly reactive on aviation security matters. Most of the aviation security systems features had developed in response to specific incidents rather than anticipation. Civil aviation security was primarily accomplished through a slow and cumbersome rule-making process, a reflection of the agency's conflicting missions of both regulating and promoting the industry.

A number of FAA witnesses told the Commission that this rule-making process was the bane of civil aviation security. For example, the FAA had attempted to set up a requirement that it would certify screening contractors. The FAA re-authorization of 1996, in fact, had directed the FAA to take such action. The 1997 Gore Commission endorsed it but the process of implementing screener certification had still not been completed by September 11th, 2001.

Those are systemic observations, but to analyze the 9/11 attack, we had to focus on which items were prohibited and which were allowed to be carried into the cabin of an aircraft as of that date. FAA guidelines were used to determine what objects should not be allowed into the cabin of an aircraft. And I stress again that this is the system that was in place on 9/11, not the system that is in place today. Included in the listing of items not allowed into the cabin of an aircraft were knives with blades four inches long or longer and/or knives considered illegal by local law as well as tear gas, mace and similar chemicals.

These guidelines, developed by FAA, were to be used by screeners to make a reasonable determination of what items in the possession of a person should be considered a deadly or dangerous weapon. The FAA in implementing it told the air carriers that common sense should prevail. Hence the standards that constituted a deadly or dangerous weapon were somewhat vague. Other than for guns, large knives, explosives and incendiaries, determining what was allowable was up to the common sense of the carriers and their screening contractors.

To write out what common sense meant to them, the air carriers developed, through their trade associations, a checkpoint operations guide. This document was approved by the FAA. The edition of the guide in place on September 11th, 2001, for example, classified box cutters as restricted items which were those that were not to be permitted in the passenger cabin of an aircraft. In those cases, the checkpoint supervisor was required to be notified if a box cutter as an item in that category was encountered by a screener.

Passengers would be given the option of having the box cutter or similar items transported as checked baggage. Mace, pepper spray and tear gas were categorized in the operations guide as hazardous materials and passengers were not allowed to take items in this category onto an airplane without the express permission of the airline. On the other hand, pocket utility knives which were defined as those with less than a 4-inch blade were expressly allowed onto the aircraft.

The checkpoint operations guide provided no further guidance on how to distinguish between box cutters and pocket utility knives. One of the checkpoint supervisors working at Logan International Airport on September 11th, 2001 recalled that it was her understanding as of that day that while box cutters were not permitted to pass through the checkpoint without the removal of the blade, any knife with a blade of less than four inches was permitted to pass through security.

In practice, we believe the FAA's approach of admonishing air carriers to use common sense about what items should not be allowed on an aircraft or also approving the air carriers' checkpoint operation guidelines that define the industry's common sense, in practice, created an environment where both parties could deny responsibility for making choices that were in the tenor of the times likely to be hard and most likely unpopular.

What happened at the checkpoints on 9/11 under these guidelines? Of the checkpoints used to screen the passengers on Flights 11, 77, 93 and 175 on September 11th, only Washington Dulles International Airport had videotaping equipment in place. Therefore, the most specific information that exists about the processing of the 9/11 hijackers is information about American Airlines Flight 77, which crashed into the Pentagon. The staff has reviewed those videotapes as well as testing results for all of the checkpoints in question and have reviewed scores of interviews with checkpoint screeners and supervisors who might have processed the 9/11 hijackers on that day and reviewed FAA and FBI evaluations of all available information about the 9/11 screening. From what we have seen to date, there is no reason to believe that the screening on 9/11 was fundamentally different at any of the relevant airports.

We turn again to the perspective of the enemy. The plan required all of the hijackers to successfully board the besieged aircraft -- I'm sorry, the assigned aircraft. If several of their number failed to board, their operational plan would fall apart or their operational security might be breached. To have this kind of confidence that had they developed a plan they felt would work anywhere they were screened regardless of the quality of the individual screener. We believe they developed such a plan and practiced in the months before the attacks, including in test flights to be sure their tactics would work. In other words, we believe the hijackers did not count on a sloppy screener. All 19 hijackers were able to pass successfully through checkpoint screening to board their flights. They were 19 for 19, 100 percent. They counted on beating a weak system.

Turning to the specifics of Flight 77 checkpoint screening, at 7:18 a.m. Eastern Daylight Time on the morning of September 11th, 2001, Majed Moqed and Khalid al Mihdhar entered one of the security screening checkpoints at Dulles International Airport. They placed their carry-on bags on the X-ray machine belt and proceeded through the first magnetometer. Both set off the alarm and were subsequently directed to a second magnetometer at Dulles. While al Mihdhar did not alarm the second magnetometer and was permitted through the checkpoint, Moqed failed once more and was then subjected to a personal screening with a metal detection hand wand. He passed this inspection and then was permitted to pass through the checkpoint.

At 7:35 a.m. that morning, Hani Hanjour, believed to be the pilot of the 727, placed two carry-on bags on the X-ray belt at the checkpoint and proceeded without alarm through the magnetometer. He picked up his carry-on bags and passed through the checkpoint. One minute later, Nawaf and Salem al Hazmi entered the same checkpoint. Salem al Hazmi successfully cleared the magnetometer and was permitted through the checkpoint. Nawaf al Hazmi set off the alarms for both the first and second magnetometers and he then also was hand-wanded before being passed. In addition, his shoulder strap carry-on bag was swiped by an explosive trace detector and then passed and he too was admitted through the checkpoint.

Our best working hypothesis is that a number of the hijackers were carrying -- permissible under the regulations in place at the time -- permissible utility knives or pocket knives. One example of such a utility knife is displayed by Mr. Brinkley here, this so-called Leatherman item. We know that at least two knives like this were actually purchased by the hijackers and have not been found in the belongings the hijackers left behind. We are passing this around now. Please be careful, the blade is open. It locks into position. It is very sharp.

According to the guidelines as we understand them that existed on 9/11, if such a knife were discovered in the possession of an individual who alarmed either the walk through metal detector or the hand wand, the item would be returned to the owner and permitted to be carried on the aircraft. Once the hijackers were able to get through the checkpoints and board the plane, the last layer of defense was on board security. That layer was comprised of two main elements on 9/11, the presence of law enforcement on the flights and the so called Common Strategy for responding to in-flight security emergencies, including hijacking, which had been devised by the FAA in consultation with industry and law enforcement officials.

However, on the day of September 11th, 2001, after the hijackers boarded, they faced no remaining significant security obstacles. The Federal Air Marshal program was almost exclusively directed as of that date to international flights. Cockpit doors were not hardened and gaining access to the cockpit was not a particularly difficult challenge. Flight crews were trained not to attempt to thwart or fight the hijackers. The object was to get the plane to land safely. Crews were trained in fact to dissuade passengers from taking precipitous or heroic actions against hijackers. We'll have more to say about the Common Strategy in the staff statement that will come later today.

Philip.

MR. ZELIKOW: In conclusion, from all of the evidence the staff has reviewed to date, we have come to the conclusion that, on September 11, 2001, would-be hijackers of domestic flights of

U.S. civil aviation faced these challenges: avoiding prior notice by the U.S. intelligence and law enforcement communities; carrying items that could be used as weapons that were either permissible or not detectable by the screening systems in place; and understanding and taking advantage of the in-flight hijacking protocol of the Common Strategy.

A review of publicly available literature and/or the use of test runs would likely have improved the odds of achieving those tasks. The no fly list offered an opportunity to stop the hijackers, but the FAA had not been provided any of their names, even though two of them were already watchlisted in TIPOFF. The pre-screening process was effectively irrelevant to them. The on-board security efforts like the Federal Air Marshal program had eroded to the vanishing point.

So the hijackers really had to beat just one layer of security, the security checkpoint process. Plotters who were determined, highly motivated individuals, who escaped notice on no-fly lists, who studied publicly available vulnerabilities of the aviation security system, who used items with a metal content less than a handgun and most likely permissible, and who knew how to exploit training received by aircraft personnel to be non-confrontational were likely to be successful in hijacking a domestic U.S. aircraft.

MR. KEAN: Thank you very much.

I'd now like our first panel please to take their seats. For our first panel, our first witness will be Ms. Jane Garvey. Ms. Garvey was administrator of the Federal Aviation Administration on September 11th, 2001. She first assumed that post in 1997. Ms. Garvey previously testified before this commission last May and we certainly appreciate the fact she has come back to join us again.

Following Ms. Garvey will be Rear Admiral Cathal "Irish" Flynn. Admiral Flynn served as head of the FAA Security Division from 1993 through the end of 2000. His successor in that position, Lieutenant Mike Canavan also testified at our May 2003 hearings. Welcome to Admiral Flynn.

Finally, we'll hear from the former head of FAA's Intelligence Division, Claudio Manno. Mr. Manno was in that capacity on 9/11 and he currently has a similar role at the Transportation Security Administration where he is deputy to the associate administrator for Intelligence. Thank you, Mr. Manno, for taking time away from your important current duties to be with us today.

Would you please stand and raise your right hand? Do you swear or affirm to tell the truth, the whole truth and nothing but the truth? Thank you very much.

(Witnesses sworn.)

Ms. Garvey.

MS. JANE F. GARVEY: Thank you, Mr. Chairman and members of the Commission.

Good morning. I have submitted to the Commission for inclusion in the record a written testimony supplementing my previous testimony on May 22nd, 2003. I hope my participation here will contribute to the recommendation which, in the Chairman's words, will assist the Commission in doing everything it can to make the American people safer. Before I begin, I would like to acknowledge the many families and the friends of those who were killed or injured on September 11th. Their suffering is unimaginable and perhaps more than any other single group of Americans, they have a vested interest in the Commission accomplishing its mandate.

Let me address one area that has been the subject of both prior questioning and testimony by several witnesses, specifically the pre-September 11th relationship among the airlines, the airports and the Federal Aviation Administration. In 2001, it was these three entities that, by statute, shared responsibility for civil aviation security in the United States. Air carriers had primary responsibility for screening passengers and baggage and for applying security measures to everything that went into their planes. Airports were responsible for maintaining a secure ground environment and providing local law enforcement support. Government's role, the FAA's role, was regulatory.

Within the regulatory framework established by Congress, the FAA set security standards for 424 airports, for United States airlines worldwide, and for foreign air carriers flying to the United States from approximately 250 foreign airports. This division of responsibility among the airports, the airlines and the FAA was, in large measure, a reflection of the fact that the airports owned the land and were best able to provide local law enforcement. The airlines operated the aircraft and were in the best position to manage passenger and cargo, and government had the regulatory authority.

The priorities of the FAA were safety, security and the capacity of the air traffic control system. Specific targets, specific objectives were established in each area and progress towards those objectives was monitored continually. Given the dynamic nature of the aviation system, those objectives were also subject to ongoing evaluation and modification.

In the months preceding September 11th, while greater public attention was focused on aviation delays and the passenger bill of rights, internally the agency was very much focused on safety and security. On September 10th, 2001, aviation security in this country was on a peacetime footing. The FAA had worked hard to make changes in the aviation security baseline, changes supported by specific credible threat information and analysis. The Office of Civil Aviation Security, based on information received from the intelligence communities, had the primary responsibility of assessing the threat to civil aviation.

As this work was underway, daily evaluation of the system and assessment of incoming intelligence information led the FAA to issue security directives and information circulars to address developments and threats. Prior to September 11th, 2001, we had a security system based on certain assumptions. These included the fact that politically motivated hijackers would release passengers after landing at a safe haven, and that together with such hijackings, explosives presented the greatest threat to the system. The events of September 11th certainly challenged those assumptions. A system which had proven effective for the preceding 10 years could no longer be relied upon.

In the summer of 2001, while there was a growing concern regarding a domestic threat, the FAA did not have any credible or any specific information which indicated the type of attack we saw on September 11th was planned or even possible within the United States. The greater concern regarding a threat was internationally.

Admiral Loy, deputy secretary of Homeland Security, in his testimony will describe a broad range of activities in which the Transportation Security Administration is engaged. It's building on many of the components of the aviation security system established by the FAA: CAPPS, the layered approach to security, intelligence assessments, testing, research and development, but perhaps most importantly, redirecting them to a changed threat.

The world has changed in its entirety since September 11th. We are a nation at war, a war which has crossed our borders and entered our cities. Americans have long known that eternal vigilance is the price of liberty. Now we know that in the age of uncertainty, it is the price of mobility.

Thank you, and I'd be happy to answer any of your questions, Mr. Chairman.

MR. KEAN: Thank you very much.

Mr. Flynn.

MR. CATHAL L. "IRISH" FLYNN: Mr. Chairman, members of the Commission, I -- and the staff -- have had a long interview, and I have submitted a written statement. I don't have a verbal statement to make now, but if you don't mind, there are three or four items in the statement that I just heard from the staff that I think might be worthwhile for me to comment on.

The paragraph that said before, September 11th, 2001, the aviation system had been enjoying a period of relative peace. That isn't quite so. We'd had a very serious threat against aviation in the Pacific. We had numerous indications of -- and actual hard intelligence to which we reacted and imposed additional measures at stations overseas -- with regard to several vectors of attack. And, of course, even though TWA 800 turned out not to be a bomb, it was a -- there was a considerable period where that was a major concern.

So to the extent that that paragraph might indicate that we had been lulled into any sense of complacency, that is certainly not the case for FAA and FAA security. Then the paragraph at the end said that -- at the end of the first page talks about our efforts to complete a five-year process to bring in a rule for -it was actually the rule to certify screening companies. And it does give the impression that that rule-making was the only thing that we were doing, and that's far from the case. Rule-making was important but it's far from the only thing that we were doing.

With regard to rings and layers, I think it's a mistake to look upon the set of rings that begin at the airport as being the only rings that apply to protecting the aircraft and all who fly on them, and indeed to protecting people in the airport. It is important that there be interaction between those rings and the further outer rings or layers of our national security system. And one of the items of that from a strategic sense is to make the defense of any of our installations, and in the case of civil aviation to make the aircraft and the people -- to have defenses there that will require the attackers to do extraordinary things that would then come to the attention of the intelligence and law enforcement authority in the outer layers.

Then there's a further statement that we were reactive. Well, we haven't had a bomb in cargo and we haven't had an attack by surface-to-air missiles, and we have measures with regard to cargo and a program with regard to cargo and we're working -- and indeed in the case of a specific threat overseas, work with the airlines and the nations concerned and with the National Security Council staff in order to put in and develop a range of things that we would do in certain circumstances. I hasten to say that a lot of those circumstances would have -- circumstance would have required cancellation of the flights. But it isn't that we had to wait for something to happen -- and indeed there are more difficult things to deal with to which we are paying attention, for example, the introduction of nerve agent gas onto an aircraft.

With regard to CAPPS, I hope that there will be questions about it because its role -- I think I would like to say some things about its function.

Thank you.

MR. KEAN: Mr. Manno.

MR. CLAUDIO MANNO: Chairman Kean, Vice Chairman Hamilton and commission members, I appreciate the opportunity to participate in your inquiry into the facts and circumstances surrounding the September 11th, 2001 terrorist attacks against the United States. My written statement addresses the questions posed in your letter of invitation and I would respectfully request that it be entered into the record. This morning I will summarize some of the key points about how the FAA Office of Intelligence received, assessed and disseminated intelligence prior to the fall of 2001 and also highlight some of the process improvements.

Before beginning, however, I would like to express my deepest sympathies to the families, friends and co-workers of those who perished on September 11th, 2001. As a tribute to them, a wreath hangs on the door of our intelligence watch as a silent reminder of the importance of our mission in keeping the nation's transportation infrastructure and its travelers secure.

On September 11th, 2001, I was a director of the Office of Intelligence, which was part of the Civil Aviation Security Organization of the FAA. The office was tasked with identification, analysis and dissemination of intelligence information focusing on terrorism and other threats to U.S. civil aviation. Although the magnitude of the events of September 11th, 2001 had not previously been seen, FAA's 24-hour intelligence watch had managed multiple crises prior to the tragic suicide hijackings. The expertise of our analysts and a well-established set of standard operating procedures enabled the office to quickly realign and provide extended round the clock coverage of the incident and its aftermath. This cadre of analysts, although small, worked feverishly to provide senior FAA and DOT decision makers with an immediate assessment of the events and possible additional near-term threats.

As a consumer of intelligence, FAA identified its information needs in detailed statements of intelligence interest to those agencies responsible for producing most of the intelligence on terrorism, namely CIA, the Department of State, FBI, NSA and the Defense Intelligence Agency. The newly created Terrorist Threat Integration Center now plays a role in that effort. FAA received a daily stream of threat reporting and finished intelligence from these agencies and identified on average 100 to 200 classified reports each day that merited closer review.

To enhance access to relevant intelligence reporting, FAA assigned liaison officers to CIA, FBI and State Department. Their primary duties were to identify and pursue information regarding actual or potential threats to civil aviation. Occasionally, they would review information that provided insight about a terrorist threat or incident, but may not have been disseminated to the FAA. In these cases, the liaison officers requested release of the information and would educate the agencies as to why such information was of importance to the FAA. In some cases, they were successful in getting release for FAA. In other situations, due to the sensitivity of sources and methods, the information was not approved for release.

When analysts working in the 24-hour intelligence watch identified current or future threats to aviation, a preliminary evaluation of its validity was made in coordination with the originator and other relevant agencies. FAA intelligence analysts examined the plausibility of the information based on their expertise regarding the known intent and capability of the alleged hijackers, the method of attack, as well as a characterization of the reliability of the source made by the agency supplying the information. The characterization of the source is a significant factor as decision-makers depend on threat assessments based on credible information from reliable sources.

Once a report was identified as an actual or potential threat, FAA analysts opened an intelligence case file, an ICF, to isolate and follow up on the threat to its logical conclusion, adding any new information to either validate or discount the threat. And there were several hundred of these ICFs that were opened at any one time and that we were working on. FAA analysts prepared threat assessments based on analyses of these reports and coordinated these assessments with FBI and CIA to ensure factual accuracy and analytic logic.

Intelligence is only useful, however, if it reaches the operators and policymakers in an actionable format and timely manner. Prior to September 11th, 2001, FAA intelligence analysts worked closely with specialists in the offices of civil aviation security operations and aviation policy who view the intelligence information against the vulnerability of the target in an attempt to establish the level of risk of a successful attack. These offices promulgated security countermeasures to reduce the level of risk as appropriate. This threat and risk assessment process was applied to both current and strategic threats and was used to determine the long-term baseline aviation security posture for a region or a country.

Potential aviation threat information was communicated to those that needed it at the operational level primarily through the preparation and issuance of information circulars which alerted recipients to possible threats and security directives which required air carriers and airports to implement specific security measures to counter a threat. Regulated entities, such as the air carriers and airports, received the notices directly from FAA while airport law enforcement elements had access to them through the Airport Law Enforcement Agencies Network. When declassification of information was not possible, the 24-hour intelligence watch verbally alerted cleared aviation security representatives to threats or events that were of a potential interest through secure telephone calls.

Now that I have explained how the FAA received and processed threat information prior to the events of 2001, I would like to highlight intelligence support that the FAA Office of Intelligence provided to the transportation industry stakeholders and other government agencies as it transitioned to TSA. Prior to September 11th, the FAA had published security directives that required air carriers not to transport certain individuals that were known or suspected threats to aviation security. Immediately following September 11th, the FAA began to administer a watchlist for the FBI as part of the investigation of the hijackings. By the end of 2001, the FAA had assumed responsibility for this watchlist which now includes individuals known to pose, or suspected of posing, a threat to aviation or national security. This mechanism enables the notification of law enforcement and the application of defensive measures.

We also stood up a new division with analysts whose primary duty was to provide support to the Federal Air Marshal Service. Also, the Aviation and Transportation Security Act of November 2001 tasked TSA to receive, assess and distribute intelligence information related to transportation security. Thus, the new Transportation Security Intelligence Service became responsible for assessing threats to all modes of transportation: aviation, maritime and land, and now provides threat warning products to stakeholders in all modes of transportation.

As a result of the steps taken to improve operations in the aftermath of September 11th, 2001 attacks, the TSIS, the successor to the FAA's Office of Intelligence now enjoys increased access to intelligence and law enforcement information which has undoubtedly had a positive impact on the security of

U.S. transportation assets both in the homeland and abroad. More information is being shared among more agencies than ever before thus improving situational awareness of potential threats to U.S. transportation assets in the U.S. and abroad.

I would like to provide briefly some additional granularity on some of the beneficial developments and a word or two regarding the areas that we are continuing to seek improvement. Regarding intelligence from the FBI, prior to September 11th, 2001, FAA did not receive a daily flow of raw reports and finished intelligence from the FBI. The Bureau did not consider itself an intelligence production agency, perhaps because of the statutory restrictions on the dissemination of information it collected in its investigative role.

Recently, however, the flow of reporting from FBI has significantly increased. The USA PATRIOT Act of 2001 amended previous laws that had prevented the FBI from sharing grand jury and Foreign Intelligence Surveillance Act information, FISA information. The creation of the National Joint Terrorism Task Force, the NJTTF, has also expanded the flow of information from the FBI. TSIS has assigned a full-time liaison officer to the NJTTF in recognition of the value of tapping into the information reported up from local JTFs throughout the country. TSIS's NJTTF's representatives also provide operational information that supports FBI operations and investigations.

Regarding information sharing and coordination among agencies, TSIS receives a copy of the daily matrix that highlights current critical threats to U.S. interests. Agencies also more frequently coordinate finished intelligence products and CIA, TTIC and FBI more routinely solicit input and comment from TSA on threat assessments. To build on a new spirit of sharing and coordination, TSIS has assigned liaison officers to TTIC and to NSA.

The consolidation of TSA, Customs and Immigration within the Department of Homeland Security has also led to enhanced information sharing and coordination of not only intelligence but operations as well. TSIS has also contributed to the stand-up of the TSC, which as you know, was created to provide information on known or suspected terrorists from various U.S. government databases to federal screening operations, border patrol and state and local law enforcement. Two TSIS intelligence analysts provide direct support to the TSC leadership on matters regarding the TSA Watchlist program.

The intelligence and law enforcement communities have always provided TSA with reporting regarding specific threats and since late 2001, there has been a sizeable increase in the volume of intelligence reporting being disseminated to TSA. Nevertheless, more information about terrorist infrastructures both in the United States and abroad would assist TSIS intelligence analysts in forecasting potential threats in areas where U.S. transportation assets are located or provide service. Such information would allow TSIS to provide better situational awareness to TSA executives, field operators and industry stakeholders.

Despite some remaining obstacles, the intelligence and law enforcement communities have made great strides in information sharing and coordination since the tragic events of September 11th, 2001. TSIS will continue to review our analytic skill sets and dissemination mechanisms, improving them where possible and will remain focused on providing TSA and DHS executives, operators and industry stakeholders with an accurate assessment of current and future threats to the U.S. infrastructure.

Chairman Kean, Vice Chairman Hamilton and members of the Commission, I recognize the importance of your task on behalf of the American people and appreciate the opportunity to participate in these proceedings. I would be happy to address any questions that you may have for me.

Thank you.

MR. KEAN: Thank you very much, sir.

As we start the questioning, I might remind people that yesterday and today we are looking at the system's vulnerabilities as they existed on 9/11. We are not talking about present vulnerabilities. We've got to communicate our views about those vulnerabilities perhaps in our public report or certainly through the appropriate channels.

The questioning will be lead by Senator Gorton.

MR. SLADE GORTON: First, for Ms. Garvey and for Mr. Manno, knowing that you're fully aware of your oath, our first question is, to your knowledge, did the FAA possess any information regarding a terrorist plot to hijack aircraft and to use them as weapons and targets in the United States, or any other plot that resembled such an operation prior to 9/11?

MS. GARVEY: Commissioner, in my knowledge, from my perspective, we had no knowledge of that.

MR. GORTON: Mr. Manno?

MR. MANNO: No specific knowledge. Certainly not in the way that the events were carried out on 9/11.

MR. GORTON: Ms. Garvey, as you know, we had a long relationship between 1997 and the year 2000 when I was chairman of the Senate Subcommittee on Aviation and you headed the FAA. There were a significant number of hearings during that period of time. Would you characterize those hearings as primarily related to competitive issues to airport capacity, you know, slots and landing slots and rights and the like to aircraft safety from the point of view of the rules that you adopted with respect to aircraft safety, and to the extent that they dealt with security exclusively or almost exclusively on the subject of explosives on aircraft?

MS. GARVEY: Commissioner, I think that's a fair characterization. I would add one caveat, and that is the economic issues really was the domain of the Department of Transportation. But certainly capacity, explosives, safety issues, those were FAA and certainly had a number of hearings.

MR. GORTON: Demands for a passengers' bill of rights, for example.

MS. GARVEY: That's correct. That, of course, would have been more DOT as well.

MR. GORTON: And those subjects were also the primary subjects of the Gore Commission, whose recommendations set many of the boundaries for concerns during the years at least that I was there, up until the year 2000. Is that not correct?

MS. GARVEY: I would agree with that assessment, Commissioner, yes.

MR. GORTON: Is it fair to say with respect to security issues as well as to -- security issues. Is it fair to say that there were more pressures on the Federal Aviation Administration to relax security measures during that period than there were to strengthen them?

MS. GARVEY: I'm not sure I would fully characterize it that way. If you're asking me, was I aware that industry or others, for example, had concerns about some of the security measures, absolutely. We certainly -

MR. GORTON: That's exactly my question.

MS. GARVEY: We certainly heard it through the rule-making process. We certainly heard it in public meetings that were held. You know, I do want to go back, though, to a point I made in my opening statement, and that is while the public and certainly Congress as well was very focused on the capacity issues, which were very real at the time in 2000 and 2001, we still had a security office with very experienced, very well-trained professionals who were focused on those issues as well.

MR. GORTON: But outside pressures on you and your office were primarily focused on those other subjects, were they not?

MS. GARVEY: That is correct, Commissioner.

MR. GORTON: One example of these security matters, you saw the knife that was circulated during the course of your testimony, which now at least we all can draw a breath at how lethal it was. Can you say why it was that a knife of that size and potency was universally considered to be something which could regularly be carried onto aircraft? Was there a great deal of pressure, for example, that anyone should be able to take a Swiss Army knife with him or with her on an aircraft? Were any of the rules -- were any of the suggestions in this five-year rule-making that had not been completed directed at weapons of that nature?

MS. GARVEY: I don't remember that discussion when I was the administrator. I can give you a little bit of perspective, at least from my perspective. As you indicated, that policy was in place on 9/11. It was a policy that had been in place, that is prohibiting knives larger than 4 inches. It is a policy that it's my understanding had been in my place since the 1970s.

But, again, if you go back to 9/11 and you think about the atmosphere in an airport, there were -- knives were very commonplace. Knives were used as part of the meal service in the airlines. If you were to stop at a security -- or a souvenir shop, even beyond the secure area, it is possible that you could purchase, say, a pocketknife and so forth. And from the security intelligence experts, from the law enforcement people, the greater threats -- as has been indicated even by the staff report, the greater threats were from larger, more lethal weapons and from explosives.

Clearly with the benefit of hindsight, as you pointed out, we have a different view. I do think it is important to remind ourselves, as the staff statement reminded us, that we are and were dealing with an incredibly intelligent, well-trained, disciplined terrorists who may have used any other number of common household items as a lethal weapon as well. MR. GORTON: And who just flat out beat us. MS. GARVEY: That's right, Commissioner. MR. GORTON: At our May hearing, you testified, and I quote,

that, "Perhaps the greatest lesson of September 11th is that the terrorist threat is just as real here at home as it is for our embassies in East Africa, a Naval destroyer in Yemen or the Marine barracks in Beirut," end quote. At least in retrospect, should not that have been the lesson of the 1993 World Trade Center bombing?

MS. GARVEY: You know, I think with the clarity of hindsight you can look at a number of those facts and come to those conclusions. And again, I do want to go back to a point that has been made earlier. There was a growing domestic concern and I think that was reflected in some of the intelligence circulars, some of the SDs that the FAA issued. So there was a growing concern. But I think the greatest thrust, the greater concern was still international. Should we have learned more from the World Trade Center? Boy, again, I think with the clarity of hindsight there, there are certainly questions there.

MR. GORTON: With respect to intelligence, and Mr. Manno can comment on this question as well, explain to us how it was that you had a no-fly directive that applied to only 20 or so people, while there was a terrorist -- a TIPOFF list that included hundreds or thousands of people? Were you, Ms. Garvey, aware that there was such a TIPOFF list?

Mr. Manno, did your section have that list available to it? Did it even know that it existed? And if you did know that it existed and had it available, why weren't those names on a no-fly list?

MR. MANNO: I think I can answer that by explaining the way that the process worked. As I indicated earlier, the way that we received intelligence or information from the intelligence community was by identifying our statement of intelligence needs. Based on that, the intelligence community provided us information that was relevant to aviation security. So based on the information we received, our analysts reviewed it and in the case where there was specific and credible information that people were actually targeting, making plans to target civil aviation, if we had identifying data, they were put on a security directive which directed the air carriers not to transport these people.

MR. GORTON: All right, but neither of you have answered my question. You know, let's break it down and ask it again. Were either of you aware of the existence of the TIPOFF roster?

MR. MANNO: Yes.

MR. GORTON: Were you, Ms. Garvey?

MS. GARVEY: I may have been aware. I can't tell you with certainty that I was aware pre-9/11 that the list -

MR. GORTON: Well, were the names on that list then available to you and not requested? Or available to you and discarded as not important?

MS. GARVEY: Commissioner, if I could -- I'll give you my perspective and then turn it over to Mr. Manno. But from my perspective, the names that I saw, and we'd see them in the security directive, they would be included in the security directive. From my perspective, those names were the names that the intelligence community believed had some implication with aviation. So, for example, while other intelligence agencies may have had other names, those names pre-9/11 if they did not have a specific aviation -

MR. GORTON: I -- you know, I fully understand that, but my question still is were those names not supplied to you, and I guess this is for Mr. Manno, or were they supplied to you and discarded as not having a relationship with aircraft?

MR. MANNO: TIPOFF at that time included about 61,000 names. We had access to TIPOFF, but the way that it worked is if you had a name, you had to have a name, you could then go against TIPOFF and do a search and it would provide you information. But the way that the system worked at the time, unless we received the intelligence reporting that identified to us names of interest and then to go into TIPOFF and search against that, it was not -- it was simply not used that way. So TIPOFF was there, TIPOFF was available, TIPOFF was 61,000 names that included information not only of, you know, terrorists involved in all sorts of things and others -

MR. LEHMAN: It was perfectly all right to have them fly because they were terrorists in other things, there was no reason to put them on your watchlist, right? I mean, I don't understand the logic of this.

MR. MANNO: Well, the way that the process worked with the security directive is names were identified to an airline who then bumped those up against their reservation list to determine if somebody was actually going to fly.

MR. GORTON: Yeah, that's right, but you only had 20 names that fell into that category and there were thousands of names on a TIPOFF list, all of whom were suspected terrorists. And so I gather the decision at some place or another was that a suspected terrorist who had not specifically been linked to aircraft was okay to fly?

MR. MANNO: The names -- including the 20 names were names that were specifically identified to us in intelligence reporting. The process was for the intelligence reporting to indicate to us those that we ought to be concerned about.

MR. GORTON: And you made no further inquiry beyond that? You didn't ask for a list of suspected terrorists?

MR. MANNO: You mean through TIPOFF?

MR. GORTON: Yes.

MR. MANNO: No, we did not go to the State Department and ask them to give us all 61,000 names so that they could be put on the watchlist. For one thing, the airlines would not have been able to handle such a list.

MR. GORTON: Well, they weren't given the opportunity, were they?

MR. MANNO: Well, we know that today, sir, because today we are managing a similar list which is of about 3,500 names which requires the carriers to check against a reservation system, and they're struggling just even with those.

MR. JOHN F. LEHMAN: But they sure had no trouble handling their frequent flyer lists -- I mean that's ridiculous. Your whole testimony is -- it talks about process. You described to us -- it sounded like an indoctrination course for your new employees describing the process. What about common sense?

Didn't anybody ever -- did you ever step back and say, now look, my job is not to wait until the intelligence community gives me finished product, but to look at this and say, does it pass the commonsense test? Does it pass the commonsense test to let young Arabs on with four-inch blades? Didn't any of you -leadership is about not taking the process which you hide behind, but about saying this is not sufficient. Of course they can handle thousands of questionable people. Of course a young Arab should not be allowed on airplanes with four-inch blades, yet none of you applied common sense.

MR. GORTON: Secretary Lehman just said that's right, you know. Every time I fly, every time I make a reservation I get a frequent flyer credit. The airline has no difficulty in doing that for me, to check my name against its list every time. I can't see how it has a problem with 3,000 or 60,000 suspected terrorists. But let's leave -- you know, you answered my first question I think accurately, that as of 9/11 you did not anticipate or expect, you did not imagine the kind of hijacking that actually took place with suicide and the killing of many people in mind. Let's accept that.

But certainly with respect to all of the hijackings that have ever taken place before, you were anticipating and were working against the kind of hijacking that went to Havana or that asked for the release of prisoners and, you know, or the like. And yet you never, either of you and I guess this would apply to Admiral Flynn as well, decided to have an expanded no-fly list of suspected terrorists, is that correct?

MR. MANNO: The list at that time was based on specific and credible information that we had.

MR. GORTON: Other two? Any answer beyond that?

MR. FLYNN: I regret to say that I was unaware of the TIPOFF list and was unaware of it until yesterday.

MR. GORTON: Now, one other thing. Are you saying you, who are current today, that there are only 3,500 people on a no-fly list today?

MR. MANNO: There's actually two lists. A selectee and a no-fly list, and actually the number is greater than that.

MR. GORTON: What is the relationship between the FAA at the present time and the TIPOFF program?

MR. MANNO: The -- well, as you know TIPOFF has now been rolled into the TSC process -

MR. GORTON: Okay, and?

MR. MANNO: So the way that the system works is that we obtain information from that list and people are put on the no-fly list based again on indications that they pose a threat to aviation.

MR. GORTON: But merely being a suspected terrorist doesn't get you on that list?

MR. MANNO: Pardon, sir?

MR. GORTON: Merely being a suspected terrorist doesn't get you on that no-fly list?

MR. MANNO: It can, it depends what group you're associated with and what other information there is.

MR. GORTON: Wow, I find that to be an incredible answer.

MR. MANNO: As an example, there is a lot of information that came out of the war on Afghanistan when the camps were discovered there, lists and things like that and those names, because of their ties to al Qaeda, are put on our no-fly list.

MR. GORTON: Well, I must say I would strongly suggest that when the intelligence agencies of the United States have a name that they expect or suspect to be a terrorist, that that name ought to be on the no-fly list. And I think, in my view at least, that's a no-brainer.

Back to you, Ms. Garvey. Does the FAA or did the FAA have any kind of supervision over flight training schools? Obviously to license a pilot requires a certain degree of education, but is there any monitoring of the schools at which young men and women receive that flight training?

MS. GARVEY: Commissioner, for the flight schools there are standards and requirements that a flight school would have to attain in order to get an FAA certificate, and depending on the level of training they are providing, those certificates would vary.

MR. GORTON: But that certificate just goes to the school? That just says you do a competent job.

MS. GARVEY: That's exactly right, Commissioner, that's exactly right.

MR. GORTON: But there's no connection -- the school doesn't have to report the names of the people who are taking the training or the degree of training that they've received to you to check against any kind of license application?

MS. GARVEY: Pre-9/11 there was no vetting of the individual students who signed up in the schools.

MR. GORTON: Is there now?

MS. GARVEY: Yes there is, Commissioner. Post-9/11 there

- and as part of a legislation even before that as an emergency action, there is vetting of the student and an actual verification that the school must receive and submit to the FAA from the country, from the student's country.

MR. GORTON: Ms. Garvey, as the administrator, how much of your time did you spend on security matters? How often were you briefed, for example, by people like the Admiral or Mr. Manno? How did you get performance ratings of civil aviation security policies through the airlines and the airports and the like? What share of your time did it take and what was your function in connection with it?

MS. GARVEY: Let me divide it, if I could, Commissioner, into two parts. One is how did I receive the sort of security information, and number two is how did we monitor sort of the day to day progress being made by security and I'll start with the second part. Security, like safety and efficiency, was responsible for establishing goals and objectives, and in this case it centered very much as has been indicated around some of the rule-making, some of the explosive detection machines and so forth. That monitoring and oversight of that really occurred as part of management board meetings that were held on Monday and Friday.

As to the security information, how did I receive it and so forth? As Mr. Manno indicated, there were on any given day there could be as high as 200 intelligence faxes received by the Intelligence Office. I would certainly not receive every one of those but anything that the Intelligence Office deemed important would come up to my office. If there was a particular urgency around an issue or something that the associate administrator was particularly concerned about that I would receive that briefing in person, or if I was not in the office at the time I would receive it perhaps later in the day by the -- from perhaps the deputy secretary. So I would receive security briefings either through a written document that would come directly to my office or through an oral direct briefing from the associate administrator.

MR. GORTON: The staff reported on the checkpoint operations guide that was developed by the air carriers and approved by you as the head of the FAA. To your knowledge was there any airline that ever was restless or objected that that operations guide was too lax and wanted or imposed itself a more stringent regulations on incoming -- on passengers?

MS. GARVEY: I'm not aware of that, Commissioner.

MR. GORTON: Finally, I think it's someone else's turn here, but the 9/11 families submitted what I consider to be a very important question to us to which I'd like your answer. How is it that when you went through your various proceedings dealing with violations of federal law on the part of airlines and imposed fines that in fact, on average, the fines were reduced to 10 cents on the dollar? Why is it that when you go through an entire system and say a fine ought to be so many thousands of dollars that that just isn't the end of it?

MS. GARVEY: Well, if I could, Commissioner, I'll answer and certainly if other panel members want to contribute to this. First of all, I'd like to check the number. I'd heard that before and I've not had an opportunity -- I'm not sure that number is correct. But I'd like to check it and I can certainly tell you that from the FAA's perspective, from my perspective, the civil penalties that we imposed were not as effective as we wanted them to be. We went back repeatedly to get those fines raised and they were raised incrementally.

I think we were far more effective when it was levied against individuals then when it was levied against a company. Frankly, I think sometimes we found the best way to -- or sort of the best -- the more effective way was to publicize that and we did that. But there's also the due process. The inspector or the special agent who first brings the action forward submits that and there is also, of course, the due process where the lawyers from -- for either the individual or the lawyers for the airline goes through the process with the FAA and a determination is made. I don't know if its 10 cents on the dollar. It was never as high as we liked.

MR. GORTON: Well, that's a lot of due process to go to 10 cents on a dollar, and I guess we would appreciate it if you have the ability to do so, since you question whether or not that figure is accurate, to the extent of your ability to answer that question more precisely in writing later, we would very much appreciate it. I think I do have some more questions, but the red light has been on for some time and it's Congressman Roemer's turn in this connection.

MR. KEAN: Okay, we'll come back to you.

Congressman Roemer?

MR. TIMOTHY J. ROEMER: Thank you, Mr. Chairman.

I want to thank the panel and thank Senator Gorton for starting a very thorough round, a very fair round of questions. I want to start with just the larger policy question and the security system that we had in place on September 11, 2001. It just seems to me from a common sense point of view that in medicine, when a doctor looks at a patient, they just don't look at one disease. If there's a low probability but high consequence possibility for that patient, we're going to look at a host of different scenarios.

The military does the same thing. There may be a low probability but a high consequence attack. We get ready for it. Sports, the Superbowl coming up, there may be a low probability that the first play's going to be the bomb down the field, but there's a defense set up for it. In our aviation security system, leading up to and on September 11, 2001, it seems to me there's only one system in place, even though the clues and the threats are flowing in through this entire decade. Let me briefly bring up some of the overall policy clues and objectives.

In January '95 a Philippine National Police raid turns up materials in Manila where there is a proposed plot, among other things, to possibly crash an airplane into CIA headquarters. In 1998, August, the intelligence community obtains information that a group of unidentified Arabs plans to fly an explosive laden plane into a foreign country -- from a foreign country into the World Trade Center. September 1998 the intelligence community obtains information that Usama bin Laden's next operation could involve flying aircraft loaded with explosives into a U.S. airport.

November '98 the intelligence community obtains information that a Turkish Islamic extremist group has planned a suicide attack, in part involving a plane and crashing that with explosives into Ataturk's tomb. The list, March 1999, August 2001, goes on. With respect to what we're doing here at home to protect our passengers and our planes, here's the information that we have at the FAA. Here's the internal document, developed in the summer of 2000, delivered in 2001 prior to 9/11 and here's a quote from this document that's warning about terrorist hijackings.

"A domestic hijacking would likely result in a greater number of American hostages but would be operationally more difficult to accomplish. We don't rule it out." And it continues, "If, however, the intent of the hijackers is not to exchange hostages for prisoners but to commit suicide in a spectacular explosion, a domestic hijacking would probably be preferable," unquote. Directly to the point of 9/11.

And then finally published in July 17, 2001, the Federal Register, quote, "Terrorism can occur anytime, anywhere in the United States. Members of foreign terrorist groups, representatives from state sponsors of terrorism and radical fundamentalist elements from many nations are present in the United States. Thus an increasing threat to civil aviation from both foreign sources and potential domestic ones exist and needs to be prevented and countered." Needs to be prevented and countered. So my question is, with all this evidence coming in

- it's not a specific date, granted, but the dots are connected and they're large and they're looming and they're big. Why doesn't this result in a change in terrorism policy at our airports to try to expand the list of things that we're going to try to go after beyond the possibility of explosive devices on airplanes?

Mr. Flynn, can you take the first crack at that?

MR. FLYNN: Yeah, if I had to do it again, I would get up over the fierce amount of activity that was going on with regard to commissions, with regard to acquisition, certification of equipment, R&D programs, human factors, inspections, modifications of rules, additions to rules, working with the intelligence community, working with the NSC, to ask ourselves, indeed to ask myself: How will they attack us again? I mean, those things were there and it isn't that we disregarded them. It isn't that I disregarded them. I didn't see -- there were contra-indications on a number of them.

For example, the Manila one was perpetrated by people who went to very considerable extent not to be suicidal in the way that they conducted their attack. The French one, you didn't mention it, but I spoke to the French inspector of police from the headquarters of the French police who came over to brief people in Washington, including me, about it. And I said, well, what about this business of going after the Eiffel Tower. And again, there were disconnects. How were they going to do that? How were they going to coerce pilots to do that? And she said, furthermore, rather than them wanting to kill everybody on board, there's a strong indication that Stockholm syndrome was going on at Marseille where the aircraft was.

Then with regard to the other things of how do you bring about taking an airliner and turning it into a missile? How would you coerce the pilot to fly into a building that's got people into it rather than in extremis, put it into a field or a woods or into the -- in the case of the CIA, into the Potomac? How would you do that? And the notion of a fully-fledged member of al Qaeda being a pilot, at the same time with the intention of pulling people out of the cockpit and taking over, did not occur to me. Now, my point, when I go back to it, why didn't I spend more time? Why didn't I get more people around the table and say, how would they do this? And come up with a plan, that's my regret.

MR. ROEMER: Mr. Flynn, you mentioned that we didn't develop policy and the big picture connecting the dots to change policy to proactively go after what terrorists might do given the threats that were out there - MR. FLYNN: I didn't mention that, I may not have said it - MR. ROEMER: You said you regret that we did not - MR. FLYNN: We didn't deal with that particular scenario.

That isn't to say that we didn't look at a host of other things.

MR. ROEMER: Well, let's talk about -- did you push with Mrs. Garvey, other people, the administrator, did you push for a policy change? Did you try to get meetings with other policy makers to address this growing concern that's mentioned in the FAA, Federal Register, that's mentioned in your slide presentation that you're presenting to people as you're traveling across the country in 2000 and 2001?

MR. FLYNN: Well, I think that -- it's more than a footnote that that particular presentation, 2001, I was no longer in FAA. But the -

MR. ROEMER: Leading up to that point.

MR. FLYNN: Yeah, that's my -- it's a funny thing. In that same time, the head of anti-terrorism for the FBI and I came to this building, into the secure place of the Committee on Intelligence and in it these staff -- there may be some people from that staff who happen to be coincidentally members of your staff -- the staff asked what are the indications or what are the threats to aviation? And John O'Neill said there are none. Now, that seemed to me to -- because there was particular indication of something going on in an airport, I wrote him a note. John, how about the -- and he looked at the note, still didn't say anything, didn't change what he had said. And we came out of the meeting and I said, what about the -- that specific thing, and he said there's nothing to it.

We're also being told that those groups that are there were -- they're essentially connected with Hezbollah or fundraisers rather than actual terrorist people plotting terrorism, and we're -- was told because pushed on it frequently, "Don't worry about it, we're not going to give you raw intelligence, we're not going to give you processed intelligence. If there is a threat to aviation, we will tell you."

MR. ROEMER: And this is who?

MR. FLYNN: Robert Blitzer.

MR. ROEMER: With respect to -

MR. FLYNN: No.

MR. ROEMER: Acting on -

MR. FLYNN: No, no.

MR. ROEMER: Okay.

MR. FLYNN: At the same time, there was an element of common sense in this. You have 1993, the World Trade Center, you have these groups that may or may not be associated with al Qaeda because nobody knew what al Qaeda was. Nobody knew, and to this day I'm not sure how much people understand the full motivations, capabilities, connections, et cetera of the al Qaeda organization.

MR. ROEMER: Mr. Flynn, I just read an example as far back as September 1998 that the intelligence community obtained an information specific to Usama bin Laden that his next operation could involve flying aircraft loaded with explosives into a U.S. airport.

MR. FLYNN: I don't recall that. I mean, that's such a startling thing -

MR. ROEMER: Well, we can talk about your liaisons to the FBI and to the CIA and to the National Security Council, the point is -- go ahead, sir.

MR. FLYNN: Let me get back on my train of thought, is that despite saying there are no indications of it happening, the commonsense of it is that it could happen, that where there are terrorists one of their likely targets will be aviation.

MR. ROEMER: Let's talk about that being a likely target. There is a TIPOFF list at the State Department that you don't know about until yesterday, that you don't know about that exists prior to September 11. Mr. Manno, this list has approximately 61,000 names of people around the world that are prevented from flying, that are picked out by the State Department at that point and they're picked out because they're dangerous and they shouldn't be on airplanes, 61,000 names.

Your list, according to what you just said, or what our staff has told me, is 12 people. So there's a difference of 60,988 names, a difference of 60,988 names between what's been accumulated at the State Department as dangerous people, shouldn't be flying, and what you have with your 12 people. Now, I can't understand why there are not more efforts in liaison activities to reach out to State Department and start to bring some of those names over and prevent those people from flying.

MR. MANNO: Well, again the process at the time was to include in the security directive names of people where there was specific and credible information that they posed a threat. Part of that process required, because a lot of times the information was classified, that it be declassified because the information circulars in the security directives were not classified documents that went out to the industry. And it was simply very difficult to get clearance from the community in cases where there wasn't a direct connection to civil aviation for them to get the release information. We had to justify that in each case. Now, did we do it? Did we go in and say we want all 61,000 of these names? No, that was not -- we didn't do that. We focused on the information, again, that was specific to aviation at the time.

MR. ROEMER: Let's talk about the pre-screening program, affirm that. The CAPPS program, Mr. Flynn, the pre-screening program, the computer assisted passenger pre-screening program, picked out nine of the 19 hijackers, terrorists, on September the 11th. It didn't do anything to -- what did it do to try to prevent and use common sense and provide a higher standard of keeping these people off the plane? The CAPPS system was designed with -- you know, factoring algorithms and weights and other things to say these people are a significant or a heightened threat to U.S. aircraft. Yet all nine that were picked out made it through the system. Why is that?

MR. FLYNN: The CAPPS system and you -- I commend to you for reading the report of the White House Commission on Aviation Safety and Security, was intended to ration or to allocate the measures for checked baggage on flights within the United States. That commission, who took their responsibilities I'm sure just as seriously as all of you do, and included in it the DCI and the director of the FBI, looked at CAPPS and said what we ought to do with regards checked baggage in the United States, is to use CAPPS as the process for determining the checked baggage process. With regard to the checkpoint you don't need it because it is a 100 percent application.

I remind you with regard to explosive detection systems, they cost $1 million a piece. Their installation costs vary from on up -- the installation can result in the total cost of -multiply three times the cost of the equipment for installation. The recommendation of that commission was have a capital budget of $100 million a year. A very low estimate of the number of checked baggage EDS that you would need in the United States is 1,000. Of that $100 million a considerable amount was to be used for other things, checkpoint equipment for example. So one would have a budget on average of $50 million a year for EDS. So we're looking at a 20-year program in order to install that equipment at best, so you needed to have some way of narrowing its application and that's what CAPPS was for.

MR. ROEMER: How did it narrow the application for anybody -- outside of intending to use explosive devices? How did it go at somebody that might hijack a plane? Especially given that these hijackers on September 11th may have had four-inch knives on them, walked through security, been detected with the knives and probably handed the knives back? Why did CAPPS pick these people out, allow them through and probably even allow them through with knives?

MR. FLYNN: It would have required the security measures for their checked baggage.

MR. ROEMER: Nothing else? Other than -- see, they could have had a knife on them, made the CAPPS weight and rhythm standard, been picked out as somebody with a substantially higher security risk, and still be handed back a four-inch knife to get on a plane?

MR. FLYNN: The checkpoint would not have even been aware of it. It was a process -

MR. ROEMER: Why would we not try to anticipate that given all the information coming in -

MR. FLYNN: There was no information in it -

MR. ROEMER: There's no information that I just went through, Mr. Flynn, about people that might be interested in hijacking planes or using planes as weapons?

MR. FLYNN: Oh, sure, in CAPPS the information is drawn from the passenger name record, has to do with behavior that is indicative of and then contra-indications of the behavior that indicates that you're not involved in any acts of crime towards the aircraft. Again -

MR. ROEMER: Excuse me? Can you repeat that?

MR. FLYNN: Well, there are two things in it. There are positives and negatives in CAPPS.

MR. ROEMER: Well, we don't need to get into the giving potential terrorist information as to why they're picked out.

MR. FLYNN: But doesn't lead to any identification of people as terrorists.

MR. ROEMER: Let me ask you about your relationship with some of the other security intelligence agencies that you're supposedly working with leading up to September 11th.

MR. FLYNN: Yeah, I'd like to but let me deal with your previous point -

MR. ROEMER: I've only got a couple of minutes left, Mr. Flynn, and I want to get Mr. Manno in here as well, too. Your relationship with the FBI.

MR. FLYNN: Yes.

MR. ROEMER: You and Mr. Manno have both indicated that -I think one of Mr. Manno's quotes is, quote, "You guys can tell us, the FBI, you can tell us what's happening on a street in Kabul but you can't tell us what's going on in Atlanta." I think your comment is you know more about what is happening in Beirut than what may be happening in Detroit. Why isn't the FBI able to pass on more actionable information, more helpful information? Why aren't you querying them more when all this more general information is coming in about terrorism and a U.S. presence of these terrorists and the threat to domestic airlines? Why aren't we seeing a better relationship and more information exchanged here? Why is there this so-called blind spot?

MR. FLYNN: The FBI has to do with protection of information in investigations and protection of grand jury information and various other things. But the point is that while I admire the people of the FBI and personally have excellent relations with them, we're friends and everything. That it was -- and I did insist and I got to the point where I decided that I was running the risk of making them angry and thought I'd better back off and ask Mr. Manno's predecessor, Mr. McDonald, to keep on the pressure because I was clearly irritating them by saying we need to know more, there's got to be more.

MR. ROEMER: So you kept querying the FBI to get more, to get more, to do more and they did not? MR. FLYNN: Well, they probably did but they just weren't - you know - MR. ROEMER: Did they pass it on to you? MR. FLYNN: Didn't pass it on to me. MR. ROEMER: You were not getting the adequate cooperation

from the FBI for actionable intelligence about threats in the United States, is that correct?

MR. FLYNN: Yeah, and then when it turned out to it and other people asked them, it turned out that there wasn't an awful lot other than the United States being used as an R&R base for terrorists.

MR. ROEMER: Mr. Manno, how would you characterize your relationship with the FBI?

MR. FLYNN: Well, we clearly got a lot more information from elements of the government that collected it overseas. Domestically we had a lot less information and we recognized that. That was one of the reasons why we started discussions with FBI and in 1996 actually assigned somebody to be our liaison over there and to try to place them in the right place in the FBI where we would get the most benefit.

As you know, it's a very big bureaucracy, very compartmented, and so our person over there basically had to make the rounds to try to get, you know, to get information. But I always had to do -- I mean the approach of the FBI at that time, it was an investigative agency. Everything was approached as an investigation and I think their view was if there was credible and specific information of interest to you we will provide it to you, and I think that they did.

They also cooperated with us. For example, earlier you had mentioned these two threats about crashing an airplane into the World Trade Center and another one about crashing a plane into an airport in the United States which we had factored those two things in some of the assessments that we had written about that potential threat. Well, the FBI actually ran those two threats to ground and discredited them.

MR. ROEMER: Did they share the files, the paperwork, the information with you?

MR. MANNO: They told us that it was not credible.

MR. ROEMER: Did they share the information, the paperwork and the background documents with you?

MR. MANNO: No. I don't think so beyond that, beyond telling us that there was nothing to -

MR. ROEMER: They verbally told you, "Here was what we found and we dismissed it?" They didn't exchange any kind of paperwork with you?

MR. MANNO: No because again they had assessed it as not credible.

MR. ROEMER: So you're saying the FBI, there was a blind spot there that you did not get as much information on the domestic situation in Atlanta as you might have been getting on Kabul. The TIPOFF program, you were not getting the names from the TIPOFF program in the State Department. There was a gap of about, you know, 60,988 names. Where were you getting your actual intelligence?

MR. MANNO: We did get some from the FBI. We got a lot of it from CIA. We also had a liaison officer assigned to the Counterterrorism Center at CIA and another one at the State Department in the threat analysis shop. So there was a lot of State Department reporting, a lot of CIA reporting, some FBI information, but not a daily from the FBI, not a daily flow as to what was going on in the United States in regards to their investigations. If they came across something specific, something that they assessed to be specific and credible in their investigations and we were fairly confident that they would provide that to us either directly or through our liaison officer. But we don't know what we don't know.

MR. ROEMER: Why didn't you have a liaison to NSA or to DIA?

MR. MANNO: At that time, we were a very small staff. In fact, our total shop was about 24 analysts and it was a matter of resources. Subsequent to that, of course, we now have a liaison officer at NSA, at TTIC and other places, some of which didn't even exist back then. But in trying to decide where we would assign people, again limited resources, it's where we thought we would get the most information, where it was most valuable. We did have a customer service representative from NSA that visited our office and couriered information to us. So there was a relationship with NSA. We just did not have someone there at that time.

MR. ROEMER: Mr. Chairman, thank you.

MR. KEAN: Senator Kerrey.

MR. BOB KERREY: Commissioner Garvey, I'd like to ask you a couple of questions. You had your first five-year term, I believe -

MS. GARVEY: That's correct, Commissioner.

MR. KERREY: So you were appointed in '97 and you served all the way to 2002.

MS. GARVEY: That is correct.

MR. KERREY: During that five-year period, did you ever get any complaints about the airlines?

MS. GARVEY: Complaints about the airlines or complaints from the airlines, I'm sorry?

MR. KERREY: I presume you got complaints from the airlines but did you ever get any complaints from passengers about the airlines?

MS. GARVEY: The passenger complaints would go into the Department of Transportation into the chief counsel's office. We didn't specifically get complaints in that way.

MR. KERREY: Are you alert to any complaints about excessive applications of Title 49 of the U.S. Code, the section 44902 that gives the airlines the authority -- and their language is to refuse to transport a passenger or property which carriage is or might be inimical to safety?

MS. GARVEY: We might have gotten some complaints. In fact, I'm sure we did in the Safety Office regarding -- from passengers about perhaps being mistreated or not treated correctly, at least in their view.

MR. KERREY: That's not the same thing as -

MS. GARVEY: No, no. I'm not recalling any and I'm sorry.

MR. KERREY: I'd just like to know because one of the things that I keep hearing is, gee, we don't want to put anybody on the list because we'd be harassing people and I've -

MS. GARVEY: Well, I see what you're saying.

MR. KERREY: I've stood in lots of security lines and heard lots of complaints but I've never heard that somebody has been removed from the airlines that was unsafe. I've heard a lot more complaints about people who have been prevented from getting on airlines than just because of the -- what I consider at the moment to be largely reactive as security measure but that's another point.

The no-fly list has been referenced a couple of times. Are you familiar with the no-fly list?

MS. GARVEY: Yes, absolutely, Commissioner and you know, again from my perspective and I know there has been a number of questions on this, but from the administrator's perspective, the no-fly list, as Mr. Manno indicated, was created based on information we received from others with a specific aviation -

MR. KERREY: You got Security Directive 95 of 02H, updated April 24th, 2000. Six people who are associates of Ramzi Yousef, including Khalid Shaikh Mohammed that are on the list. That's six. I presume the airlines have no difficulty handling six.

Mr. Manno, you wouldn't defend the airlines if they complained about trying to keep six people off? It may be difficult for all I know. I don't know. Is it harder than it looks?

MR. MANNO: No, not with a list that small.

MR. KERREY: What was the judgment that was made in April 2000 to put these six on the list? On what basis was Khalid Shaikh Mohammed, Ibrahim, all these guys -- there was six people on the list and then there's six more that come on the list on August 28, '01. They're also added on the list and, by the way, they all -- every single one are associated with some Islamic extremist group.

And I really think part of the problem that we're having today is we continue to tread lightly on this fact. And we keep calling them all terrorists, you know, as if there's a worldwide network of terrorists of all different stripes, of all different genders, all different kinds. I mean, the only one that makes the list -- there's actually a couple of people lower down the list that appear on there that may not be associated with this Islamic extremist effort -- are people who are associated with some Islamist extremist network. Is that your understanding of it? Is that how they made the list? I mean, they're making the list because -

MR. MANNO: The way that those individuals made the list is that it came out of the investigation being conducted by the FBI and by the Philippine authority.

MR. KERREY: So did the FBI recommend they be put on the list?

MR. MANNO: We received information that actually had originated in a cooperative effort between FBI and CIA. So we receive intelligence reporting that these individuals were tied to -

MR. KERREY: You receive intelligence reporting from CIA and FBI?

MR. MANNO: Yes, sir.

MR. KERREY: Saying that these six should be on the list? Did you -

MR. MANNO: No, sir. That they were associated with Ramzi Yousef who, as you well know, had been involved in the Bojinka plot and that they were in some way tied to that plot. So we had a concern, a specific concern about these individuals, not knowing what else they might have been up to and therefore -

MR. KERREY: Did you consider putting other people on the list at the time that might have some association with Ramzi Yousef?

MR. MANNO: These were the names that came to us in the intelligence reporting. Again it was tied back to the specific plot.

MR. KERREY: You're confusing me, Mr. Manno. At one point you're saying you're making the decision. Now it's somebody else that's making the decision. You're making the decision who to put on the list and I'm asking you, did you consider putting other people on the list beside these six?

MR. MANNO: As far as I know, at that time, those were the only names that we had tied to that plot.

MR. KERREY: Did you put out an inquiry as to whether or not there might be some additional names that should be put on the list?

MR. MANNO: Absolutely. It's part of our standard -

MR. KERREY: Who did you put the inquiry to?

MR. MANNO: With CIA.

MR. KERREY: Do you remember the response?

MR. MANNO: No, sir.

MR. KERREY: You now remember you presume that they didn't respond?

MR. MANNO: Part of the process for us, whenever we open one of the intelligence case files that I mentioned earlier, is to follow up on that and to continue to ask questions for additional information. So it's just part of the process. It's not something that was done only in this case. It's done in all cases where -

MR. KERREY: I just score the point that a number of other commissioners have made. Given the specificity of U.S. Code 49, what it requires the airlines to do, it seems to me, particularly with what was going on at the time, that some effort would have been made to make -- to produce a larger list than that. And again, I score the point, to call them terrorists as opposed to saying this is a part of a worldwide network of Islamic extremists, I think, makes it exceptionally difficult to do what you need to do, which is to identify those who are extremists and keep them on the no-fly list and keep them watchlisted as opposed to having a sort of a broad blanket screen that might produce harassment of people who just look like they might be Muslim extremists. I think there is a paradox here. Not saying what it actually is, you end up harassing people who may not actually be terrorists. But that's a longer point.

Let me ask you, Mr. Manno. You were the deputy -- was it Pat McDonald who was your predecessor?

MR. MANNO: Yes.

MR. KERREY: Were you present when he did the CD-ROM briefing on April 2000?

MR. MANNO: When it was produced, yes.

MR. KERREY: Were you present in April 2000 when he presented it?

Administrator Garvey, were you present when this -

MS. GARVEY: No, I was not.

MR. KERREY: Have you seen the details of it?

MS. GARVEY: I have not. It has only been reported to me.

MR. KERREY: When was it reported to you?

MS. GARVEY: Post-9/11.

MR. KERREY: Have you seen it, Mr. Manno?

MR. MANNO: The CD-ROM was actually produced in about 700 copies and disseminated to the aviation industry, airports, FAA field offices. So it was actually quite widespread.

MR. KERREY: I have here the rebuttal that you all have sent up for Eleanor Hill's statements that she made to the Joint Inquiry. She was, I think, the staff director for the Joint Inquiry. Things that she said about the FAA, didn't do this, didn't do this, didn't do this, and your rebuttals are basically, we didn't know, we didn't get the intel, nobody told us, right down the list. The CIA didn't tell us, FBI didn't tell us.

And I've got to say just honestly, if it had been two or three of them, I would have been on your side, but when it accumulates like 15 or 20 of them, at some point you say, geez, why didn't you push back and ask? I mean, I just tell you, my reaction to your rebuttals does not bring glory to the agency. It's quite the opposite. It causes me to say, I don't understand how there could be so many situations where you simply say, they didn't tell us.

This, by the way, is not they didn't tell us. You go through the 29 slides I think we've got here, 29 slides. Mr. Manno -

MR. MANNO: Yes, sir, I'm familiar with it.

MR. KERREY: -- you've gone through them?

MR. MANNO: Pardon?

MR. KERREY: You've gone through the slides?

MR. MANNO: Yes, sir.

MR. KERREY: Well, this is your own agency making an assessment of Islamic extremist and the dangers and the threat that they pose to the United States of America. It's not terrorists again. I hope I don't offend too much some of my Muslim friends who think that I'm being nasty in this regard. But there's nobody on this list except UBL and people that are associated with UBL or other Islamic extremist groups. I mean, that's basically what this is a presentation of. I mean, Hezbollah's identified as a threat, but you're talking about UBL all the way through this thing. You're talking about Usama bin Laden and al Qaeda and the threat that they present to the United States of America.

MR. MANNO: Well, historically the groups that have targeted aviation have been Islamic extremists, yes.

MR. KERREY: Historically?

MR. MANNO: Hezbollah. Pardon, sir?

MR. KERREY: Historically?

MR. MANNO: Historically. Going back to Hezbollah, for example, is one of the other groups.

MR. KERREY: Give me historically. What are you talking about historically? Last 10 years?

MR. MANNO: Since 1985, with the hijacking of TWA 847 by Hezbollah.

MR. KERREY: Did any change occur in 1998?

MR. MANNO: No.

MR. KERREY: So you're saying that basically you've got a -I mean, are you saying that there's no increase and concern about the danger to the United States from Islamic extremists in 1998?

MR. MANNO: No. There was. And we wrote several assessments, sent out information circulars and -

MR. KERREY: But if you -- let me just pull up one of these slides. I think it was the one that Commissioner Roemer quoted from. I've got to get the exact -- no, I've got it right here unfortunately. It's slide 24. When the conclusion is -- and I guess, Irish, I'm asking you on this one, which is when the conclusion is reached in slide 24, that fortunately we have no indication any group is currently thinking in that direction. That's the statement that's made. And there's a lot in that statement. We have no indication that any group is currently thinking in that direction.

I mean, the first question I would ask is, so, do I need an indication that somebody is thinking in that direction? I mean, take the Ressam plot. We've got the details of the Ressam plot not ahead of time. We didn't have the Ressam plot prior to arresting Ressam in Seattle, did we? I mean, even the threat to LAX. We didn't knock that threat down as a consequence of security at LAX. We didn't discover the details of the plot. So when you say, Administrator Garvey, we had -- your language is we had no credible and specific intelligence indicator that UBL and all the rest of them were actually plotting to hijack commercial planes, I'd say do you have to have a specific plot? Do you need a memo from them saying, this is what we're going to do? And the answer's no.

And so when you say, we have no indication any group is currently thinking in that direction, I wondered, did you -- was there a conversation? Is that challenged internally? I don't know what the process is. Do you have a conversation with anybody from the National Security Council? How do you get that double-checked, because as it turns out, it wasn't true?

MR. MANNO: That was an analytical judgment. There was no specific and credible information that al Qaeda or anybody else -

MR. KERREY: No, no. Believe me, I know it's an analytical judgment. I recognize it as an analytical judgment. The question is, was Jim or Mary or Dick sitting there saying their analytical judgment was completely different. And, in fact, looking at some of the previous slides, some of the previous slides state just the opposite, seem to indicate just the opposite. I mean, the possibility of a suicide bombing attack was mentioned in one of the previous slides. I mean, I do this

- I mean, it's not like I don't have internal contradictions that I don't need my wife or somebody else to point out, but did anybody else disagree at that presentation? Did anybody internal to FAA security disagree with that conclusion?

MR. MANNO: No. But, again, the hijacking threat was not discounted. But in the grand scheme of things, looking at the variety of threats that we were looking at, it was considered less of a threat at the time than -

MR. KERREY: Okay. So it's less of a threat. You say it's a low probability. That's not very comforting to passengers to hear that if it's a low probability, don't do anything with it. I mean, God, how high probability is it I'm going to do any damage with my fingernail clippers on an airplane, but you take those every damn time I get on the plane. So you've got a low probability for hijacking and therefore we're not going to put much energy into it. Is that what you're saying?

MR. FLYNN: May I -

MR. KERREY: Yes, sir.

MR. FLYNN: We were working hard on the anti-hijacking. And the improvement of the pre-board screening was an important aspect of it. I did not see, and as I said earlier, should have worked at it harder to see how is it that they'd bring it about.

MR. KERREY: Well, let me -- can I -

MR. FLYNN: Sure.

MR. KERREY: I'll just make the declaratory, because I want to -

MR. FLYNN: And with regard to the thing you were reading, that happens to be after I left FAA. But the -MR. KERREY: In May of 2000?

MR. FLYNN: Was that in May of 2000?

MR. KERREY: May of 2000.

MR. FLYNN: No, no. That was before. That was when I was there.

MR. KERREY: I mean, I just tell you, I asked staff to give this to me and I just read it this morning and you can't blame the CIA and the FBI on that one. I mean, you've got enough information already internal to FAA that said you be -- it's not -- again, it's Usama bin Laden and Muslim extremists. I mean, there was one incident of a hijacking with the possibility of a suicide where they were actually saying they wanted Ramzi Yousef released. I mean, the whole story line as presented just by that single narrative from that presentation in May says we better be careful about hijacking. We better move the possibility even of a suicide hijacking up on our list.

And, by the way, the declaratory that I wanted to make to all of you is that I know it's a very sensitive document, but among the concerns that I had pre-9/11 and I've really got it still today, are the details of what's called the -- what do you call it, the Air Carrier Standard Security Program. Are you all familiar with the air carrier? Administrator Garvey, are you -

MS. GARVEY: Yes. Yes, sir.

MR. KERREY: I mean, that's basically -- you know, what do people do on the plane if they're facing a hijacker. And I think those procedures were wrong. On the morning of the 11th of September, I think those procedures made it almost impossible for these guys not to fail. They would need these -- the Leatherman knives that were being passed around. I think the procedures were flawed then and my concern is they may still be flawed. mean, are they reviewed?

I mean, Irish, as a special ops guy, do you look at these things and say, okay, now you've got four guys on an airplane, a relatively confined piece of real estate. And you've followed what Congress has done. My God, the pilots have guns now. You know, and my experience is people have become pilots because they don't know how to use guns, now they got guns. And, by the way, they're going to be shooting in the wrong direction as far as I'm concerned.

So, I mean, have we reviewed this? Was it on the list of things in May of 2000 as you're evaluating what you're going to do to carry out U.S. Code 49? Who are you going to deny on there? Who's going to be dangerous on there? Is that part of the evaluation that was going on? If so, why was it not changed? Yes, sir.

MR. FLYNN: With regard to keeping -- preventing of hijacking, the program for it was indeed to keep determined hijackers off. And the hijacking scenario that one had in mind was taking the aircraft, taking it on the ground, taking it on the air, but bringing it to ground and asking for the release of people, for example.

MR. KERREY: How many flights a day in the United States of America?

MR. FLYNN: Forty thousand.

MR. KERREY: Commercial flights.

MS. GARVEY: I was going to say 35,000 to 40,000.

MR. KERREY: One of -- I mean, I understand that I -- I've got obviously some sharp questions of all of you what was going on pre-9/11. I'm also very much aware what I was being told by Sandy Berger, George Tenet and others about bin Laden and I know that it was in a presidential directive written after 1998 and I said it before and I'll say it again. After the attack on Dar es Salaam in Nairobi -- and I say it with great respect, Administrator Garvey -- you said that after 9/11, there was a war, before 9/11, there was a war. There was a war before 9/11. It didn't start with 9/11. That was one of the military actions against us.

There was a war going on before that and I'm not blaming you for this because it seems to me at some point the President's national security advisor, whether it was President Clinton or President Bush or Burger or Rice, they got to drive this thing all the way down to the FAA or it's not going to work. You're the only -- with all kinds of other problems, whether it's CIA or the FBI simply saying, "We're not going to tell you what's going on." But at the time, in 1998, there was no question that bin Laden was public enemy number one and that he had declared on us and that, by the way, he was enormously sophisticated.

It was not like World Trade Center I where somebody was trying to get a refund on a Ryder truck. They were very sophisticated to be able to hit Dar es Salaam and Nairobi in the way that they did and it should have, I think, then driven all the way down to the FAA so that you modified and changed the procedures on that airplane -- on those airplanes. I passionately believe that's the case.

MR. ROEMER: If I could just jump in -

MR. KERREY: You can take over.

MR. ROEMER: -- it wasn't just a one-trick pony. We did not have other mechanisms to go after things other than explosives. In testimony to Senator McCain's committee, Administrator Garvey, you said and I quote, "All of our security directives, all of our security recommendations in the past have been geared toward explosives. This was a whole new world for us."

MS. GARVEY: That is correct, sir. I mean, the assumptions were -- as you all have indicated, as the staff indicated in their report -- the assumptions were turned on its head and that's correct.

MR. ROEMER: Thank you, Mr. Chairman.

MR. KEAN: Commissioner Gorelick.

MS. JAMIE S. GORELICK: Thank you, Mr. Chairman.

These are questions for Admiral Flynn and Director Manno. You were both present, in your respective positions, in the run-up to the millennium. My first question for you is this, did you have procedures in place for enhancing the security measures at airports or otherwise when there would be a security alert? Did you have the ability to ratchet up the policies and procedures for security before people boarded aircraft?

MR. FLYNN: Yes.

MS. GORELICK: In the period just before the millennium, when the entire government was on alert about the possibility of a terrorist act in the United States, did you take any steps to increase security measures or enhance security measure in our airports or pre-boarding?

MR. FLYNN: We had and the entire baseline effort was directed towards that.

MS. GORELICK: I don't understand the answer. In the period

MR. FLYNN: I'm sorry. From the period of '96 through 2000, we were working all the time to improve the effectiveness of pre-board screenings?

MS. GORELICK: But you just said you had the capacity to ratchet up security measures -

MR. FLYNN: Yes.

MS. GORELICK: -- and I'm asking, in the period prior to the millennium when the entire government was on alert, did you put in place those enhanced measures?

MR. FLYNN: They were in place. We did not, that I recall, other than when Ressam was caught -- then we did some additional specific information. But I don't recall SDs that we did in that period because we were strengthening the basic program to deal with that.

MS. GORELICK: So, just so I understand it, after Ressam was caught and we knew that there was an attempt to infiltrate this country, that specifically airports were being targeted, did you or did you not take additional measures beyond the measures that had been in place before he was caught to strengthen security in aviation?

MR. FLYNN: I don't recall putting on SDs at that time. recall very definitely that what we did with regards to Ressam is make everyone aware of what a bomb made with the materials that he had would look like and we did that even before I was aware that LAX was on his mind.

MS. GORELICK: So, in other words, your response was to disseminate specific information but not to do things like look at carry-ons, inspect carry-ons, which you weren't routinely doing or look for additional names to put on a no-fly list or anything else that might relate to aviation security.

MR. FLYNN: We were routinely and with increased emphasis looking at carry-ons.

MS. GORELICK: You were inspecting the insides of carry-ons or you were screening carry-ons?

MR. FLYNN: Both.

MS. GORELICK: On a routine basis, you were looking on the inside of carry-ons prior -

MR. FLYNN: We had a continuous opening and search routine. In effect, it was at random and then additionally, when there was any indication in an X-ray requiring that there was something dangerous that required opening, all electronic items and on a random basis additionally, there was trace explosive detection that had been done at that point.

MS. GORELICK: When someone set off a magnetometer, was their bag routinely opened? Their carry-on bag?

MR. FLYNN: No.

MS. GORELICK: When they set off a magnetometer twice, was their bag opened?

MR. FLYNN: Not unless there was some indication in the bag or if something dangerous was determined -- was taken off the person, then there had to be additional scrutiny of the bag. If there was cause to suspect this person.

MS. GORELICK: You answered my question a minute ago. asked you whether there were enhanced procedures that you could utilize when there was a specific security alert, you said yes. What were those procedures? What would you do when there was a security alert, when you were essentially going to orange from yellow, although we didn't have color coding at the time?

MR. FLYNN: One could require, for example, searches of vehicles at the front of the terminal. One could require the stopping of parking within a certain range of the terminal. We could require additional searches of people on the basis of some indication that would come to you that they would be naval aviators from Philadelphia or whatever.

MS. GORELICK: In the spring and summer of 2001 -- I guess this would be a question for Mr. Manno -- you were aware, were you not, of the heightened security warnings that were going out through the government?

MR. MANNO: We put out warnings during that timeframe as well for our customers.

MS. GORELICK: Did you consider, at that time, increasing the security measures in the way that Admiral Flynn has just described to meet this enhanced security threat?

MR. MANNO: It was not the role of the Office of Intelligence to direct security measures. Our role was to try, to the extent that we could, to identify the threats and then provide that information to the aviation policy and operations folks to determine whether or not measures should be increased. There were efforts that were made. Going back to the Ressam example, there was a mad effort to try to figure out what he was actually up to.

In fact, one of the things that was done was that our bomb explosives -- our explosives unit looked at what was actually seized and tried to figure out, okay, with these types of explosives, these types of timers, what sort of device could be constructed to target civil aviation. And then, based on that information, the possibility that having those components, what could be done. We sent out an information circular to sensitize screeners and the airlines to that potential threat.

MS. GORELICK: But you had in the - turning back to the summer, spring and summer of 2001, we have heard testimony and we have ample evidence that across the intelligence community, literally hair was on fire through June through the summer and even going back a little bit before June but through the spring and the summer, a high, high state of alert -

MR. FLYNN: Let me try again. It started with the World Trade Center. It continued with Yousef's efforts out in the Pacific and it continued with the information that we've been talking about, the various interests of the UBL in attacking us. And in '96-'97 we hammered out an elevated baseline. We had been going back and forth with security directives with occasional spikes in security and then bringing them down. We said, no, we get it up to this level.

And our effort in those times of undetermined but probably higher threat, what's happening with the millennium? Well, we don't really know what's going to happen at the millennium, but something is going to happen. What you do in those -- what they did in those circumstances was to increase surveillance on all the inspection activities and to increase awareness in the form of putting out ICs and meetings with the security directors and meetings with the airlines and meetings with the airports to say, we need to be on our toes.

MS. GORELICK: So the additional measures -- you could and did take additional measures when there was a high level of security alert. Is that correct?

MR. FLYNN: No. The baseline was meant to deal with an elevated level of security.

MS. GORELICK: So you did not have additional -- I am terribly confused here. Now -

MR. FLYNN: I'm sorry.

MS. GORELICK: -- please excuse me. I asked you the question whether you had additional measures that you could take that you had. I understand you were -- you feel that you were operating from a high baseline.

MR. FLYNN: Right.

MS. GORELICK: I asked you did you have additional measures that you could take? And the measures could be anything from sending out directives, to engaging with airport security personnel, to engaging directly with the airlines, to changing the modalities like searching and getting additional names for the no-fly list. There's a panoply of things that you