TESTIMONY OF WILLIAM BARR - ROLES AND CAPABILITIES INTELLIGE

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TESTIMONY OF WILLIAM BARR
HEARING OF THE COMMISSION ON THE ROLES AND CAPABILITIES
OF THE UNITED STATES INTELLIGENCE COMMUNITY
Room SD-106
Dirksen Senate Office Building
Washington, D.C.
Friday, January 19, 1996

CHAIRMAN BROWN: Thank you.

Our next witness is the Honorable William Barr, who served as Attorney General of the United States in the Bush administration. He is now Senior Vice President and General Counsel of GTE.

Mr. Barr had previously been Assistant Attorney General, the Office of Legal Counsel, and subsequently Deputy Attorney General. He also had served on the White House domestic policy staff during the Reagan administration, and he started his career as a CIA analyst, and then assistant legislative counsel to the CIA, which will fuel many conspiracy theories, despite which we are honored to have Mr. Barr with us today. Thank you for coming.

STATEMENT OF HON. WILLIAM P. BARR, FORMER U.S. ATTORNEY GENERAL, CURRENT SENIOR VICE PRESIDENT AND GENERAL COUNSEL, GTE CORPORATION

MR. BARR: Thank you very much. I thought what I would do is just make a few preliminary comments about the relationship between law enforcement and intelligence, and I hope that that may trigger some questions, and then I could focus in on particular areas of interest that you have.

It's a pleasure for me to have this opportunity, because I think that there's never been a greater need for a robust intelligence capability in this country than now, and although the Cold War is over, in many ways the task of intelligence is more difficult than ever and more needed than ever, and in that I would include not only the function of collection of intelligence, but also my view that we need a very strong covert action capability.

At the same time, obviously, I am a proponent of strong law enforcement and the need to maintain law enforcement capabilities in this country that are second to none. It is an interesting time for those two communities, because more and more we are seeing an overlapping of responsibilities.

Much of what we view as national security interests also implicates the criminal laws of the country, and obviously the drug war and terrorism are the two most obvious examples, but there area plethora of other examples ranging from financial crimes such as counterfeiting U.S. currency, proliferation of nuclear weapons, and so forth.

Any areas that implicate international affairs are now part and parcel of our criminal law. One overall concern I have had, or perspective, is that we are moving in an unfortunate direction of putting too much emphasis on the law enforcement side of things. We have a tendency to pursue some of these matters solely or primarily on the law enforcement track, and when the law enforcement juggernaut gets going, everyone else steps out of the way.

I think that's appropriate in certain cases, but it's not appropriate in all cases. I think of, for example, Pan Am 103, which we indicted the two Libyan intelligence officers while I was Attorney General. That's a situation where it may have made sense to carry out a criminal investigation, but when you think about it, it's not a situation that really is amenable to the machinery of law enforcement and to the end game of law enforcement, which is prosecution.

These are individuals in a renegade country. They're not going to be delivered over to us for prosecution, and we are using a standard of proof, beyond a reasonable doubt, that I'm not sure is appropriate to be using in terrorist cases.

Do we really want to lock ourselves into a situation where, when a terrorist action is taken against Americans, we're going to stand there, take whatever time is necessary to ascertain who did it beyond a reasonable doubt, which is the standard we would use in law enforcement?

If we go down that path, that has a lot of implications, because there will be many cases where we have some reasonable assurance they did it, but we can't prove it beyond a reasonable doubt, so that's an area where we sort of let the law enforcement juggernaut go down the track, and I'm not sure that was a good idea, to look at it in that way, particularly the end game.

In my view, if we had been told the day after Pan Am 103 went down, if we were told that it was the Libyans, there's no doubt in my mind that we would have taken strong retaliatory action of the military type, and yet, because we're civilized, we take over 2 years to determine that beyond a reasonable doubt. We determine who did it, and then we sit around fine-tuning worthless sanctions against the Libyans.

Another example in my view is Kung-Sa, the drug area. Kung-Sa is a guy who controls about half of the heroin that comes into the United States. He sits 2 kilometers inside the Thai border, inside Burma, or Myanmar, as it is now called, with his koi fish pond and his seven mistresses enjoying the life of Riley, and we've indicted him in the United States. Does that make much sense? We can indict him from here to eternity, and it's not going to have any impact on the heroin trade.

I view that as a national security issue. The Burmese are not going to do anything about it. Even if they wanted to, they can't do anything about the Shan Army sitting over there on the eastern side of Myanmar, because they don't control the territory.

The PRC is very upset at this character, we're upset at the character, the Thais are, too, at least they say they are, and everyone sits around and relies on this law enforcement process to deal with this problem with Kung-Sa.

So I think one of the problems we have is that Americans are enamored of the law enforcement process, the Perry Mason syndrome, the courtroom, the buzz words, and they think this is a great tool, or a great machine that we have. It isn't for many things, and I think we have to start looking at these things in a broader perspective.

National security in some cases, in many cases, law enforcement will be the end game. Law enforcement investigations should occur on many -- on all the terrorist activities, in my view, and in many of the drug fronts, but we shouldn't look at it as the exclusive means or the primary means, necessarily, of doing anything, particularly when you're dealing with what we have in the world today, which are many sort of no-man's lands, whether it be the Upper Huallaga Valley of Peru, or the Becca Valley, or countries like Libya, where essentially we don't have lawful regimes, or regimes that abide by the normal standards of the international community.

One of the difficulties is it's very hard to say up front -- you can't really make a decision up front whether you're ultimately going to go down the law enforcement route or go down a national security route, so in most cases, in my view, you have to go down both tracks at the same time, and ultimately you have to make the call which side you're going to deal with something on, the law enforcement or the national security side, and this means, I think, sharing information.

It becomes very important and very touchy. I say sharing information, not tasking the intelligence community to support law enforcement, because I don't think that the intelligence community really can function as an adjunct of law enforcement. It doesn't have the capacity, and that mission is very different from its own, and really I think would impair its own very important mission.

But I do think that a lot of the information that is developed in intelligence can be of use in law enforcement, and we have to find a way of using that information but doing so in a way that protects intelligence sources and methods, and ultimately have a willingness not to go forward with prosecutions if there's any risk of disclosing sensitive information.

I think that what we have to do is develop a mechanism, a crosswalk, if you will, between the activities of law enforcement and the activities of the intelligence community manned by law enforcement analysts, intelligence analysts with counsel who are very experienced in the handling of information and the protection of information and the standards of evidence, and so forth, and that can serve as a filter for information going into the law enforcement community without having direct contact between the prosecutors and the agents who are working on a case, and the intelligence analysts who are handling their own matters.

I think the FBI is the only agency, really, who has that kind of experience as a crosswalk, because it operates both in the national security area and in the law enforcement area, and I think that they could provide a lot of support and assistance to that kind of function.

Right now, I think it has a bit of a haphazard, sort of ad hoc flavor to it, the way things are done, the sharing of information. Part of that is really the decentralization of law enforcement itself. I think this is a prime problem in the way law enforcement and the intelligence community work together, and that is decentralization within the Department of Justice.

You have 92 U.S. Attorneys, you have 52 FBI field offices No one person in the Department necessarily knows everything that's going on at any one time. It's hard to know whether a particular case has suddenly come up in the field and may implicate the Iranians or the Iraqis or what-have-you, and if you're sitting over at the CIA and you have some interesting information, you don't know who to give it to in the Department of Justice. You don't know what office is handling it, you don't know whether it's a case, and so forth.

So we do have -- I think it's a challenge for the Justice Department and any Attorney General to get a better handle on what's going on in the Department.

During the Persian Gulf War, we sort of set up an ad hoc mechanism to try to monitor all the cases that might affect the Iraqis or the Iraqi interests. I was surprised at the number of cases that were percolating around the country.

Finally, there is a great deal of proliferation within the executive branch. There are a lot of law enforcement agencies. They all have their own little intelligence units now. My view is, we have to do a lot of consolidation of that. There are a lot of Treasury agencies that should be over in the Department of Justice. I think that the Department of Justice should worry about things that go clink, clink, not worry about things that go boom.

I don't know what the ATF is doing -- I don't know what the ATF is doing kicking in doors and seizing guns and investigating bomb blasts over at the Department of Treasury. I don't say that because I have anything against ATF. They're an outstanding agency, and I think John McGaw, who's head of it, is an outstanding law enforcement officer, but really they should be in the Department of Justice. There are customs functions that should be over there.

There should be a rationalization and a consolidation which I think will help interaction with intelligence and help us fuse some of our intelligence capabilities more closely together.

Finally, and this is the final point I'd just sort of like to offer, this country would be well-served if there was more coordination of technology in the law enforcement area under the Attorney General, and the application of intelligence kinds of technology into law enforcement applications.

We have a lot of technology that's emerging. It would be tremendous for law enforcement -- ways of identifying people, ways of following people.

During the Persian Gulf War, where I had responsibility for domestic defense against terrorist threats, I was appalled at some of the gaps, frankly, that we have, and the fact that with a little bit of elbow grease on the technological front we could provide a lot more protection for the American people against terrorist threats, and yet there's no person in the executive branch looking at this from a law enforcement standpoint who has the muscle to really focus our energies and make sure we're covering the technological bases from a law enforcement perspective.

So that I'll sort of conclude my stream of consciousness remarks, and maybe I've triggered some questions.

CHAIRMAN BROWN: Thank you very much, Mr. Barr, for what I think was much more than a stream of consciousness presentation. I think you have illuminated for us an issue on which the Commission itself has spent a good deal of time, and to which you bring an especially well-informed perspective, having served on both sides of the law enforcement, intelligence, or national security boundary.
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http://www.fas.org/irp/commission/testbarr.htm

William P. Barr is executive vice president and general counsel of Verizon. He heads the legal, regulatory and government affairs group. ...
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