This week, the President announced new antiterrorism measures in wake of the bombing in Oklahoma City. We welcome the opportunity to join our resources_and expertise with other Federal law enforcement and intelligence agencies in attacking the terrorism problem. The anti-terrorism initiative that the President discussed last night with Congressional leadership also contains provisions that will enhance our ability to enforce the explosives laws and to address the terrorism problem. That completes my statement. I will be happy to answer any questions.

The CHAIRMAN. Thank you, Mr. Noble. We appreciate the testimony of all three of you. I can only stay to ask one question and then I am going to turn the gavel over to Senator Specter. Senator Biden and I have agreed that we will limit questions to 7 minutes per person, so I will just ask one of Director Freeh.

I understand that the administration is working on a Presidential decision directive setting forth agency responsibilities to combat terrorism. Now, what are your views and what do you think that presidential decision directive should contain?

Mr. FREEH. The President, of course, announced Sunday that the Attorney General, the National Security Adviser, and the FBI Director would propose and draft for his signature the presidential directive regarding counterterrorism strategy and planning both here and overseas. That is an ongoing process which is moving very quickly. I would simply state, and I think everyone would agree, that it ought to be clear and unambiguous. Somebody ought to be in charge when the bomb goes off. We think that should be the FBI, and we are very confident that this process will quickly result in a directive which the President can prepare and sign.

The CHAIRMAN. Well, thank you. I apologize to each of you for having to leave, but the last of Elaine's and my children is graduating from college and I am going to be there. I have to say that we have plenty of expertise on this committee, not the least of whom is Senator Specter, who chairs both the Subcommittee on Terrorism and the Intelligence Committee. So we will turn the gavel over to him and he will take his 7 minutes of questions. Thank you.

Senator SPECTER [presiding]. Senator Biden.

Senator BIDEN. Thank you for your testimony. Obviously, in 7 minutes, which is a reasonable limitation which we have placed on ourselves, maybe all of the areas I am interested in will be covered. You have always been available, all three of you, and I would tell you in advance I may ask to speak with you on the phone or submit in writing to you some additional questions than what I may

cover.

I would like to ask you, General Gorelick, you mentioned the need to allow limited use of the military in chemical weapons and other cases of that nature. However, as I understand it, as I read it, section 101 of S. 390, the bill that Senators Specter, Kohl, and I introduced on behalf of the President, contains what appears to be a far broader provision allowing the use of the military in international terrorism offenses.

Now, what is the difference between the provision which we introduced, and I think you are familiar with, in S. 390 that we introduced at the request of the President and what you are proposing relative to domestic use of the military?

Ms. GORELICK. As you know, the Posse Comitatus Act prevents the military from providing assistance to domestic law enforcement in domestic law enforcement situations, which would include do

mestic terrorism cases. There is a statutory exception in 18 U.S.C. 831(e) for assistance from the military when a terrorist has use of a nuclear device.

We would like an expansion

Senator BIDEN. A domestic terrorist has use

Ms. GORELICK. A domestic terrorist has a nuclear device. We would like that limited exception to be expanded to include biological and chemical warfare weapons. Right now, the military is the sole possessor of the technical expertise with respect to the handling of those, and while we may get advice, we may not, consistent with the Posse Comitatus Act or the current proposal in the antiterrorism legislation, receive actual assistance.

Senator BIDEN. Director Freeh, I join with everyone else in recognizing, not even applauding, just recognizing the great skill and professionalism with which you and your agency have moved. It does make a difference when the public and the Congress and both political parties start off with the same basic premise, and that is they have absolute faith in the man or woman in charge of an enterprise. You have, in that way, made our job much easier.

We can find everything to disagree about up here, and it is nice to start from a premise where there is no disagreement, and I mean that sincerely. So when I ask you the question I am about to ask you, knowing you, it will be a considered answer, and if you are not prepared to answer it now, I would like you to withhold an answer and submit it to us in writing later.

I indicated at the outset of my statement that I think one of the two most important things we can do is to begin to have the American public regain confidence in the Federal system, the electoral system as well, and one of the ways to do that is, at a time of national mourning and national crisis, for us not to bicker. We political parties bicker here in Washington.

One of the things that is going to be introduced that there is some disagreement on-the President wants a, "clean" antiterrorism bill, clean meaning dealing with just the tools you need, the resources you need, the changes in the law you need to deal with terrorist acts. Yet, I am confident that some legislation will be introduced that deals with issues that are very important to be debated in the criminal justice system, but which at least some argue are extraneous to the issue of what additional authority and resources should be granted, and one of those is habeas corpus.

Habeas corpus is something that Senator Specter and I, for example, have been working together on, and sometimes at odds with each other and sometimes in concert with each other, trying to come up with a solution to change what we both acknowledge is a habeas corpus law, and application of a law, that is cumbersome and an impediment in many instances to the exercise of a duly arrived at sentence. There is legitimate intellectual and political debate surrounding that subject.

My question to you is in terms of the tools you need now and the tools you need in terms of prevention, as well as investigative tools and resources, is that something that you want us to attach to whatever legislation we pass relating to terrorism, as opposed to

when it is scheduled to be debated and added or not added in the crime bill legislation that is coming up in the next month?

Mr. FREEH. That is a question, Senator, that my law professor would have called a political question, I think.

Senator BIDEN. Well, I don't want it to be political. Do you need that tool now? That is my question.

Mr. FREEH. I certainly don't need that tool now with respect to prosecuting this case and doing all the other things I need to do with respect to counterterrorism.

Senator BIDEN. For example, there are people who have come to me and I don't think we should do this to add amendments to this core bill that Senator Specter and I introduced earlier on international terrorism that relate to cop-killer bullets. If I asked Mr. Noble whether or not there should be the authority to ban cop-killer bullets and it would let them ban any bullets shown to penetrate vests, I know him; he would like that authority.

Mr. NOBLE. Might I say that I teach law at the law school that Director Freeh graduated from, so I would say that is a political question and probably wouldn't answer it as well.

Senator BIDEN. Well, the point I am trying to make here is that there are a lot of things we can add to this that I think are powers that you may find useful and that we could all agree on. The most important thing you need now, though-correct me if I am wrong— is the resources. You need more agents. You need more ability to put more people out on the street, in the field, to be prepared to deal under our Constitution with the ability to anticipate and prevent this kind of thing from happening. Is that the basic need you have right now?

Mr. FREEH. Yes. The FBI, as well as the other agencies, need people. We need resources. We need infrastructure, which has been ignored for the last 10 years. Those are the basic tools that we need. The authority that is currently existent is very powerful and very effective.

Senator BIDEN. My last question is this: Under the present guidelines, which we will be discussing, I am sure, and that you are reviewing and the President is reviewing, there are certain circumstances under which you can gather information without "penetrating" an organization. You can gather pamphlets. You can gather public statements made. You can file them, catalog them, look at them, and at some point that may rise to the level of you believing that there is sufficient reason to look beyond gathering public statements. Is that correct?

Mr. FREEH. That is correct.

Senator BIDEN. Now, one of the things that is often stated by various groups that are growing up around the country is thatfor example, in the State of Delaware a spokesperson for a particular organization said they are absolutely confident that this bombing was done by the Federal Government; that Federal agents did this in order to allow for an atmosphere to be created to investigate those organizations. Is that the kind of statement that you end of cataloging or is that the kind of statement, when drawn to your attention, doesn't matter?

What I want to get a sense of, and I think the American people are asking, and I am too, is how do you look at what is a general

statement that falls under freedom of speech and a statement that may or may not begin to border on something that, in your trained analysis and trained eye, is something that warrants you looking at further?

For example, are you able to, under the law now, penetrate a gang that is a gang, you know, the bad guys of 22d Street just because you want to see what they are doing? Are you allowed to do that now or do you have to have a reason to believe that they are committing a crime or about to commit a crime?

Mr. FREEH. Well, the threshold may be lower than "reason to believe," but in the facts of your question, no, we would not be able to penetrate that group. As to your prior question, we look at speech, plus circumstances. We don't simply look at speech, but in the context of those circumstances we may well have the authority under the current guidelines to begin either a preliminary or a full investigation.

Senator BIDEN. I think at some point what I am going to want to know is how you all read that threshold in terms of not specific examples of names of particular groups, but so we can give some assurance to the American people that, on the one hand, you do not go out and randomly violate people's civil liberties and invade their privacy and affect their constitutional rights, but on the other hand you are being watchful, because you get criticized both ways. You get criticized both ways when people hear outrageous statements being made and say, why didn't the FBI-I get calls saying why didn't the FBI investigate that group that has all those guns and says that this is obviously a plot by the Federal Government to blow up Americans. I mean, isn't that enough, Biden?

So at some point, I think in a public forum it is appropriate for the Justice Department and you to come back to us and help educate us and the American people as to the modus operandi of the agency and give hypothetical cases to give the American people some sense that, A, there is a balance, but, B, there is vigilance. I thank you very much.

Mr. FREEH. Thank you, Senator.

Senator SPECTER. Thank you, Senator Biden.

I begin with that issue which I believe to be central, and as I understand from my discussion with FBI officials, there is dissatisfaction with the current Attorney General guidelines. I begin, Ms. Gorelick, on the record discussing an issue about which you and I have talked informally, and I do so with a hypothetical which you and I discussed earlier, and that is the Michigan Militia.

I do not suggest that they are involved in the Oklahoma bombing, but we have seen graphically on national television many people in uniform under arms. They have a constitutional right under the second amendment to bear arms. We have their commander, Commander Olson, saying that he can understand why the bomber detonated the Oklahoma City Federal building. I cannot understand how he can understand that, but he says he understands it. There is open talk of a rebellion and there are paramilitary organizations in 26 States.

Now, on that state of the record, I do not believe that there is an indication of a crime, which is the threshold Attorney General's standard for an FBI investigation. Now, my question is as follows.

Doesn't that factual predicate warrant inquiry by law enforcement to see how many people there are under arms; what their purpose is; what connection, if any, they have with organizations in other States? Isn't there a sufficient problem there that there at least should be an infiltration?

Where a person offers to join, does not do it by sneaking into the place at night without a warrant and searching and seizing, but says, I want to become a member of your organization, they don't have to let him in, but he does become a member of the organization, he does report back to the FBI. Why shouldn't that be a standard under which the FBI could operate?

Ms. GORELICK. Let me answer your question in two parts, but first I have to begin with a preamble. I would prefer actually to discuss this in hypothetical terms, real hypothetical terms, and not the hypothetical of the Michigan Militia or any other militia. Having said that, let me answer what I think the guidelines would permit, and then I would like to talk about how the guidelines have been viewed, and then perhaps you might want to hear Director Freeh's views on this.

I believe, in the hypothetical that you have described, certainly there would be the basis for a preliminary inquiry, which is a lesser standard than even the "reasonable indication" standard that permits you to open a full investigation. Under a preliminary inquiry, you can use informants. You may not have probable cause for a wiretap, but you could use informants and you could collect information and then determine whether you have reasonable indication for a full-fledged investigation.

Senator SPECTER. Are you saying that you can do a preliminary inquiry, which is really a form of investigation, without an indication of a crime? Because that is not the way I read your Attorney General guidelines.

Ms. GORELICK. Yes. Without a reasonable indication of a crime, a preliminary inquiry can be undertaken, indeed. It is a lesser standard than "reasonable indication."

Senator SPECTER. Well, how far can the preliminary inquiry go? Ms. GORELICK. A preliminary inquiry is limited in time. I can get you the precise definitions of it, but it is something that can be undertaken. You can use many investigative

Senator SPECTER. Ninety days?

Ms. GORELICK. Ninety days. It can proceed beyond that with permission from a supervisor.

But the second part of my answer, if I could get to it, is that because of the context in which the guidelines were originally promulgated some 20 years ago, which was after the Church committee held its hearings into the conduct of the FBI, as well as criticism of the conduct of domestic security investigations by the FBI, there has been some considerable doubt as to what the guidelines permit.

These guidelines were issued by Attorney General Levi and were reissued by Attorney General Smith in the Reagan administration and the current version was issued by Attorney General Thornburg in the Bush administration. But even with all of those iterations which have basically kept the guidelines intact, there has been, I