[Senate Hearing 107-514]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-514
 
CONFIRMATION HEARING ON THE NOMINATION OF ROBERT S. MUELLER, III TO BE 
            DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION
=======================================================================


                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION
                               __________

                       JULY 30 AND JULY 31, 2001
                               __________

                          Serial No. J-107-33
                               __________

         Printed for the use of the Committee on the Judiciary




                     U.S. GOVERNMENT PRINTING OFFICE
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director









                            C O N T E N T S

                              ----------                              

                         MONDAY, JULY 30, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    12
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    16
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     7
Kyl, Hon. John, a U.S. Senator from the State of Arizona.........    21
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    20
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    15
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................    15

                        STATEMENT OF THE NOMINEE

Mueller, Robert S., III, of California, Nominee to be Director of 
  the Federal Bureau of Investigation............................    23
    Questionnaire................................................    31

                         TUESDAY, JULY 31, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................   131
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    95
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.   132

                               PRESENTERS

Boxer, Hon. Barbara, a U.S. Senator from the State of California.    97
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    95






  NOMINATION OF ROBERT S. MUELLER, III TO BE DIRECTOR OF THE FEDERAL 
                        BUREAU OF INVESTIGATION

                              ----------                              


                         MONDAY, JULY 30, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1:07 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feingold, Schumer, Edwards, Hatch, 
Thurmond, Grassley, Specter, Kyl, and Sessions.
    Chairman Leahy. I want to welcome Robert Mueller and his 
family. Actually, before I start my statement, Mr. Mueller, 
because of the age of some and knowing they may not have quite 
the staying power that the rest of us have, why don't we change 
order slightly. Why don't you introduce your family. Both 
Senator Hatch and I and Senator Specter and Senator Feingold 
have already met them, but would you please introduce them?
    Mr. Mueller. Thank you, Mr. Chairman. To my left is my 
daughter, Melissa; my wife, Ann; next to her is my daughter, 
Cynthia, holding Robert Charles; and next to Robert Charles, 
glaring at me, is my granddaughter, Campbell, with her father, 
Chris Donley; and two friends to my left, another Campbell, and 
Carolyn Howe, good enough to help us with the young ones today.
    Chairman Leahy. You are blessed with a fine family, and as 
I mentioned earlier, just so everybody will understand, we 
expect that perhaps the attention span of some will be less 
than that of the Senators or the nominee, so feel free to slip 
out that back way at any point.

  OPENING STATEMENT OF HON. PARTRICK J. LEAHY. A U.S. SENATOR 
                   FROM THE STATE OF VERMONT

    Chairman. Leahy. We are, as I said, beginning the hearings 
today on the nomination of Robert S. Mueller, III, to be 
Director of the Federal Bureau of Investigation, frankly, among 
the most important positions in our Government. He has had an 
outstanding career in law enforcement, served as a Federal 
prosecutor in three different U.S. Attorneys' Offices. He 
served in Main Justice under both Republican and Democratic 
administrations.
    For Mr. Mueller and for this committee and for the Nation, 
this is more than a job interview because we are at a crucial 
juncture for the FBI. Well beyond an interview, in many ways 
this hearing will be a redefinition of the job of FBI Director.
    The committee wants to forge a constructive partnership 
with the Bureau's next Director. We do this to get the FBI back 
on track. Congress sometimes has followed a hands-off approach 
about the FBI. Until some of the problems we see are solved, we 
are going to need a hands-on approach.
    The rights of all Americans are at stake in the selection 
of an FBI Director. He has extraordinary power to affect the 
lives of ordinary Americans. By properly using the 
investigative powers, the FBI can protect the security of all 
of us to combat sophisticated crime, espionage and terrorism.
    But these same powers the FBI has, if they are unchecked, 
they can undermine our civil liberties, our freedom of speech 
and association, and the right to privacy. If the FBI leaks 
information, they can destroy the lives and reputations of 
people who have not been charged or had a trial. And, worse, 
such leaking can be used for political intimidation and 
coercion.
    By respecting constitutional safeguards for criminal 
suspects, the FBI can help ensure that persons accused of 
Federal crimes receive a fair trial and that justice is served. 
Our paramount standard for evaluating a new Director is his 
demonstrated adherence to the Constitution as the bulwark of 
liberty and the rule of law. This is necessary to assure the 
American people that the FBI will exercise its power and 
exercise it in a proper fashion.
    Now, many in our country have lost some confidence in the 
Bureau. That is more than just a PR problem, because if you 
erode public trust, then you erode the ability of the FBI to do 
its job, because if people mistrust the FBI, they are going to 
be less likely to come forward and report information that law 
enforcement may need. Mr. Mueller, you have been in the 
position of being an active prosecutor and trial lawyer. If 
there is not respect and confidence in the FBI, then judges and 
jurors are going to be less likely to believe the testimony of 
FBI witnesses.
    In fact, if you lose trust in the FBI, then if agents make 
innocent or minor mistakes in the future, people are going to 
wonder whether there some kind of sinister factor behind this. 
FBI agents perform forensic and other critical work for many 
law enforcement agencies on the Federal, State, and local 
levels. So if you have a decline in public confidence, it has a 
ripple affect on the cases local and State prosecutors have to 
handle.
    Now, constructive and bipartisan oversight of the FBI can 
greatly improve its effectiveness. Reviews by Inspectors 
General and other outside experts are important, but the 
ultimate test is accountability to all the people through the 
Congress. So we will ask the nominee about his views on 
congressional oversight. And the questions being asked about 
the FBI are directed at three interrelated issues: the Bureau's 
security and information technology problems, management 
problems, and insular culture. We have been looking at each of 
these, beginning in the hearings I started in June.
    In the national security field, our country depends on FBI 
counterintelligence to protect the most sensitive intelligence 
and military and diplomatic secrets from foreign espionage. We 
were told at one of our hearings that there were no less than 
15 different areas of security at the FBI that were broken. In 
the testimony of their own experts, we were told those areas 
need to be bolstered, redesigned, or in some cases established 
for the first time. So we want to hear about that.
    The FBI needs to join the 21st century. That is axiomatic. 
But we find that much of their computer systems are obsolete. 
In fact, we were told the FBI's computer systems have not been 
updated for over 6 years; that more than 13,000 desktop 
computers are so old they cannot run on today's basic software; 
that the majority of the smaller FBI fields offices have 
internal networks that work more slowly than the Internet 
connections somebody might have on a dial-up system at home; 
and that the investigative data bases are so old that FBI 
agents are unable to store photographs or graphical or tabular 
data on them.
    I can't help but think that the hard-working, dedicated men 
and women in the FBI who are out across the country trying to 
fight crime deserve better, and they should have the computer 
network tools that most people take for granted and most of the 
graduates of the FBI Academy have probably been using from the 
time they were in high school.
    These are not problems of money. We have poured a lot of 
money into the FBI. It is a management problem. So I am glad to 
see a nominee who has seen the FBI up close for so many years 
as Acting Deputy Attorney General, as Assistant Attorney 
General, and in three U.S. Attorneys' Offices, and we will ask 
about his management ideas and abilities.
    We want to know about the FBI Director's relationship with 
the Attorney General in the overall management structure. 
Sometimes in the past, Directors have had too much of the final 
word on management of the Bureau. Now, we don't want political 
interference, but the Attorney General is still the boss. And I 
have told Attorney General Ashcroft that there won't be an inch 
of daylight between the two of us on that aspect.
    We received testimony in our oversight hearings that too 
often the independence that is part of the FBI's culture, and a 
respected part, has instead, though, crossed over into the line 
of not being independence but arrogance. Senator Danforth 
expressed concern to this committee about entrenched executives 
at the FBI who have created a closed and insular culture 
resistant to disclosure of mistakes. And we heard testimony 
from experienced FBI special agents who told us of a ``club'' 
mentality among some Bureau executives who resist criticism or 
changes that threaten their careers. In fact, Senator Danforth 
recommended that the new Director should be prepared to clean 
house if necessary.
    If there is only one message I could leave in that respect, 
it is that senior management has got to know that it is better 
to admit mistakes and correct them than to cover them up and 
wait for us to find them.
    To give you one example, of the idea the FBI can admit no 
mistakes: in the weekly newsletter for FBI employees, the FBI 
reported on our committee's July 18 hearing. But, interestingly 
enough, they only reported the testimony of the two senior 
executives from the FBI who told us what they were doing to fix 
information technology and security problems, but the 
newsletter didn't talk about the four other FBI agents who 
testified about problems of a double standard in adjudicating 
discipline and about retaliation within the FBI. They left that 
out. Ignoring the testimony doesn't make it go away. If the FBI 
tries to suppress information that things have gone wrong, it 
is never going to fix them.
    That is why I support the change made by Attorney General 
Ashcroft to give the Justice Department's Inspector General 
full authority over the FBI. The Director has to make clear 
that FBI executives should reward not discourage participation 
in Inspector General and other oversight inquiries.
    We have heard disturbing testimony about retaliation 
against agents who are tasked to investigate their colleagues 
or who discuss issues with Congress. I think a clear message 
must go to the FBI employees that the Director will not 
tolerate retaliation against agents who conduct internal 
investigations or who bring information about wrongdoing to the 
Congress.
    The internal FBI study that we released at the committee's 
last hearing found a double standard at work, with senior FBI 
executives receiving a slap on the wrist for the same kind of 
conduct that would result in serious discipline for lower level 
employees. The most vivid example occurred when seven senior 
executives submitted false travel vouchers so they could fly to 
Washington for the retirement dinner of a Deputy Director. The 
average agent would have lost his or her career for doing that. 
The senior executives received only a letter of censure. Two of 
them actually received promotions and cash awards.
    Those of us who have had careers in law enforcement--and 
there are several of us in this committee who have long thought 
that the FBI was the crown jewel of law enforcement agencies. 
Some of that jewel has lost some of its luster, and we want to 
restore it. So, frankly, Mr. Mueller, you have both a great 
challenge and a great opportunity to restore public confidence 
in the Bureau. I think it is safe to say all of us want you to 
do that. We need to forge a strong and constructive oversight 
partnership with the leadership of the Department of Justice 
and the FBI to shape reforms. We can find the solutions to make 
the FBI the premier law enforcement agency that the American 
people want and expect it to be and an agency that can hold out 
that bright promise to the men and women who are going through 
your training programs. They are among the best in this 
country, and let's make sure they are going into the best 
Bureau possible.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
Vermont, on the Nomination of Robert S. Mueller, III, to be Director of 
                  the Federal Bureau of Investigation

    Today, the Judiciary Committee begins hearings on the nomination of 
Robert S. Mueller III to be Director of the Federal Bureau of 
Investigation. Mr. Mueller has had an outstanding career in law 
enforcement, serving as a Federal prosecutor in three different U.S. 
Attorneys' Offices and in Main Justice under both Republican and 
Democratic Administrations. We welcome Mr. Mueller and his family here 
today.
    For Mr. Mueller, for this Committee and for the Nation, this is 
more than a job interview. This is a crucial juncture for the FBI. We 
aim to forge a constructive partnership with the Bureau's next director 
to get the FBI back on track. Congress sometimes has followed a hands-
off approach about the FBI. Until the Bureau's problems are solved, we 
will need a hands-on approach for awhile.
    The rights of all Americans are at stake in the selection of an FBI 
Director. The FBI has extraordinary power to affect the lives of 
ordinary Americans. By properly using its extraordinary investigative 
powers, the FBI can protect the security of us all by combating 
sophisticated crime, terrorism, and espionage. But unchecked, these 
same powers can undermine our civil liberties, such as freedom of 
speech and of association, and the right to privacy. By leaking 
information, the FBI can destroy the lives and reputations of people 
who have not been charged or had a trial. Worse, such leaking can be 
used for political intimidation and coercion. By respecting 
constitutional safeguards for criminal suspects, the FBI can help 
ensure that persons accused of Federal crimes receive a fair trial and 
that justice is served. Our paramount standard for evaluating a new 
Director is his demonstrated adherence to the Constitution as the 
bulwark of liberty and the rule of law. This is necessary to assure the 
American people that the FBI will exercise its power effectively and 
fairly.
    The American public has lost some confidence in the Bureau. This is 
not just a PR problem. This erosion of public trust threatens the FBI's 
ability to perform its mission. Citizens who mistrust the FBI will be 
less likely to come forward and report information about criminal 
activity. Judges and jurors will be less likely to believe the 
testimony of FBI witnesses. Even innocent or minor mistakes by the FBI 
in future cases may be perceived in a sinister light that is not 
warranted. Since FBI agents perform forensic and other critical work 
for many law enforcement agencies on the Federal, state and local 
levels, the repercussions of this decline in public confidence in the 
FBI has rippled far beyond Federal criminal cases.
    Constructive, bipartisan oversight of the FBI can greatly improve 
its effectiveness. While reviews by Inspectors General and other 
outside experts are important--the ultimate test is accountability to 
the people through the Congress. Therefore, I will ask the nominee 
about his views on congressional oversight and, especially, his 
willingness to join this partnership and provide the information this 
Committee needs to oversee the Bureau on behalf of the American people.
    The questions being asked about the FBI are directed at three 
inter-related issues: the Bureau's security and information technology 
problems, management problems, and insular ``culture.'' The Committee 
is in the midst of examining each of these areas at oversight hearings 
that began in June shortly after I became Chairman.
    In the national security field, our country depends on FBI 
counterintelligence to protect the most sensitive intelligence, 
military, and diplomatic secrets from foreign espionage. We were told 
that there were no less than 15 different areas of security at the FBI 
that were broken and needed to be ``bolstered, redesigned, or in some 
cases established for the first time.'' The Committee will want to hear 
the nominee's views on the steps he will take to move forward with 
security improvements.
    The FBI needs to join the 21st Century. This is the information 
age, but the FBI's information technology is obsolete. The Committee 
has been told that the FBI's computer systems have not been updated for 
over 6 years; that more than 13,000 desktop computers are so old they 
cannot run on today's basic software; that the majority of the smaller 
FBI field offices have internal networks that work more slowly than the 
Internet connections many of us have at home; and that the 
investigative data bases are so old that FBI agents are unable to store 
photographs, graphical or tabular data on them.
    Hard-working, dedicated FBI agents trying to fight crime across 
this country deserve better, and they should have the computer and 
network tools that most businesses take for granted and many Americans 
enjoy at home.
    The security and information technology problems facing the FBI are 
not a problem of money. The Congress has poured money into the FBI. 
This is a management problem and it can no longer be ignored. The 
nominee has seen the FBI up close for many years--as Acting Deputy 
Attorney General, as Assistant Attorney General, and in three United 
States Attorneys' offices. The Committee will want to know what 
management objectives he brings to this job, based on his past 
experience, and what other resources he will draw on to bring about 
needed changes.
    It is especially important to understand how the nominee views the 
FBI Director's relationship with the Attorney General in the overall 
management structure at the Department of Justice. Too often in the 
past Directors have had the final word on management of the Bureau. Of 
course, there are legitimate concerns about political interference with 
investigations, as Watergate demonstrated. The FBI Director is not, 
however, unique in having to resist such interference. Both the FBI 
Director and the Attorney General have that duty, and they should work 
together to ensure the integrity of both investigations and 
prosecutions.
    The FBI ``Culture'' Needs An Overhaul. We are receiving testimony 
in our oversight hearings showing that, too often, the independence 
that is part of the FBI's culture has crossed the line into arrogance. 
Senator Danforth expressed concern to this Committee about entrenched 
executives at the FBI who have created a closed and insular culture 
resistant to disclosure of mistakes and to reforms. His concern was 
echoed in testimony the Committee heard from experienced FBI Special 
Agents, who told us of a ``club'' mentality among some Bureau 
executives who resist criticism or change that threatens their careers. 
Senator Danforth recommended that the new director should be prepared 
to clean house if the extent necessary to implement needed changes.
    If there is one message that a new Director should get from recent 
problems, it is that FBI executives need to be more willing to admit 
their mistakes. Too often their response is to protect the Bureau from 
embarrassment or shield self-serving executives from criticism and 
needed change. A new Director must understand that this type of conduct 
risks a far greater cost in the lost of public confidence, as compared 
with admitting mistakes when they occur.
    Let me cite one example that occurred just this week. In its recent 
weekly newsletter for FBI employees, the FBI reported on the Judiciary 
Committee's July 18 hearing. But the newsletter reported only the 
testimony of the two senior FBI agents, who told us about what they 
were doing to fix the security and information technology problems at 
the FBI. Their testimony was also the only testimony posted on the FBI 
website. Yet, the testimony of the four other FBI agents who testified 
about problems of a double standard in adjudicating discipline and 
about retaliation within the FBI was ignored--not mentioned in the 
newsletter nor posted on the website. Ignoring the testimony will not 
make it disappear. This kind of attitude makes it much harder to make 
the changes that need to be made. If the FBI tries to suppress 
information that things have gone wrong, it will never get them fixed.
    To ensure full investigation of mistakes, I support the change made 
by the Attorney General to give the Justice Department's Inspector 
General full authority over the FBI. I hope the nominee will look 
favorably on an amendment to the Inspector General statute that makes 
this regulatory change permanent. A Director must make clear that FBI 
executives should reward--not discourage--participation in Inspector 
General, and other oversight, investigations of Bureau performance.
    We have heard disturbing testimony about retaliation against FBI 
Agents who are tasked to investigate their colleagues or who discuss 
issues with the Congress, either directly or through cooperation with 
the General Accounting Office, which assists in congressional 
oversight. It is important that a new Director send a clear message to 
FBI employees that he will not tolerate retaliation against agents who 
conduct internal investigations or who bring information about 
wrongdoing to the Congress directly. I will want to hear from the 
nominee about his ideas for ensuring that such retaliation in the 
workplace and in promotions stops.
    Internal investigations must also lead to fair and just discipline. 
Here the recent record is troubling. A internal FBI study that we 
released at the Committee's last hearing found a double standard at 
work, with senior FBI executives receiving a slap on the wrist for the 
same kind of conduct that would result in serious discipline for lower 
level employees. The most vivid example occurred when seven Senior 
Executives submitted false travel vouchers so they could fly to 
Washington for the retirement dinner of a Deputy Director. They 
received only letters of censure for a voucher fraud offense that could 
cost an average Agent his or her career. Two of them actually received 
promotions and cash awards. In another case, the argument was asserted 
within the Justice Department that the FBI Director may not be 
disciplined because he is a Presidential appointee and that, in any 
event, the FBI Director should not be disciplined for exercising poor 
judgment. The Committee will be interested in hearing from the nominee 
about his adherence to the basic principle that all public officials 
should be held equally accountable.
    The FBI has long been considered the crown jewel of law enforcement 
agencies. Today, it has lost some of its earlier luster. The next FBI 
Director has both a great challenge and a great opportunity to restore 
public confidence in the Bureau, and this Committee stands ready to 
help. We need to forge a strong and constructive oversight partnership 
with the leadership at the Department of Justice and the FBI to shape 
the reforms and find the solutions to make the FBI the premier law 
enforcement agency that the American people want and expect it to be.

    Chairman Leahy. Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. It is an unusually 
great pleasure to welcome Mr. Mueller, our nominee, to the 
committee today. I always enjoy reviewing the many excellent 
nominees for high office who come before this committee, but I 
particularly relish those super-extraordinary few who not only 
have stellar qualifications but seem to be an exceptionally 
perfect fit for the job for which they have been nominated. We 
have such a nominee before the committee today. Indeed, it is 
hard to imagine another nominee whose unquestioned experience, 
good character, and reputation would so perfectly match the 
requirements of this new position.
    Now, I do not say this lightly. I consider the FBI to be 
one of the most important agencies of the Federal Government 
and the post of the FBI Director to be one of the most 
consequential in the world today. The FBI Director is trusted 
to command huge resources that touch the lives of people around 
the globe. He is charged with protecting the most important 
resource in America, our people, against criminal activity that 
is increasingly sophisticated and resourceful. And the Director 
holds a term, 10 years, that exceeds that of any elected 
Federal representative. The Director thus has great power and 
great insulation from the popular will, a combination that 
requires this committee to be especially vigilant in its 
confirmation review.
    But after examining Mr. Mueller's record, meeting with him 
privately, and hearing from many people who know him, I am 
extremely pleased that President Bush has chosen Bob Mueller 
for this position. I have the utmost confidence Mr. Mueller has 
the judgment, the integrity, and the dedication to purpose that 
will make for an excellent FBI Director.
    I have a full written statement that I would like to submit 
for the record, Mr. Chairman.
    Chairman Leahy. Without objection.
    Senator Hatch. But I would like to mention that, as I 
reviewed your responses to the committee questionnaire, Mr. 
Mueller, I was particularly struck by two items on your long 
list of professional accomplishments. The first is your 
military record, a matter about which I was not previously 
aware. During the Vietnam War, Mr. Mueller served as a rifle 
platoon commander and eventually as an Aide-de-Camp to the 
Commanding General to the 3rd Marine Division. He was awarded 
the Bronze Star, two Navy Commendation Medals, the Purple 
Heart, and the Vietnamese Cross of Gallantry.
    The second particularly notable item is that in 1995, after 
2 years as the senior partner at the distinguished firm of Hale 
and Dorr, Mr. Mueller left to join the Homicide Section of the 
U.S. Attorney's Office in the District of Columbia, and this 
after he had served as head of the Criminal Section in the 
Department of Justice. When I saw that, I was reminded a bit of 
a man whom all of us admired a great deal, even though some of 
us disagreed with his clients on certain issues, Charles Ruff, 
who died last year. Chuck also left a prestigious firm, 
Covington and Burling, in the early 1990's to serve his 
community, in his case as D.C. Corporation Counsel. I think the 
move was Chuck's way of giving something back, even though he 
had already given a great deal to the American people. And it 
also seems to me that, Mr. Mueller, your record of service to 
the community and to the country is one that anyone would be 
proud of.
    There is no doubt that you will need to muster all of your 
experience, training, and character to execute this new 
assignment. You will step into the FBI, an organization of 
nearly 28,000 employees, at a time of some disruption caused by 
several high-profile embarrassments, all of which I am sure 
will be mentioned during this hearing, and maybe mentioned more 
than once.
    Regardless of whether these incidents are isolated rather 
than systemic, they will nevertheless prove challenging, if for 
no other reason than the fact that they have garnered 
significant public attention and have fueled significant public 
concern.
    Of course, you will not be starting from scratch and you 
will not be working alone. You will be the inheritor of the 
hard work of another extraordinary public servant, Director 
Louis Freeh. Director Freeh accomplished a great deal during 
his tenure to modernize and restructure the FBI so it can 
handle the challenges of the future. But as Senator Leahy has 
pointed out, even he was unable to get it all done in the time 
that he was there. He did reinvigorate the Bureau with the core 
values of obedience to the Constitution, respect for all those 
it protects, compassion, fairness, and uncompromising 
integrity.
    Another tremendous advantage you will have is the support 
of the Bush administration and Attorney General Ashcroft in 
particular. Attorney General Ashcroft has already demonstrated 
his genuine concern for and dedication to the FBI by taking 
dramatic and important steps to remedy some of the perceived 
challenges faced by the Bureau. The review headed by William 
Webster, the former FBI Director himself, the management study 
to be conducted by Arthur Andersen and the expansion of 
jurisdiction of the Justice Department's Inspector General all 
demonstrate that General Ashcroft is determined to uncover any 
opportunities to improve the FBI and is determined to help you 
take the Bureau to new heights of professionalism.
    Now, I hope and expect that Congress will be another source 
of support. Of course, Congress--and this committee in 
particular--has an important oversight role that involves 
asking tough questions and demanding complete answers. The 
Congress should be careful to act in ways that encourage 
positive change and avoid distracting the Bureau from its 
mission. One tool I want to give to the new Director is the 
benefit of an independent review of the agency by a blue-ribbon 
panel of outstanding outside experts from a variety of fields. 
So I have joined with Senator Schumer in sponsoring the 
Schumer-Hatch FBI Review Commission Act of 2001, which would 
establish a mechanism for a first-rate group of experts from a 
variety of fields like management, technology, intelligence, 
and others to do a thorough review of the FBI and make 
strategic recommendations for improvements. Such an independent 
group, with no turf to protect or axes to grind, could really 
help bring the best practices of the corporate and scientific 
worlds to bear on all of the challenges currently being faced 
by the FBI.
    One frustration that you will undoubtably feel is that when 
the FBI does its job well, we will never hear about it. The 
newspaper headlines will never read, ``Millions of Americans 
Slept Safely Again Last Night.'' The Washington Post will never 
publish a story proclaiming that, ``Another Day Passes Without 
Nuclear Terror in any U.S. City.'' Nevertheless, the main focus 
of the FBI is to prevent crime by gathering intelligence, 
compiling evidence, and assisting in prosecutions. Indeed, 
between October 1993 and October 1999, the FBI prevented more 
than 40 potential acts of terrorism, including the planned 
detonation of two enormous propane gas tanks near Sacramento, 
California, which would have resulted in the deaths of at least 
12,000 of our citizens. There are others that had the equal 
potential to do tremendous damage.
    I again applaud President Bush for his choice of you, Mr. 
Mueller, to be FBI Director. You are a principled and dedicated 
public servant with a proven record in law enforcement and 
management. You have a no-nonsense style which I think has 
served you very well and has helped you to inspire others to do 
their best work for the American people. Now, I have every 
confidence that you will prove to be an excellent FBI Director, 
and I know that will happen.
    I want to thank the chairman for this hearing, and I urge 
the committee and the full Senate to move forward with Mr. 
Mueller's confirmation with all deliberate speed, and I just 
want to thank you for being willing to serve your country in 
this way, and I want to thank your family, your wife in 
particular, the rest of your family, because this is taking on 
an awful lot of responsibilities, and sometimes it means many, 
many days and nights away from home and many, many hours away 
from home. So we appreciate you as well, and, again, Mr. 
Chairman, thank you for allowing me to make these comments.
    [The prepared statement of Senator Hatch follows:]

Statement of Orrin G. Hatch, a U.S. Senator from the State of Utah, on 
      the Nomination of Robert S. Mueller, III to be FBI Director

    One of the greatest pleasures of working on the Judiciary Committee 
is reviewing a nominee for high office who not only has extraordinary 
qualifications but also is a perfect fit for the job to which he or she 
has been nominated. Of course, this Committee reviews a lot of 
candidates who are qualified, competent and dedicated to public 
service. But once in a while, a nominee comes along who exhibits an 
extra measure of fitness for the job. We have such a nominee before the 
committee today in Robert S. Mueller, III. It is hard to imagine anyone 
whose unquestioned experience, good character and reputation would so 
perfectly match with the requirements of his new position.
    I do not say this lightly. I consider the FBI to one of the most 
important agencies of the government, and the post of FBI Director to 
be one of the most consequential in the world. The FBI Director is 
trusted to command huge resources that touch the lives of people around 
the globe. He is charged with protecting the most important resource in 
America--our people--against criminal activity that is increasingly 
sophisticated and resourceful. And the Director holds a term--ten 
years--that exceeds that of any elected Federal representative, and is 
2 years longer than any president can serve in office. The Director 
thus has great power and great insulation from the popular will--a 
combination that requires this Committee to be especially vigilant in 
its confirmation review. But after examining Bob Mueller’s record, 
meeting with him privately, and hearing from many people who know him, 
I am extremely pleased that President Bush has chosen Bob Mueller for 
this position. I have the utmost confidence that Mr. Mueller has the 
judgment, integrity and dedication to purpose that will make for an 
excellent FBI Director.
                        Mr. Mueller's Background
    Mr. Mueller is a decorated military hero who has spent most of his 
professional career prosecuting criminals and earning a reputation for 
no-nonsense management. As I recently reviewed his responses to the 
Committee questionnaire, I was particularly struck by two items on his 
long list of professional accomplishments. The first is his military 
record, a matter about which I was not previously aware. During the 
Vietnam war, Mr. Mueller served as a rifle platoon commander and, 
eventually, as an aide-de-camp to the Commanding General of the Third 
Marine Division. He was awarded the Bronze Star, 2 Navy Commendation 
Medals, the Purple Heart, and the Vietnamese Cross of Gallantry. And 
his military service did not end there. After the war, Mr. Mueller 
served in the Marine Corps Reserve until 1980, achieving the rank of 
Captain.
    The second particularly notable item is that in 1995, after 2 years 
as the senior partner in distinguished firm of Hale and Dorr, Mr. 
Mueller left to join the homicide section of the U.S. Attorneys office 
in the District of Columbia. When I saw that, I was reminded, a bit, of 
a man whom all of us admired a great deal (even though some of us 
disagreed with his clients on certain issues): Charles Ruff, who died 
last year. Chuck also left a prestigious firm--Covington and Burling--
in the early 1990's to serve his community--in his case, as D.C. 
corporation counsel. I think the move was Chuck's way of giving 
something back, even though he had already given a great deal to the 
American people. And it also seems to me that Mr. Mueller's record of 
service to community and to country is one that anyone would be very 
proud of.
    Mr. Mueller graduated from the University of Virginia law school in 
1973, after which he spent 3 years working on small litigation matters 
as an associate at Pillsbury, Madison & Sutro in San Francisco. He left 
in 1976 to become an Assistant U.S. Attorney in San Francisco, first in 
the civil division and later in the criminal division. There he tried 
cases involving narcotics, money laundering, tax evasion, bank robbery, 
and major fraud. He also spent 9 months prosecuting the Hells Angles 
motorcycle club. He rose in the ranks to become supervisor of the 
Special Prosecutions Unit and then interim Chief of the Criminal 
Division.
    In 1982, Mr. Mueller transferred to the U.S. Attorney's office in 
Boston, Massachusetts, as Chief of the Criminal Division. For the next 
6 years, he prosecuted narcotics, public corruption, and espionage 
cases, among others. And he served as First Assistant U.S. Attorney, as 
the court-appointed U.S. Attorney, and then as Deputy U.S. Attorney. In 
1988 he joined the firm of Hill and Barlow as a litigation partner. 
During his 10 months there, he practiced civil law including contract 
disputes and some criminal defense.
    Mr. Mueller became an Assistant to Attorney General Richard 
Thornburgh in May 1989. His focus was advising the A.G. on criminal 
matters. He also served as the liaison between the A.G.'s office and 
the FBI, the DEA, and other Federal agencies.
    President Bush nominated Mr. Mueller in September 1990 to be the 
Assistant Attorney General for the Criminal Division. He served in that 
position until 1993, handling the high-profile investigation of Pan Am 
103, the prosecutions of Gotti and Noriega, and the BCCI and BNL 
matters.
    In 1993, he became a senior partner in the Washington office of the 
Boston firm Hale and Dorr. As I mentioned earlier, he gave up that 
prestigious and lucrative position in 1995 to join the homicide section 
of the District of Columbia's U.S. Attorney's office. He tried a number 
of cases there, and became chief of the homicide unit in 1996.
    In August 1998, the Justice Department asked him to serve as the 
interim U.S. Attorney for the Northern District of California, where he 
turned a troubled office around and rebuilt it into one of the nation's 
best. Under his leadership, the number of criminal prosecutions nearly 
doubled in 2 years. He increased the office's focus on environmental 
crime and public corruption. And he showed himself to be a visionary 
leader in developing governmental responses to the burgeoning area of 
computer crime. He was later nominated and confirmed as U.S. Attorney 
there, where he supervises 100 attorneys. From January until May 2001, 
he served as the Acting Deputy Attorney General.
    By any measure, Mr. Mueller's resume alone makes him an excellent 
candidate to be FBI Director. But the icing on this cake is the 
reputation he has earned while holding those jobs. Mr. Mueller has 
earned a reputation for, among other things, a no-nonsense toughness 
when it comes to managing an office.
                         Current FBI Challenges
    There is no doubt that Mr. Mueller will need to muster all of his 
experience, training, and character to execute his new assignment. He 
will step into the FBI--an organization of over 27,800 employees--at a 
time of some disruption caused by several high-profile embarrassments, 
including the handling of the McVeigh documents, the belated discovery 
of the Hanssen spy case, and the troubled Wen Ho Lee investigation. 
Regardless of whether these incidents are isolated rather than 
systemic, they will nevertheless prove challenging--if for no other 
reason, because they have garnered significant public attention and 
fueled concern.
    Director Freeh's Legacy and Attorney General Ashcroft's Support
    Of course, Mr. Mueller will not be starting from scratch and will 
not be working alone. He will be the inheritor of the hard work of 
another extraordinary public servant, Director Louis Freeh. Director 
Freeh accomplished a great deal during his tenure to modernize and 
restructure the FBI so it can handle the challenges of the future. He 
reinvigorated the Bureau with the core values of obedience to the 
Constitution, respect for all those it protects, compassion, fairness, 
and uncompromising integrity. He also made specific reforms in the area 
of ethics. In 1996, Mr. Freeh established a new Office of Law 
Enforcement Ethics and enhanced ethics training at the Bureau. In 1997, 
he established an enhanced and independent Office of Professional 
Responsibility to investigate allegations of employee misconduct. And 
in 1998, he opened this issue to the public by beginning the practice 
of releasing to the news media annual reports on disciplinary actions 
taken by the OPR.
    Director Freeh's legacy goes far beyond these specific actions. His 
tenure will be noted for the successful investigation and resolution of 
the World Trade Center bombing in 1993, the Alfred P. Murrah Federal 
Building bombing in 1995, the so-called Unibomber case, and the Embassy 
bombings in East Africa in 1998. Even more profound--and largely 
ignored by the media and the public--are the preventative successes 
under Director Freeh's watch. Between October 1993 and October 1999, 
the FBI prevented more than 40 potential acts of terrorism, including 
the planned detonation of two enormous propane gas tanks near 
Sacramento, California, which could have resulted in over 12,000 
deaths. Other notable projects of Director Freeh's in the area of 
national security include the creation of the National Infrastructure 
Protection Center, the Strategic Information Operations Center, the 
Counterterrorism Division, the Weapons of Mass Destruction Operations 
Unit, and the National Domestic Preparedness Office.
    The list of Director Freeh's other accomplishments would go on and 
on. His successes in several areas are too numerous to mention, 
including the areas of violent crime, organized crime, drug 
trafficking, health care fraud, crimes against children, and civil 
rights. He also significantly improved the Bureau's training programs, 
relationship with the CIA, and coordination with foreign governments. 
As you can tell, I am a big fan of Director Freeh and the great work he 
did as FBI Director. And I am confident that his legacies will in many 
ways enable Mr. Mueller to achieve even greater things in the future.
    Another tremendous advantage Mr. Mueller will have is the support 
of the Bush Administration and of Attorney General Ashcroft in 
particular. Attorney General Ashcroft has already demonstrated his 
genuine concern for, and dedication to, the FBI by taking dramatic and 
important steps to remedy some of the perceived challenges I mentioned 
a minute ago. For example, Attorney General Ashcroft established an 
independent review board headed by William Webster to examine the FBI's 
procedures, including security measures, in the wake of the Hanssen 
case. He recently contracted with Arthur Anderson to conduct a 
management study of the FBI. And he expanded the jurisdiction of the 
Justice Department's Inspector General to include oversight over the 
FBI--an important step in ensuring the integrity of the Bureau and its 
employees. These actions demonstrate that Attorney General Ashcroft is 
determined to uncover any opportunities to improve the FBI and is 
determined to assist Mr. Mueller in taking the Bureau to new heights.
                       FBI Review Commission Act
    I hope and expect that Congress will be another source of support 
for Mr. Mueller. Of course, Congress--and this Committee in 
particular--has an important oversight role that should and must 
involve asking tough questions and demanding complete answers. But 
Congress should be careful to act in ways that encourage positive 
change and avoid distracting the Bureau from its mission. One tool I 
want to give to the new Director is the benefit of an independent 
review of the agency by outside experts from a variety of fields. I 
have joined with Senator Schumer in sponsoring the Schumer-Hatch FBI 
Review Commission Act of 2001, which would establish a mechanism for a 
first rate group of experts from a variety of fields like management, 
technology, intelligence and others to do a thorough review of the FBI 
and make strategic recommendations to the new Director for 
improvements. Such an independent group, with no turf to protect or 
axes to grind, could really help bring the best practices of the 
corporate and scientific worlds to bear on the challenges currently 
facing the FBI.
    I know there will be a lot of suggestions for improvements to the 
FBI. Some are underway, others are being developed. We in Congress are 
right to scrutinize the plans for reform and to be vigilant in our 
oversight. We will not blindly accept changes, but will question and 
test them to ensure they will address the problems which exist. Through 
this process, and by working in collaboration with the Justice 
Department and the new FBI Director, I hope Congress will prove to be a 
constructive part of a revitalization of the FBI.
                        Focus on Future Success
    One of the reasons why the FBI's public image has been harmed by 
the recent stories is that, when the FBI does its job well, we never 
hear about it. This is the nature of law enforcement work in general, 
and of the FBI's in particular. The newspaper headlines will never read 
``Millions of Americans Slept Safely Again Last Night.'' The Washington 
Post will never publish a story proclaiming that ``Another Day Passes 
Without Nuclear Terror in any U.S. City.'' Nevertheless, the main focus 
of the FBI is to prevent crime by gathering intelligence, compiling 
evidence, and assisting in prosecutions. It is my sincere hope and 
expectation that, during the next few months and throughout Mr. 
Mueller's term as Director, all of the various parties with an interest 
in the FBI will maintain this focus on crime prevention and will 
measure their words and actions against the goal of ensuring future 
success.
                               Conclusion
    I applaud President Bush for his choice of Bob Mueller to be FBI 
Director. He is a principled and dedicated public servant with a proven 
record in law enforcement and management. His no-nonsense style has 
served him well and has helped him inspire others to do their best work 
for the American people. I have every confidence that he will prove to 
be an excellent FBI Director.
    I thank the Chairman for this hearing, and I urge the Committee and 
the full Senate to move forward with Mr. Mueller's confirmation with 
all deliberate speed.

    Chairman Leahy. What I intend to do is to give the Senators 
here today an opportunity to give opening statements, and we 
will go back and forth following the early bird rule.
    Mr. Mueller, I hope as you hear these statements, comments 
both good and bad, that you won't change your mind. The 
President spent a lot of time on this nomination. Attorney 
General Ashcroft has spent a lot of time. I happen to agree 
with both the President and the Attorney General that they made 
a great choice, so don't change your mind no matter what we say 
here.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you very much, Mr. Chairman. Thank 
you. Welcome, Mr. Mueller, and congratulations on your 
nomination. I do applaud you, Mr. Chairman, for holding the 
hearing so soon after the President sent Mr. Mueller's 
nomination to the Senate. I rescheduled the meetings I had 
planned in Wisconsin this morning and returned to Washington 
sooner than usual in order to participate in the hearing. And 
that is because, of course, this nomination should receive 
speedy consideration. Our Nation's leading law enforcement 
agency has no leader and is reeling from a series of missteps 
and mismanagement. The FBI is in desperate need of strong 
leadership.
    But from what I have learned so far, I believe Mr. Mueller 
may well be the right person for the job.
    I appreciated your taking the time to meet with me last 
week. I was impressed by your sense of purpose and readiness 
for the job. As I said during our meeting, I think this is an 
enormously challenging undertaking. But it is also really a 
great opportunity for you to show this committee and, more 
importantly, our Nation some real results.
    You are arriving at the FBI at a very difficult time. The 
Bureau's setbacks and missteps in recent years form a now 
familiar and, unfortunately, fairly lengthy list: the missing 
McVeigh documents, the Hanssen case, Los Alamos and the Wen Ho 
Lee case, the years-late production of the tapes in the 
Birmingham bombing, problems in the FBI lab, Richard Jewell and 
the Olympic bombing, charges of racial bias in promotions at 
the FBI.
    We know, of course, on the other hand, that the history of 
the FBI includes some storied successes. Maybe the greatest 
triumph of the FBI, as was suggested by the statement that 
Senator Hatch just made, has been the terrorist attacks that 
never happened. While the FBI over the years has had its lapses 
in respecting the civil liberties of some Americans, and those 
episodes should continue to serve as a cautionary note for 
those who wish to give unfettered power to any law enforcement 
agency, perhaps the greatest achievement of the Bureau has been 
that it has done so well in solving crime and foiling 
conspiracies while operating in a Nation that so respects 
individual liberty.
    Moving beyond the specific missteps of recent years, I 
would emphasize the following more general concerns:
    First, I am very troubled by what appears to be an agency 
with no internal or external accountability. It strikes me that 
the management structure has to be reshaped so that the 
mistakes are discovered earlier and corrected more quickly and 
directly.
    Second, there are a number of areas where the FBI can 
improve its level of professionalism. Coordination between 
State and Federal law enforcement should be strengthened and 
improved. There should not be a competition for glory in high-
profile investigations. The goal is to stop crime and catch 
criminals, not to get headlines or credit.
    I firmly believe that for the most part, the FBI has been a 
model law enforcement agency. But, obviously, the high-profile 
problems that have come to light in recent years suggest even 
bigger problems that could possibly linger under the surface. 
These issues have to be addressed--if for no other reason than 
to restore the public's trust and confidence in the Bureau. It 
is up to you not only to find out what has happened in the past 
and take appropriate action, but to learn from these mistakes 
and make sure they don't happen again.
    You have impressed me as a person who has deep respect for 
the Bureau and its history and for the dedicated professionals 
who work there, but who is also willing to look at the Bureau 
with a very critical eye and a willingness to shake things up, 
to demand a high standard of integrity and fairness and 
professionalism in all aspects of its work. I think you will 
find that the Senators on this committee will support you and 
work with you to help the FBI overcome these recent black eyes 
and then resume its place in the forefront of American law 
enforcement.
    So I plan to ask you some questions later about how to meet 
some of these challenges, but I certainly look forward to your 
testimony. And thank you again, Mr. Chairman.
    [The prepared statement of Senator Feingold follows:]

Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of 
  Wisconsin on the Nomination of Robert Mueller to be the FBI Director

    Thank you, Mr. Chairman. Welcome, Mr. Mueller, and congratulations 
on your nomination.
    Mr. Chairman, I applaud you for holding this hearing so soon after 
the President sent Mr. Mueller's nomination to the Senate. I 
rescheduled the meetings I had planned in Wisconsin this morning and 
returned to Washington sooner than usual in order to participate in 
this hearing. This nomination should receive speedy consideration 
because, as we all know, our nation's leading law enforcement agency 
has no leader and is reeling from a series of missteps and 
mismanagement. The FBI is in desperate need of strong leadership.
    From what I have learned so far, I believe Mr. Mueller may well be 
the right person for the job.
    Mr. Mueller, I appreciated your taking the time to meet with me 
last week. I was impressed by your sense of purpose and readiness for 
this job. As I said during our meeting, I think this is an enormously 
challenging undertaking. But I also believe it is an enormous 
opportunity for you to show this Committee, and more importantly our 
nation, some real results.
    You are arriving at the FBI at a very difficult time. The Bureau's 
setbacks and missteps in recent years form a now familiar and 
unfortunately fairly lengthy list: the missing McVeigh documents, the 
Hanssen case, Los Alamos and the Wen Ho Lee case, the years-late 
production of the tapes in the Birmingham bombing, problems in the FBI 
lab, Richard Jewell and the Olympic bombing, charges of racial bias in 
promotions at the FBI.
    We know of course that the history of the FBI includes some storied 
successes. Maybe the greatest triumph of the FBI has been the terrorist 
attacks that never happened. While the FBI over the years has had its 
lapses in respecting the civil liberties of some Americans, and those 
episodes should continue to serve as a cautionary note for those who 
wish to give unfettered power to any law enforcement agency, perhaps 
the greatest achievement of the Bureau has been that it has done so 
well in solving crime and foiling conspiracies while operating in a 
nation that so respects individual liberty.
    Moving beyond the specific missteps of recent years, I would 
emphasize the following more general concerns. First, I am very 
troubled by what appears to be an agency with no internal or external 
accountability. It strikes me that the management structure must be 
reshaped so that mistakes are discovered earlier, and corrected more 
quickly and directly. Second, there are a number of areas where the FBI 
can improve its level of professionalism. Coordination between state 
and Federal law enforcement should be improved and strengthened. There 
should not be a competition for glory in high profile investigations. 
The goal is to stop crime and catch criminals, not to get headlines or 
credit.
    I firmly believe that for the most part, the FBI has been a model 
law enforcement agency. But obviously, the high profile problems that 
have come to light in recent years suggest even bigger problems that 
may linger under the surface. These issues must be addressed--if for no 
other reason than to restore the public's trust and confidence in the 
Bureau. It is up to you not only to find out what has happened in the 
past and take appropriate action but to learn from these mistakes and 
make sure they don't happen again.
    You have impressed me as a person who has deep respect for the 
Bureau and its history and for the dedicated professionals who work 
there, but who is also willing to look at the Bureau with a very 
critical eye and a willingness to shake things up, to demand a high 
standard of integrity and fairness and professionalism in all aspects 
of its work. I think you will find that Senators on this Committee will 
support you and work with you to help the FBI overcome these recent 
black eyes and resume its place in the forefront of American law 
enforcement.
    So, I plan to ask you about how you plan to meet some of these 
challenges, and I look forward to your testimony. Thank you again, Mr. 
Chairman.

    Chairman Leahy. I thank you, Senator Feingold, and I thank 
you for rearranging your schedule, as others have, to be here.
    Normally I would go next to Senator Specter, but Senator 
Thurmond, who is the most senior member of not only the Senate 
but of this committee, is here and we will follow our usual 
courtesy, and I will defer to Senator Thurmond.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Thurmond. Mr. Chairman, I am pleased we are holding 
this hearing today on the nomination of Bob Mueller to be FBI 
Director. The FBI is the premier law enforcement organization 
in the world, and we should be proud of the work that its 
dedicated agents do every day in the fight against crime.
    However, the Bureau today faces some serious challenges. It 
must address management problems and accounting flaws that 
recently have received a great deal of public scrutiny. 
Moreover, the culture of the FBI needs to be more open and 
cooperative.
    I think that Mr. Mueller is an excellent choice to lead the 
Bureau at this critical time. He is a career Federal prosecutor 
with extensive experience in management. He has a proven record 
of success, and I am confident that he will be a fine Director. 
I look forward to his quick confirmation.
    Chairman Leahy. Thank you, Senator Thurmond.
    Senator Specter?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    Mr. Mueller, I join my colleagues in welcoming you here. 
The FBI Director arguably may be the most powerful man in the 
United States because the FBI Director has a statutory term of 
10 years, which is 2 years longer than the maximum a President 
may serve. And the FBI Director commands an enormous array of 
investigators and has really broad discretion, even in one 
instance where the FBI Director declined to turn over national 
security information to President Clinton because Director 
Freeh concluded that the President himself was under a criminal 
investigation. That is a standard and a sequence which I intend 
to question you about as to whether the Director has that kind 
of extensive authority, and I think it worth noting that in our 
long office meeting and my call to you again last week, I have 
tried to alert you to the questions which I intend to ask.
    This hearing I think is really important as it will or 
could set the standards for what is appropriate congressional 
oversight. When we have had hearings involving Justices of the 
Supreme Court of the United States, a decade later and more, 
the Justices have commented about what happened at their 
confirmation hearing. It is a little different because the 
Justices are appointed for life, but these hearings do make an 
imprint. And it is an opportunity for the Senators who have had 
some background and experience to tell you what we think 
oversight means and, candidly, to get commitments from you.
    I believe that Director Freeh did about as good a job as 
could be done under the circumstances that he worked under. I 
analogize Director Freeh to the Dutch boy at the dike, running 
around putting his fingers in all the holes. But nobody could 
keep all the water from coming through. And I believe that 
there is a culture of concealment in the FBI, and I think they 
are concerned about an institutional image. And I believe that 
is going to be very, very difficult for anyone to deal with, 
even someone who has demonstrated the tenacity which you have.
    And you and I have gone over in some detail the lines of 
questioning that I intend to ask about how you would solve the 
problem of the Waco documents for pyrotechnics used in April 
1993 and not disclosed on voluminous documents until August 
1999, or how in the McVeigh case subordinates in the FBI knew 
about documents which were not turned over to McVeigh's 
lawyers. Now, there is no doubt that was a horrible crime and 
it merited the death penalty, but that does not gainsay the 
obligation of the FBI and the prosecution to turn over those 
documents.
    Then there is the issue of oversight and the initiatives 
which you will have to take. There was a dynamite memorandum in 
the FBI file from December 1996, which recited a contact 
between top FBI officials and top Department of Justice 
official, where the Department of Justice official said that 
they had to go easy on the campaign finance investigation, 
because the Attorney General's job might hang in the balance. 
That document was not disclosed until a wide-ranging subpoena 
for the LaBella report by the subcommittee, which I chaired, 
brought it to light. And I believe that the FBI had an absolute 
mandatory duty to turn that over to the Oversight Committee, 
and it was not done.
    My yellow light is on, and I will conclude before the red 
light goes on. But there were are quite a number of cases on 
specifics that I intend to ask you about, and I do this in the 
context of having great admiration for the FBI. I was trained 
by the FBI when I was an investigator for the Office of Special 
Investigations many years ago, and used FBI investigators in 
the prosecution of cases in Philadelphia, notably the Teamsters 
prosecution, and I admire the record that you bring here, 
having volunteered after being the Assistant Attorney General 
in charge of the Criminal Division to just try cases. And when 
from time to time I am asked about my favorite job, it is not 
Senator, not DA, but Assistant DA, a prosecutor. You will not 
have that luxury much longer, Mr. Mueller. I think you will be 
confirmed based on all I know today, although no commitments. 
But this hearing I think will be very important for America to 
set standards of congressional oversight. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Specter. And I would 
note that I will try to keep fairly well on schedule. We will 
keep the hearing going long enough for everybody to have a 
chance to ask whatever questions are necessary.
    Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. Thank you, Mr. Chairman.
    Congratulations, Mr. Mueller. As I told you in my office, I 
appreciate very much the time you took to spend with me when 
you were first appointed, and before I begin my statement, I 
want you to know that I have read your statement that you are 
going to present today, and I am pleased with many of the 
points that you have made. I believe your comments are 
responsive to the letter that I sent you last Friday. And I 
also want you to know that I am not oblivious to the praise 
that you have received, and the very good response that you 
have gotten from the press with your appointment, as well as 
the President for selecting you.
    Mr. Chairman, Senator Hatch, thank you for holding today's 
hearing. The FBI is in desperate need of a director who will 
make drastic changes to the Bureau's management culture. This 
person must be able to sweep out the culture of arrogance and 
replace it with a culture dedicated to truth and honorable 
service to the American people.
    Three weeks ago you and I had a chance to meet and discuss 
this culture, Mr. Mueller. The purpose of that meeting, as well 
as today's hearing, was to examine whether you have the 
qualifications and determination necessary to address this and 
other problems facing the Bureau. In the three short weeks 
since that meeting, the FBI's culture of arrogance has 
continued to raise its ugly head. These most recent FBI 
blunders are further eroding public confidence at the FBI, 
whether or not it is up to the task the Nation has called upon 
the Bureau to do.
    Just a week after our meeting, the national papers were 
filled with headlines that the FBI could not find their guns, 
the FBI has lost or had stolen 440 firearms, 171 laptops. This, 
of course, is inexcusable. The Inspector General is currently 
conducting an investigation to determine the extent of the 
damages, but we do know that one of those lost guns was used in 
the commission of a homicide, and at least one of the laptops 
contained classified information about two espionage cases. 
These losses reflect a need for fundamental reform.
    How can the public have confidence in a law enforcement 
agency that allows its weapons and secrets to fall into the 
hands of criminals and spies?
    A day after that revelation, the public learned that the 
FBI played favorites, because we had a hearing before this 
committee. Four senior FBI agents testified that the Bureau has 
dual standards for disciplining employees. According to these 
men, Senior Executive Service employees are given slaps on the 
wrist for their infractions, while the rank and file agents are 
often punished to the letter of the law. And I thank you for 
responding to this in your opening statement, as I have already 
read.
    Retired Special Agent John Werner, who investigated the 
Ruby Ridge cover-up, testified before this committee, that, 
quote, ``in the first investigation of Ruby Ridge, SES 
Inspectors sought to protect certain fellow peers from 
administrative discipline by conducting a sloppy and incomplete 
investigation. At the same time, they were most willing to hang 
lower level employees out to try.'' He further testified that 
``this double standard has debilitated rank and file employees' 
morale and,. . .is one of the reasons quality agents are 
disinclined to enter the Career Development Program.'' End of 
quote.
    How can the public have confidence in the FBI when honest, 
hardworking agents might be discourages from taking part in 
management of the Bureau? How can the public have confidence 
that the FBI will reform when a certain segment of the SES 
personnel is motivated by self-interest and self-preservation?
    Most recently, last Thursday, the public saw a good example 
of how some SES employees abuse power. The Washington Times 
reported that a group of FBI managers staged a conference 
entitled, quote, ``Integrity in Law Enforcement'', end of 
quote, that was merely a sham and a cover, so that senior FBI 
manager could attain improper reimbursements for traveling to a 
birthday party for veteran agent Larry Potts. According to The 
Washington Times, ``more than 140 persons, including as many as 
9 FBI executives and special agents-in-charge of the bureau 
field offices, attended that October 9th, 1997 party.''
    The Washington Times further reported that ``no one was 
disciplined other than to receive letters of censure.'' How can 
public have confidence in the FBI when senior agents are not 
punished for this kind of behavior?
    The most recent scandals are just more evidence of 
problems. The FBI is suffering from management culture so 
arrogant, that ignoring the rules and covering up is the order 
of the day.
    But not all the news is bad. In the weeks since our 
meeting, two things have happened that have given us hope that 
the problems at the FBI can be resolved. One of those is 
Attorney General Ashcroft's decision on the Inspector General, 
and the other one is the initiation and clarification of 
actions that the new FBI Director can take to initiate reform.
    That is the end of my statement. I congratulate you, make 
note of the fact that you have done very well in leading reform 
in the U.S. Attorney's Office in San Francisco, and if you are 
approved, hopefully, that you will take decisive action at the 
FBI.
    Since I did not get through my statement, I would like to 
have the entire thing put in the record.
    [The prepared statement of Senator Grassley follows:]

Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of 
 Iowa on the Nomination of Robert Mueller for Director of the Federal 
                        Bureau of Investigation

    Mr. Chairman, Senator Hatch, thank you for holding today's hearing 
on the nomination of Robert Mueller to be Director of the FBI. The FBI 
is in desperate need of a director who will make drastic changes to the 
Bureau's management culture. This person must be able to sweep out the 
culture of arrogance and replace it with a culture dedicated to truth 
and honorable service to the American people.
    Mr. Mueller, 3 weeks ago, you and I met in my office to discuss the 
culture at the FBI. The purpose of that meeting, as well as today's 
hearing, was to examine whether you have the qualifications and 
determination necessary to address this and other problems facing the 
Bureau. In the three short weeks since that meeting, the FBI's culture 
of arrogance has continued to raise its ugly head. These most recent 
FBI blunders are further eroding the public's confidence that the FBI 
is up to the task their nation has called upon them to do.
    Just a week after our meeting, the national papers were filled with 
headlines that the FBI couldn't find their guns. The FBI has lost or 
had stolen from them nearly 450 firearms and 184 laptop computers. This 
is inexcusable. The Inspector General is currently conducting an 
investigation to determine the extent of the damages, but we do know 
that one of the lost guns was used in the commission of a homicide and 
at least one of the laptops contained classified information about two 
espionage cases. These losses reflect a need for fundamental reform.
    How can the public have confidence in a law enforcement agency that 
allows its weapons and secrets to fall into the hands of criminals and 
spies?
    A day after that revelation, the public learned that the FBI plays 
favorites. In a hearing before this Committee, four senior FBI agents 
testified that the Bureau has a dual standard for the disciplining of 
employees. According to these men, Senior Executive Service (SES) 
employees are given slaps on the wrists for their infractions, while 
the rank and file agents are often punished to the letter of the law.
    Retired Special Agent John Werner, who investigated the Ruby Ridge 
cover-up, testified before this committee that ``in the first 
investigation of Ruby Ridge, SES Inspectors sought to protect certain 
fellow peers from administrative discipline by conducting a sloppy and 
incomplete investigation. At the same time, they were most willing to 
hang lower tier employees `out to dry'.'' He further testified that 
``this double standard has debilitated rank and file employees' morale 
and, . . . is one of the reasons quality agents are disinclined to 
enter the Career Development Program.''
    How can the public have confidence in the FBI when the honest hard-
working agent is discouraged from taking part in the management of the 
Bureau? How can the public have confidence that the FBI will reform, 
when a certain segment of the SES personnel is motivated by self-
interest and self-preservation?
    Most recently, last Thursday, the public saw a good example of how 
some SES employees abuse their power. The Washington Times reported 
that a group of FBI managers staged a conference entitled ``Integrity 
in Law Enforcement'' that was merely a sham and a cover, so that senior 
FBI managers could obtain improper reimbursements for traveling to a 
birthday party for veteran agent Larry Potts. According to The 
Washington Times, ``more than 140 persons, including as many as nine 
FBI executives and special agents-in-charge of bureau field offices, 
attended the October 9, 1997, party.''
    The Washington Times further reported that ``no one was disciplined 
other than to receive letters of censure.'' This lack of discipline 
directly counters the letter of the law. In 1994, Director Freeh issued 
a ``Bright Line'' memo dictating that voucher fraud and the making of 
false statements would result in dismissal. Had the rank and file done 
this, they would have been fired. It appears that some senior managers 
believe they are above the law.
    How can the public have confidence in the FBI, when its senior 
agents are not punished for this kind of behavior?
    These most recent scandals are just more evidence of the problems I 
outlined in my letter to you, which I'm submitting for the record. The 
FBI is suffering from a management culture so arrogant that ignoring 
the rules and covering up is the order of the day.
    But, not all the news is bad. In the weeks since our meeting, two 
things have happened that give us hope that the problems at the FBI can 
be resolved.
    First, I am pleased Attorney General Ashcroft has given the Justice 
Department's Office of Inspector General the power to conduct 
independent oversight of the FBI. This is a reform initiative I have 
long advocated. The Attorney General's order directs that major 
allegations of misconduct will no longer be handled by the FBI's Office 
of Professional Responsibility, but will instead by handled by the 
DOJ's Office of Inspector General. This is essential for reform.
    Along these same lines, Senator Leahy and I will soon be offering a 
bill that will make permanent what the Attorney General's order 
accomplished regarding oversight of the Bureau and the reporting of 
misconduct by FBI employees. It would also create a Deputy Inspector 
General, whose sole responsibility will be oversight of the Bureau. 
This bill is critical to having reform at the FBI.
    Second, there has been some clarification about what actions the 
new FBI Director can take to initiate reform. When we met in my office, 
I asked you how much of a free hand you would have in cleaning up the 
FBI. You didn't know the answer then, but I've since received a 
response from a letter I wrote the Attorney General asking for the 
answer. In that letter, the Assistant Attorney General for Legislative 
Affairs outlined the extent to which, if you are confirmed, you will be 
able to institute department-wide reforms and make staffing changes, 
including changes at the senior staff and management level.
    Specifically, Assistant Attorney General Bryant writes that ``the 
FBI Director's authority in this area is broader than most of his 
counterparts in other Department components.'' According to the letter, 
the new FBI Director can reassign SES members within the first 120 days 
following the appointment of a non-career supervisor. The ability to 
move bad apples is critical to reform.
    Mr. Mueller, you have sterling credentials and a great deal of 
experience. I'm impressed by the way you reformed the U.S. Attorney's 
Office in San Francisco. A similar overhaul is needed at the FBI. The 
new director must be committed to fundamentally changing the Bureau's 
management culture.

    Chairman Leahy. All statements are put in the record in 
their entirety.
    Senator Thurmond has another hearing to go to. He will be 
leaving, and we go then to Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and it is great 
to see Mr. Mueller, nominated to take one of the most important 
positions in our country. It is a position that requires, in my 
view, serious experience, great integrity, and a proven record 
of accomplishment. And you have all of those things, Bob.
    When I was in the Department of Justice, I was there 15 
years, 12 years as United States Attorney, Bob Mueller's 
reputation was known throughout the Department of Justice, and 
he was known not for any political reason, but because he was 
recognized as a professional's professional, a man whose skill 
at doing the job assigned to him was second to none.
    The Clinton administration recognized that when they kept 
him in high positions of authority. He served as United States 
Attorney twice, I believe, high positions within the Department 
of Justice. He has personally prosecuted some of America's most 
significant criminal cases, and as such, he has had to work on 
a day-to-day basis closely with the FBI, as a prosecutor has to 
do.
    And in that position as a prosecutor, you are close to it 
but not quite a part of it. I know from my conversations with 
you Bob, that you know the great strengths of the Bureau, and 
you love this agency greatly, but you also know it has some 
problems, and I think you have had firsthand experience with 
those and can deal with them. No doubt about it, your 
experience in the Department of Justice and managing agencies 
will help you in dealing with the budget. How to manage a 
widespread large agency is a challenge for anyone. You need 
some experience from that perspective, and you have that.
    But most of all, Mr. Chairman, there is no doubt in my 
mind, that there is no more professional prosecutor, no more 
professional person in America with experience in the 
Department of Justice, ready to handle the job of FBI Director 
than Bob Mueller.
    Your Marine experience is going to be needed, and I know 
you will be able to handle that job well.
    The FBI does need improvement. They need some review. I 
support hearings that have looked into that. I have generally 
supported Senator Grassley's very strong convictions that 
changes are needed, and his view that there is a culture of 
arrogance too much present within the top echelons of the FBI. 
And I believe that is unfortunate, because by and large the 
agents, every day, doing their work throughout this country, 
are some of the finest people you will meet anywhere, any time. 
They love their country. They love the honor of being an FBI 
agent, and they do a special job.
    I remember trying a pretty big case, lasted about 5 weeks, 
and had a young female agent, who had worked her heart out on 
it, and she was being cross-examined. And the lawyer said, 
``Well, who all are special agents of the FBI? You call 
yourself a special agent.'' And she said, ``Basically the 
agents of the FBI.'' And he says, ``All of them?'' She said, 
``Virtually all of them.'' And then he said, ``Well, it's not 
so special, is it?'' And she replied, looking him dead in the 
eye, ``It is to me, sir.'' And I think most agents believe that 
it is a special calling and a great honor to carry that badge. 
And we ought not to denigrate them in their work because errors 
have occurred.
    As I told Chairman Leahy earlier, we do need reform, we do 
need good leadership. We do need your skills at this time, and 
we expect that you will exercise your strong convictions to 
improve this agency. But it is important that we not damage one 
of the premiere law enforcement agencies in the world, the 
premiere agency, in my view. I think in some ways much of what 
was done with IRS was good, but there were some things done in 
those hearings that probably went too far and damaged that 
agency, and I do not believe that is necessary here. I believe 
we can maintain the kind of reform that is necessary without 
damaging the FBI.
    They have a front-line challenge when it comes to public 
corruption in America, terrorism, bank fraud and embezzlement, 
huge threats on the integrity of the Federal Government system 
that come at us from frauds and cheats and embezzlers from 
every angle. That is a core responsibility. So we need the 
agency strengthened, not weakened, and I look forward to 
working with you in that regard.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. So far, Mr. Mueller, you have 
heard more uniformity of thinking on this committee than you 
normally will. I will move now to Senator Kyl?

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. I think that is a 
testament to the President's great good judgment in nominating 
Mr. Mueller.
    I am very glad that Senator Jeff Sessions got to precede 
me. You could not have a more authentic and ringing endorsement 
than from Senator Sessions, who more than anyone else on this 
committee, has been there, and knows the qualifications of Bob 
Mueller. So I appreciate, Jeff, the comments that you made, and 
I think that does reflect, as the chairman said, the view that 
we have.
    Mr. Mueller, I read your statement, and on page 3--there 
has been a lot of emphasis here about the positions of--or the 
difficulties that the FBI has had, and I share the view. When 
you first called me and told me of your nomination, I said, 
``Well, Louis had his problems,'' and he has had a great 
difficulty managing the agency with all of the problems that 
people have noted.
    But you also refer to the notable success stories of the 
agency. And as the former chairman of, and now ranking member 
of, the Terrorism and Technology Subcommittee, we are privy to 
a lot of that. The public generally does not get to hear about 
the success stories because it is all classified, we cannot 
talk about it. But Louis Freeh testified each year before our 
subcommittee that each year there were about a dozen major 
terrorist incidents that were thwarted by the good work of the 
FBI and other law enforcement agencies. And we need to bear in 
mind that whatever we do, has to be able to maintain that kind 
of quality work.
    We just held a hearing in our subcommittee on the NIPC, the 
National Information Infrastructure Protection Center, dealing 
with cyber crime and terrorism, and we are hoping that some 
improvements there can be made, and we will be having to talk 
to you more about that.
    But my point is simply this: that because of the problems 
with the FBI, we have got to regain the confidence of the 
American people to support some things that the FBI needs to 
continue to fight this war against terrorism and crime. The 
techniques of criminals and terrorists are changing. They are 
using the computers now, the information infrastructure, and we 
have got to be able to keep up the pace here. And part of what 
you and I have talked about, and Director Freeh have talked 
about, is the need to modernize both the law and the FBI's 
capability of keeping track of these criminals. You have noted 
the need to upgrade the computer systems, which are woefully 
inadequate now. The other side, the bad guys, have better stuff 
than the FBI. That cannot be.
    The same thing is true with the law. By using computers 
now, messages can be transmitted a lot faster than the FBI can 
run through each jurisdiction, getting various kinds of 
warrants that may be needed to intercept the information, which 
is why the previous Director has asked for trap-and-trace 
authority, administrative subpoena authority, and some other 
changes in the law just to keep up with the evolving 
technology. We have not been able to get those things because, 
among other things, the FBI has been under enough of a cloud 
that people just have not felt comfortable cooperating to that 
extent.
    We need to do our job and give you those kind of resources, 
but it will be a lot better, a lot easier, when the public has 
confidence that the FBI has turned the situation around and can 
handle this new authority, can handle this new authority with 
the proper respects for the Constitution, the citizens and the 
law, that that kind of rather far-reaching authority does give 
to the FBI.
    You have been described as a no-nonsense kind of man. That 
is exactly the kind of person we need in this position at this 
time, and I am very much looking forward to working with you to 
restore the credibility of the FBI. That is half of it. But to 
enable the FBI to continue to do all the great things that it 
has also been doing, not all of which always are in the public 
eye.
    Thank you, Mr. Chairman.
    Chairman Leahy. Mr. Mueller, would you please stand and 
raise your right hand. Do you swear or affirm that the 
testimony you will give before this committee will be the 
truth, the whole truth and nothing but the truth?
    Mr. Mueller. I do.
    Chairman Leahy. Mr. Mueller, you have heard the opening 
statements of the members so far. You must know that in this 
committee, on both sides of the aisle--you have met with most 
of us, not all of us--there is an enormous amount of respect 
for the FBI; at the same time a great concern for some problems 
that have arisen. I know so many FBI agents personally, many I 
worked with when I was a prosecutor. At least one is a very 
close friend, boyhood friend of my son, whom your son-in-law 
apparently knew in college. I have seen FBI agents who have put 
their lives on the line for all of us. As has been mentioned by 
Senator Kyl, there are a lot of things they have done that the 
public does not know about, and frankly, we cannot let the 
public know about, because in the areas of terrorism we have 
been successful, and we want to be successful a second time, a 
third, and fourth, and fifth time. So we want to preserve all 
of that, but we also want to remove some of the problems that 
each one of us have mentioned to you.
    I referred in my opening statement to testimony from four 
FBI agents who testified at our last hearing. Mr. Mueller, I 
apologize I began on that, I did not allow you to give your 
opening statement. Obviously, obviously you should, and I do 
apologize. And you have as much time as you want even if it 
comes out of my time after that.
    Mr. Mueller. I was getting ready for the first question, 
Mr. Chairman.
    Chairman Leahy. No, no, no. I mean this is not an 
antagonistic committee, as you probably have gathered. I hate 
to take all the suspense out of it for the press, but please go 
ahead with yours.

STATEMENT OF ROBERT S. MUELLER, III, OF CALIFORNIA, NOMINEE TO 
       BE DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION

    Mr. Mueller. Thank you. Thank you, Chairman Leahy, Senator 
Hatch, members of the committee. Thank you for the 
extraordinary courtesy and support that you have extended to me 
over the past several weeks. I want to especially express my 
appreciation to you, Mr. Chairman, for your willingness to 
schedule this hearing and begin the formal consideration of my 
nomination.
    I was deeply honored when President Bush decided to 
nominate me for the position of Director of the Federal Bureau 
of Investigation. In my view, the FBI is the finest law 
enforcement agency in the world. Its highly skilled and 
dedicated work force and its investigative tools and resources 
are unmatched in law enforcement. I consider it the highest 
privilege to be asked to lead such an outstanding organization.
    Mr. Chairman, I have spent nearly my entire professional 
life in law enforcement. I have either personally prosecuted or 
supervised the prosecution of just about every type of Federal 
criminal offense, including homicide, drug trafficking, 
organized crime, cyber crime, major frauds, civil rights and 
environmental crime. I care deeply about the rule of law. In a 
free society a central responsibility of government, I believe, 
is to protect its citizens from criminal harm within the 
framework of the Constitution. I have been fortunate indeed to 
have been able to spend much of my career in pursuit of that 
goal, and this is why I'm thankful to have the opportunity 
today, if you choose to confirm me, to serve as Director of the 
Federal Bureau of Investigation.
    As several senators have mentioned, one can hardly 
overstate the significance of the FBI in the life of every 
American, from the prevention of mass murder by international 
terrorists, to the painstaking search for a missing child, the 
Bureau is on the front line every day in the battle against 
terrorism and violent crime. Whether it is fraud in our health 
care system, foreign or economic espionage, crimes against 
children on the Internet, public corruption, civil rights 
violations, bank robbery, tracking down serial killers, or 
simply conducting a background check on a prospective gun 
purchaser, the FBI is vital to the preservation of our civil 
order and our civil rights.
    And while new technologies create new possibilities for the 
global economy, they also present new opportunities for 
enterprising criminals. Here, as well, the FBI is responsible 
for ensuring the security of our technological infrastructure 
and for bringing cyber criminals to justice.
    But it is more than just a mission of the FBI which has 
brought it such distinction in its nearly 100-year existence. 
It is the people. Throughout the Nation, thousands of young men 
and women dream about serving in the FBI. This is a credit to 
the dedication, professionalism, and training of the men and 
women who are proud to serve in the FBI and who often risk 
their lives on behalf of us all.
    Every year the FBI conducts thousands of investigations 
encompassing nearly millions of contacts with other law 
enforcement agencies, the courts, witnesses, and crime victims. 
The vast majority of these endeavors result in successful 
prosecutions free of constitutional error. As a Federal 
prosecutor who has tried many cases, I have relied upon the 
FBI's investigative efforts on countless occasions.
    Yet, despite all of the positive things that can be said 
about the FBI, and have here today been said about the FBI, we 
all know that the Bureau's remarkable legacy of service and 
accomplishment has been tarnished by some serious and highly 
publicized problems in recent years. Waco, Ruby Ridge, the FBI 
lab, Wen Ho Lee, Robert Hanssen and the McVeigh documents--
these familiar names and events remind us all that the FBI is 
far from perfect and that the next director faces significant 
management and administrative challenges.
    We must, and we will, confront these challenges squarely 
and forthrightly. At the same time, we must acknowledge that 
these problems do not tell the whole story of the FBI in recent 
years. The FBI has had an astonishing success during the same 
period; successes, including the investigations into the 
downing of Pan Am 103, and the World Trade Center, Oklahoma 
City, and African embassy bombings. Of course, given the nature 
of the work it does, many of the FBI's most notable successes 
are stories that never can publicly be told.
    Most importantly, we must not let the recent problems 
obscure the fact that the men and women of the FBI have 
continued, throughout this period of controversy, to do an 
outstanding job. The day-to-day work of thousands of skilled 
agents and employees is responsible for countless successes 
that will never make the headlines. Their sacrifice for the 
cause of public safety, often at great personal risk, must not 
be lost in the tumult of criticism and publicity.
    Nevertheless, it is critical to the continued success and 
improvement of any organization to acknowledge and learn from 
its mistakes, and the FBI is no different. The success of its 
law enforcement mission lies in the preservation and protection 
of the public trust. And it is clear that these highly 
publicized problems have, indeed, shaken the public's trust in 
the FBI. That shaken trust, in turn, inevitably affects the 
morale of the men and women who serve at the Bureau.
    All institutions, even great ones like the FBI, make 
mistakes. The measure of an institution is in how it responds 
to its mistakes. I believe the FBI can, and must, do a better 
job of dealing with its mistakes. If I have the honor of being 
confirmed by the Senate, I will make it my highest priority to 
restore the public's confidence in the FBI, to re-earn the 
faith and trust of the American people. The dedicated men and 
women of the FBI deserve nothing less, and as director, I would 
tolerate nothing less.
    I am encouraged that Attorney General Ashcroft has already 
taken several significant steps to address these challenges:
    First, the Department has retained the services of a major 
management consultant firm to undertake a comprehensive review 
of the management structure and information systems of the FBI.
    Second, the Attorney General has called upon former FBI and 
CIA Director William Webster to conduct a review of the 
Bureau's security program to try to ensure that the lapses 
which allowed former Special Agent Robert Hanssen to betray his 
country do not happen again.
    Third, the Department's inspector general has been directed 
to conduct an investigation of the Hanssen matter to determine 
how his criminal activity was able to go undetected for such a 
long period of time.
    Fourth, the inspector general, in addition, is conducting a 
review of the document production failures in the McVeigh case.
    And, fifth, the inspector general's jurisdiction has been 
expanded to include oversight of the FBI.
    I believe that these measures are an excellent start in a 
long-term process of modernizing the management practices of 
the FBI and, if confirmed, I look forward to receiving the 
recommendations of these various reviews.
    But as we examine the mistakes of the past, we must be 
resolved to respond quickly and forthrightly to the mistakes of 
the future. Three elements are critical to a proper response:
    First, we must be willing to admit immediately that a 
mistake has occurred. This includes providing timely 
information to the appropriate committees of Congress. And for 
matters involving cases and courts, immediately informing the 
court and defense counsel as appropriate. Failure to admit 
one's mistakes contributes to the perception of institutional 
arrogance.
    Second, those responsible for the mistake must be held 
accountable. This does not mean punishing employees for simple 
errors in doing their jobs. Nobody is perfect, and we want to 
encourage people to come forward immediately when mistakes are 
made, but we must hold people accountable, and we cannot 
tolerate efforts to cover up problems or to blame others for 
them.
    If confirmed, I will be committed to inculcating a culture 
which understands that we all make mistakes and that we must be 
forthright and honest in admitting them and correcting them as 
quickly as possible. We must tell the truth and let the facts 
speak for themselves. The truth is what we expect in our 
investigations of others, and the truth is what we must demand 
of ourselves when we come under scrutiny.
    It is also very important that there be no double standards 
in accountability. I know there have been allegations that 
senior FBI officials are sometimes treated more leniently than 
more junior employees. Any such double standard would be 
fundamentally unfair and enormously destructive to employee 
morale. If anything, senior FBI officials should be held to a 
higher standard than other employees, for, after all, they 
should serve as examples. I commit to this committee, to the 
employees of the FBI, and to the American people that there 
will be no such double standard should I become director of the 
FBI.
    And, third, every significant mistake must be examined to 
determine whether broader reform is necessary. We must learn 
from our mistakes or we will be bound to repeat them.
    Of course, Mr. Chairman, my goal would be to minimize 
mistakes through proper management. Let me, therefore, turn to 
some additional management priorities that would guide me if 
confirmed. Underlying these priorities is my belief that the 
core asset of the FBI is its employees. I am committed to 
providing the leadership, and management, and energy necessary 
to enable these talented and dedicated people to do their jobs 
as effectively as possible.
    First and foremost of these management priorities is 
leadership. It will be critical to recruit, encourage and 
select the highest quality leadership. In my experience in 
prior positions, and I am sure it would be the same if 
confirmed as director of the FBI, is that selecting the very 
best people will result in a management team that reflects the 
diversity of our society.
    Second, I will want to review carefully management 
structures and systems. I am concerned about the span of 
control, the degree of decentralization, and whether 
responsibilities are clearly defined. Management structures and 
systems must help managers, agents, and employees do their 
jobs, not hinder them.
    Third, I believe there is a need to rebuild infrastructure, 
to upgrade the information systems and to upgrade the systems 
and procedures to integrate modern technology. Every FBI 
manager, indeed, every agent needs to be computer literate, not 
a computer programmer, but aware of what computers can and 
cannot do to assist them with their jobs.
    Fourth, the FBI needs to review continually its priorities 
and its allocation of resources to make sure it is able to meet 
the challenges of tomorrow, as well as of today. Its 
investigative priorities today are national security, 
particularly counterterrorism, organized and violent crime, 
civil rights enforcement, public corruption, high-tech and 
cyber crime, and white collar crime, including health care, 
fraud, and other complex frauds. We must anticipate the 
challenges the Bureau will be facing 10 and 20 years into the 
future and prepare now to meet those challenges. This will 
require continuous revision and restructuring of these 
investigative priorities.
    And, fifth, the FBI must develop the respect and confidence 
of those with whom it interacts, including other law 
enforcement agencies, both domestic, and international, and 
Congress. Most agents with whom I have worked have pride in the 
FBI, but are in no way arrogant. Nonetheless, any perception of 
Bureau arrogance must be dispelled. Close relationships are 
founded on mutual trust and respect. We must understand and 
acknowledge that State and local police departments are the 
backbone of law enforcement in this country, and Federal law 
enforcement is privileged to work side-by-side with them. We 
must understand and acknowledge the need to work closely with 
and obtain the support of Congress in order to appropriately 
perform our duties. With humility, with humility, the FBI must 
earn the respect and confidence of other law enforcement 
agencies, the Congress and, most importantly, the American 
people.
    As I go about implementing changes to accomplish these 
objectives, I welcome the thoughts of those currently at the 
Bureau, as well as the results of the various reviews I 
mentioned above. I have already benefited from considerable 
experience with the FBI, as well as from detailed discussions 
with many people, including members of this committee.
    Finally, you should know that I understand the necessity to 
move quickly on administrative and management issues. In prior 
positions, I have made changes swiftly, as soon as I was 
confident that I had the benefit of all views and was convinced 
that the proposed changes would, indeed, improve the 
organization. I intend to move quickly to make appropriate 
changes should I be confirmed.
    Mr. Chairman, the President has honored me with this 
nomination. You and the members of this committee have added to 
that honor by the courtesy and respect you have shown me in my 
meetings with you. If confirmed, I look forward to working with 
this committee to protect and preserve the rule of law. I 
cannot promise perfection, but I can commit to you and to the 
dedicated men and women of the FBI that I will do my very best 
to earn your faith and your respect.
    And to the American people whom we all serve, I will commit 
to preserve the legacy of the FBI--now and in the future an 
institution deserving of the highest level of their confidence 
and their trust.
    Thank you, Mr. Chairman, for the opportunity to appear 
before you and the committee today.
    Thank you, sir.
    [The prepared statement and biographical information of Mr. 
Mueller follow.]

                  Statement of Robert S. Mueller, III

    Chairman Leahy, Senator Hatch, Members of the Committee, thank you 
for the extraordinary courtesy and support you have extended to me over 
the past several weeks. I want to especially express my appreciation to 
you, Mr. Chairman, for your willingness to schedule this hearing and 
begin the formal consideration of my nomination.
    I was deeply honored when President Bush decided to nominate me for 
the position of Director of the Federal Bureau of Investigation. In my 
view, the FBI is the finest law enforcement agency in the world. Its 
highly skilled and dedicated workforce and its investigative tools and 
resources are unmatched in law enforcement. I consider it the highest 
privilege to be asked to lead such an outstanding organization.
    Mr. Chairman, I have spent nearly my entire professional life in 
law enforcement. I have either personally prosecuted or have supervised 
the prosecution of just about every type of federal criminal offense, 
including homicide, drug trafficking, organized crime, cybercrime, 
major frauds, civil rights and environmental crime. I care deeply about 
the rule of law. In a free society, a central responsibility of 
government, I believe, is to protect its citizens from criminal harm 
within the framework of the Constitution. I have been fortunate indeed 
to have been able to spend much of my career in pursuit of that goal. 
And this is why I am thankful to be here today and to have the 
opportunity, if you choose to confirm me, to serve as the FBI Director.
    One could hardly overstate the significance of the FBI in the life 
of every American. From the prevention of mass murder by international 
terrorists to the pain-staking search for a missing child, the Bureau 
is on the front line every day in the battle against terrorism and 
violent crime. Whether it is fraud in our health care system, foreign 
or economic espionage, crimes against children on the Internet, public 
corruption, civil rights violations, bank robbery, tracking down serial 
killers, or simply conducting a background check on a prospective gun 
purchaser, the FBI is vital to the preservation of our civil order and 
our civil rights.
    And while new technologies create new possibilities for the global 
economy, they also present new opportunities for enterprising 
criminals. Here, as well, the FBI is responsible for ensuring the 
security of our technological infrastructure and for bringing 
cybercriminals to justice. But it is more than just the mission of the 
FBI which has brought it such distinction in its nearly 100-year 
existence. It is also the people. Throughout the nation, thousands of 
young men and women dream about serving in the FBI. This is a credit to 
the dedication, professionalism and training of the men and women who 
are proud to serve in the FBI and who often risk their lives on behalf 
of us all.
    Every year the FBI conducts thousands of investigations 
encompassing literally millions of contacts with other law enforcement 
agencies, the courts, witnesses, and crime victims. The vast majority 
of these endeavors result in successful prosecutions free of 
constitutional error. As a federal prosecutor who has tried many cases, 
I have relied upon the FBI's investigative efforts on countless 
occasions.
    Yet despite all of the positive things that can be said about the 
FBI, we all know that the Bureau's remarkable legacy of service and 
accomplishment has been tarnished by some serious and highly publicized 
problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, 
Robert Hanssen, and the McVeigh documents--these familiar names and 
events remind us all that the FBI is far from perfect and that the next 
Director faces significant management and administrative challenges.
    We must--and we will--confront these challenges, squarely and 
forthrightly. At the same time, we must acknowledge that these problems 
do not tell the whole story of the FBI in recent years. The FBI has had 
astonishing successes during the same period, including the 
investigations into the downing of Pan Am 103, and the World Trade 
Center, Oklahoma City, and African embassy bombings's. Of course, given 
the nature of the work it does, many of the FBI's most notable 
successes are stories that can never be publicly told, either because 
they are the prevention of crimes such as terrorist attacks or involve 
sensitive intelligence sources and methods. Most importantly, we must 
not let the recent problems obscure the fact that the men and women of 
the FBI have continued throughout this period of controversy to do an 
outstanding job. The day-to-day work of thousands of skilled agents and 
employees is responsible for countless successes that will never make 
the headlines. Their sacrifice for the cause of public safety--often at 
great personal risk--must not be lost in the tumult of criticism and 
publicity.
    Nevertheless, it is critical to the continued success and 
improvement of any organization to acknowledge and learn from its 
mistakes. And the FBI is no different. The success of its law 
enforcement mission lies in the preservation and protection of the 
public trust. And it is clear that these highly publicized problems 
have shaken the public's trust in the FBI. That shaken trust, in turn, 
inevitably affects the morale of the men and women who serve at the 
Bureau.
    All institutions--even great ones like the FBI--make mistakes. The 
measure of an institution is in how it responds to its mistakes. I 
believe the FBI can--and must--do a better job of dealing with 
mistakes. If I have the honor of being confirmed by the Senate I will 
make it my highest priority to restore the public's confidence in the 
FBI--to re-earn the faith and trust of the American people. The 
dedicated men and women of the FBI deserve nothing less, and as 
Director I would tolerate nothing less.
    I am encouraged that Attorney General Ashcroft has already taken 
several significant steps to address these challenges. First, the 
Department has retained the services of a major management consultant 
firm to undertake a comprehensive review of the management structure 
and information systems of the FBI. Second, the Attorney General has 
called upon former FBI and CIA Director William Webster to conduct a 
review of the Bureau's security program to try to ensure that the 
lapses which allowed former Special Agent Robert Hanssen to betray his 
country do not happen again. Third, the Department's Inspector General 
has been directed to conduct an investigation of the Hanssen matter to 
determine how his criminal activity was able to go undetected for so 
long. Fourth, the Inspector General, in addition, is conducting a 
review of the document production failures in the McVeigh case. And 
fifth, the Inspector General's jurisdiction has been expanded to 
include oversight of the FBI. I believe these measures are an excellent 
start in a long-term process of modernizing the management practices of 
the FBI and if confirmed I look forward to receiving the 
recommendations of these various reviews.
    But as we examine the mistakes of the past, we must be resolved to 
respond quickly and forthrightly to the mistakes of the future. Three 
elements are critical to a proper response:
    First, we must be willing to admit immediately that a mistake has 
occurred. This includes providing timely information to the appropriate 
committees of Congress. And, for matters involving cases in courts, 
immediately informing the court and defense counsel as appropriate. 
Failure to admit one's mistakes contributes to the perception of 
institutional arrogance.
    Second, those responsible for the mistake must be held accountable. 
This does not mean punishing employees for simple errors in doing their 
jobs. Nobody is perfect and we want to encourage people to come forward 
immediately when mistakes are made. But we must hold people accountable 
and we cannot tolerate efforts to cover up problems or blame others for 
them.
    If confirmed, I will be committed to inculcating a culture which 
understands that we all make mistakes and that we must be forthright 
and honest in admitting them and correcting them as quickly as 
possible. We must tell the truth and let the facts speak for 
themselves. The truth is what we expect in our investigations of 
others, and the truth is what we must demand of ourselves when we come 
under scrutiny.
    It is also very important that there be no double standards in 
accountability. I know there have been allegations that senior FBI 
officials are sometimes treated more leniently than more junior 
employees. Any such double standard would be fundamentally unfair and 
enormously destructive of employee morale. If anything, senior FBI 
officials should be held to a higher standard than other employees, for 
after all they should serve as examples. I commit to this Committee, to 
the employees of the FBI, and to the American people that there will be 
no such double standard if I am Director of the FBI.
    And third, every significant mistake must be examined to determine 
whether broader reform is necessary. We must learn from our mistakes or 
we will be bound to repeat them.
    Of course, Mr. Chairman, my goal would be to minimize mistakes 
through proper management. Let me, therefore, turn to some additional 
management priorities that would guide me if confirmed. Underlying 
these priorities is my belief that the core asset of the FBI is its 
employees. I am committed to providing the leadership and management 
and energy necessary to enable these talented and dedicated people to 
do their jobs as effectively as possible.
    First and foremost of these management priorities is leadership. It 
will be critical to recruit, encourage and select the highest quality 
leadership. And my experience in prior positions--and I am sure it 
would be the same if confirmed as Director of the FBI--is that 
selecting the very best people will result in a management team that 
reflects the diversity of our society.
    Second, I will want to review carefully management structures and 
systems. I am concerned about the span of control, the degree of 
decentralization, and whether responsibilities are clearly defined. 
Management structures and systems must help the managers, agents and 
employees do their jobs, not hinder them.
    Third, I believe there is a need to rebuild infrastructure: to 
upgrade the information systems, and to upgrade the systems and 
procedures to integrate modern technology. Every FBI manager--indeed, 
every agent--needs to be computer literate; not a computer programmer, 
but aware of what computers can, and cannot, do to assist them with 
their jobs.
    Fourth, the FBI needs to review continually its priorities and its 
allocation of resources to make sure it is able to meet the challenges 
of tomorrow, as well as of today. Its investigative priorities today 
are: national security, particularly counterterrorism; organized and 
violent crime; civil rights enforcement; public corruption; high tech 
and cybercrime; white collar crime, including health care fraud and 
other complex frauds. We must anticipate the challenges the FBI will be 
facing ten and twenty years into the future, and prepare now to meet 
those challenges. This will require continuous revision and 
restructuring of these investigative priorities.
    And fifth, the FBI must develop the respect and confidence of those 
with whom it interacts, including other law enforcement agencies, both 
domestic and international, and Congress. Most agents with whom I have 
worked have pride in the FBI, but are in no way arrogant. Nonetheless, 
any perception of Bureau arrogance must be dispelled. Close 
relationships are founded on mutual trust and respect. We must 
understand and acknowledge that state and local police departments are 
the backbone of law enforcement in this country, and federal law 
enforcement is privileged to work side-by-side with them. We must 
understand and acknowledge the need to work closely with and obtain the 
support of Congress in order to appropriately perform our duties. With 
humility the FBI must earn the respect and confidence of other law 
enforcement agencies, the Congress, and, most importantly, the American 
people.
    As I go about implementing changes to accomplish these objectives, 
I welcome the thoughts of those currently at the Bureau--as well as the 
results of the various reviews I mentioned above. I have already 
benefitted from considerable experience with the FBI, as well as 
detailed discussions with many people, including members of this 
Committee.
    Finally, you should know that I understand the necessity to move 
quickly on administrative and management issues. In prior positions I 
have made changes swiftly, as soon as I was confident that I had the 
benefit of all views and was convinced that the proposed changes would 
indeed improve the organization. I intend to move quickly to make 
appropriate changes should I be confirmed.
    Mr. Chairman, the President has honored me with this nomination. 
You and the members of this Committee have added to that honor by your 
courtesy and respect in my meetings with you. If confirmed, I look 
forward to working with this Committee to protect and preserve the rule 
of law. I cannot promise perfection, but I can commit to you and to the 
dedicated men and women of the FBI that I will do my very best to earn 
your faith and respect. And to the American people whom we all serve, I 
will commit to preserve the legacy of the FBI--now and in the future an 
institution deserving of the highest level of their confidence and 
trust.
    Thank you Mr. Chairman for the opportunity to appear before you and 
the members of the Committee today.

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    Chairman Leahy. Thank you, Mr. Mueller. I appreciate very 
much your statement. You seem to have anticipated many of the 
questions that I, and others, might be asking. That also 
reflects your candor in the lengthy meeting we had when we went 
over these issues--and the meetings I know you have had with 
other Senators. In the reports I have had, they have all been 
very candid.
    So I take a great deal of comfort in your answers, not just 
what you are saying here to the committee, but I would hope, 
beyond this committee. I would hope the thousands, thousands of 
extraordinarily talented and dedicated men and women in the FBI 
would take a great deal of comfort in them too. Ultimately, 
their ability to carry out their mission rests in your hands, 
and I think that you have sent a signal, a very good one, and 
it should be one of great comfort to them.
    You said the President has honored you with this 
appointment. That is absolutely right. He has. It is a grave 
responsibility on the part of the President and one I think he 
has carried out very well. He is also the chief magistrate of 
this country, and he has to put a great deal of his own 
credibility on the line in appointing you. And so you have a 
great duty not only to the President, but to all Americans in 
carrying out that responsibility.
    I referred in my opening statement to testimony from four 
FBI agents who testified at a hearing last week. There is a 
widespread perception in the FBI that there is a double 
standard applied in meting out internal discipline. They spoke 
to something you have already referred to in your statement. 
The members of the Senior Executive Service typically receive 
lesser punishment than line agents for the same offense. 
Obviously, that is bad for the morale of the line agents. It 
would breed cynicism and mistrust.
    Former Director Freeh attempted to deal with this problem 
last August when he abolished a special disciplinary mechanism 
for FBI senior managers. I believe Director Freeh did the right 
thing, as he did in many other areas, but I don't think that 
has completely solved the problem. Is this a problem that needs 
to be addressed by you, as director?
    Mr. Mueller. To the extent that there is any perception 
that there is a double standard, yes, it definitely has to be 
addressed. As you indicated, Mr. Chairman, I think former 
Director Freeh began that process with assuring that there is 
no difference between the standards of discipline for senior 
management in the FBI and employees of the FBI.
    However, beyond that, I think it important that as one 
contemplates leaders in the FBI, we appoint leaders in the FBI 
who are held to a higher standard. And when the leadership of 
the FBI fails or makes mistakes, the discipline should be just, 
fair, but absolutely consistent with the discipline which would 
be meted out by an individual of lesser rank.
    Likewise, I believe that it is important to inculcate in 
the FBI a standard whereby its leadership is held to not just 
the standard of every agent, but to a higher standard, inasmuch 
as I pointed out in my statement, I believe the leaders serve 
as examples for others in the FBI.
    Chairman Leahy. What I worry about is if we do not, and if 
we do not show willingness to correct mistakes or to 
acknowledge mistakes. You just said in your statement not 
every--people are not perfect. Obviously, mistakes get made, 
and usually you learn from the mistakes, but if there are 
serious mistakes, sometimes the first reaction can be, it is a 
human one, to hide the mistakes. But both you and I have served 
in law enforcement, and we know that in law enforcement, 
especially, if you hide your mistakes, usually somebody 
innocent is hurt by it.
    For example, the documents the committee reviewed about the 
January 2001 decision on Ruby ridge revealed that some FBI 
agents were disciplined in January 1995 by the then director, 
when they should not have been. Senator Specter and I conducted 
pretty extensive hearings on Ruby Ridge. But I look at this 
report of January, I see nothing has been done to correct the 
situation, despite the personal embarrassment I am sure that 
discipline caused for those FBI agents.
    Another example, is that there have been reports of a CIA 
officer who was initially suspected of espionage before they 
realized that Hanssen was the real culprit. This agent was 
forced to go on leave from his job at the CIA, caused great 
stress for himself and his family. The treatment his family 
received was harsh. Among other things--the members of the 
family were told this was a capital offense. Now he has been 
cleared of all wrongdoing. He has been allowed to return to his 
work at the CIA. His back-pay, full security clearance 
restored. The FBI totally regrets this happened, but they have 
not notified him or his family that he is no longer suspected 
of any wrongdoing.
    Can you take a look into some of these matters?
    Mr. Mueller. I certainly would, Mr. Chairman. I go back to 
time as a prosecutor, and it was important, in my mind, to 
conduct investigations quickly and thoroughly, understanding 
that an investigation done by the FBI, often in consultation 
with the U.S. Attorney's Office, puts individuals under a 
microscope and can damage reputations, can damage careers, and 
it is critically important to do investigations quickly. And if 
the allegations prove not to be true, to make certain that 
those who were under scrutiny are told of that immediately and 
to the extent possible any appropriate response given to that 
individual who has been exculpated from the allegations.
    Chairman Leahy. Just an inquiry by the FBI can cause a lot 
of people's heartbeat to rise, even if they are not suspected 
of anything. If they are told they are a suspect, and their 
family and their friends are told they are a suspect, and then 
afterward it is the case where they are not, we cannot treat it 
like the old Gilda Radner line of ``oh, never mind.'' Somebody 
has got to do more than that.
    I recall when we had a terrible shootout along the New 
Hampshire-Vermont border, coincidentally, on a weekend when 
Director Freeh was visiting. A young man, one of the Federal 
agents on the border was shot and grievously wounded. Several 
others were killed. We went to the hospital, Director Freeh and 
I. Just the two of us drove up to the hospital to visit this 
young man. What I didn't know was that the hospital was under 
an audit on Medicare questions by the U.S. Attorney's Office at 
that time. We had several people who thought they were about to 
be arrested immediately because the two of us were walking down 
the halls. Director Freeh was not aware of the investigation, 
nor was I, but I heard afterward that the Cardiac Unit of the 
hospital almost had an overload that day.
    [Laughter.]
    Chairman Leahy. So I am just suggesting that that is an 
innocent-type thing, but if somebody is really a target, and it 
turns out they are not the person, like a Richard Jewell and 
situations like that, somebody has to clear that up. I am not 
suggesting we do not continue with investigations--obviously 
not--but mistakes have to be cleared up.
    Now, last week when we had a hearing, and I talked to you 
about this earlier, FBI headquarters issued a weekly report to 
the field, a report on our committee's July 18 hearing. It 
described the testimony of two of the six FBI current or 
retired employees who testified, and they put two of the 
testimonies on their website. They said absolutely nothing 
about the testimony of those in the FBI who testified about the 
existence of a double standard or discipline and retaliation 
within the FBI. It almost seems that FBI headquarters thinks 
that if they ignore bad testimony, it is going to go away. This 
bothered me, as there were some from headquarters who sat 
through the testimony of all six and knew that was a mistake.
    I would hope, I would hope that somehow, and I fully expect 
you to be confirmed, but when you get down there, point out you 
are going to improve the best of the best. But if some of us 
ask questions up here, do not ignore the questions, look for 
the answers.
    I do not know if you want to refer to that at all.
    Mr. Mueller. Probably, Mr. Chairman, to say that I do think 
that it is important that everybody in the Bureau look at both 
the good and the bad in order to address it. It is not only me, 
as the director of the FBI, should I be confirmed, but it is 
also senior management and the FBI agents who come forward with 
those items that need changing and to directly confront 
criticisms that are made at whatever level of the FBI, and as I 
indicated in my statement, address those criticisms. And where 
there are criticisms that are valid, take such steps that are 
necessary to change that which needs changing.
    Chairman Leahy. And will you give your commitment that if 
you are ever pressured politically by the Republicans or 
Democrats to affect an investigation, that you will resist that 
pressure with all your might?
    Mr. Mueller. Absolutely.
    Chairman Leahy. Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman.
    Mr. Mueller. May I just add, if I might?
    Chairman Leahy. Sure.
    Mr. Mueller. It is critically important for the FBI to 
investigate crimes, allegations of crimes thoroughly, 
professionally, objectively, and without interference 
politically or otherwise. And when it does that, it then has 
the credibility of the American people. And so to avoid 
political pressures it is absolutely critical for the FBI to do 
its job, as that job is expected to be performed by the 
American people.
    Chairman Leahy. I thank you for that. And I hope, I hope 
the Senate will always stand here ready to protect you from 
both sides of the aisle in that regard.
    Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman.
    Mr. Mueller, the FBI rarely works alone in criminal 
investigations. In a significant number of its cases, the FBI 
operates in tandem with a number of Federal, State and local 
law enforcement agencies, and sometimes the other agencies' 
involvement is due to overlapping jurisdiction in some cases, 
but in some instances, the other agencies come to the FBI for 
technical assistance or support. Now, the specialized areas of 
computer crime and DNA testing immediately come to mind, but I 
know there are many others.
    Would you please explain to the committee your view of the 
role the FBI should play in assisting other agencies, 
particularly the State and local agencies in criminal 
investigations?
    Mr. Mueller. I, in the past, I have been fortunate to work 
with the FBI and to see it work with other Federal 
organizations closely and with State and locals. An example 
would be the Pan Am 103 investigation, which the FBI and the 
Scottish police worked diligently over 3 years to bring the 
investigation of that disaster to the point where there could 
be indictments. And when you are dealing with foreign law 
enforcement agencies, it is sometimes exceptionally difficult 
because they work under a difficult legal system.
    I have had occasion to see in the District of Columbia here 
what was called the Cold Case Squad, where you had homicide 
detectives from the Metropolitan Police Department work closely 
with the FBI to investigate homicides that could not be solved 
immediately. I think every one of those--each of those 
instances, and myriad others, where the FBI works closely with 
the State and locals, you have an ability to combine the best 
of both agencies--the technological wherewithal of the FBI, 
sometimes the street smarts and other abilities of the State 
and local law enforcement agencies, and that should be the goal 
of the FBI in performing its law enforcement functions.
    Senator Hatch. One of the areas of prosecution for which 
you are particularly known is that of computer and intellectual 
property crime. As U.S. attorney for the Northern District of 
California, you created a section called the Computer Hacking 
and Intellectual Property or CHIP.
    Recently, Attorney General Ashcroft recognized your success 
in the most sincere and flattering way possible, by announcing 
the formation of nine additional CHIP units around the country. 
As you know, a subset of this area, criminal copyright 
enforcement, is of key importance to this committee. We have 
devoted considerable energy over the past several years to 
Internet enforcement in particular.
    In 1997, we enacted the No Electronic Theft or the NET Act, 
combining criminal penalties for certain noncommercial Internet 
parts. In 1998, we passed the Digital Millennium Copyright Act, 
or the DMCA it is called, which helps combat trafficking in 
hacking devices designed to defeat technological protections 
for copyrighted material.
    We also enacted the Digital Theft Deterrence and Copyright 
Damages Improvement Act to speed the implementation of the NET 
Act and to improve online theft deterrence generally, and we 
have even earmarked additional funding for DOJ, specifically 
for the investigation and prosecution of cyber crime.
    The committee's work is starting to bear fruit in the form 
of criminal prosecutions of Internet piracy. So far this year 
the number of NET Act prosecutions appears to be up, and we 
have just recently seen the first criminal prosecutions brought 
under the DMCA.
    Just this week, the DOJ announced a--the Department of 
Justice--announced a series of new prosecutions of Internet 
crimes. I commended the Department of Justice for what I hope 
is a commitment to cyber crime enforcement, and I hope this 
becomes a priority for the FBI as well.
    Would you please outline for us, if you can, your plans, as 
FBI director, on protecting the Nation's computer 
infrastructure and intellectual property.
    Mr. Mueller. If I may go back briefly to what I saw when I 
took over as U.S. Attorney in San Francisco, we had Silicon 
Valley in my district, and one of the great issues was how do 
you protect--not protect, but how do you combat high-tech 
crime. And the first thing I had to do was determine what do 
you mean by high-tech crime, and I came to the conclusion that 
it should be broken down in four ways: first of all, computer 
intrusions, denial of service attacks; second, theft of 
intellectual property, economic espionage; third, frauds on the 
Internet and distribution of child pornography on the Internet; 
and, fourthly, the theft of high-tech components such as 
computer chips, hard drives, and the like--all of which are 
critical to the high-tech industry.
    We put together a unit in San Francisco and in San Jose 
because it was important to develop the expertise in the United 
States Attorneys, the Assistant United States Attorneys who 
would be handling these cases. It was important that we 
developed the relationships between the FBI agents who had the 
expertise to do these cases, the Assistant United States 
Attorneys who were doing these cases, and the community. In 
addressing high-tech crime, it is critically important that we 
developed the relationships with those victims of high-tech 
crime in the high-tech industry. And, consequently, we will 
support--should I be confirmed as the Director of the FBI, the 
FBI will support not only the unit that was set up in the 
Northern District of California, but also the other units to be 
set up, announced by the Attorney General last week.
    One other point I might make, and this goes to the issue of 
working closely with the State and local authorities. There are 
too few investigators with the skills we need to address this. 
And one of the developments that has been useful is what has 
been known--or called a computer forensics lab, which was 
established in San Diego with a number of contributing, 
participating agencies, both Federal and local. And it is that 
type of combined enterprise that we are going to have to adopt 
if we are to address this new wave of separate technological 
crime in the future.
    Senator Hatch. Thank you. Mr. Mueller, as you know, the 
2002 Winter Olympics in Salt Lake City, they are going to be 
the largest planned public safety and law enforcement operation 
in our country in the foreseeable future. The law enforcement 
community, including the FBI, has been working on the plans and 
preparations for several years. And one of the unique and 
forward-thinking aspects of the plans is the invention of the 
Utah Olympic Public Safety Command, which for the first time 
has combined the Federal, State, and local law enforcement and 
emergency management agencies under one entity to ensure 
coordinated development and execution of the Olympic public 
safety plans.
    Now, I have studied the public safety issues and have 
received the intelligence and securities briefings on them. In 
May of this year, I held a Judiciary Committee field hearing in 
which 11 top law enforcement and emergency management officials 
from the Federal, State, and local levels discussed the 
importance of cooperation among the various agencies in 
preparing for the Winter Olympics in 2002.
    Now, I feel very confident that the people who are working 
on this project are taking their jobs seriously. They are 
focused and I think on the right priorities. However, I am 
convinced that it takes leadership from the very top of all 
organizations to ensure successful execution, so I want to have 
your assurance that you will treat the FBI's role in the 
Olympics as one of the Bureau's top priorities, that you will 
support and encourage your agents' efforts, and that you will 
provide meaningful leadership to this important national and 
international event.
    Mr. Mueller. I will, Senator. I would expect to be 
personally involved in those preparations so that I can assure 
myself that the Bureau would be doing everything it can do to 
contribute to the joint effort.
    Senator Hatch. OK. Now, we understand that the FBI is now 
requiring polygraphs for managers handling national security 
matters. Are you willing to continue that approach?
    Mr. Mueller. Yes.
    Senator Hatch. And would you be willing to take a polygraph 
yourself if that were the case?
    Mr. Mueller. Yes, indeed, it is my belief you don't--this 
may be my training from the Marine Corps, but you don't ask 
people to do that which you're unwilling to do yourself. I have 
already taken that polygraph.
    Senator Hatch. The only reason I ask that question is 
because I knew you had, and I just think it is important for 
people to----
    Chairman Leahy. How did you do?
    Senator Hatch. Yes, how did you do?
    [Laughter.]
    Mr. Mueller. I'm sitting here. That's all I can say.
    Senator Hatch. We just hope you had a good examiner, that 
is all.
    I understand that you took steps to address securities 
fraud, and what role do you see the FBI playing in addressing 
securities fraud in this country?
    Mr. Mueller. Again, when I went out to my district in San 
Francisco, with Silicon Valley being a substantial component of 
the responsibilities there, securities fraud was something that 
we felt needed to be addressed. And, consequently, after having 
some feel for how the problem needed to be addressed, again, I 
set up a unit, brought a very talented individual in from the 
Southern--actually, the Eastern District of New York who had 
done these types of cases, assigned agents to these cases, and 
developed a very close relationship with the counterparts in 
the SEC, and thanks to the work of that unit and those in it, 
there have been a number of substantial prosecutions that flow 
from it.
    Securities fraud is often very difficult to investigate, 
hard to prosecute, but the damage done to investors by 
securities fraud is substantial. And the FBI should play a 
substantial role along with the SEC in addressing it, and I 
would expect that the Bureau would continue to accord manpower 
to address that particular priority.
    Senator Hatch. Well, thank you so much. I think there is no 
question I am going to support your nomination. I am very proud 
of you, proud of your willingness to serve and to give even 
more of an effort for your country. And I am proud of your 
family, as well, for supporting you.
    Chairman Leahy. What Senator Hatch means is that he and I 
will waive seeing the results of the polygraph test.
    When you speak of the Marines, I swear I have heard from 
virtually every Marine I know around the country about your 
nomination. And as Mr. Mueller knows, when he called me at my 
farm house in Vermont the day that he had been announced by the 
President, I was on the other line with my son, who is a former 
Marine, who told me I better take that call. So you already had 
a lobby effort going in our family.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Mueller, the FBI has been accused of working too 
independently of prosecutors, particularly in deciding what 
evidence should be transferred to prosecutors. In other words, 
the FBI sometimes appears to be making its own decisions about 
whether evidence is potentially relevant and whether a case 
should be pursued when these are decisions that should be made 
by prosecutors. We have seen this arise most recently in the 
Timothy McVeigh case where we still do not fully know why all 
the documents were not turned over in a timely manner after 
repeated requests from the FBI Director.
    Unfortunately, we also know that this was not the only 
occasion, the McVeigh situation, not the only time this ever 
happened. There was the 1963 bombing of the 16th Street Baptist 
Church in Birmingham, Alabama. In that case, it was not until 
very recently that the FBI finally turned over all audiotapes 
and other evidence to prosecutors who were seeking to prosecute 
the remaining defendants in that cowardly, horrific bombing. It 
is believed that people inside the FBI, as high as the Director 
himself, J. Edgar Hoover, blocked the distribution to 
prosecutors of critical information that could have led to the 
prosecution of those responsible for this heinous act.
    Now, you are, of course, in a unique position, having been 
on the other side of this equation, the Federal prosecution 
side. Mr. Mueller, do you share this concern? And if so, what 
steps will you take to facilitate better communications and 
working relationships between the FBI and Federal and State 
prosecutors to ensure that justice is served?
    Mr. Mueller. I do, being a prosecutor, I do share the 
concern, Senator. There is no prosecutor that wants to walk 
into a courtroom without knowing absolutely everything there is 
to know about the case. And in the past, I have had occasions 
where this has been an issue. The Pan Am 103 prosecution, the 
Noriega prosecutions, are examples were there are issues 
involving national security information that may bear on a 
particular prosecution. But there may be very valid reasons for 
keeping certain of the information from the prosecutors that go 
into the court, although the prosecutors would not want that to 
happen.
    In those circumstances, we have had mechanisms to assure 
that that information is scrubbed to make absolutely certain 
that there is no Brady information, exculpatory information 
that should be given to the defense. And there are mechanisms 
such as the Classified Information Procedure Act that enables 
us to keep certain of that information classified. The issue 
comes up in cases like that.
    More often, on a day-to-day basis, one of the problems that 
I do think the FBI has is the inability to produce quickly 
documents, and that I do believe is attributable in part to its 
antiquated filing system.
    FBI agents will tell you that when they go out and take 
notes of an interview, they come back, pull off the notes from 
the sheet of paper, fold it up, put it in what's called a 1A 
envelope, and that 1A envelope is then put in an evidence 
locker along with 150 or 200 other 1A envelopes. When the 
prosecutor asks for everything in that case, often the agent 
has to go, pull out that envelope, open the envelope, pull out 
a piece of paper, take it to a copy machine, copy it, and get 
it to the prosecutor--a disincentive to producing that which 
should easily be produced.
    My hope is, earlier rather than later, that the FBI could 
be somewhat paperless; in other words, notes, when an FBI agent 
comes back with handwritten notes, which FBI agents will, 
they're imaged into a data base, coded so that in the future 
anything, any document, any picture, any report, any 
fingerprint report, for instance, or fingerprints themselves, 
will be imaged into the data base and be immediately accessible 
so that you do not have the problem such as you saw with the 
prosecution of the McVeigh documents.
    In that circumstance, the agents, FBI management, the 
prosecutors, can all be assured that you have the foundation 
for production of the documents.
    Senator Feingold. Thank you for that answer very much. I 
would like to turn now to an issue we talked about when we met 
last week, and that is the electronic recordings of interviews. 
I understand that currently FBI agents memorialize all 
interviews as written reports or 302s and the field notes are 
then destroyed systematically. And I think you were getting 
into some of this area here.
    Electronic recordings of interviews, audio or visual, 
however, can be helpful to a jury in determining the 
credibility of the evidence, particularly confessions. A 
recording allows the listener to hear intonation and whether 
questions are asked in a suggestive or coercive fashion. This 
is a particularly growing concern as the FBI increases its 
operations overseas. I understand that the FBI interviews non-
English-speaking persons through translators, but memorializes 
the interviews simply by way of a written report in English.
    Are you willing to consider requiring FBI agents to record 
interviews electronically, which is a practice that would be 
consistent with the practice of many law enforcement agencies 
around the country?
    Mr. Mueller. The short answer, Senator, is yes. If I may 
explain, the Bureau had a longstanding policy, as I understand 
it, of having no recordings of interviews. That policy was 
changed--I'm not certain how recently--to allow recordings of 
interviews upon the approval of the special agent-in-charge of 
the office. And, consequently, my understanding is it's not a 
hard and fast rule as it was previously.
    Having worked homicides in the District of Columbia, I have 
seen the advantage of the use of recording of interviews. On 
the other hand, day in and day out FBI agents interview 
thousands if not hundreds of thousands of people. If they're 
doing background investigations for people like me, for 
instance, they interview any number of people, and it would be, 
I think, counterproductive to require recording and 
transcribing of all such interviews. But certainly the practice 
has been changed. We will continue to look at it, particularly 
in an instance where it is important that a confession or 
critical evidence relating to a terrorist attack needs to be 
deciphered accurately with no room for error.
    Senator Feingold. I look forward to continuing to discuss 
this as time goes on, and now I would like to go to a different 
topic.
    Some people believe that the FBI historically has had some 
difficulty distinguishing between people engaged in peaceful 
political dissent and those individuals who for political 
purposes engage in violent activity. For example, there are the 
Palmer raids, the McCarthy era abuses, COINTELPRO, 
neutralization of civil rights, anti-war, and other activists, 
investigation of activists opposed to our Nation's Central 
America policies, and now, according to some people, the 
targeting of Arab Americans.
    First, do you share this concern and how will you 
distinguish between political dissent activity and criminal 
activity when determining whether to initiate or continue 
investigations? And then I would like you to also address what 
steps you will take as Director to ensure that the Bureau does 
not infringe on fundamental First Amendment rights and 
restricts itself, of course, to investigating only criminal 
activity.
    Mr. Mueller. I do share the concern, Senator, and it has 
been my practice as a prosecutor, when working closely with the 
FBI or any other agencies, to focus on what predication there 
is for further investigation. In my own view, the investigative 
process is a series of steps that one must go through, always 
looking at each of the steps as to whether or not you have got 
sufficient reason to go forward to the next step. If there is 
an allegation and there are minimal tasks, investigative tasks 
can be done to determine, prove or disprove that allegation, 
they should be done before you issue a grand jury subpoena. 
And, consequently, I would insist that whenever we are 
undertaking an investigative enterprise, that there be adequate 
predication for the steps we take to pursue that investigation.
    One of the things I probably will be discussing at more 
length while we are here, and that is the issue of span of 
control, and how do you assure, as Director of the FBI, that 
such concern, oversight, is being demonstrated at the local 
level. And as I mentioned in my statement, I do have concern 
about span of control. In an organization as large as the FBI, 
you have to have transparency of information all the way to the 
top. And there has to be focus on what is a priority, what is 
critical, so that those leaders at the top are prioritizing 
information they're getting. In order to do that in an 
organization as large as the FBI, you have to have the computer 
infrastructure. And that is one of the reasons that I will as 
soon as possible push hard to get the infrastructure that 
enables the information, which is the lifeblood of the FBI, in 
a form where it can be transparent to the managers at the local 
level and at the national level, so that you are able to look 
and assure and provide the oversight necessary that predication 
is being looked at, demonstrated, before a particular important 
investigation is going forward or a class of investigations is 
going forward.
    Senator Feingold. Thank you very much and good luck.
    Mr. Mueller. Thank you.
    Chairman Leahy. Thank you.
    Just to bring us up to date where we are, I have been 
informed that a number of flights have been delayed this 
afternoon of Senators coming back to Washington. What we are 
going to do is go to Senator Specter now for his round. I have 
discussed this with the Senator from Alabama also. When he is 
finished, we will take a short recess to allow everybody a 
chance to stretch, if nothing else, and then we will come back 
and begin with Senator Sessions.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Mueller, when we met several weeks ago, I commented to 
you about this memorandum from Director Freeh to Mr. Esposito 
dated December 9, 1996, and a copy has been furnished to you. 
And the critical paragraph is paragraph 4 which says as 
follows: ``I also advised the Attorney General''--this is a 
reference by Director Freeh to a conversation he had with 
Attorney General Reno. ``I also advised the Attorney General of 
Lee Radick's comment to you that there was a lot of `pressure' 
on him and PIS''--the Public Integrity Section--``regarding 
this case because the `Attorney General's job might hang in the 
balance' (or words to that effect). I stated that those 
comments would be enough for me to take him and the Criminal 
Division off the case completely.''
    This memorandum did not come to the attention of the 
Judiciary Committee until a subpoena was served in April 2000 
for the LaBella report and any other documents in possession of 
the FBI relating to the campaign finance investigation. When I 
saw this memorandum, I asked Director Freeh why he did not turn 
it over to the oversight committee, and he responded that he 
thought it would seriously impair his relationship with the 
Attorney General. He declined to testify, and my efforts to get 
a subpoena from this committee were unsuccessful.
    When Attorney General Reno testified, she said that she 
didn't recollect any such conversation, but if such a 
conversation had occurred, then she would have done something 
about it.
    Now, mid-2000 investigation is hardly any way to pursue 
oversight on an event which happened in December 1996. Now, if 
such a matter were to arise, assuming your confirmation as 
Director of the FBI, would you sua sponte on your own make a 
disclosure to, say, the chairman and ranking member of the 
Senate Judiciary Committee or some other oversight body?
    Mr. Mueller. Well, I have had an opportunity to think about 
this, what I consider to be a very difficult issue, Senator. 
And if I might, let me just state that I understand, firmly 
believe in the right and the power of Congress to engage in its 
oversight function. It is not only a right, but it is a duty. 
And there are occasionally concerns relating to law 
enforcement, relating to privacy interests, that are some, as I 
say, concern to the Department of Justice and would be to the 
FBI.
    In responding to oversight, I would be guided by three 
principles.
    First, I would always try to accommodate the requests of 
Congress consistent with law enforcement, my law enforcement 
responsibilities, accommodate in a variety of ways, whether it 
be through summaries substitutions, redactions, or the like, 
and I've had some experience in doing that when I was Assistant 
Attorney General in charge of the Criminal Division.
    Second, I believe that Congress is entitled to a 
straightforward articulation of the reasons why a particular 
document could not be given to the oversight committee in its 
entirety.
    And, last, oversight--or I should put it another way, 
accommodation should never be sought to avoid embarrassment or 
for any other reason other than a legitimate reason relating to 
a valid basis for keeping an item confidential.
    Senator Specter. With all due respect, Mr. Mueller, that 
doesn't answer my question. I consider this to be ground zero. 
If there isn't oversight by the Judiciary Committee on a matter 
of this sort, then oversight is meaningless. If you limit 
oversight to the chairman and the ranking member, that is a 
very limited amount of oversight. Maybe you can limit it just 
to the Senate. I wouldn't presume to get involved in your 
duties to the House of Representatives. But the chairman and 
the ranking member are of sufficient credibility and 
reliability as the Director of the FBI or the Attorney General 
or Mr. Esposito, to whom this memorandum was addressed. This 
document and these factors were in the hands of quite a number 
of people in the FBI. And Senator Leahy and Senator Hatch, or 
whoever may hold those positions, are people of responsibility 
and trust.
    Let me add to the mix another factor, but I intend to come 
back to it, and I intend to press a flat answer. In February 
1997, Director Freeh told me that there was a request by the 
President through the National Security Counselor--and I 
discussed this matter with you, because these are weighty 
matters and I don't think we ought to propound the questions 
and expect an answer in the course of a hearing, just something 
you haven't had a chance to think about. But as I said to you, 
FBI Director Freeh said that the information was not provided 
to the President because the President was under a criminal 
investigation.
    Now, I did not find out at that time what the quality of 
the evidence was as to a criminal investigation, nor did I find 
out what the national security information was. But had I known 
about this memorandum, which identified a top Department of 
Justice official, Mr. Lee Radick, saying that there was 
pressure on him regarding this case because the Attorney 
General's job might hang in the balance, or words to that 
effect, in combination with the two, that is a matter which I 
would have pressed for disclosure.
    Without returning to the first question, Mr. Mueller, do 
you think that the Director of the FBI has the authority to 
withhold national security information from the President, even 
if the President is under a criminal investigation? Considering 
the fact that obviously as long as the President is in office, 
he is the President and he is the Commander-in-Chief and we 
have a constitutional process for changing that which we 
undertook 2 years ago, the matter could be reported to the 
Speaker of the House of Representatives for possible 
impeachment if it rises to the level to conceal the 
information, not disclose it, then it comes to the Senate, 
there are constitutional provisions. I think it takes a lot of 
fortitude, also known as ``guts,'' to not show that information 
to the President. And what's your view on that? Is that a 
proper exercise of the authority of the Director of the FBI?
    Mr. Mueller. Let me take the second question, and then I 
will come back to, if I could, the issue----
    Senator Specter. OK. They are interrelated, so I wanted 
to----
    Mr. Mueller. Surely.
    Senator Specter [continuing]. Get them both on the table at 
the same time.
    Mr. Mueller. Again, I think these are exceptionally 
difficult issues, amongst the most difficult issues that any 
Director has to face. But with regard to the--it's not 
necessarily a hypothetical because apparently they are the 
facts, but the factual scenario that you painted of national 
security information not having been provided to the President 
and whether or not as a result of or as a consequence of 
required oversight from the Congress, there should have been 
some discussion of that with Congress.
    The problem--well, let me go back and say there are 
circumstances where the FBI is required to do very difficult 
investigations of individuals within an administration. Often 
it is as a result--has been the result of appointment of an 
independent counsel. In the future, it may well be as a result 
of the appointment of a special counsel by the Attorney 
General. And there may be occasions where information comes to 
the attention of the FBI that, as Director, the decision or the 
view is that to disclose that information to a target would 
hamper or undercut the investigation. And I would expect that 
being a component of the Department of Justice, that any 
decision as to whether or not that information should be 
disclosed to the target would be made in conjunction with the 
Attorney General. But the decision may well be that that 
information should not be disclosed.
    If it is national security information, on the other hand, 
that bears upon the security of the United States, I think we 
have an obligation to assure that anything within those 
materials that bears on the national security finds its place 
in the national security structure.
    Now, if there is a request from Congress for that 
information, then, again, in consultation with the Department 
of Justice, we would find a way to accommodate the concerns of 
Congress.
    Senator Specter. But when you use a hypothetical of a 
request from Congress, Congress can't make a request when it 
doesn't know anything about it.
    Mr. Mueller. Well, what you're asking is whether I would 
sua sponte discuss that with Congress, not discuss it with the 
Attorney General, and I think it would depend on the 
circumstances.
    Senator Specter. No, I think you should discuss it with the 
Attorney General. But I believe, of course, the facts--well, 
you might have a distinction there. It was a rocky road between 
the Director of the FBI and the Attorney General. And this all 
turned upon the appointment of independent counsel where the 
record is full of the fact that Director Freeh wanted 
independent counsel and Attorney General Reno resisted, a 
matter of long, contentious hearings right here in this room.
    Mr. Chairman, may I borrow a little time?
    Chairman Leahy. Go ahead.
    Senator Specter. So maybe--well, we are backing up 
questions--would you not discuss it with the Attorney General?
    Mr. Mueller. No. Absolutely, I am a component of the 
Attorney General, or not of the Attorney General, a component 
of the Department of Justice, and as, I think, Senator--as Mr. 
Chairman pointed out at the outset, the Attorney General's the 
boss. Absolutely I would discuss it with the Attorney General.
    Senator Specter. You are a little more than that, as 
Director of the FBI, Mr. Mueller. You have got a 10-year term, 
and you cannot be removed except for cause. And in a context of 
this sort, it better be a mighty good cause for somebody, the 
Attorney General or the President to try to remove you. But the 
ultimate decision came down to Director Freeh, as I understand 
the facts and I pursued the facts. So the question is, two 
questions pending, Mr. Mueller are--well, I will just ask one 
at a time under a questioner's rule. Would you, as FBI 
Director, exercise the authority to withhold information from 
the President on national security matters, because the 
President was the subject of a criminal investigation?
    Mr. Mueller. There may be an occasion where it's possible, 
yes.
    Senator Specter. OK. You are the Director of the FBI when 
this information comes to you about somebody in the Public 
Integrity Section who is opposing the appointment of 
Independent Counsel. He is the principal person fighting 
appointment of Independent Counsel. The record is replete of 
that. Mr. Radick testified before the subcommittee on 
Department of Justice oversight, that he did not believe in the 
Independent Counsel Statute, was not going to enforce it. And 
here he has a conversation with the top FBI official, and the 
Director takes it up with the Attorney General, and recounts 
Radick's statement about a lot of pressure on him, because the 
Attorney General's job might hang in the balance. Are you going 
to inform the Judiciary Committee Oversight, at least the 
chairman, ranking member, at the time this memo was drafted, 
correct?
    Mr. Mueller. I'm not certain what I would do in that 
circumstance, but I cannot tell you today that I absolutely 
would. This relates to conversations between the FBI Director 
and the Attorney General. And I also believe, in addition to 
the responsibility of the FBI Director to act as a component of 
the Department of Justice, there may well be some 
confidentiality concerns relating to the conversations between 
the FBI Director and the Attorney General. And I would hope 
that as a result of a memorandum like this--and I'm not certain 
it didn't happen as a result of a memorandum like this, that 
some action would be taken. But if action had been taken as a 
result of this memorandum, and as a result of the conversations 
that Director Freeh had with the Attorney General, I am not 
certain that it would be necessary or required to, sua sponte, 
on my own, without consultation with the Department of Justice 
or the Attorney General, to turn this memorandum over to this 
committee, whether it be the chairman or the ranking member.
    Senator Specter. Well, Mr. Mueller, no action was taken. 
Lee Radick's statement is known. He continued to oppose the 
appointment of Independent Counsel. That matter was not brought 
to the attention of the Judiciary Committee, and the Attorney 
General was reappointed, and there was a very, very contentious 
matter which lasted for years, right through the year 2000 in 
July, when the subcommittee terminated its investigation. And I 
am only giving you my opinion, but I do not believe that that 
confidentiality reason has any weight at all. It is not worth 
its salt. There is not a confidentiality relationship between 
the FBI Director and the Attorney General when it comes to a 
matter of this import, about somebody easing off on an 
investigation, and that is what oversight is all about. And 
very candidly, it is not good enough for me, if I do not have 
your assurance, that this is the sort of a thing you will 
disclose to the chairman and ranking member.
    Chairman Leahy. Did you want to add to that? Because I 
think then we are going to take our recess.
    I would note for the record, on this, as I recall, Mr. 
Radick said he did not recall that conversation having taken 
place. I realize the memo speaks is based on hearsay. But to 
ask a question about what you might do in the future is 
perfectly legitimate. I do not think the hearing here should be 
considered to establish exactly what did happen.
    But in any event, we will recess for 5 minutes.
    Senator Specter. Mr. Chairman, before we recess, Mr. Radick 
testified that he recalled pressure, and he recalled the 
Attorney General's job hanging in the balance. He did not 
recall the connection between the two. And Mr. Esposito and Mr. 
Radick sat side-by-side at the witness table, both under oath--
--
    Chairman Leahy. In fairness----
    Senator Specter [continuing]. And gave contradictory 
reports.
    Chairman Leahy. In fairness to Mr. Mueller, this is a 
hearing on his confirmation, and not a hearing on what Mr. 
LaBella, Mr. Radick, Ms. Reno or others might have recalled or 
might not have recalled.
    In any event, we will stand in recess for 5 minutes.
    [Recess from 3:06 p.m. to 3:21 p.m.]
    Chairman Leahy. What we will do now, as I said earlier, we 
will go to Senator Sessions of Alabama, then we will go to 
Senator Edwards of North Carolina, and if other members come, 
they will have the opportunity to ask questions. Otherwise, we 
will go back to Senator Hatch and myself.
    And I appreciate Senator Sessions--has been here right from 
the get-go on this--for his patience.
    Senator Sessions. Thank you. This is a very important 
hearing. We have got a very important nominee and nomination 
matter to settle and talk about, and I think it is good we take 
some time, and I thank you, Mr. Chairman, for doing that.
    Mr. Mueller, with regard to Senator Specter's questions, I 
was a participant on the subcommittee with him and heard the 
testimony, and I have been a line prosecuting United States 
Attorney. My respect for the Attorney General is unbounded. I 
know you always, if you have a problem, want to talk to the 
Attorney General, if it is a serious problem. But in this case 
the allegation was that the Attorney General's own hand-picked 
Chief of Public Integrity told a high official in the FBI that 
the Attorney General had to go, in effect, soft on this case 
because her job might be on the line. And I do not know what 
the answer to that is, precisely what you should do, but under 
those circumstances, I hope that you will keep your options 
open, because you have a 10-year appointment. That is for a 
reason, so that if something serious occurs, and there has been 
a threat to the orderly operation of justice, that you would 
use that independence for a good reason. And I do not know what 
the answer would be, but I think you should keep your options 
open.
    Mr. Mueller. May I respond to that, Senator?
    Senator Sessions. Please.
    Mr. Mueller. I do not exclude the possibility that the 
circumstances would be such that I would feel it necessary to 
circumvent the ordinary course of proceedings by--which would 
be to go to the Attorney General first before I made perhaps a 
disclosure to Congress. But I am not precluding the possibility 
that given the necessary independence of the Bureau in 
investigation, that there might not come a time where one seeks 
an alternative where one believes that political pressure is 
being brought to bear on the investigative process. That may be 
somewhere else in the Executive, beyond the Attorney General. 
It may be Congress, but I would look and explore every option 
if I believed that the FBI was being pressured for political 
reasons. And if that were the situation as described here, I 
would explore other alternatives or a variety of alternatives 
in order to make certain that justice was done.
    Senator Sessions. Well, we hope that we do not have that 
happen again, and I think you answered well.
    Let me mention a couple of things that are important to me. 
Senator Feingold asked about the 16th Street church bombing 
case in Birmingham, where tapes were not produced to Former 
Alabama Attorney General Bill Baxley years ago, when he did the 
first prosecution of the case. And something I have written the 
FBI about. I would like to know how it was that decision 
occurred and why those tapes were only produced recently. And 
to date, the answers we have gotten, I believe, are not 
satisfactory.
    Will you look at that and give it a fresh look, and make 
sure that we have the information we need? And one of the 
things that I think Senator Grassley is raising in his use of 
the words ``arrogance'' and ``defensiveness'' is that sometimes 
you need to admit your error if there was an error. And I think 
it would be healthy to review that in a fresh way, and if an 
error was made, I would like to see you say an error was made.
    Would you do that?
    Mr. Mueller. Absolutely, Senator.
    Senator Sessions. Another matter that has come to my 
attention in recent months is that the FBI is building a new 
office in Birmingham, or wants to do that. The city of 
Birmingham has a redevelopment project. They have a piece of 
property that they want the FBI to build on for $800,000, but 
the FBI seems determined to go to a higher-rent district with a 
$5.5 million real estate purchase. I have questioned that. Will 
you look at that?
    Mr. Mueller. I will.
    Senator Sessions. In fact, I will just, for my two cents 
worth, add here that I think 4.5 or more million dollars is a 
lot of money. I am not sure that all the millions being spent 
on high level security for the FBI buildings is justified. I do 
not know why a terrorist would want to bomb the FBI Building 
more than they would the Mayor's office in Birmingham, or the 
Senator's home that can be found in Alabama. So I just think we 
need to look at that. There is a lot of money going into 
setbacks and underground garages and all of this stuff, that to 
me, is hitting the taxpayers awfully hard. You may be able to 
save a lot of money for a lot of the things you need to be 
doing from the building budget if you will look at it.
    Mr. Mueller. I will.
    Senator Sessions. Senator Feingold asked you about the 
coordination partnership between the United States Attorney and 
the FBI agents in working a case toward prosecution. I believe 
that cases go best when FBI and prosecutors work together 
handily. There seems to be some view that the FBI does the 
investigation and takes it fully complete to the U.S. Attorney. 
You have been the prosecutor for a long time. What is your view 
of the proper role and partnership between the investigative 
agents and the prosecutors?
    Mr. Mueller. As you mentioned, it's partnership, and the 
best cases are made with the FBI agents working closely with 
the Assistant United States Attorneys from the outset of the 
case, and it did not use to be the case 10, 15, 20 years ago, 
but it's much more the case today. That's exactly the way it 
should be done, and ideally, if it is a case that cuts across 
jurisdictional lines, you have the FBI working with other 
Federal or local law enforcement officers from the outset with 
the Assistant United States Attorney.
    Senator Sessions. And with regard to your comments about 
the fact that everybody makes errors in a case, I think that 
was a good observation. Young FBI agents working their hearts 
out, are going to make some errors in some cases that they work 
on. There was this fear in years past that careers could be 
ruined if there were ever an error made. And I remember my 
Chief Assistant United States Attorney, and a great prosecutor, 
Ruddy Farb, would always tell the agent, ``Son, if you've got a 
problem, you come to me, and we'll tell the truth. And I'm not 
going to let them do anything to you over there.'' Because 
there was a concern that if they made an error, that somebody 
in the hierarchy would be too hard on them, for an honest 
error. Do you think sometimes that is a factor in the lack of 
willingness to come forward with and admit an error?
    Mr. Mueller. Yes. I do think that's a factor, and the 
bedrock principle ought to be to tell the truth.
    Senator Sessions. The sooner the better.
    Mr. Mueller. Sooner the better.
    Senator Sessions. As you said earlier. I started a task 
force dealing with bankruptcy fraud cases. Bankruptcy is a 
Federal Court matter. The Senate is moving forward on 
bankruptcy legislation now. Many people file false forms or 
they lie under oath, and they cheat legitimate creditors and 
hide money for themselves that should be going off to pay 
legitimate debts.
    Will you look at making that a national priority? This is a 
Federal Court matter. The integrity of Federal Court is an FBI 
function of the highest order I think, and I think those cases 
should not be treated as some sort of little commercial 
dispute. Many of them are blatant fraud.
    Mr. Mueller. I--I will do so. I will tell you that in our 
district, we've got a--a close relationship with the Bankruptcy 
Court judges, and we take bankruptcy fraud seriously, and we 
try to do a number of them at the same time, so that the word 
goes out that you cannot lie, cheat or steal in Bankruptcy 
Court, for purposes of deterrence.
    Senator Sessions. Absolutely correct. And I appreciate you 
saying that, and bankruptcy provides tremendous benefits for 
those who file bankruptcy. We simply ask them to tell the truth 
and not to cheat people by filing bankruptcy.
    I know you have been involved over the years in public 
corruption, and you mentioned the rule of law. I am convinced 
that the American justice and legal system is one of the great 
engines of our progress, one of the great protectors of our 
liberty, that everybody has an equal right to bid on a 
contract. The low bidder should get it if they qualify. That 
people should not have to pay bribes or pay off politicians to 
get work and that sort of thing.
    As a practical matter, it is my observation that it is 
extremely difficult for a state prosecutor or a state police 
officer to investigate a judge, or the mayor, or the state 
senator, or whoever. Do you feel that public corruption 
prosecution should be a high priority of the FBI?
    Mr. Mueller. It is, and it should be, always. Regardless of 
technological advances and the like, the FBI's role in 
addressing public corruption, as well as civil rights, for 
instance, it's critically important and should always be a top 
priority.
    Senator Sessions. Well, in my tenure as United States 
Attorney, judges, mayors, county commissioners, all kinds of 
public officials were investigated almost exclusively by the 
FBI and prosecuted by our office. And I think there is a higher 
level of integrity today in the Southern District of Alabama 
than there was before that started. It has been a good thing 
for that district.
    And one more question. You mentioned priorities. I remember 
when, under President Reagan and under, really, the driving 
leadership of Rudy Giuliani as Associate Attorney General, law 
enforcement coordinating committees were set up in each United 
States Attorney's district, and each one of those met with the 
top law enforcement officials there, and they studied the law 
enforcement problems in that district, and they made priorities 
for law enforcement in those districts. Local priorities did 
not always agree with the top priorities in Washington of the 
FBI. There was very little if any La Cosa Nostra in the 
Southern District of Alabama. And that was a top priority of 
the FBI.
    Will you respect and give credit to FBI agents and 
supervisors who participate in the priorities of their 
district, even if they do not necessarily fit in with the top 
priorities in Washington?
    Mr. Mueller. I think that's always a problem with U.S. 
Attorneys who are in a particular district. Mine, the Northern 
District of California, is 3,000 miles away from the Department 
of Justice, but the Department of Justice and Headquarters have 
certain priorities. It's important to meld the priorities of 
the Department with the priorities of the particular district, 
both for the assistant--not the assistant--but for the United 
States Attorneys, as well as for the FBI.
    And one of the things I would like to look at, should I be 
confirmed, is the setting of priorities and the allocation of 
manpower to address those particular priorities. I understand 
they're known as stovepipes. And often--not often--but 
occasionally, the allocation of priorities and stovepiping of 
personnel can detract from the effectiveness in law--of law 
enforcement in a particular district. And consequently, one of 
the things I would like to look at is how we can better 
incorporate the priorities in a particular district with the 
national priorities of the FBI, understanding that that was a 
problem as a United States Attorney.
    Senator Sessions. It is a constant problem, as you know, 
and I think maybe one of your top four priorities ought to be 
local priorities, and something like that so that we do not 
have your agents in the FBI not getting proper respect, credit 
and recognition for cases just because they are not in the top 
national priority.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Sessions, and again, I 
appreciate you for standing by for the time to do that.
    Senator Edwards.
    Senator Edwards. Thank you very much. Good afternoon, Mr. 
Mueller, and welcome. I am pleased to have you here today. I 
have read an awful lot about you over the course of the last 
few weeks, and have been very impressed with what I have seen.
    As my colleagues have talked about, I do not think we would 
ever want to understate the extraordinary achievements of the 
FBI over its history. But there are very serious problems, some 
of which I know have been discussed at length before I got here 
this afternoon, the Robert Hanssen spy case, the failure to 
turn over documents in the Timothy McVeigh care, the problems 
with laptop computers and weapons, cataloging those, keeping 
track of them. And I think these are very, very serious 
problems for an agency that we consider the top law enforcement 
agency in the world. And I think they are unacceptable. I hope 
you view them as unacceptable also.
    But I have great faith, based on what I have seen and 
heard, in your ability to go in and change the situation and 
help restore the reputation, the integrity of the FBI.
    I have something, a very specific area I want to ask you 
some questions about today, which is the area of terrorism and 
counterterrorism specifically, something I have great interest 
in.
    I have become convinced that terrorism presents the most 
serious security threat to our country over the course of the 
next decade. And while we have done a lot of good work in this 
area, there is still a lot of good work to be done to make sure 
our national security is protected against terrorism. And I 
have been actually, specifically, working on a set of proposals 
that address what I see as the issues raised by terrorism and 
the appropriate responses.
    There are three areas that I would like to talk to you 
about this afternoon if I can. First is the issue of agency 
coordination. As I know you are aware, there are a number of 
Federal agencies that are involved in the issue of terrorism, 
but the FBI has a very important role in coordinating not only 
between the various Federal agencies, but also with state 
agencies and local officials. And one of the criticisms that 
has been raised by some in the administration, is the failure 
to effectively coordinate these efforts. I personally think 
some of that criticism has probably been overstated, but I 
think it is a serious question. I think the responsibility of 
the FBI to coordinate these activities is very, very important. 
And I am going to ask you to comment on that in just a moment 
if I can, but let me just mention the other two areas.
    The second area which I think is also very important to our 
national security is the area of computer security and the 
threat of cyber terrorism. You know, one of the things that has 
happened over time is we have become increasingly reliant on 
technology to provide vital services in our community, you 
know, whether it is wastewater treatment plants or provision of 
power, electricity, emergency services. I mean there is a lot 
of good things that come from the use of technology. But 
unfortunately, it also creates the opportunity for a terrorist 
attack and a disabling, potentially, terrorist attack. I mean, 
a terrorist attack could cutoff power, major power supplies in 
some of the metropolitan areas of this country.
    As I know you are aware, the NIPC, the National 
Infrastructure Protection Center, is located at the FBI, within 
the Counterterrorism Division, and it is its mission to detect, 
warn against and investigate potential threats to our critical 
infrastructures. Some have complained that since it is 
physically located there, although it is supposed to be an 
interagency operation, that the FBI has dominated it. I would 
comment just in passing that I think it is very important, as I 
discussed just a minute ago, in terms of having coordination 
between the agencies. It is also very important that that vital 
Center be well coordinated between the various Federal 
agencies.
    And the third area is border security. In my State of North 
Carolina, along with a lot of other states, we face the unique 
challenge of trying to protect our seaports against the 
possibility of terrorism. And the FBI has a Joint Terrorism 
Task Force. They cooperate with Federal, state and local 
agencies. They work together to keep borders and seaports safe. 
The role of these task forces, from what I have seen, is 
actually fairly loosely defined, but I think it is very 
important that we do everything in our power and that the FBI 
fulfill its critical responsibility in the area of protecting 
our borders and protecting our seaports.
    So those are the thing I am concerned about. We all know 
how critical the FBI is to our counterterrorism activity. These 
three specific areas are things that I am interested in and 
concerned about, but if you would, I would love to have your 
comments about them.
    Mr. Mueller. I share your belief that the major threat that 
we have, and the threat that the Bureau needs to worry about 
most is terrorism, certainly in the foreseeable future.
    The first point, agency coordination, the improvements that 
have been in the last 5, 6, 8 years in the relationship between 
the FBI and CIA, I think is absolutely critically important in 
terms of addressing the threat of terrorism, because unlike 
many of the crimes we face, it has a national as well as an 
international dimension. And when you--the FBI generally has 
jurisdiction of the border except in some unique circumstances 
where there's a terrorist attack and Americans are killed, but 
after that it's the CIA. And it's critically important that the 
decisionmakers in the United States have the benefit of the 
expertise of both agencies in a coordinated fashion. And I 
think there have been tremendous improvements there, and that 
is a foundation that I think we have to buildupon.
    Likewise, the other agencies that have a role in 
counterterrorism we have to develop on the local level as well 
as on perhaps the state level and national level, the team 
concept of addressing terrorism, because often the intelligence 
will be at the local level. Some of the other intelligence will 
be at the state or the national level. And it's critically 
important that they be put together so that we have a view of 
the puzzle.
    And so I will be supportive of the FBI participating in the 
local terrorist task forces. I think they have had tremendous 
successes. The one in New York has had successes over a number 
of years, and I think that's the way to do it.
    Let me speak for a second about the cyber crime threat or 
the cyber threat to the United States. I have heard what you 
just alluded to, is that NIPC is perceived by some as not being 
as open to all of the participants as it should be. In order 
for any joint intelligence or law enforcement enterprise to 
work, there has to be a feeling of equality and total 
participation of each of the persons that are a participant in 
that task force. And to the extent that there is a perception 
that there is less than that in NIPC, then that is something 
that I would want to address.
    It may be attributable to the fact of the location at the 
FBI. It may be attributable to the number of people. It may be 
attributable to leadership, but there are things that one can 
do to convince all of the participants that they are equal 
participants and have equal benefit out of that enterprise. And 
I would hope to be able to accomplish that.
    Senator Edwards. And the third area was border and seaport 
security.
    Mr. Mueller. I had taken that in the context of the Joint 
Terrorism Task Forces on the local level. Often the Joint 
Terrorism Task Force has not only the FBI, but the local 
police, as well as Customs, perhaps Coast Guard participating, 
and in fact, INS in certain areas. And consequently, the FBI 
has to work with others, others whose responsibilities may be 
more primarily based on assuring the security of our borders, 
such as the Immigration or the Customs Service, or even the 
Coast Guard, where the FBI may take a lesser role, but it's 
still critically important for the FBI to play a role in that 
context.
    Senator Edwards. Well, let me tell you, it is very 
encouraging to hear you say that you recognize what an 
extraordinary threat it is to our national security, this 
threat of terrorism. And that, obviously, the FBI plays a very, 
very important role in protecting our national security in that 
regard. And the fact that you are focused on it, and you 
consider it critical, I find very encouraging, and I look 
forward to working with you. Thank you, Mr. Mueller.
    Chairman Leahy. Thank you, Senator Edwards.
    And we have been joined by Senator Schumer, who will go 
next. I understand Senator Schumer may have been welcoming a 
new constituent to the city.
    Senator Schumer. I was indeed, Mr. Chairman. It was a 
great--it was a great moment. He has kept his touch, and they 
had 20 saxophonists on stage playing ``Stand by Me.'' It was a 
great time.
    Chairman Leahy. And he found a parking space? I always 
understood it was a difficult thing in New York City.
    Senator Schumer. My wife is the traffic commissioner, so I 
will try to put in a good word, appointed, I would remind my 
Republican colleagues, by Mayor Giuliani. Back when she was 
appointed she said, ``I would like to thank the Mayor for 
showing faith in me and my abilities despite the baggage I 
carry.''
    [Laughter.]
    Senator Schumer. And I was truly baggage. Anyway, thank 
you, Mr. Chairman, and I want to thank you for holding this 
hearing and just for your general--I mean, I think our 
committee has had a great start, not to denigrate the time that 
we had under our previous chairman, but it is off to a great 
start under your leadership. We are really doing many, many 
things in many different areas, and I think we all thank you 
for that.
    I would like to thank Mr. Mueller for being here and for 
his time.
    Mr. Chairman, I have made no secret about the sort of 
person I think we need now at the FBI, and that is someone 
devoted to both the rule of law and being an outstanding 
manager. If Richard Jewell and Wen Ho Lee raised questions 
about the management of investigations, the McVeigh documents 
and the Hanssen affair raised questions about the management of 
internal information. And now we even have questions about 
whether the Bureau can manage its own guns and its computers.
    The common thread here is management, which is why I 
believe we need a person with administrative experience and the 
willingness to take on sacred cows. I have great confidence 
that Bob Mueller is that person. I believe that the FBI's 
employees are top notch, as top notch as they have ever been, 
but an Agency that has had to expand its field of endeavor very 
quickly, I heard as I walked in, my colleague, Senator Edwards 
talking about terrorism, something the FBI did not really have 
as a major item of its agenda, counterterrorism, until the 
early 1990's, and as it has grown larger, it has not been 
managed as well as it might.
    And so I applaud Mr. Mueller's selection, somebody who 
knows the Agency, who is a no-nonsense prosecutor, who seems 
to, in his career, been apart from any political 
considerations. I think Mr. Mueller is just what the doctor 
ordered. And I think, at the same time, he will reinforce the 
strength of the personnel, and buck them up, and keep them 
solid and keep them strong. And so I think it is an excellent 
choice, and I applaud the President for choosing Mr. Mueller.
    But while I applaud the selection, I think it is only the 
beginning of what we need to do to change the FBI, not the end. 
While Bob takes the reigns and begins to grapple with the day-
to-day reality of running the Bureau. Senator Hatch and I, and 
I know my colleague has talked about this a little bit, but we 
believe that the FBI could also benefit from a more global and 
thoughtful review by outside independent law enforcement 
experts. Bob will be in the midst of the trees, and somebody 
else may have to be looking at the forest, a view from the 
outside, a view from the top.
    We have introduced the FBI Reform Commission Act, which 
will set up a blue-ribbon commission to thoroughly examine all 
aspects of the FBI's operation, structure, information 
management, oversight, training and culture. The commission 
will then recommend systematic reforms for consideration by 
Congress and the Bureau. Our proposal is beginning to gain 
cosponsors. It is obviously bipartisan, sponsored by two people 
who care a lot about this agency, and I hope that we can take 
it and other bills on the subject up soon. This is not an 
examination of one particular mistake or a series of mistakes. 
It is, rather, a top-to-bottom overview of where the FBI has 
been, what it ought to be, and where it ought to go.
    In the meantime, Mr. Chairman, while we hopefully wait for 
that type of commission if our law passes to come up with its 
recommendations, turning over the keys to Bob Mueller is a 
great start, as I mentioned. Anyone who has the support of both 
Senator Boxer and Attorney General Ashcroft has to be doing 
something right.
    I have known Mr. Mueller for many years. When I chaired the 
Crime Subcommittee in the House, Bob was head of the Criminal 
Division in the DOJ. We worked well together on part of the 
BCCI case and a variety of other matters. I admire his heroism 
as a decorated Marine, his stellar career as a front-line 
prosecutor of everyone from the Hell's Angels to East German 
spies, but at this particular moment it is even more important 
that Mr. Mueller has significant management experience, more 
than any of his predecessors. He has run a variety of different 
offices, large and small, in the Agency, oversaw the 
investigations and prosecutions of Manuel Noriega, John Gotti, 
Pan Am Flight 103 and BCCI.
    So I think he is a great choice, and to boot, I guess we 
can claim you as a New Yorker. I do not know if you have spent 
more of your years there than in any other State----
    Mr. Mueller. A couple of days, actually.
    [Laughter.]
    Senator Schumer. A couple of days. But we will take 
credit----
    Chairman Leahy. He is going to vote for you anyway, so do 
not----
    [Laughter.]
    Senator Schumer. Mr. Mueller has been called shy, low key, 
and someone who shuns the limelight, but at the same time tough 
as nails and no nonsense. For an agency in desperate need of 
results, not just headlines, that is exactly the right mix.
    Let me conclude by restating my view as somebody who has 
supported the FBI throughout my career that the FBI may be a 
little bit down, but certainly not out. We expect it to come 
roaring back. It is an agency, as I said--I said it before, but 
I would repeat it--it seems its parts are greater than its sum 
right now. The individuals are just terrific. Somehow, when you 
put it all together, it does not quite work as well in many 
areas as it might, but I am confident, under Mr. Mueller's 
leadership, it will be. It is still the gold standard in law 
enforcement, and with only rare exceptions, as I said, its 
11,000 agents are as dedicated, trustworthy, and effective as 
ever. I believe the FBI will turn the corner.
    With that, Mr. Chairman, I want to thank you for allowing 
those of us who could not be here exactly on time to make 
opening statements. I will ask a few questions, if I have a 
little time left. I take it we are getting 10 minutes now.
    Chairman Leahy. Yes.
    Senator Schumer. Great. Thanks.
    As I have discussed in my opening statement, Senator Hatch 
and I have introduced a bill that would set up this independent 
blue-ribbon commission to take a top-to-bottom look at the FBI 
and examine global issues, like structure, information 
management, oversight, training, culture. We think this kind of 
broad view would be helpful to you as you get started because 
you are going to have to bear down on the day-to-day job of 
running the Bureau, while the commission will have the luxury 
of focusing on the broader institutional and cultural issues 
that may have given rise to recent problems.
    This commission is intended as a friend of the Agency, not 
as an adversary. What I would like you to do is comment on our 
bill and tell us what you think a commission like this should 
focus on.
    Mr. Mueller. Senator, I must say at the outset that it is 
the administration that determines whether there is support for 
a particular bill. I can also say at the outset that I have 
reached out, and will continue to reach out, to--not just 
persons in the Bureau, but persons who have been in the Bureau 
previously, but also persons in large corporations, CEOs, who 
have run successful corporations to try to identify those 
management structures that worked well and would work best at 
the FBI. I, also, am looking forward to receiving the report of 
the consultant firm that is charged with looking at the FBI 
from top to bottom.
    All of that being said, however, I would welcome the 
insight from any other individuals, assuming it is a 
combination of individuals with experience in management and 
private industry, law enforcement, and other walks of life to, 
again, look at the Bureau and give me advice and other top 
management, advice as to how the Bureau should be improved.
    Senator Schumer. Thank you. Thank you, Mr. Mueller, and 
hopefully we will give you that type of commission, and that is 
the kind of open-minded approach that I think we need.
    Let me turn to another area, something that has recently 
happened in the Justice Department that has troubled me 
greatly. Attorney General Ashcroft recently announced a major 
policy change with regards to records of gun sales known as 
NICS, the NICS audit logs, and these records are needed to 
investigate battle-apple firearm dealers intent on putting guns 
in the hands of anyone who will pay, including convicted 
felons, the mentally ill, people who commit domestic violence.
    The records are also essential. There is virtually no other 
way to catch a straw buyer, somebody who pays someone else who 
doesn't have a record to go buy the guns for them. Until now, 
these records were maintained for 6 months. The Attorney 
General decided they should be destroyed almost immediately 
within 24 hours. A, there appears to be no good reason for this 
change in policy. I do not know anybody who has shown any abuse 
of the system.
    And, second, when we came out with this report a couple of 
years ago that 1 percent of the dealers put 50 percent of the 
guns used in crimes into circulation, I thought it was a major 
breakthrough because the people I had opposed on the gun 
control issue had always said enforcement should be No. 1. We 
do not need more laws, we need enforcement. And here was 
something that almost vindicated them. It did not say every gun 
dealer was bad. It did not say most of them were bad. It said 
there were a small number of bad apples, and if you went after 
them, you could prevent bad people from getting guns and allow 
law-abiding citizens who wanted to continue to have guns to 
have them, a policy that I have always supported.
    And now all of a sudden we are just destroying the ability 
to go after those bad dealers. And the kind of grand compromise 
that I was hopeful that this Justice Department, and this 
President, and this Attorney General could put together seems 
to be going out the window because there is a group of 
idealogues who are against all records, even though we hold IRS 
records for a very long time, we hold just about every other 
record for a very long time.
    So I realize you have not been present for the discussions 
on this policy shift, but several well-placed sources have 
informed me that the FBI opposed the Attorney General's 
decision to destroy these records so quickly and that 
opposition was generated out of a simple concern that 
destroying NICS records will handcuff law enforcement.
    Are you aware, at all, in your stint as an adviser to the 
Attorney General, about the FBI's position on this? I realize 
they would not take an official position, but an informal 
position or informal positions that others in the Justice 
Department may have taken?
    Mr. Mueller. No, I am not aware. The positions have not 
been part of the policy. I do have some concern I will tell you 
about one thing that you have said, and that is that sources 
have told you sort of outside the mainstream as to what 
somebody in the Bureau thought. That bothers me, I will tell 
you, because--and I will tell you some of the reasons why it 
bothers me.
    I do believe that there's a difference between a policy 
debate and the basic investigative work of the FBI. And the 
basic investigative work of the FBI, in my mind, should be 
objective, it should be without any political influence, and 
without--and in order to have credibility, cannot be seen as 
favoring one side or the other.
    Senator Schumer. Right.
    Mr. Mueller. On the policy side, I do believe that the 
President and the Attorney General have the right to make 
policy. They can ask the FBI for input into that policy, but I 
have some concern about the FBI being made a political football 
in a policy dispute because I do think it may well undercut the 
credibility of the Bureau when it comes to needing the 
credibility of the American people to believe that the FBI 
investigates facts objectively and without any political 
influence.
    Senator Schumer. Yes. No, I certainly agree with you that 
there is a great difference between the ability to investigate 
and the ability to make policy. But on a policy as important as 
this, this is not just solely the responsibility of the 
executive branch, and that type of information would be very 
useful to my colleagues here. We have been trying, at least I 
have, and I think there are others who disagree with me, to 
bridge this gap we have had on guns. This was an important way 
to maybe do it.
    And so the fact that the President made a decision, I 
respect that, but I do think it is perfectly within the 
prerogatives of those of us on this side of Pennsylvania Avenue 
to know all of the policy recommendations, pro and con. This is 
not an issue of national security. It is a policy debate. If 
anything, the security of people may end up on the other side. 
So I don't have a problem with that.
    We requested the documents, Senator Kennedy and I, another 
member of the committee--I do not know if he has been here 
today--from Department of Justice and FBI last week. Do you see 
anything wrong with us being given those documents?
    Mr. Mueller. I am not familiar with the request or the 
documents, but I do believe that the Bureau should do 
everything possible to accommodate the requests of Congress. If 
there are documents that relate to the policy, that are 
generated by the FBI, then I believe the Department of Justice 
and the FBI should do everything possible to accommodate the 
request of Congress, consistent with its law enforcement 
responsibilities.
    Senator Schumer. Well, I hope we can work together on this 
issue, and I hope maybe that--you cannot publicly do that, but 
you can quietly be a voice within the FBI and within the 
Justice Department to prevent a decision like this from taking 
effect. If not, we are going to try to legislatively deal with 
it.
    I do want to ask your judgment, not on the specific issue, 
but generally, as somebody who has had such a depth of 
experience, which is one of the reasons many of us here are so 
fond of the choice of you as director, does it not make sense 
that destroying these records quickly could--I am not saying 
will--but could subvert the FBI's effort to keep guns out of 
the hands of criminals and go after the bad dealers?
    Mr. Mueller. It could. I am not familiar with the debate or 
what evidence there is, what study there has been of the impact 
of the change, but, yes, it could.
    Senator Schumer. Thank you. I appreciate your candor there. 
Let me go on to another subject, if my time has not yet 
expired.
    An issue that is of great concern to me is those--I am pro-
choice, as you know. I passed a law in the House. It passed 
here in the Senate called the FACE Act, which I did not regard 
as pro-choice or pro-life. I regard it as pro-law. That people 
who believe they had a message from God that was different than 
the message that others of us have received should not take the 
law into their own hands, blockade clinics, protest, yes; 
blockade, no, and of course not threaten doctors, et cetera.
    Can you commit, and I asked the same question of Attorney 
General Ashcroft, when we were examining his nomination, can 
you commit to keeping the same level of intensity and funding 
of personnel when it comes to investigating the kinds of crimes 
of violence, threat of violence at these pro-choice clinics, 
these family planning clinics as was maintained under your 
predecessor? I do not even know what Director Freeh's views 
were on choice, but I know he was committed to doing this, and 
did.
    Mr. Mueller. Yes, I am committed to enforcing all of the 
laws and allocating the manpower to do it in critical 
situations.
    Senator Schumer. Thank you.
    My time has expired. I thank the chairman for his 
generosity.
    Chairman Leahy. Thank you.
    Mr. Mueller, so that people can plan, of course, we will 
stop if questions stop, but otherwise we will recess at 5 
o'clock because we will have votes this afternoon. I know some 
Senators want to go to the floor prior to the vote. Some of the 
FBI's problems could be part of management structure has become 
too unwieldy. I am trying to think back when you gave your 
opening statement, you sort of spoke about management being 
possibly out of control or spun out of control I believe were 
your words.
    We have the former New York police commissioner and then 
Customs Commissioner Ray Kelly testify at our hearings that a 
regional structure can make a large law enforcement 
organization more manageable--they can be reporting to regions 
rather than everybody reporting to headquarters--and probably 
provide more effective oversight of field operations than 
simply having a periodic multi-year review.
    Well, and I do not expect you to tell us that if you are 
sworn in next week how you are going to totally reorganize the 
FBI, but is this something that would be considered?
    Mr. Mueller. Absolutely. I did read Commissioner Kelly's 
testimony with some interest, and I know he suggested that you 
have a regional structure with a West Coast, I believe, Mid-
America and East Coast some form or regional structure. As I 
did indicate in my opening statement, the span of control is a 
substantial issue.
    I would look at that proposal with a view to whether it 
goes toward affording appropriate span of control. But on the 
one hand, I do not want to put in place yet another level of 
bureaucracy. So I would look at it, consider it, and see 
whether that is what we need to assure effective span of 
control.
    One of the contributing factors to ability to manage is to 
have the software and the information immediately accessible to 
you, and I would hope to have the technological infrastructure 
be such that I would be able to review, as would the 
intermediate managers, review the work on critical cases or 
critical classes of cases by turning on your computer and using 
the mouse to click on a series of cases to see what has been 
done the last 3 days, what you expect to be done in the next 30 
days.
    When you are talking about span of control, it is a 
combination of putting in place, in my mind, a management 
structure, but also having the tools that give you transparency 
all the way down to the field level.
    Chairman Leahy. I think that probably the most notable case 
on this, and this actually goes to everything from the level of 
control, but also what the equipment and computers are for 
document retrieval. Of course, it would be the Timothy McVeigh 
case, something you and I have already discussed. But here is a 
case of a horrendous crime, I would say one of the most serious 
crimes that I can remember in my lifetime here in the United 
States. Anybody watching that trial realizes there is no 
question of McVeigh's guilt. He ultimately confessed to having 
done this.
    The FBI did a magnificent job of pulling together pieces of 
this, that, and the other thing. It sort of made me think some 
of the reconstruction they did, something you are very familiar 
with, the Pan Am 103, finding even the tiniest of things, and 
doing something that only an organization like the FBI could 
do.
    But then we had this situation where the director of the 
FBI sent a very clear order, and I believe followup orders, 
that all materials were supposed to be turned over to the 
prosecution. Director Freeh did the absolute right thing in 
doing that. Whether people liked the discovery order or not, it 
had been agreed to and there we were. But yet, just before the 
execution, it was found that this ordered was not followed out, 
putting Attorney General Ashcroft in a very difficult position. 
He had no question about Mr. McVeigh's guilt, nor do I, but he 
had to hold off the execution for a month, and I think 
justifiably, to restore credibility to the system.
    Now, you were involved in that, and you and I have 
discussed this involvement. The weekend press raised a question 
whether you had responded quickly or not. I am certainly 
satisfied with the response that you gave me in our meetings, 
but I just wonder if you might want to go into that.
    What were the problems that you saw in getting the order 
carried out, No. 1; and, second, how did you determine the time 
line of when to notify the Attorney General?
    Mr. Mueller. As to the contributing factors to that, I 
think there are two: One is the lack of an infrastructure to 
have all documents coded and readily available to be produced 
with--in that particular case. And there was a huge volume of 
documents spread around any number of offices in this country 
and internationally, and certainly if we had had the computer 
capability, it would have been much easier to assure that we 
had all of the documents.
    A second aspect of it, I believe, was accountability. And 
one of the issues that I think I do see is overlapping areas of 
responsibility in various areas of the FBI. And when you have 
overlapping areas of responsibility, it is very difficult to 
have accountability. And I believe, in that instance, we saw 
perhaps a failure of accountability down to the lowest levels.
    And one of the issues that I do wish to address is to 
ascertain where there are those overlapping areas of 
responsibility. It has been my practice in the past to identify 
areas of responsibility, put somebody in charge of that area of 
responsibility and hold that individual accountable for 
discharging that responsibility. And I want to make certain 
that where that is done within the Bureau, there is clear 
accountability.
    Turning to the issue of the time line, upon hearing about 
the issue, I heard about it I believe on a Wednesday afternoon. 
On that Friday, the decision was made to put over the execution 
of Mr. McVeigh. When I heard about it on a Wednesday afternoon, 
the initial response, and I believe I talked to the prosecutor 
that night or the following morning, the initial thrust of what 
I was concerned about is to make certain that defense counsel 
were aware of this immediately so that defense counsel could 
make its or their own interpretation of whether these documents 
contained any Brady or exculpatory information. It was the 
belief of the agents and the prosecutors that there was no 
exculpatory information there, but I did believe that it was 
important that the defense counsel have adequate opportunity to 
see it and wanted to make certain that they were given the 
opportunity. And as soon as any document was retrieved 
thereafter, it was turned over to defense counsel.
    I was not aware, I don't believe, at the outset the extent 
of the commitment to turn over documents until the following 
morning. And I actually had brief discussions with Mr. 
Ashcroft's staff on Wednesday afternoon, I think it was, about 
it, but I did not have an opportunity to fully brief the 
Attorney General until the following day, at which point I did 
have an opportunity to brief him more expansively than the fact 
that I had mentioned previously to his staff, that there was an 
issue. And, thereafter, the discussions ensued as to what was 
the appropriate response we would take to the fact that these 
documents had come to our attention.
    Chairman Leahy. My last question, and then I yield to 
Senator Hatch: I remember as a young prosecutor going to a 
briefing by the FBI. They had come to Vermont to brief a number 
of prosecutors and others in law enforcement, and seeing this 
great chart, organizational chart, they had, which had then-
Director Hoover, and with a line down to the President, and a 
line down to the Attorney General, and I guess to the rest of 
the Government. It was the first time I heard the expression 
``SOG'' or Seat of Government, which was not Washington, but 
was wherever the FBI headquarters were at that time.
    I then recollect later on, when I was vice president of the 
National District Attorneys' Association, going with the 
president of the NDAA and a former president to meet with Mr. 
Hoover, and subsequently with Attorney General Mitchell that 
day, and seeing a number of editorial cartoons in the 
director's office, most of them very critical of past Attorneys 
General, all praising Mr. Hoover, and excoriating past 
Attorneys General and Presidents, with the exception of Mr. 
Mitchell, who was currently Attorney General, but probably 
would get his turn eventually.
    It made a lasting impression. I will not go into other 
aspects of that meeting, but it was obvious, of course, the FBI 
director and the Attorney General have not always had a close 
relationship, and that has occurred even more recently.
    How do you see your relationship with the Attorney General, 
not only the current Attorney General, but as I think Senator 
Specter and others have pointed out, you have a 10-year term, 
with subsequent Attorneys General?
    Mr. Mueller. This is the most difficult issue I think that 
a director of the FBI has to address, in that the FBI has its 
ultimate responsibility to the American people to be 
independent, to pursue its investigations without any favor to 
one political party or the other or to any particular 
individual, no matter how powerful that individual should be.
    And on a day-to-day basis, on the other hand, I do believe 
that, absent extraordinary circumstances, the director of the 
FBI, and the FBI, is a component of the Attorney General--or 
not the Attorney General--of the Department of Justice, 
reporting to the Attorney General. And there should be a close 
relationship on, for instance, policy matters, there should be 
a--there is a reporting structure, and there is a requirement 
in almost every matter that the Attorney General be apprised of 
that. And, again, I report, in essence, to the Attorney General 
and then to the President.
    There may be circumstances--there have been in history--
where it is important for the FBI and the Director of the FBI 
to put the people above that reporting structure and the 
interests of the people above that reporting structure. And I 
hope that I do not have occasion to meet such a situation, but 
there is the possibility, perhaps even the probability, that I 
will.
    If there is an occasion where I believe that for reasons of 
political influence or the influence of the powerful that the 
Bureau is asked to do something that is inappropriate, wrong 
under the Constitution, that under those circumstances I have 
an obligation to find a way to address that. It may be going 
elsewhere in the administration. It may be going to Congress. 
It may be going to the American people. I don't know what the 
exact answer is. But I hope I do not have to face that 
situation because it will be the hardest decision that I, 
should I be confirmed as Director, would have to make.
    Chairman Leahy. Your answer may be a model answer for all 
your successes. I appreciate the answer.
    Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman. I think I will 
reserve my time and go to Senator Specter.
    Chairman Leahy. Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Mueller, there have been many, many requests made to 
the FBI and a long litany of letters. Let me summarize them 
with just one which I wrote to Director Freeh on November 30, 
1999, when I chaired the subcommittee on Department of Justice 
oversight. ``I am very much concerned about the repetitive 
problem that the FBI fails to produce records that are then 
discovered at a much later date. I know you will recall the 
incident in September 1997 when the CIA advised the 
Governmental Affairs Committee of certain information in FBI 
files concerning foreign contributions which the FBI had not 
disclosed. There was a hearing in the Intelligence Committee 
where a lot of chairs were broken over that. A Senator had made 
a request for information from the FBI. The FBI had not 
disclosed it. And then the CIA found in its files the 
information which they had gotten from the FBI that the FBI 
didn't know that it had. I would like you to take a look at 
that specific instance.''
    Then the letter goes on. By letter dated November 24, 1999, 
I wrote asking for an explanation about the failure of the FBI 
to turn over records pursuant to subpoenas in the Ruby Ridge 
hearings. ``With respect to Waco, there has been a series of 
belated disclosures. Last August, it was disclosed that 
incendiaries had been fired at the compound contrary to 
Attorney General Janet Reno's previous testimony. Shortly 
thereafter, the FBI discovered extensive documents in Quantico 
which had not been previously disclosed. A few days ago, the 
press reported another incident where the FBI found documents 
long after they were supposed to have been produced, some 4 
days after the Department of Justice attorneys had advised a 
Federal judge in Waco that there were no such records. The 
Department of Justice has recently advised that Attorney 
General Reno's testimony before the Judiciary Committee on June 
8th was incomplete because she did not have access to certain 
FBI records. Similarly, Mr. Neil Gallagher has sought to 
correct his testimony before the Governmental Affairs Committee 
on June 9, 1999, because he was not aware of certain FBI 
documents when he testified. On the eve of our Judiciary 
Subcommittee hearing on Wen Ho Lee on November 3, 1999, we were 
given important documents at the last minute, which had been in 
the FBI files since November 19, 1997, and December 10, 1999.''
    I would ask unanimous consent that the full text of the 
letter be put in the record.
    Chairman Leahy. Without objection.
    Senator Specter. And the full text of the letter of January 
3rd to Director Freeh from me be put in the record.
    Chairman Leahy. Without objection.
    Senator Specter. Along with the memo of December 9, 1996, 
which I asked you about before, which had not been put in the 
record.
    Chairman Leahy. Without objection.
    Senator Specter. And the reasons given by the FBI 
consistently are that there were pending investigations. The 
Wen Ho Lee matter, which is very elaborate, and that I will try 
to deal with tomorrow, because it is so extensive, was not 
responded to by the FBI for a whole series of reasons. Every 
time the matter looked as if the FBI would respond, the FBI 
didn't respond. There was a search warrant executed in April 
1999, and then the matter was held in limbo until December 1999 
when Wen Ho Lee was indicted, manacled, placed in solitary 
confinement, and we still haven't had an answer as to what 
occurred which made such a radical change for the man being at 
liberty and then being treated as a greater menace than Public 
Enemy Number One.
    Let me summarize the law which is set forth by the 
Congressional Research Service, from April 7, 1995, and this is 
all obviously something that you have access to, but I just 
want to read a couple of extracts, fairly long, but I think 
they are very, very important.
    Congressional Research Service: ``A review of congressional 
investigations that have implicated DOJ or DOJ investigations 
over the past 70 years from the Palmer raids in the Teapot Dome 
to Watergate, and through Iran-contra and Rocky Flats, 
demonstrates that DOJ has been consistently obligated to submit 
to congressional oversight regardless of whether litigation is 
pending so that Congress is not delayed unduly in investigating 
misfeasance, malfeasance, or maladministration in DOJ or 
elsewhere.'' And I am skipping some.
    ``In the majority of instances reviewed, the testimony of 
subordinate DOJ employees, such as line attorneys and FBI field 
agents, was taken formally or informally, and included detailed 
testimony about specific instances of the Department's failure 
to prosecute alleged meritorious cases. In all instances, the 
investigating committees were provided with documents 
respecting open or closed cases that includes prosecutorial 
memoranda, FBI investigative reports, summaries of FBI 
interviews, memoranda and correspondence prepared during the 
pendency of cases, confidential instructions outlining the 
procedures or guidelines to be followed for undercover 
operations, and the surveillance and arrest of suspects and 
documents presented to grand juries not protected from 
disclosure by Rule 6(e) of the Federal Rules of Criminal 
Procedure, among other similar sensitive materials.''
    My first question, Mr. Mueller, is: Do you agree with the 
Congressional Research statement as to the applicable law on 
what Congress and this committee would be entitled to obtain by 
way of oversight?
    Mr. Mueller. It was an awfully long statement. The thrust 
of it that----
    Senator Specter. And I only read a small part.
    Mr. Mueller. I absolutely agree that Congress is entitled 
to oversight of the ongoing responsibilities of the FBI and the 
Department of Justice. You mentioned at the outset the problems 
that you have had over a period of getting documents in ongoing 
investigations. And as I stated before and I'll state again, I 
think it is incumbent upon the FBI and the Department of 
Justice to attempt to accommodate every request from Congress 
swiftly and, where it cannot accommodate or believes that there 
are confidential issues that have to be raised, to bring to 
your attention and articulate with some specificity, not just 
the fact that there's ongoing investigation, not just the fact 
that there is an ongoing or an upcoming trial, but with 
specificity why producing the documents would interfere with 
either that trial or for some other reason or we believed 
covered by some issue of confidentiality.
    And if I might add, Senator, when I was here before in the 
Criminal Division, we had two cases where Congress was 
exercising, justifiably so, its oversight responsibility, BCCI 
and BNL, and we reached the accommodation or the accommodations 
specified or described in the excerpt which you read. And I 
would expect that we would always have that ability to 
accomplish the accommodation that is necessary for Congress to 
discharge its responsibilities in oversight.
    I might also add, with regard to your previous questions, 
the ones that you had the last time, that I do not believe that 
it would be appropriate to withhold a memo on the basis that it 
would in some way interfere with the relationship between me 
and anybody else in the administration.
    Senator Specter. Well, are you now saying, Mr. Mueller, 
that you would, in fact, have turned over this memo of December 
9, 1996, on your own to the Senate oversight committee?
    Mr. Mueller. I am not saying, Senator, that on my own I 
would have turned that over. I certainly believe that it--that 
it could have and perhaps should have been turned over with 
appropriate redactions. But if the Senator is asking me if the 
information in that memorandum was such that I, without going 
through the Attorney General or talking to anybody else, should 
go to Congress, I can't say with definitiveness now at this 
time I would. I have said that I can see that there might be 
occasions where I do not believe that the independence of the 
Bureau is served by bringing to the attention of the Attorney 
General some matter because of the possibility of political 
influence and that I would have to seek some other recourse. 
And that recourse might well be coming to Congress sua sponte 
or might well be going to elsewhere in the administration. But 
I cannot put myself, without all the facts, back into the 
position of the decisionmaker at the time of the drafting of 
this memorandum and say with you right now concretely that I 
would have come to the committee without going through the 
Attorney General or taking some other route.
    Senator Specter. Well, when you say you would not do it on 
your own, or the Latin expression, sua sponte, the committee, 
the Judiciary Committee, couldn't ask you about pressure on the 
Department of Justice subordinates because the Attorney 
General's job might hang in the balance, which is the language 
in this memo. This is something that would have to be disclosed 
by the FBI Director who knew about it. When you say that you 
would not decline to do so because of an embarrassing 
relationship, you are coming part way, but you are still not 
saying enough to make congressional, Senate oversight worth a 
tinker's dam.
    If this committee, if those two men, the chairman and the 
ranking member, can't have access to this memorandum, I don't 
think Senate oversight is worth a tinker's dam.
    Mr. Mueller. I am making a distinction, Senator, if I 
might, between a request from the Senate for that memorandum, 
in which case I would believe that it quite probably should and 
would be turned over, and at the time of this--and the 
distinction being--and the situation where the information of 
this memorandum or the information described in this memorandum 
is in the hands of the head of the FBI Director. And the FBI 
Director, if that's what you're asking me, without going 
through the Department of Justice, without taking any other 
step, goes directly to the oversight committee. I'm making that 
distinction. I'm saying in the case where there has been a 
request for this memorandum, I would expect that the request of 
the committee to get this memorandum would be accommodated.
    Senator Specter. Well, Mr. Mueller, that doesn't answer the 
question at all.
    Chairman Leahy. I have a feeling the Senator will probably 
be going back to this question.
    Senator Specter. Well, I hope not. Mr. Mueller brought it 
up. I didn't. Mr. Mueller chose to reopen the question. I 
didn't. I'm on a very different point, which I'll come back to 
tomorrow since the red light is practically burned out over 
there.
    Chairman Leahy. Well, I hope the Senator knows I have tried 
to give him as much leeway and will continue to.
    Senator Specter. I am not unaware of that. I used to have 
the gavel on Ruby Ridge and extended to Senator Leahy--as a 
matter of fact, sat right here during the Ruby Ridge hearings.
    Chairman Leahy. Could I suggest this, that prior to the 
hearing tomorrow, that maybe the nominee and the Senator from 
Pennsylvania may want to chat to make sure that we are not 
talking at cross-purposes. I think the Senator from 
Pennsylvania is asking a perfectly valid and important 
question. I believe that the nominee, though, is also in a 
situation where he is trying to give a very clear idea of what 
would be his conduct and what would be his touchstone during 
tenure as head of the FBI.
    I think this is very important because I don't think there 
is any question but that Mr. Mueller will be confirmed. But I 
also feel that the Senator from Pennsylvania has asked a very 
valid question, and I am wondering if maybe the two could make 
sure we are both speaking on the same level and then get an 
answer.
    Now, maybe it will be an acceptable answer, and maybe it 
will not, but at least make sure we are both speaking on 
exactly the same level. Would that be fair?
    Senator Specter. Mr. Chairman, I would be glad to do that. 
This is not a matter which I am posing to Mr. Mueller for the 
first time today.
    Chairman Leahy. I understand that.
    Senator Specter. We talked about it, and then I called him 
up last week to talk to him about it further, because I am 
not--to have a meaningful answer, it has to be something that 
the Director-designate is focused on.
    Let me just say this, and we will pick it up privately, and 
perhaps again on the record. When you say you would respond to 
a request, again, if we don't know about it, we can't make a 
request. This was turned up by the FBI in response to a broad-
ranging subpoena on the LaBella memorandum, which is another 
item we couldn't get from the FBI, like pulling bicuspids. And 
when you say you wouldn't disclose it on your own without going 
through the Justice Department, the Attorney General, I respect 
that. I think you ought to go to the Attorney General, that you 
ought to say, Attorney General Reno, this memo was in the file, 
and I think it ought to go to the Judiciary Committee.
    And fine, but if she says no, I think you have got the duty 
to turn it over. You have got a 10-year term. You have got more 
power than the Attorney General, and we found out earlier 
today, you have got more power than the President.
    Chairman Leahy. Gentlemen, we understand--go ahead, and 
this will be the last word.
    Mr. Mueller. I agree. I should go through the Attorney 
General to try to get it disclosed. I agree with you on that, 
Senator.
    Senator Specter. But if the Attorney General says no----
    Chairman Leahy. Now, gentlemen, if there's further----
    Senator Specter. If the Attorney General says no----
    Chairman Leahy. Gentlemen, if there's further questions, I 
would ask the two to make sure they are fully understanding 
what each are asking, and I do know the Senator from 
Pennsylvania has asked his question privately before. Let's 
hold that for tomorrow because this is too important an issue, 
and I think the Senator from Pennsylvania has asked a very 
important question. It is too important an issue to have any 
doubt in either person's mind what it is. And if the Senator 
would be willing to do that, I would appreciate it.
    Senator Specter. I will repeat my affirmative reply. I hate 
to repeat myself, but it is yes, again.
    Chairman Leahy. I appreciate that.
    The Senator from New York, who will have the last word on 
this, and then we will recess.
    Senator Schumer. Thank you, Mr. Chairman. Just one 
question, a general question.
    It is generally regarded, maybe incorrectly--I don't think 
so; I hope so, but I don't think so--that the FBI has some 
trouble, trouble that it didn't have 10 or 15 years ago, I 
guess, maybe even 5 years ago. And many of us who, as I said, 
have been friends of the FBI scratch our heads and say, What is 
the trouble? What is the cause of it, et cetera?
    Would you just care, so we can understand your thought 
process, what you think is--why have there been so many more, 
quote, mistakes, public mistakes than in the past? Why is that 
friends of the FBI feel compelled to say we ought to look at it 
in a new way? What do you think--just a general question, which 
you can take where you like, what do you think has happened? 
Why isn't it--why is there--I don't want to prejudge the 
question, but is there some trouble? And what do you think is 
causing it?
    Mr. Mueller. I do think there are things that need to be 
changed. I basically believe that the FBI has outgrown its 
management structure, that over the years there have been a 
number of responsibilities that have been laid on the shoulders 
of the FBI, and the response, quite understandably, is to put 
more special agents on it. But at the same time, there has not 
been a similar buildup of the support of not only the special 
agents but the management and the leadership within the FBI to 
support the additional manpower. And, consequently, there has 
been an erosion of management oversight. There has been an 
erosion, I believe, of accountability. There has been a--how do 
I want to say--an erosion of clear responsibilities within--for 
accomplishing certain things and in some large part that 
failure to keep the management structure or to have a 
management structure adopted to the new responsibilities of the 
FBI has contributed to the mistakes.
    Senator Schumer. So you don't disagree with the analysis 
that, if not the top job, one of the top jobs is the management 
structure?
    Mr. Mueller. I don't disagree with that at all.
    Senator Schumer. And you believe that the personnel that 
they are getting to apply, the newer, younger ones, are every 
bit as qualified as the old-timers who have been there a long 
time?
    Mr. Mueller. Yes, they are superb. And, again, the agents 
and most if not all of the managers I have had occasion to work 
with are dedicated, hard-working, respectful, and respected law 
enforcement individuals.
    Senator Schumer. Right. One more question. You know, it 
seems to me that when the FBI takes a particular task, it still 
does a great job. I mean, I am familiar with the terrorism one 
because I had been calling for them to do more on it, and then 
the World Trade Center, we had that terrible accident in my 
city, and they did a great job. They had to shift resources. 
And you haven't heard of flubs in that area. In fact, you have 
heard of great successes, the most recent when they found that 
fellow coming through, I think it was, Vancouver over the 
American border, and they could have saved thousands of lives 
or hundreds of lives by what they did.
    So it seems when there is a focus, they still do every bit 
as excellent a job as they always did. Are there some places 
that have lost some parts of the FBI, where that focus from the 
top has been lost or the mission is not clear or has become 
dissipated? Is that one of the problems, too?
    Mr. Mueller. Well, I think you--in brief answer to your 
question, I think one has to continually look at the priorities 
and map out the manpower and where your manpower is within the 
organization and where it's going to be 5 years down the road. 
But each one of those successes--each one of those successes 
has taken and drained resources from the FBI. The World Trade 
Center bombing, the African embassy bombings, the McVeigh 
bombing--all of those have taken resources and the FBI has 
thrown resources at those particular incidents, as well as 
others, and done a superb job in investigating and supporting 
the prosecution of it.
    What does not come and is not publicized is when you're 
taking those resources, you are not filling in the back side. 
And what has been sacrificed is the infrastructure, the support 
that is necessary for the day in, day out FBI agent to do the 
job and perform its responsibilities.
    Senator Schumer. That is a great answer. It is one that 
seems consonant, at least from my outside view of what is 
happening.
    Mr. Chairman, thank you.
    Chairman Leahy. Thank you. I thank all the Senators for 
their cooperation, and I especially thank Mr. Mueller and his 
family.
    We will stand in recess until 10 tomorrow morning.
    [Whereupon, at 4:39 p.m., the committee was adjourned, to 
reconvene at 10 a.m., Tuesday, July 31, 2001.]








  NOMINATION OF ROBERT S. MUELLER, III TO BE DIRECTOR OF THE FEDERAL 
                        BUREAU OF INVESTIGATION

                              ----------                              


                         TUESDAY, JULY 31, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Biden, Kohl, Feinstein, Durbin, 
Cantwell, Hatch, Grassley, Specter, and DeWine.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. So we can reconvene, let me just say how we 
will proceed. We will begin with the two Senators from 
California who will give the formal introduction of Mr. 
Mueller. With their airplane schedules yesterday and because I 
started somewhat earlier than usual--because we are in what we 
hope is the last week of the session before the August recess--
they would have had to interrupt the hearing to do it 
yesterday. We thought this would make more sense.
    I spoke with Senator Specter, and I know he has met with 
Mr. Mueller and will have a series of questions. We are trying 
to organize the time for that. Senator DeWine is here. Senator 
Grassley I believe is going to come right after the 
introductions, when we will actually begin the questioning. 
Senator Hatch is, as so many times happens, at a Finance 
hearing where there is a person from Utah who is up for a 
confirmation and is to be introduced.
    So having put some of that on the record to describe what 
is going on, I am delighted to yield to Senator Feinstein, who 
is a valued member of this committee. We will hear from her 
first.
    Senator Feinstein, we are delighted to have you here, and I 
do appreciate the information you and Senator Boxer have given 
me in the discussions I have had with both of you about Mr. 
Mueller. They have been extremely helpful.
    Senator Feinstein?

 PRESENTATION OF THE NOMINEE BY HON. DIANNE FEINSTEIN, A U.S. 
              SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman. I am 
very honored to be here today to say a few words about Robert 
Mueller, the President's choice to become the next Director of 
the Federal Bureau of Investigation. I strongly believe he is 
the right man for the job and the times.
    The job of FBI Director is not an easy one under any 
circumstances. The Director oversees 11 divisions and 4 offices 
at FBI headquarters, 56 field offices, 400 satellite offices, 
and more than 40 foreign liaison posts. The Director will 
oversee a budget of more than $3.5 billion per year and will 
supervise more than 11,000 special agents and 16,000 support 
personnel.
    But the person who takes over the post of FBI Director this 
year is going to face an even more daunting challenge. Overall 
crime rates may have gone down, but criminals have never been 
so sophisticated or enterprising. New and ever-involving 
developments in technology make it easier for criminals to 
evade and even monitor law enforcement agents who are looking 
for them.
    Terrorist cells, drug cartels, and other sophisticated 
criminal organizations are becoming better and better at 
learning the ways of law enforcement and changing the way they 
do business to avoid detection and capture.
    To be successful, law enforcement too must be willing and 
able to change in order to keep up and use cutting-edge 
technology.
    The FBI's handling of several recent controversial cases 
puts pressure on the new FBI Director to make some necessary 
changes and to produce results. These include the missing 
McVeigh documents, the Hanssen spy case, the Ruby Ridge 
investigation, the Wen Ho Lee investigation, and 440 missing 
firearms and 171 missing laptops. It is a job that I believe 
demand someone who can remain focused on the core mission of 
the Bureau, solving crimes and catching criminals, while at the 
same time focus also on turning inward and on fixing some of 
the problems we have seen within the Bureau itself.
    So I believe that Robert Mueller is the right man for this 
time. I believe he has a very good organizational sense. I 
believe he will be a hands-on manager, and I think we will see 
increasingly where Washington, rather than the SAC, will take 
responsibility in major incidents.
    Mr. Mueller has spent most of his working life serving the 
people of this country, first as a Marine and later as a 
Federal prosecutor. He led the Criminal Division in the 
Department of Justice, and he served as Acting Attorney General 
earlier this year.
    I became familiar with his work during his time as United 
States Attorney in my hometown of San Francisco. As a matter of 
fact, the Mueller family lived directly across the street from 
me for a substantial period of time.
    When Mr. Mueller arrived as U.S. Attorney in 1998, that 
office had been criticized for a number of failings: not enough 
prosecutions, internal misconduct, sloppy management, among 
other things. In just 3 years, however, Robert Mueller nearly 
doubled the number of criminal prosecutions. He increased the 
amount of money collected in civil cases from just $7 million 
to $200 million.
    So this is just one example of what people mean they say 
that Robert Mueller is a man who can come in and whip an 
operation into shape. No nonsense, no excuses. Just results.
    When he led the Criminal Division in Justice in the early 
1990's, he oversaw the investigation into the Pan Am bombing, 
and he also saw that that brought General Manuel Noriega out of 
Panama into an American jail and mob boss John Gotti. These 
were both two high-profile, complicated cases that demanded 
careful attention.
    During his tenure at Justice, DOJ's Criminal Division 
established the Computer Crimes Section, early evidence that 
Mr. Mueller understands the need to adapt in order to combat 
new methods of crime. He has worked under both Democrats and 
Republicans, and he has been praised by both.
    I want to just quote U.S. District Court Judge Charles 
Breyer, who said of Mr. Mueller, ``He is a true professional. 
He is not guided by a particular ideology. He is guided by a 
sense of what the law is and what is fair.'' And most 
impressively, I think he is a man who left a $400,000 job as a 
partner in a Boston law firm to come back to Washington and 
prosecute murder cases, and he has never looked back.
    I think truly of all the fine talent in the United States, 
Bob Mueller is the best at this particular point in time. I 
think we are going to see a hands-on Director, filled with 
integrity, and I think he is going to establish his credibility 
up here with our committee, Mr. Chairman, and on the entire 
Hill.
    Thank you very much.
    Chairman Leahy. Not prejudging anything, but reading 
between the lines, I would say that you have at least one vote 
on this committee after hearing Senator Feinstein's comments.
    Senator Boxer?

   PRESENTATION OF THE NOMINEE BY HON. BARBARA BOXER, A U.S. 
              SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much, Mr. Chairman, Senator 
Hatch, and nice to see you, Senator Specter and Senator DeWine. 
It is certainly a great pleasure to be here this morning. I 
will make a brief comment. I will really concentrate on the way 
I came to know Mr. Mueller and why I think, as Senator 
Feinstein says, he is the right person at this time for this 
job.
    Nearly 2 years ago, this committee considered Mr. Mueller's 
nomination to be U.S. Attorney for the Northern District of 
California. I recommended him for this job to President 
Clinton, and I want to tell you why. I don't think it is--I 
mean, everyone knows it is unusual for a United States Senator 
who is a Democrat to recommend someone with impeccable 
Republican credentials for such a position, or vice versa, for 
a Republican Senator to choose a Democratic nominee. But this 
is a nominee who is quality, and he doesn't have a political 
bone in his body that I can tell. He is here to do a job, and 
that is so important, particularly at this particular point in 
time.
    As Senator Feinstein said, in 1998, when the position of 
U.S. Attorney for the Northern District of California became 
vacant, morale at the office was at an all-time low. Cases were 
tremendously backlogged. Its focus was scattered. And, most 
important, I think, than all of this, the office had lost the 
public's confidence. There had been some terrible press reports 
of what was going on. It was just a really, really bad time. 
And I give Janet Reno a lot of credit, then-Attorney General 
Janet Reno, for tapping Robert Mueller, who was then the chief 
of the Homicide Division of the U.S. Attorney's Office here in 
the District, to fill that position on a temporary basis. I 
thought it was a visionary choice of hers.
    Right away, Mr. Mueller reached out to me, reached out to 
my staff. He told us of his plans to reinvigorate morale in the 
office and to restore the public's trust. He made an immediate 
impact, Senators. He began by requiring--and this is pretty 
bold. He began by requiring everyone to submit their 
resignations, and no one was rehired to their previous 
position. That should tell you, Mr. Chairman and Senator Hatch, 
not only of the severity of the problems in the office, but of 
Mr. Mueller's no-nonsense approach to his job.
    Mr. Mueller proceeded to appoint an unprecedented number of 
women to top management positions. He opened an office in the 
Silicon Valley to ensure that the U.S. Attorney's Office would 
address one of their biggest problems in Northern California--
high-tech crimes. He committed resources to the previously 
neglected problems of health care and securities fraud, as well 
as to environmental crimes. And he did so without a lot of 
fanfare or press conferences. He did it behind the scenes. But 
he did it so effectively, Members, that the changes became very 
apparent.
    The public couldn't help but take notice of the increased 
efficiency and effectiveness in the office, the heightened 
morale of those who worked there. He began to restore the 
public trust and confidence of law enforcement.
    So, Mr. Chairman, 7 months later, I decided that Robert 
Mueller was the best person to have that job of U.S. Attorney 
on a permanent basis, and I asked President Clinton to nominate 
him for that position. Again, politics played no role in my 
decision, nor did it play any role in Robert Mueller's 
performance.
    I don't believe that partisan politics should have any 
place in selecting U.S. Attorneys, and I certainly don't 
believe it should in the selection of a Director of the FBI. In 
some respects, the problems facing the U.S. Attorney's Office 
for the Northern District 3 years ago mirror those facing the 
FBI now. Clearly, the FBI is a much grander scale. You can't 
compare it exactly. But the similar types of problems exist.
    So I say, in closing, that this is why I think Robert 
Mueller is the perfect candidate for this job. I wish him so 
much good luck. This is not easy. This is so difficult. But I 
think it is a measure of this particular individual that he is 
willing to step up to the plate, and I feel very good inside 
that he is going to be very successful.
    Thank you for treating him with such respect, all of you, 
and for welcoming him here to the Senate.
    Chairman Leahy. Thank you very much. I thank both Senators. 
I know you both have other commitments. Senator Feinstein, of 
course, as a member of the committee, is welcome to join us 
here.
    Mr. Mueller, please take your earlier seat. The witness has 
already been sworn, and under our early bird rule, we will now 
go to Senator DeWine.
    Senator DeWine. Mr. Chairman, thank you very much.
    Mr. Mueller, you and I met the other day, and I appreciated 
the opportunity to talk with you. Good to see you again.
    Mr. Mueller. Good morning, Senator.
    Senator DeWine. I would like to talk a little bit about an 
issue you and I talked about the other day, and that is the 
whole issue of crime, technology, and how we make sure that 
gets down to the local law enforcement agencies. I know that 
you established the first computer crime unit in the Department 
of Justice a few years ago, and I certainly applaud that 
initiative. Technology truly is the key to fighting crime in 
this century, and it is so important that we share information 
to enhance the ability of computer systems to fight crime right 
down into each community in this country.
    Our national systems for criminal histories, fingerprints, 
DNA, ballistics are only as good as the information that goes 
into them, only as good as the information that comes from our 
local communities and local law enforcement agencies.
    Several years ago, I wrote the Crime Identification 
Technology Act, and Chairman Leahy and Senator Hatch were very 
instrumental in getting that bill passed.
    I wonder if I could just ask you about your commitment to 
making sure that local law enforcement agencies, the people who 
ultimately end up dealing with 90 to 95 percent of our crime 
problems in this country, have the ability to access your data 
bases, have the ability to get in and get out, have the ability 
to put in information, and also have the ability to get that 
information out.
    Mr. Mueller. To the extent that the FBI's responsible for 
maintaining data bases accessed by State and local law 
enforcement, I will do everything I can to make that access 
swift and certain. My own experience is that there is often a 
disconnect between those who write the data bases and those who 
have to use the information on those data bases. And, too 
often, the user is not taken into account wen you construct a 
data base, operate a data base. You have the engineers and the 
programmers who are putting together the data base, but you 
have those sitting at their desks in a local police department 
that have to use it. And with the advent of Windows and user-
friendly systems, there is no reason in this day and age why 
access to that information shouldn't be swift and certain, 
particularly with the fact that we have sufficient backbone in 
terms of networks to handle that traffic.
    On the other side of the--apart from access to the data 
bases, it's also important, I believe, for the Bureau to work 
closely with the State and locals in addressing computer crime, 
for instance, and there are a number of ways we can do this. 
One way is to work together to construct or put together a 
computer forensics laboratory, as has been done in San Diego, 
where you have State, local, and a number of Federal experts 
all working together to analyze hard drives that have been 
seized in searches and the like. And that has a number of 
benefits.
    But, second, it's very important for us to exchange 
training, in other words, for the FBI to perform its 
traditional role of assisting in training State and locals, and 
for the FBI to learn from State and locals. So there are a 
number of ways I think we have to work together to address the 
technological improvements that we're all seeing.
    Senator DeWine. You and I talked the other day a little bit 
about international parental kidnapping and my concern in 
regard to that. We have really seen in the last few years an 
upsurge in the number of incidents of what we call parental 
kidnapping, where one parent kidnaps a child and takes a child 
out of the country.
    Many of the so-called left-behind parents have talked to 
me, and they frankly feel they have not received sufficient 
assistance from the State Department nor from the Department of 
Justice. And I have talked to the Attorney General about this, 
but I would just like to talk to you a minute about it and ask 
you whether or not you believe that the FBI in the appropriate 
case will be able to put some emphasis on this problem.
    Mr. Mueller. I've had some experience in my district with 
those problems in which parents will come to the FBI or go to 
the local district attorney and a warrant will be outstanding, 
and we used unlawful flight to avoid prosecution warrants to 
attempt to remedy the situation. We can do that.
    The network of LEGATs overseas are extremely helpful, I 
believe, and can be extremely helpful in gathering information 
as to the whereabouts and the circumstances of the parent who 
absconded with the child.
    On the other hand, we are constrained to operate within the 
legal systems of the foreign countries, and the FBI can just do 
so much. We do want to make the resources of the FBI and the 
expertise of the FBI available, whether it be in the UFAP 
context or in assisting in obtaining information as to the 
location or whereabouts of those individuals.
    Senator DeWine. Yesterday, I know you talked about the 
FBI's own internal technology and the security for that, and I 
just wonder how quickly you think you will be able to 
implement, fully implement the technology update plan that the 
FBI has.
    Mr. Mueller. There's a 3-year technology update plan called 
Trilogy, and the good news about that is it's laying the 
foundation, whether it be the networks or the software, the 
hardware, the user interfaces for bringing the FBI agent into 
the modern era, and I will be pressing hard on that.
    There are other areas which build on that, and, in 
particular, in my own mind it is access to documents. It is the 
storage and easy retrieval of documents, of imaging documents 
when they come in immediately so that you have ultimately what 
is referred to in the private sector as a paperless office. But 
you need the basic structure upon which to build these 
additional advances, and the good news is that the FBI is 
moving ahead with the assistance of Bob Dies, who came in from 
the FBI--or not the FBI, from IBM, to modernize. The not-so-
good news is that once we have that structure in place, there's 
a lot more to do.
    Senator DeWine. You and I talked the other day about the 
whole question of the FBI's cooperation with other Federal 
agencies, but also about the FBI's cooperation with local law 
enforcement agencies.
    How does the head of the FBI set the right tone, and have 
the impact on the culture of the FBI to continue what I have 
seen has been an improvement? I have seen a significant 
improvement over the years in the FBI's working with local law 
enforcement. But there is always room for more improvement. I 
just wonder if you could address how you intend to set that 
tone for the FBI.
    Mr. Mueller. I do think it's improved tremendously over the 
last few years. I think I've seen that myself.
    I guess there are a number of ways that I have in the past 
and I think would in the future do that. One is outreach. You 
sit down with representatives, members of State and local, 
whether through their organizations or where you travel, and 
hear their complaints and address their complaints. Whenever 
you hear a complaint from State and local that an FBI agent or 
a special agent-in-charge has stolen an investigation, which 
you occasionally find, it has to be addressed. And the emphasis 
always has to be on cooperative efforts and in understanding 
that we are but one of a number of law enforcement entities 
that are instrumental in addressing crime in this country and 
that we have something to bring to the table, but the other law 
enforcement agencies have as much, if more, to bring to the 
table in any particular investigation.
    And the last thing, I think, is the FBI can and should 
allow others to trumpet its successes. There's always, I guess, 
a tendency to go out and say look how good we are and look how 
we did it. In my own mind, the praise that makes the biggest 
difference is that that comes from others with whom you've 
worked. And my hope would be that we could operate on that 
principle.
    Senator DeWine. Good. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman.
    I would like to followup on a question Senator Schumer 
asked you yesterday regarding the Attorney General's criminal 
background check records under the Brady Act being kept for 
only 24 hours, and yesterday Senator Schumer indicated that 
several sources had told him that the FBI had disagreed with 
that decision. And your discussion centered around whether it 
is appropriate for internal disagreements to be aired before 
Congress.
    Without getting into that discussion again, I would like to 
read from an official FBI document published last month titled 
``National Instant Background Check System Operations Report.'' 
This is November 30 through December 31, 1999. In that 
document, on page 25, under ``Recommendations,'' we read, and I 
quote, ``It is clear that the ability of the National Instant 
Criminal Background Check System to stop prohibited persons 
from acquiring firearms would be improved, among other things, 
by longer retention of records. The Advisory Policy Board 
concurs with the FBI to have a 1-year retention of records.''
    Despite this recommendation for a 1-year record retention, 
the Department of Justice eventually bowed to outside pressure 
and implemented a final rule reducing the record retention 
period to just 90 days. This reduction to 90 days occurred on 
January 22, 2001. That is just 6 months ago. Yet now Attorney 
General Ashcroft has announced that records will not be kept 
for 1 year, as this official FBI document recommended, or even 
for the 90 days established earlier this year. Instead, records 
will be kept for just 24 hours, a timeframe that you admitted 
yesterday might--and I think certainly would--impede law 
enforcement's ability to monitor the system and catch bad gun 
dealers that put most crime guns onto the streets.
    Let me ask this specific question: Given the time limits on 
the background checks themselves, 3 business days under current 
law, have already resulted in a failure to prevent thousands of 
sales to felons, do you think it is appropriate to further 
jeopardize the system by weakening the ability of law 
enforcement to audit the system for problems?
    Mr. Mueller. Senator, I've got to say that I have not 
participated in the debate on the NICS system. I am generally 
familiar with the NICS system, but have never had occasion to 
use it, implement it myself, have not been briefed on it by the 
FBI, and am unaware of any studies one way or the other as to 
the harm done or not done by either lengthening or shortening 
the time period for the maintenance of the records.
    I'm aware of the statute that says that the records should 
be destroyed, but I cannot say one way or the other what the 
effect of any particular period would be on law enforcement, 
basically because I am ignorant of the underlying factual 
material and I have not been part of the debate.
    In answer to the question yesterday, I responded it could 
because I cannot rule out any possibilities. But it is from a 
basis of ignorance that I respond.
    Senator Feinstein. Well, I think the point I want to make 
is that those of us on this committee that are very dedicated 
to see to it that law enforcement has the time it needs and are 
really affronted by this change, we view it as unnecessary. 
There has been no demonstrated in convenience to anyone that I 
know of. And if you weigh the benefit of keeping a gun out of 
the hand of a felon, that has to have a substantial benefit. So 
I am going to ask this question again in writing to you, let a 
month go by, and then ask it again, if I might.
    The Intelligence Committees of the House and the Senate met 
this morning with the Vice President, and one of the subjects 
that came before the committee was the issue of cyber crime. 
And I would like to ask this question: One problem with 
investigating cyber crime is that an attack through the 
Internet will often pass through multiple jurisdictions. For 
example, an attack may start at a computer in San Francisco and 
then pass through computers in Chicago, Houston, Miami, and 
Washington before ultimately interfering with a computer in New 
York. Law enforcement seeking trap and trace authority needs 
today to get court orders from each jurisdiction through which 
the attack passed. That is a very onerous task.
    Would you support efforts that would allow law enforcement 
to get trap and trace authority in the cyber crime context in 
just one court order?
    Mr. Mueller. I think that sounds like something that would 
be exceptionally beneficial. I can tell you that the way the 
Justice Department responds to those issues now is that we have 
in every U.S. Attorney's office individuals dedicated to 
handling cyber crime cases. There's an initiative that was 
announced last week to beef that up in certain particular 
offices, but those individuals form a network that is in 
constant contact with each other and expedites the obtaining of 
such orders. That is not as beneficial, however, as having the 
ability to go into one court and having nationwide service 
based on one particular court order.
    So we do the best we can under the circumstances, but in 
that area, as in probably a number of other areas, when it 
comes to addressing cyber crime, we will be looking to Congress 
to give us some assistance.
    Senator Feinstein. Last May, the administration proposed a 
variety of modest changes to consolidate our policies to combat 
terrorism. Essentially, the President suggested transferring 
from the FBI to FEMA the responsibility of working with local 
officials in preparing for and responding to a catastrophic 
attack. The FBI would remain in charge of investigating 
terrorist incidents and of crisis management.
    Do you know whether this proposed change has been 
implemented yet? If not, do you know when it will be? And do 
you agree with it?
    Mr. Mueller. I understand that FEMA will be expanding to 
encompass some of the activity that previously had been 
undertaken by the FBI. I am not familiar with the specifics, 
and I'm not certain of the timing. But when I was here as 
acting deputy, the issue was discussed there, and I'm familiar 
with the--the fact that FEMA would be expanding its undertaking 
to provide training to state and locals, and perhaps the FBI 
would be doing less than that.
    I believe that when it comes to allocating responsibilities 
to address a threat such as terrorism that one ought to look at 
the various responsibilities and make certain that they fit and 
are within the appropriate agency.
    The one concern I believe we had with regard to the FBI is 
that we wanted to make absolutely certain that when it comes to 
a terrorist attack and it comes to authority over the crime 
scene, that there would be no question but that those who were 
responsible for conducting the investigation would be in charge 
of the crime scene. But with that assurance, I think the 
expansion by FEMA of the training and other such 
responsibilities was appropriate.
    Senator Feinstein. Thank you. I would like to ask a quick 
question, because California is a big copyright state, and the 
loss is about 20 billion a year from copyright piracy. I am 
very pleased to say that while you were U.S. Attorney for the 
Northern District, you, of course, headed, and in many ways had 
been a leader in, an effort to combat this sort of cyber 
piracy. As a matter of fact, your office was one of the first 
to pursue enforcement of the criminal provisions of the Digital 
Millennium Copyright Act, and you also pioneered the 
establishment of a special Computer Hacking and Intellectual 
Property Unit to focus on cyber crime prosecutions, training 
and outreach. In fact, the Attorney General recently traveled 
to Silicon Valley to announce the formation of 10 new CHIP 
units in 9 cities, all of which was patterned after the program 
you established in San Francisco.
    Can you assure us that prosecuting cyber piracy will be a 
priority at the FBI? And would you care to comment on how you 
believe the FBI can be most effective in combatting criminal 
violations of our intellectual property laws and other forms of 
cyber crime?
    Mr. Mueller. Yes. I mean the answer is yes. I can assure 
you that would be a priority at the Bureau. I am quick to say 
though that we cannot take--cannot conceivably take every case 
that is out there with regard to the pirating of software or a 
movie or a videotape, and consequently, I do believe that the 
FBI has to prioritize its cases so that it takes those cases 
where it obtains, as a result of a prosecution, the greatest 
form of deterrence. Now, that can be in a single case or it can 
be in a set of cases which are smaller, but when prosecuted 
together, serve the goal of deterring others for committing the 
same type of crime.
    Senator Feinstein. One last question on this subject. And I 
am asking these because--I will be very candid with you--a 
number of people in California have asked me to ask these 
questions. They are real concerns. I want to ask specifically 
about the Digital Millennium Copyright Act and the No 
Electronic Theft Act, which provides safeguards against digital 
piracy and the theft of intellectual property.
    I certainly believe that proper and adequate enforcement of 
these laws through both civil and criminal enforcement measures 
is important in maintaining an environment in which the 
widespread distribution of legitimate high-value digital 
content can take place.
    Now, I would like to ask do you agree that these two bills 
are working? Do you see need for this committee to take action 
in this area to provide any greater assurances, or do you feel 
that the FBI needs any additional legislation to allow you to 
perform adequately in this area?
    Mr. Mueller. Senator, I confess that I am not as intimately 
familiar with each of those bills as I should be. I know that 
we have had cases on at least one of those. They are relatively 
recent, so I'm not certain that we have a substantial track 
record on how effective they are and what is missing that we 
need down the road. But I certainly would be looking at that, 
and to the extent that we need either additional investigative 
tools or additional statutes to address the problems or 
amendments to the statutes, then I would be happy to provide 
them.
    I will say that, particularly in Silicon Valley and in our 
district, enforcement of those laws are critically important. 
And part of the effective enforcement of those laws is to have 
dedicated Assistant United States Attorneys and FBI agents who 
are knowledgeable of the provisions and understand what 
evidence is necessary to have a successful prosecution under 
those statutes. We have done that, I think, with our approach 
in the Northern District of California, and the expectation is, 
with expanding that program across the country, other districts 
will have that same degree of expertise.
    Senator Feinstein. Perhaps you would be willing then, 
within a reasonable period of time, like 6, 8 months, to take a 
good look at both those bills and see what the national 
experience, law enforcement experience is, and make some 
recommendations or some comments to this committee.
    Mr. Mueller. Surely.
    Senator Feinstein. I would like to ask you to do that.
    Mr. Mueller. Yes, ma'am.
    Senator Feinstein. Thanks, Mr. Chairman.
    Thank you. I would note that it is very legitimate for the 
witness to say that there are areas that either are outside his 
expertise or he is developing expertise.
    I think it is fair to say that if confirmed, Mr. Mueller 
will be back before this committee on more than one occasion, 
and we will have a chance to look at some of these issues. I 
would also note that it would be my intention, with the 
backing, I believe, of the ranking member and others, to 
periodically, not too often that it is a burden on anybody, but 
periodically have some informal meetings of members of the 
committee, both parties, with the Director. We used to do that. 
I would like to get back to that, especially sometimes we will 
be discussing classified material and we can do it in one of 
our secure rooms here. It can be an off-the-record discussion, 
but will allow us to express our concerns and he to express 
his, in probably more candor than could be done in some of 
these sessions, especially on some of the areas of terrorism 
and cyber crime where there are issues a lot of us would like 
to explore, but we would not in an open session.
    Senator Grassley is here. What I am doing is those senators 
who did not have a chance to question yesterday on the first 
round, today will have the full 10-minute round. Senator 
Grassley.
    Senator Grassley. Thank you. Good morning, Mr. Mueller. I 
apologize because yesterday I had to leave for another meeting, 
and I think you were very responsive to some of the questions 
that I sent you in a letter last week, both in your opening 
statement, and as a lot of my colleagues, who shared some of my 
same concerns, asked you questions. So I will try not to be 
repetitive of questions that were asked yesterday as best I 
could determine that through my staff.
    First, as you know, in my letter I raised the matter of 
cultural problems at the FBI. In regard to this issue you have 
stated that the FBI has failed to, quote, ``provide adequate 
infrastructure to meet the buildup in manpower and 
responsibilities,'' end of quote. I want to be sure if I 
understand clearly your point, because while I would agree the 
Bureau has had problems managing its rapid growth, when I talk 
about cultural arrogance at the FBI, I am not talking about 
this as a resource issue. I am talking about attitude, demeanor 
and approach to things. It is the kind of arrogance that places 
image above substance, exemplified by the FBI's fondness for 
holding press conferences in very high-profile cases before the 
investigation is complete and all the facts are in, and it 
gives fuel, I think, to the mistaken notion that those within 
the Bureau are somehow above accountability and reproach.
    This arrogance is a common thread that is woven into a 
majority of the problems the FBI has experienced over several 
years, so with that in mind, my question: do you believe there 
is a culture problem within the Bureau, and if so, how do you 
plan to approach it as a way of correcting things?
    Mr. Mueller. I do think there is a problem. I attribute it 
to a number of factors----
    Senator Grassley. Maybe not a cultural problem. Is that the 
inference I should----
    Mr. Mueller. No, not necessarily. I have a hard time 
getting my hands around what one means by culture. In other 
words, one asks a cultural problem. My question is, OK, what 
feeds that perception of a cultural problem, because I need to 
know what feeds it in order to be able to address it.
    Senator Grassley. OK, legitimate.
    Mr. Mueller. And certainly one of those areas is--and it's 
not--it's a problem, it's not--and it's a problem that has to 
be addressed and addressed, and that's infrastructure. That 
does not necessarily take care of the perception of the 
arrogance as you have pointed out. And part of that, I think, 
is because the perception is there because there has been at 
least the appearances of defensiveness, a unwillingness to 
admit mistakes quickly, immediately, forthrightly, and once 
mistakes are admitted, to be absolutely truthful in terms of 
what happened and how we're going to rectify it.
    And as I pointed out in my statement yesterday, I think it 
is absolutely unacceptable to try to cover up and not disclose 
something that needs to be disclosed, and more importantly, or 
as importantly, it's unacceptable to try to shift blame to 
somebody else. And to the extent that that has been the case in 
the past, it is something that I want to address and eliminate.
    I know in your letter you talked about the cultural problem 
and tying it into arrogance. And defensiveness I think can feed 
that. I know in talking with state and local law enforcement 
over the years, that there is perceived arrogance of the FBI. 
Some of it is attributable to the perception that the FBI will 
come in and take a case, elbow a state and local out of it, and 
then take the credit for it, whether it be by press conferences 
or otherwise.
    In the past I have had opportunities to work with state and 
local and foreign law enforcement on a number of occasions, and 
the posture agents should take is that ``We have something to 
bring to the table; if it makes some sense to have us, an 
investigation that can be done by the state and locals, we 
ought to be there to assist.'' And on the other hand, it is 
more--rather than us taking credit for it, I would much prefer 
to have, at the conclusion of an investigation, that the state 
and locals stand at the podium, do the press conference, and 
thank the FBI. I am not a great one for press conferences, and 
I think in the 3-years I've been U.S. Attorney I think I've had 
two. And I think you do your job quietly, and if you do it 
professionally and well, then others will give you credit for 
it. So to the extent that there may be the perception of 
arrogance along those lines, I would hope to dissipate that 
perception.
    Other factors contributing I think to the perception that 
the FBI is not always forthcoming is that there are areas 
where, I believe, people need to have their responsibilities 
well defined and be held accountable when they do not perform 
those responsibilities. There are some areas that in the brief 
time I've had since being considered for this position, I've 
seen where there's overlapping responsibility, and where there 
are overlapping responsibilities it is too easy to avoid 
accountability and to point fingers at others, and one needs to 
address that and assure that you eliminate those overlaps of 
responsibilities.
    Those are just some responses. I could go on for a period 
of time, but that's----
    Senator Grassley. Why do I not move on, because I want to 
still keep on this theme or arrogance. In my letter I raise the 
issue of access to documents, and I know that it has been 
raised also by Senator Specter. The FBI, I think, has a poor 
history of cooperation in producing and providing access to 
documents. And I want to be sure that I understand how you 
perceive this problem. Now, we can debate classified documents. 
We can talk about the issues of privacy and confidentiality. 
But what I cannot conscience is the deliberate pattern of 
denying, delaying or simply not complying with legitimate 
requests. Time and again the FBI has shown contempt for any 
public or private entity that dares to question its motives and 
performances. And now I am going to refer to, Senator Danforth 
raised this issue with his alarming testimony on June the 20th, 
where we learned that during the course of the investigation of 
FBI actions at Waco, FBI personnel, quote, ``were not 
cooperative,'' again quote, ``were cavalier or resistant in 
turning over evidence,'' and again quote, ``there was a lack of 
openness and candor, complicated my investigation,'' meaning 
Senator Danforth's investigation.
    This is, to me, an all-too-familiar pattern that I have 
witnessed in regard to getting information as a senator, but in 
regard to the problem of the McVeigh documents, you have 
stated, quote, ``If only the FBI had a computer capability, we 
would have been able to produce the documents.'' I fully 
support the FBI's efforts to upgrade information systems, but I 
have been around too long to buy into the fact that the dog-
ate-my-homework sort of excuse. Again, if you think these 
problems are resource related, then I think you are missing a 
big picture, and that is, for whatever reason, FBI managers 
make deliberate decisions not to provide documents that are 
requested of them. So I ask you, how will you change the 
Bureau's penchant for denying legitimate access to FBI 
documents and witnesses?
    Mr. Mueller. I do not recall--I may well have, because I 
believe it's part of the problem, access to--a ready access to 
documents I think is part of the problem. But I have not said 
that that's all of the problem. Accountability, responsiveness 
is a substantial part of the problem. And my own way of 
handling matters like this is to make persons accountable. If 
there is an undertaking such as the Danforth undertaking or an 
investigation by a committee of Congress, I would expect to 
have somebody responsible for assuring that we are responsive 
on that particular issue, responsive in terms of meeting the 
requests of--and accommodating the requests of the committee, 
and where we are unable to, or believe that there is some 
confidential interests that are implicated, to be able to state 
honestly and directly to the committee what should be done to 
accommodate the committee's request.
    In the past where I have had Assistant United States 
Attorneys, who believe that it is important to only give to 
defense counsel that which is appropriate under the rules, I 
have required of them that they take the posture that you 
provide just about whatever you have that will assist the 
defendant regardless of the rules, and to be open. I would like 
to, and expect to, foster a change in the perception so that 
you do have the feeling at the end of the day that the FBI has 
been responsive. We may disagree occasionally on what should be 
produced, but I have always found that it is--the best practice 
is to sit down with defense counsel and hash out and then 
directly discuss that which is on the table, so you identify 
your disagreements and there is no perception that someone is 
hiding the ball.
    Senator Grassley. Mr. Chairman, was that a 10-minute period 
of time?
    Chairman Leahy. Yes.
    Senator Grassley. Well, then I will have to submit the rest 
of my questions for answer in writing.
    I thank you, sir.
    Chairman Leahy. We will have other rounds if the Senators 
would like, but I would also note that several senators are 
going to have to submit written questions, because I am putting 
this on a fast track. Should you be confirmed prior to the 
answer of those, do I have your commitment that all of those 
questions will be answered in full?
    Mr. Mueller. Yes, sir.
    Chairman Leahy. Thank you. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman.
    Mr. Mueller, thank you for already answering a variety of 
questions, both today and yesterday, related to technology and 
cyber crime. I will try to be specific in my questions. Sorry, 
I was not here yesterday for your statement, but I have a copy 
of that.
    The glaring inconsistency within the FBI, in my mind, seems 
to be that the internal information systems are not where they 
need to be. We have all heard examples of that this morning and 
I am sure yesterday as well. And yet the FBI has continued in 
its efforts with Carnivore, which has been plagued with a 
variety of privacy concerns. I see an inconsistency there. I do 
not know if you have made statements yet about what kind of 
review of resources, and allocation of resources, you intend 
for those two tasks, or if you think that maybe some of the 
Carnivore resources should actually be spent on improving your 
IT information system, particularly given the concerns that so 
many privacy entities have about Carnivore?
    Mr. Mueller. I am sensitive to the concerns of relating to 
privacy as a citizen. But also having sat down and talked with 
a number of the privacy groups here, when I was assistant--when 
I was Acting Deputy Attorney General, I am sensitive to the 
concerns about what is called DCS 1000, previously known as 
Carnivore, and other technological advances. There is, I think, 
a--there are two separate paths though that we're looking at. 
On the one hand the investigative tools and the investigative 
expertise developed by the FBI, and the new technologies I 
think is next to none. I think they have made rapid advances. 
There are privacy concerns that we have to address, but 
nonetheless, I do not think that the FBI is behind in its 
ability to investigate attacks on computers, denial-of-service 
attacks on computers and the like.
    On the other hand, the technological infrastructure whereby 
the ability to scan and put documents into a data base and have 
them automatically retrievable, I think is behind what you 
would find in a business, in a law firm, and that's an area 
that we really need to look at so that you pick up that side of 
the technology piece, so that we can respond better to our 
responsibilities.
    Likewise, the internal mechanisms and controls that could 
be benefited by new technologies, whether it be e-mail or case 
tracking systems, have to be modernized so that we can have 
greater control and understanding of the caseload that we have.
    Senator Cantwell. Did you say that you did not think that 
the FBI was behind the curve in investigating cyber crime 
activities?
    Mr. Mueller. I think we are on the cutting edge. We need 
additional expertise. We need--we could always use additional 
agents, we could always use additional technology. But I do 
believe the FBI, at least in my district as I've seen it, does 
a very capable job, given the tools, the limited tools it has--
and we could always use some more statutes--does a good job in 
investigating those crimes.
    Senator Cantwell. Well, we in the Northwest we have had a 
series of violent anti-technological terrorist activities. In 
fact, one was associated with the University of Washington, an 
arson that took place there. One of the special agents in 
charge of the FBI's Seattle office, basically responded to the 
challenge of investigating the crime by saying, ``We don't have 
an organizational structure to attack, no finances, no 
memberships, no meetings.''
    So part of the challenge is that so much of this is the 
organization basically exists online. I think at least in that 
agent's mind, additional resources or new laws might be 
considered. I do not know if you have a comment on that.
    Mr. Mueller. I think that is where the privacy rights of 
individuals perhaps intersect with the desire and the 
requirements of appropriate law enforcement. I am not familiar 
with the specific facts of that case, and I am not familiar 
with the specific investigative tools that that special agent 
is addressing in saying that we could use more, and I am not 
certain whether what we seek is unavailable under the current 
statutes.
    Senator Cantwell. We would be happy to provide you 
information that we have. We will submit a further question on 
that.
    With regard to Carnivore, specifically, there has been so 
much concern about how this issue has been approached by the 
FBI. I do not know if you saw yesterday's New York Times 
article about the organized crime case and the concerns about 
privacy, but one of the issues that has been raised is the new 
process in which the FBI undertook the investigation in this 
case against Mr. Scarfo's business.
    Basically, the FBI used a new key logger system that is 
calling into question--I guess I would frame this in the 
perspective that this is the second time we have seen the FBI 
in a court case on the violation of privacy. In fact, Justice 
Scalia was quoted in the article basically saying, ``What 
limits are there upon this power of technology to shrink the 
realm of guaranteed privacy?,'' and that the court has to 
confront this fundamental issue. So my question is, is it your 
intention to make available the information about how this key 
logger technology worked?
    Mr. Mueller. I am not familiar with that new technology, 
have not had occasion to use it in our district. I read the 
same article that the Senator read with interest because it was 
the first I had ever heard of it. Until I know more about it, I 
really don't think I can commit one way or the other.
    I do believe when there are advances in technology that it 
is important to balance the privacy interests affected with the 
investigative take that you might get from that technology. I 
am not familiar with the circumstances of this case, and I am 
not familiar with the technology.
    Senator Cantwell. Well, given that there was a lot of 
concern about the FBI's--what happens in searching for 
information using the Carnivore system--is that so much 
information is gathered. Now the FBI has switched to this key 
logger system, and the public and the privacy advocates have 
concern about what system is being used. When you say to 
somebody you are collective every keystroke that was used this 
by individual, (and maybe people are not very empathetic to Mr. 
Scarfo's situation, but there might be somebody down the road 
that they would be very empathetic) that every keystroke was 
being tracked.
    Do you plan to review Carnivore when you take over as FBI 
Director?
    Mr. Mueller. I have already had meetings with privacy 
groups on it. I have, and will continue to look at it and 
evaluate it and hope to, down the road, that the technology 
overtakes the necessity for using it. I would make the point, 
however, that----
    Senator Cantwell. Would you undertake a formal review of 
Carnivore?
    Mr. Mueller. There has already been a--I would look at the 
formal reviews that have already been done to determine whether 
there is a necessity of doing another formal review. My 
understanding is that the information that DCS-1000 is utilized 
for is done generally, for the most part, and it may be as much 
as 75 or 80 percent of the time, if not 90 percent of the time, 
by the Internet service provider itself, which has that 
technology. So that the DCS-1000 is for that particular smaller 
ISP that does not have the technology and that every time that 
it is used, and it has been used very seldom, I understand, it 
is used pursuant to court order.
    So there are protections, I believe, and likewise with the 
logger system. I am not certain that it was--I am not certain 
of the facts of the case, but I am more comfortable and would--
where there is the court that is directing the use of it and 
supervising the use of the new technology, and I'm not certain 
whether that was the case pursuant to, say, a search warrant in 
the case that was reflected in the papers yesterday.
    Senator Cantwell. Just as in wiretapping, I do not know 
that it bothers the general public that the phone company has 
access to the phone lines or that an Internet Service Provider 
has access to that data. What they are very concerned about is 
that a law enforcement agency might have free access to that 
information and that it being collected, in a way that might 
give them more information or information about other 
individual that happen to have communicated. So I hope that 
that review, whether formal or informal, is something, Mr. 
Chairman, that this committee continues to be involved with the 
FBI Director on.
    Mr. Mueller. I am sorry, if I might, one last--I was passed 
a note indicating that, and I was unaware of it, the DOJ is 
conducting a review now which I certainly would look at once 
the Department of Justice has completed its review.
    Senator Cantwell. Thank you, Mr. Chairman.
    Chairman Leahy. I think Senator Cantwell raises a very good 
question. In an era of encryption, we do not want some of these 
new technologies to be the back-door clipper chip that we have 
already said we were opposed to. This committee was quite 
concerned when Carnivore first came to our attention because we 
felt that the FBI might be going well beyond what all of us 
understood could be done under the law. We will look at how the 
FBI uses the capabilities presented by new technologies.
    But with some of the Fourth Amendment and other issues that 
come up here, you should anticipate that there will be 
increased oversight from the committee on these aspects and 
increased concern, again, on both sides of the aisle. I 
appreciate your answers here this morning.
    Senator Kohl of Wisconsin?
    Senator Kohl. Thank you, Mr. Chairman.
    Good morning, Mr. Mueller. I believe that you are going to 
make a fine Director of the FBI, and we all look forward to 
working with you. I enjoyed meeting with you last week, and I 
came away impressed by your command of the challenges facing 
the Bureau.
    In addition, your career demonstrates an impressive 
commitment to public service and to your country. As you know, 
the job ahead of you is a daunting one. A lot of ink has been 
spilled cataloguing all of the problems with the FBI. You are 
familiar with all of the criticism and the theories about what 
has gone wrong and why, so there is really no need today to 
repeat them, except to say that many of us are very concerned 
that the public is losing faith in Federal law enforcement 
because of these incidents.
    But as you know, there is good news and bad news. The good 
news is that within the FBI we still have the best crime-
solving agency in the world. When we discussed your plans for 
the FBI, you commented that the core function of the Bureau has 
always been, and remains, investigations. Despite the public 
problems, the FBI's ability to conduct important investigations 
is beyond questions, and you are right about that.
    But the bad news is that the FBI has stumbled badly 
recently. In a world where technology advances outpace law 
enforcement, the FBI needs some forward thinking and planning. 
We hope that you will give us some good concrete ideas about 
how we can help the FBI stay one step ahead of emerging 
threats.
    I would like to ask you just a couple of questions, Mr. 
Mueller. You have been responsible for managing offices of only 
a few hundred employees and a budget of about $17 million. In 
your new job, however, you will be in charge of an agency with 
more than 27,000 employees and a budget of more than $3.5 
billion. Now that is a pretty good increase over what you have 
done before. You will be dealing with a big bureaucracy and 
will not have the authority that people like CEOs have in the 
private sector.
    Given these constraints, do you think it is realistic, Mr. 
Mueller, to expect big changes quickly?
    Mr. Mueller. It is, as a number of people have pointed out, 
a substantial undertaking. There have been a number of people 
who have asked why I want to do the job because they perceive 
it being somewhat substantial.
    I do think that one can relatively quickly, over several 
weeks/months, learn the institution and learn the people, learn 
what are the larger problems, whether it be span of control, 
what are the larger personnel problems and in a relatively 
short period of time. And I don't want to specify any 
particular period of time, but certainly within months start to 
make substantial changes.
    As I am want to say, the most critical decisions I will 
make are the decisions on people--who one puts into positions 
of leadership. And those changes take some time to, No. 1, 
determine if there needs to be change, and, No. 2, if you are 
going to change, who is the best person to fit a particular 
slot, but that is not an extraordinarily time-consuming 
undertaking.
    On the other hand, changing the organizational structure, 
making substantial changes to the span of control I think will 
take additional time because I will want input. I will want 
input from the management consultant firm that is looking at 
the Bureau. I would want input from the various reviews that 
are being done. And I am, as I mentioned to you, I want to go 
out and talk to a number of people who have run organizations 
of this size or larger and incorporate their views on how you 
can best manage an organization like the FBI, and I do think 
that will take a longer time than perhaps making some personnel 
changes.
    Senator Kohl. All right. There is the reality, as you know, 
and also the perception. Sometimes the perception is just as 
serious, in terms of the public out there throughout the 
country, as the reality. In connection with that, I would like 
to ask you this question:
    Public institutions like the FBI and the Congress seem to 
be held in lower esteem and are open to more criticism today 
than at any time in the past. Americans know more about public 
figures and the Government than ever before. Maybe that is 
because 24-hour news coverage and multiple full-time news 
stations turn every problem, oftentimes, into a huge scandal.
    I do not want to imply that the issues we have been reading 
about concerning the FBI are not extremely serious, but I am 
willing to guess that today's FBI employees are every bit, if 
not more, intelligent, qualified, and hardworking, in most 
cases, than has ever been true before.
    Mr. Mueller, it is hard to compare, but do you really think 
the FBI is worse today than it has ever been or does the close 
media scrutiny play a large part in the perception that the FBI 
is broken and needs to be fixed?
    Mr. Mueller. I don't believe the FBI is worse today than it 
has ever been. The strength of the FBI is its people--the 
special agents, the employees, the managers. And over the years 
that I have been a prosecutor and worked together closely with 
members of the FBI all I have seen is an enhancement in their 
expertise, integrity, willingness to do the job, and there have 
been a number of successes that I have mentioned yesterday and 
would mention again. One is Pan Am 103--an unbelievable 
undertaking by superb FBI agents and could not have been done 
maybe 10 or 15 years ago because these agents had not only the 
technology, I mean, the ability to pick a small piece of a 
timer and put it into the puzzle of that prosecution was truly 
remarkable.
    And I have huge respect for, faith in the FBI agents with 
whom I've worked and 99 percent of the FBI agents out there. I 
think it is a wonderful institution. I think it has problems. I 
think a number of those problems are attributable to disparate 
factors and have to be addressed, the principal one perhaps 
being that the FBI has grown over the years, but its management 
structure has not grown to support it. The FBI has grown over 
the years, but it support structure has not grown to support 
it. The FBI agents have been--there have been more FBI agents 
brought on to address particular problems, but the 
technological infrastructure to assist them to do their job has 
not been forthcoming, and that is what we hope to solve.
    Senator Kohl. So do I hear you saying that you believe the 
FBI is as effective and as dedicated as it has ever been 
before? There are problems out there. Problems are magnified 
sometimes, but there are problems out there, and they need the 
kind of leadership that you hope to bring, not only in terms of 
your ability to organize, and reorganize, and motivate, but 
might I also suggest that they also need a leader who is 
properly, in the best sense of the word, a cheerleader for the 
fine and outstanding organization that it is and for the 
service that it renders to this country?
    Mr. Mueller. I wouldn't be sitting here, Senator, seeking 
the job if I didn't think absolutely that.
    Senator Kohl. Thank you. Mr. Mueller, you must be aware 
that the Bureau requires that all agents' guns be stored with a 
safety lock when they are not in use. Yet a recent consumer 
study found that 30 out of 32 safety locks that are available 
on the market failed the most basic safety tests. For example, 
most of the locks fell off the guns when they were dropped or 
were easily picked with basic items around the home.
    Do you know whether the locks used by the FBI pass these 
basic safety standards and would you agree that the FBI's 
locks, as well as all of the locks that are available in the 
marketplace, should pass these basic safety standards?
    I do not know if you are familiar with what I am talking 
about, but there is evidence out there, and it has been printed 
in the newspaper, that 30 out of 32 of the basic safety locks 
that are being sold do not pass safety standards. Are you 
familiar with that?
    Mr. Mueller. I am not familiar with this issue, but--I am 
not, but I would be happy to answer whatever portions of the 
question I can.
    Senator Kohl. OK. Well, I guess I am asking you because 
there is some difference out there in the marketplace. As a 
matter of fact, I think even the President has been reluctant 
to take up the suggestion that I am making, that all of the 
safety locks that we sell out in the marketplace should pass 
basic safety standards. As simple as that sounds, and I would 
presume you would agree with that.
    Mr. Mueller. I would have no reason to disagree with that 
statement, Senator, but I must say that I am not familiar with 
the issues relating to safety locks. I would hope that if the 
FBI, and I don't know whether the FBI uses safety locks, but if 
the FBI was using safety locks, I would want the FBI to have 
safety locks that worked.
    Senator Kohl. Yes, that is fine. I hope you do not get in 
trouble.
    [Laughter.]
    Mr. Mueller. Unfortunately, given my ignorance, that is----
    Senator Kohl. One last question. A particular concern in 
Wisconsin that we discussed for a minute last week, I would 
like to get just a public comment from you.
    According to recent FBI statistics, Milwaukee has 50 less 
agents than Charlotte, 23 less than Buffalo, and 20 less than 
Indianapolis, which are cities with comparable or smaller 
populations than Milwaukee. As a result, the number of FBI-led 
arrests in Milwaukee lags far behind even much smaller cities, 
despite the fact that Milwaukee has all of the same crime 
problems of other major cities. And with our proximity to 
Chicago, in particular, we are subject to their drugs and gang 
problems as well.
    As you said to me in the office, I would like to hear you 
say it here, if I might, will you pledge to work to reevaluate 
the FBI's allocation of resources--I am not asking for a 
promise to move a certain number of agents by a certain time, 
but rather that you give Wisconsin and Milwaukee a fair 
evaluation and provide us with the resources as you determine 
we deserve them.
    Mr. Mueller. Yes, sir, I would absolutely do that. And I 
did, in response to a question yesterday from Senator Sessions, 
discuss the necessity for there being some flexibility on local 
priorities vis-a-vis national priorities. And how that can be 
worked into the system of allocation of priorities I am not, 
myself, personally familiar, but it has been a concern of mine, 
as a United States attorney, and will be a concern of mine 
should I be confirmed as Director of the FBI.
    Senator Kohl. I thank you. And, Mr. Mueller, you are a very 
impressive man. I thought that when we met. I have continued to 
feel that way. I have watched the proceedings here yesterday 
and today, and you will have all of the support from my office 
that you could ask for.
    Mr. Mueller. Thank you, sir.
    Senator Kohl. Mr. Chairman, thank you.
    Chairman Leahy. Thank you, Senator Kohl.
    As far as the question of trigger locks are concerned, I 
have tried out some of the commercial ones--I own a number of 
guns, as most Vermonters do--but I tried out a number of them 
that do not work worth a hoot. I agree with you. If you are 
using them, get some that work. I would suggest people, if they 
are concerned, do what I do in my home. We have a steel gun 
safe bolted to the floor, and everything is kept there and 
locked up. It is also a recommendation I would make, though we 
no longer have young children around, to anybody who has young 
children.
    You probably will not be required to carry a side arm in 
your new position, but if you do, I would suggest the same 
thing. The easiest thing to do is just have somewhere to lock 
them up at home. In fact, in that regard, I would like to 
revisit the issue of Attorney General Ashcroft's proposed 
changes to the National Incident Criminal Background Check 
System because Senator Schumer and Senator Feinstein raised 
issues on that.
    It is my understanding that the Attorney General proposed 
these changes to address the privacy interests of law-abiding 
firearm purchasers, but he still wants to meet the law 
enforcement requirements of the Department. My further 
understanding is the proposed regulations on background check 
records would not impact on the retention of records, where a 
person is denied approval under the NICS system. For example, 
if the attempted purchaser has a criminal record or is under 
age, then the record of that denial would be kept indefinitely 
for law enforcement officers to investigate and prosecute as a 
violation of the Brady law.
    In addition, the proposed regulations would create a new 
individual audit log for Federal firearm licensees. It would 
allow the FBI to share NICS information on individual gun 
dealers upon request of the ATF. The proposed regulations would 
not change the existing NICS records retention requirements on 
firearm dealers. In fact, ATF inspectors would use these 
records and be kept on location at firearm dealers. They could 
trace and investigate crime guns or guns used in a crime or 
review for fraud during their inspections and so on. They could 
still use the NICS transaction number in all background checks.
    Now, I agree with Attorney General Ashcroft that we should 
protect the privacy of law-abiding citizens. I am one, and a 
lot of other people are. You fill out all of the forms if you 
buy a gun, but you do not expect all that material, once they 
have checked on you and find out you are law-abiding, you do 
not expect the papers to be sitting around there forever. I 
believe we need to maintain an accurate auditing system for 
background checks, and I think we can do both and keep firearms 
out of the hands of criminals and children.
    So maybe the thing I might ask, I would just ask you to 
work with members of this committee and the Attorney General to 
ensure that the National Incident Criminal Background Check 
System maintains an accurate auditing system, but also that we 
protect the legitimate rights of gun owners. So I assume you 
are perfectly willing to work with us on that.
    Mr. Mueller. Absolutely.
    Chairman Leahy. Another area, though, that is more apt to 
have longer-range consequences is on some of our new search and 
seizure procedures. The Supreme Court recently had occasion, as 
you know, to look at the issue of thermal imaging under the 
Fourth Amendment, where--for those not familiar with it--you 
use devices outside of somebody's home, and basically what you 
are doing is checking heat levels in the home. You can use it 
to determine when somebody moves from room to room. In this 
particular case, as I recall, it was checking to see whether 
they had lights on that might be used to grow marijuana. But 
the main point was somebody sat outside the home, looked inside 
the home, and the Supreme Court felt that the procedures used 
in that case did not fulfill the Fourth Amendment protections 
and that there was not adequate basis for this search.
    My guess is we are going to see more such issues because we 
have new kinds of surveillance technologies. It is not like the 
old days you had to look in a window or you had to get into the 
house. Electronically, whether it is thermal imaging or whether 
it is other types of surveillance, we are going to find things 
that perhaps you or I would not even be able to anticipate 
today.
    Now, as a former prosecutor, I understand the benefits of 
surveillance. In my career, we used surveillance a lot to catch 
criminals. I am sure you have too. But we have also got to 
protect America's sense of privacy. You can wiretap telephones, 
but you have to follow very specific procedures to do that.
    I would ask you to look at the procedures in place for law-
enforcement access, for example, to electronic information 
because much of it is stored in the hands of third parties. I 
think this has been touched on by some of the questions asked 
here by Senator Cantwell and others. We live in an era where 
privacy becomes less and less for a number of reasons. A lot of 
the privacy we give up willingly, but I think we give up some 
of it surprisingly, and I think Americans would be surprised to 
know how little privacy they have in some areas. But I think we 
should work closely together on this because my guess is the 
courts will be looking at this more and more, as they should, 
rightly should, to make sure that we are protected in the 
electronic age.
    So I would ask you to look at this issue, whether it is 
keystroke surveillance, thermal imaging or how you deal with 
the proliferation of companies that hold our data. This is 
important because of our wide use of the Internet.
    Mr. Mueller. I would be happy to look at that and work with 
the committee on those significant issues. The use of the 
thermal imaging system that was addressed by the Supreme Court 
is one of those technological advances where ultimately law 
enforcement needed guidance from the Supreme Court. It was not, 
if I recall correctly, a unanimous decision.
    Chairman Leahy. That is right.
    Mr. Mueller. And it was a close issue. And there are going 
to be those issues where there is a law-enforcement tool, there 
are privacy interests implicated, and yet one doesn't know 
where the line is. We do have to look at each of those issues 
and be cognizant of the privacy interests involved.
    It has been my habit in the past to sit down and listen to 
and get the input from a number of different people with 
different concerns, whether it be privacy interests or defense 
counsel. And when concerns are expressed and we can address 
those concerns, I would like to be responsive to those concerns 
and do so without the necessity of perhaps going to a court or 
a third party.
    Certainly, I would be--look forward to sitting down and 
working through some of these issues with the committee, as I 
would with others who are interested in the development of that 
new technology.
    Chairman Leahy. And I am not suggesting, of course, by any 
means that law enforcement become kind of Luddite. There are 
going to be new technologies and they should be available, but 
also within the constraints of what have been our search and 
seizure law. I helped rewrite the wiretap laws. We came into a 
digital age, and knowing that it is no longer the old age of 
the sheriff standing on the roof of the pickup truck and 
pinning the allegator clips to a telephone wire going through. 
It is a far more complex thing today, and I think we worked out 
something that reflected the appropriate balancing of 
interests, and we can do that.
    We are not trying to stop, neither you nor I want to stop, 
new technology, but we also do not want intrusive technology 
used without the appropriate privacy safeguards in place.
    I see Senator Specter, and I assured him earlier that at 
11:30 we would turn back to him. Then, if there are not other 
Senators with questions, after Senator Specter is finished, we 
will recess the hearing.
    Senator Specter?
    Senator Specter. Well, thank you very much, Mr. Chairman.
    Thank you for stopping by this morning, Mr. Mueller, so we 
could talk about some of the issues which we discussed 
yesterday. We spent, as you know, the better part of an hour, 
and I think we are pretty close together, but let us talk for a 
few minutes on the record.
    Mr. Mueller. Right.
    Senator Specter. I had raised the issue of this memorandum, 
dated December 9, 1996, where Director Freeh recounts a meeting 
between a top FBI official, Mr. Esposito, and a top Department 
of Justice official, Mr. Lee Radek. And the key part of the 
memorandum contained the language that Mr. Radek commented to 
Mr. Esposito that there was a lot of ``pressure'' on him, Mr. 
Radek, and the Public Integrity Section regarding the 
Democratic National Campaign Finance investigation because 
``the Attorney General's job might hang in the balance,'' or 
words to that effect.
    And where we ended up yesterday was on the point as to the 
status of congressional oversight, and we were talking about 
whether the FBI Director should have turned it over to at least 
the chairman and ranking member of Judiciary. And he had said 
that the Director ought to take it up first with the Attorney 
General, and I would agree with that totally, but if the 
Attorney General then disagreed about its being turned over to 
the Judiciary Committee, it seemed to me that the FBI Director 
had a duty to do that. The FBI Director is in a very unique 
position, having a 10-year statutory term.
    And this memorandum was written at a time when there was an 
outstanding question as to whether Attorney General Reno would 
have been reappointed by President Clinton to be Attorney 
General for a second term. And had the Judiciary Committee and 
Congress known about Mr. Radek's position, it might have had a 
very profound influence on the appointment of independent 
counsel--any suggestion that there was a decision based, in 
part, on the Attorney General's status.
    And I think when we talked this morning you concurred--you 
will say it yourself in a moment--on separation of powers, that 
Congress does have a right to know about a matter of this 
importance, after the Director has run up the chain of command 
to the Attorney General, if there is not agreement to turn it 
over, that there would be a duty by the Director to turn it 
over for Judiciary Committee oversight.
    Is that fairly accurate?
    Mr. Mueller. I think, Senator, I believe there may be 
occasions, and it is hard on this with just fact specific. But 
there are occasions where if I thought that an investigation 
was being interfered with, hampered, for political reasons or 
other reasons, in an unwarranted way, I think my obligation 
would be to speak closely to--talk to the Attorney General 
about that, and ask the Attorney General to turnover whatever 
was either responsive or important to the Congress to do its 
duty. And if it was a matter of substantial consequence, and I 
was turned down by the FBI--not by the FBI--was turned down by 
the Attorney General, I would have options on hopefully where 
to go with that, but I would think I'd have an obligation to 
inform the Senate of that, and produce those documents.
    Senator Specter. Thank you for that response, Mr. Mueller, 
because I think this is one of those really extraordinary 
examples where congressional oversight would have been 
extraordinarily important, and I am glad that we have come to a 
meeting of the minds on that.
    We then discussed this morning at some length the business 
about having records turned over to the Judiciary Committee. 
And I gave you a copy of a draft report on Wen Ho Lee that our 
subcommittee had prepared, and I appreciated your reviewing 
that very extensive document, running some 185 pages. And the 
Wen Ho Lee case was a matter of, I think, compounding errors. 
There was a request for a warrant under the Foreign 
Intelligence Surveillance Act, where the FBI Director sent a 
top official to talk to the Attorney General, and the Attorney 
General delegated it, and then the FISA warrant was rejected, 
and there was not a followup either by the Attorney General or 
the FBI Director, and we have since legislated on the subject 
that when the FBI Director asks the Attorney General a matter 
of that sort, there has to be a response in writing by the 
Attorney General, and the FBI Director has a statutory 
obligation to followup.
    The Wen Ho Lee investigation then languished for about 14 
months until November or December 1998, and at that time, with 
the Cox Commission about ready to come out with a report, the 
Secretary of Energy Richardson, then acted in a hasty manner, I 
think precipitously, had a lie detector test given to Wen Ho 
Lee by a private agency, a dispute as to what that showed, and 
then a failure of the FBI to move Wen Ho Lee away from access 
to confidential documents, and finally a search warrant in 
April 1999, and then no activity against Wen Ho Lee until 
December when he was arrested. And we still have not had a 
chronology as to exactly what the FBI and the Department of 
Justice and the Department of Energy did in that intervening 
time. It seems to me extraordinary that he would be at liberty 
for all that time, April to December, and then manacled and put 
in solitary confinement. And then we could not get any records 
because the matter was under investigation, prosecution, 
continuing investigation, but principally prosecution, and then 
a guilty plea taken to only one count of a 59-count indictment.
    And that illustrated the necessity for oversight, and I had 
read you the Congressional Research Report, and I want to go 
over that with you for just a minute here. The part first where 
Congressional Research says, quote, ``demonstrates that the 
Department of Justice has been consistently obliged to submit 
to congressional oversight, regardless of whether litigation is 
pending, so that the Congress is not delayed unduly in 
investigating misfeasance, malfeasance or maladministration in 
DOJ or elsewhere,'' close quote, so that even if there is a 
pending prosecution, congressional oversight has standing and 
can get information, and we talked about the one exception, 
which I concurred with you, if there is a executive privilege, 
not a matter of co-equal branches, that is a matter for the 
Judiciary to conclude. But I wanted to get your record comment 
as to the appropriateness of congressional oversight even if 
there is a pending prosecution or a pending investigation.
    Mr. Mueller. I think I would say that yes, congressional 
oversight is appropriate, even if there is a pending 
prosecution or investigation. And I think it incumbent upon the 
executive to attempt to accommodate the request of the 
oversight committee, absolutely. And I think each situation has 
to be addressed. It may be a very important one, it may be not 
so important. Each situation one has to look to, and it is 
incumbent upon us to attempt to accommodate the necessity of 
the oversight committee to have the information it needs. And 
one of the factors may well be that there is an ongoing 
prosecution or investigation, but we have an obligation to 
accommodate in what ways we can.
    Senator Specter. The Congressional Research memorandum then 
covered a point of significance when it stated, quote, ``In all 
instance, investigating committees were provided with documents 
respecting open or closed cases that included prosecutorial 
memoranda, FBI investigative reports, summaries of FBI 
interviews memoranda.'' Again, I think we are of a same mind, 
that that is an appropriate function for congressional 
oversight?
    Mr. Mueller. Well, I note that they comment about what has 
been done in the past. I guess I am not certain about 
specifically what the question is.
    Senator Specter. Well, the question is, would you agree 
with the Congressional Research conclusion that congressional 
oversight is appropriate to be provided with documents 
respecting, quote, ``open or closed cases that included 
prosecutorial memoranda, FBI investigative reports, summaries 
of FBI interviews and memoranda.''
    Mr. Mueller. In appropriate cases, absolutely.
    Senator Specter. Well----
    Mr. Mueller. And I have had occasion myself to be in a 
position of accommodating a committee of Congress, who asked 
for many of those same things, and, yes, in appropriate cases. 
My concern is making an overall generalization that in every 
case this should be the way that we intersect in terms of 
responding to legitimate oversight of committees.
    Senator Specter. Well, you used the word ``appropriate'' 
twice, and I would agree with you that Congress has a 
responsibility to proceed in a rational way with a purposeful 
request. The Congress--and you and I talked about this this 
morning at some length--I believe under the law has the last 
word. If a prosecution is to be prejudiced, the law is, as I 
understand it, that Congress has the last word. And if Congress 
has the responsibility for legislation and you get involved in 
some complex matters, but if it is pressed all the way, we 
talked about the possibility of a member being under 
investigation, and there you might have to go to the Speaker or 
the majority leader, the congressional oversight might have to 
be redefined. But I just want to establish that you concur that 
Congress does have the last word on congressional oversight, 
absent executive privilege.
    Mr. Mueller. Well, it's the assertion of executive 
privilege, yes. And the ultimate arbiter, when there is a clash 
or disagreement between the executive and the legislative, I 
believe the courts are the final arbiters of that, and I think 
I mentioned the American Tel and Tel case, in which it 
specifically describes the balance between the two co-existent 
branches of--co-equal branches of government, Congress and the 
executive, and encourages accommodation. And I would hope that 
we would never get to the point where the--where the senator or 
the committee would say, ``We have the last word.'' I would 
hope to be able to accommodate you so that we never reach the 
point that requires either the executive or the senate to go 
and seek the advice of a court.
    Senator Specter. Well, I would hope we would too, and I 
think we will be, but in the Wen Ho Lee case we had that 
extraordinary circumstance, and we did not get the documents. 
And the case went downhill all the way. And I think 
congressional oversight can be of help, as you and I discussed 
today.
    Let me turn to--would you like me to conclude, Mr. 
Chairman, and come back for another round? I have just a few 
more minutes. I know Senator Durbin is here.
    Chairman Leahy. I want to accommodate both because I think 
we can finish this whole thing before the noon caucuses, and 
Senator Durbin, what is your schedule? I have also told the 
Senator from Pennsylvania I would accommodate him as much as 
needed, because I thought he had important questions.
    Senator Durbin. I promise to be very brief.
    Chairman Leahy. I wonder if the Senator from Pennsylvania 
would mind doing this, yield to----
    Senator Specter. I would be glad to.
    Chairman Leahy.--Senator Durbin for his questions, and then 
go immediately back to you.
    Senator Specter. I would be glad to, Mr. Chairman, 
certainly.
    Senator Durbin. Thank you very much, and Mr. Mueller, thank 
you for coming, and submitting yourself to this humbling 
process. And I am very impressed with your credentials, and I 
am certain that I speak for the vast majority of senators, 
Democrat and Republican. We feel that you are the right person 
for the job, and it is a big job. We met in my office to talk 
about some aspects of it, and in a very brief time, I was 
impressed by your candor and your insight.
    I would like to address an issue, which no one, as the head 
of any agency, would readily invite questions on, but one I 
think is inevitable. And that is this whole question of the 
Inspector General. There are some 57 Federal agencies with an 
Inspector General on board. This person is really a watchdog, I 
am sure a pain in the neck for the directors and secretaries 
who are being subject to their inspection, and yet I think an 
important part of the process, because as I view it, each of 
these Inspectors General, tries to take a detached view of the 
agency and its management, and then come to Congress and make a 
report as to what they consider to be shortcomings, whether it 
is something very serious or something just at a managerial 
level. But it has created a counterbalance to many of these 
departments and their people who are leading them.
    I think, as I review this, that the Federal Bureau of 
Investigation tried throughout its history to avoid political 
contact and political involvement, the feeling being, under Mr. 
Hoover and some others, that as long as they were separate and 
apart and not subject to political influence, they would be far 
more professional in their conduct. As a consequence, a 
fortress mentality emerged at the FBI that really separated 
them from the political process.
    Several years ago my colleague from Pennsylvania, Senator 
Specter, raised this whole possibility of an Inspector General 
at the FBI. It is a thing that I started looking into, and 
Senator Specter was kind enough to co-sponsor legislation with 
me for the creation of a separate Inspector General.
    I might add that in the Treasury Department, the IRS has 
its separate Inspector General, in addition to the IG for the 
Department of the Treasury.
    What is your thinking about, I mean, in terms of whether or 
not the FBI should have a separate Inspector General or some 
other approach that could give Congress the assurance that even 
with the best of your management, that agency will be subject 
to the same type of scrutiny that 57 other Federal agencies 
face?
    Mr. Mueller. The FBI has its own Office of Professional 
Responsibility for--and as I'm sure the Senator is aware, last 
week or the week before, the Attorney General relaxed whatever 
remaining restrictions there were on the IG's--the DOJ IG's 
ability to undertake investigations of the FBI, and 
consequently, I see the Inspector General from the Department 
of Justice working very closely with the FBI Office of 
Professional Responsibility to allocate responsibilities.
    If I were the Attorney General I might have some concern 
about a separate Inspector General feeding the perception that 
the FBI was a separate institution accountable only to itself. 
And I'm not certain I my own mind whether or not what the 
accountability you seek cannot be discharged by an Inspector 
General with appropriate personnel in the Department of 
Justice, as opposed to establishing another Inspector General 
in the FBI.
    Senator Durbin. Well, as much pride as I have in 
authorship, I am trying to achieve a goal, and let me ask you 
if that goal might be achieved by changing the relationship 
between the Inspector General for the Department of Justice and 
the FBI as an agency, because the current--I should not say the 
current--but historically, that Inspector General appears to 
have been waved off, or at least shunned, when it came to the 
kind of inspection that we would demand in virtually every 
other agency. So I am asking you a pretty tough thing here. You 
want to be the Director of the FBI and manage the agency, and I 
am asking you what steps will you take then to assure me or 
other members of the committee and Congress, that there will be 
a healthy relationship with an Inspector General who is part 
and parcel of the management of the FBI?
    Mr. Mueller. Me, I can assure you that I believe that for 
instance I should have weekly, if not weekly, every other week 
meetings with the Inspector General to review the cases, in the 
same way that the Attorney General meets with the Inspector 
General. I think there ought to be a close relationship. I will 
say that I am not certain that the FBI would say that the 
Inspector General has been waved off in the past. The Inspector 
General in the Bureau has done--not in the Bureau--but the 
Inspector General in the Department of Justice has undertaken 
some wide-ranging and thorough investigations of the FBI. To 
the extent that the Inspector General in the past was hampered 
by having to go to the Attorney General and specifically 
requesting authority, that has been removed.
    So I do believe that if there is an instance of--which the 
Inspector General believes needs to be investigated in the FBI, 
there are no longer any constraints on that Inspector General's 
ability to do that.
    Senator Durbin. I think there are two things that are 
playing against your conclusion. The first is this historic 
feeling that the FBI is a different agency, the FBI is not 
going to be subject to the same level of scrutiny and 
inspection as other agencies of the government, and I hope you 
agree with me that that attitude has to change.
    Second, we have cut the resources for the Inspector 
General's Office in the Department of Justice, as we have 
dramatically increased the number of employees in that 
department. So as we have given more and more responsibilities 
to the Department of Justice, the Inspector General has not 
kept up with personnel to be able to take assignments, whether 
it is with the FBI or other agencies. So that is a funding 
issue that we need to address in Congress, but I hope one you 
will be sensitive to.
    I do not know what my time situation here is, but I want to 
just, if I can, touch briefly on two other issues. And one I 
raise with virtually everyone who comes before us in the field 
of law enforcement. That is the issue of racial profiling. And 
I have been heartened by the comments made by Attorney General 
Ashcroft, as well as every other person that has come before us 
as part of his administration, that they are bound and 
determined to do something about racial profiling. I think that 
is absolutely essential, and it should not be partisan at all. 
This is something as a Nation that we should make as our goal 
to end that sort of thing.
    And yet, let me just draw, as I did with Congressman 
Hutchinson the other day, this one statistic, set of statistics 
to your attention. It is, 12 percent of the American population 
are African-American. The Director of Drug Control Policy, has 
said in the past, General McCaffrey, that 13 percent of the 
drug users in America are African-American. 12 percent 
population, 13 percent of the drug users are African-American. 
And yet despite this, 35 percent of those arrested for drug 
possession are African-American. 55 percent of those convicted 
for drug possession are African-American. And over 60 percent 
of those incarcerated are African-American. The statistics are 
equally compelling when it comes to those of Hispanic descent 
in terms of incarceration all the way through the process.
    The reality is there is a racial disparity in our country's 
criminal justice system. Despite the fact that five times as 
many whites use drugs as African-Americans, you could never 
tell it from the prison population. This is something we all 
have a responsibility to be sensitized to. Do you acknowledge 
this? And if so, what do you hope to do about it?
    Mr. Mueller. Well, I acknowledge that racial profiling is 
abhorrent to the Constitution, it is abhorrent in any way, 
shape or form. And I would make certain that from the first day 
an FBI agent sets foot in the academy in Quantico that that 
refrain is repeated as part of the training, and as one goes 
through the ranks, continuous retraining, and focus on the fact 
that the FBI, in order to be the preeminent law enforcement 
organization in the country if not in the world, has to have a 
unblemished record with regard to addressing and strongly 
attacking any indication of racial profiling.
    The FBI has the responsibility of enforcing the civil 
rights of this country, and it cannot do so effectively, 
efficiently and with the credibility of the American people, if 
it itself is not absolutely the example of law enforcement in 
this area.
    Senator Durbin. Then let me ask you, as my last question, 
on the promotion of diversity within the FBI, do you feel that 
the FBI employment level now, in terms of minority employment, 
is reflective of America?
    Mr. Mueller. I am not that familiar with it, but let me 
just say this. I believe that we have to make every effort to 
recruit from the diverse areas of our society, and we ought to 
make every effort we can to make certain that the FBI, through 
all the ranks, reflects the diversity in our society.
    Senator Durbin. I give you these statistics, and let me say 
Congress has--my office, all of us, have the same 
responsibility that I am asking of you at the FBI, just so we 
can use it as a point of reference if there are future hearings 
on how we are doing, what progress we are making. In 1997 at 
the FBI, all minorities combined accounted for 15.3 percent of 
all FBI special agents; 5.6 percent African-Americans, 6.9 
percent Hispanic, and 2.2 percent Asian, the rest, 84.7, were 
white.
    As of the 2000 census the numbers indicate that African-
Americans represent 13 percent of our Nation's population, 5.6 
percent of the special agents at the FBI; Hispanic-Americans 13 
percent of the population, 6.9 percent of the agents at the 
FBI; and Asian-Americans close to 4 percent, while 2.2 percent 
are agents at the FBI. So clearly, when we are dealing with the 
issue of racial profiling and promoting diversity, all of us, 
including the FBI, I hope will be more sensitive to recruiting 
and training and retaining minorities who can really help to 
give us that kind of balance. I hope you would agree with that.
    Mr. Mueller. I agree with that.
    Senator Durbin. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Let Senator Specter, who yielded for 
Senator Durbin, let him finish his questions, go to Senator 
Biden, if that is all right.
    Senator Biden. Go to me now, Mr. Chairman?
    Chairman Leahy. Well, Senator Specter has a few more 
minutes to finish his questions, is my understanding. Am I 
correct?
    Senator Specter. Mr. Chairman, I think I can finish them in 
another 10-minute round.
    Chairman Leahy. Why don't we--if Senator Biden has----
    Senator Biden. No, I will just submit my questions. And I 
have to leave. I will be happy to submit them.
    Senator Specter. Well, let me yield to Senator Biden since 
he has to leave.
    Chairman Leahy. OK.
    Senator Biden. I would ask unanimous consent that my 
statement be placed in the record, and I will just ask two very 
brief questions and submit a copy.
    Chairman Leahy. And I would note also for the record, all 
statements anybody wants to submit, the record will be kept 
open for that and for further questions.
    Senator Biden. One of the things that happens, as you know, 
Mr. Mueller, is when things start going wrong, they all go 
wrong. And although I think the FBI--I know the FBI has made 
some serious mistakes, and you and I had a very long discussion 
in my office about what I privately thought--presumptuous of 
me, but after doing for 28 years, what I thought you were about 
to face as the Director.
    I think it should be stated, which is obvious and I am sure 
everybody agrees, that the vast majority of the FBI agents, the 
overwhelming majority of the FBI agents--overwhelming--are 
among the most honorable women and men I have ever encountered 
in public life. And up until very recently, it has been the 
standard to which every other law enforcement agency in the 
world has prepared. In the world. And so one of the reasons for 
my disappointment is I am such a big fan. I have in year before 
when I chaired this committee, I don't think it is an 
exaggeration to say one of the reasons why the FBI's budget is 
what it is, I will bet you that 50 percent of the reason 
occurred on my watch, opposed by Presidents of the United 
States at the time.
    So I think you are going to--anything that isn't working 
right in law enforcement, whether or not you are responsible 
for it, you are going to be held responsible for it. I figure 
you have already figured that out by now.
    Mr. Mueller. I understand that.
    Senator Biden. But I hope we keep a balance here. There 
needs to be, in my humble opinion, a greater balance and a 
little injection of reality into the FBI right now, but the 
place from which you come as U.S. Attorney dealing with the FBI 
and with local law enforcement I hope will equip you with some 
ballast here.
    I have two points and questions that I want to ask. I have 
been disturbed for years since I have in large part, to my 
discredit in some cases, been responsible for most of the major 
drug legislation that we have on the books, including one I 
have been trying to correct for over 17 years--that is not 
true--yes, about 17--about 13 years, that Senator Moynihan and 
I, neither of whom have ever been accused of being insensitive 
to racial issues, both of which have come from--in my case, 
from the civil rights side of the agenda. We're the guys that 
wrote the crack cocaine legislation because we were told by all 
the medical experts at the time that this epidemic which, in 
the early 1980's, Moynihan predicted was coming from the 
Bahamas and no one would pay attention to it. The Center for 
Disease Control wouldn't focus on it. The agencies wouldn't 
focus on it. Nobody focused on it.
    Prior to that, it used to be for every one woman that was 
addicted to drugs, there were four men. Crack cocaine became 
the great equalizer, responsible for the spread of AIDS in a 
whole range of ways because women were prostituted in order to 
continue to have their daily hits, and sometimes 20, 24 hits a 
day.
    And so we passed this law putting the minimum mandatory for 
crack cocaine. A white kid out in suburbia in a $400,000 home 
doing a line of cocaine at night with his father or with his 
friends or by himself, if caught, would not go to jail, but the 
21-year-old who got picked up for crack cocaine on the corner 
got 5 years. And we have been trying to change that in the 
Sentencing Commission for years. As a matter of fact, one of 
the people I recommended to be the Chairman, a Scrantonian, an 
acquaintance and friend of the Senator from Pennsylvania, wrote 
a report urging us to rectify this at one time a 100-to-1 
disparity that existed.
    I would ask you to take a look at--even though you are not 
the drug director and you are not DEA, but your voice will be 
listened to as FBI Director--this racial disparity in the 
context of a couple specific things, one of which is the degree 
to which crack cocaine is responsible for the number of 
African-Americans and Hispanic Americans, minorities in jail. 
It is a much easier hit. It is a much easier hit for the police 
department. I am not criticizing them. You know, they see it in 
the street. A transaction takes place in the street. They 
arrest in the street, and mandatory sentencing, jail.
    And the second thing I would ask you to take a look at, 
because I am asking the DEA to take a look at it as well--and I 
will ask Mr. Walters when he comes before us when I hold his 
hearing--the chairman has asked me to hold his hearing--is the 
second piece. Although there is a 13-percent usage rate among 
African-Americans comprising 12 percent of the population and 
in many cases up to 60 percent of the folks in jail, that on 
its face is a glaring disparity. And I am sure not a small part 
of it relates to racial disparity.
    But one of the things that has been proffered--and I want 
to know what the answer is. I don't expect you to know it--is 
the degree to which African-Americans arrested for a drug 
charge resulting in jail relates to trafficking as opposed to 
consuming. Are you with me?
    Mr. Mueller. I am with you.
    Senator Biden. Because a lot of the younger people used in 
this business by white organizations--it doesn't have to be a 
black organization--are African-American youth and African-
American young men.
    I don't know what the numbers are. All you got to do is go 
down Aramingo Avenue in Philadelphia and find out where most of 
the money is going. It is not going into the hands of black 
organized crime units. It is going into the hands of other 
units, but you will see an awful lot of African-Americans being 
used, in the literal sense used. So I would like to know at 
some point and ask you to think about in a coordinated effort 
with your counterpart at DEA to take a look at that to see what 
this--because the most important thing for us to do to get this 
whole question of racial profiling and then in my view racial 
disparity across the board into focus is to have the hard facts 
as best we can accomplish them.
    So I would ask if you would be willing--I am not asking you 
to be responsible for it, but I am asking you if you would be 
willing to join with DEA and join with the national drug 
director to take a look at that.
    Mr. Mueller. Yes, Senator, absolutely.
    Senator Biden. Now, the second and last question that I 
have for you is that I am of the view--and, again, you know, 
sometimes when you work very hard on something and you get it 
passed and it takes years to do it, you very much as a 
legislator want to be convinced it worked. You want to be 
convinced all your hard work really meant something. Sometimes 
we are just dead wrong. At least I am. Sometimes I work on a 
piece of legislation that I help pass or am responsible 
primarily for getting the attention of my colleagues and 
getting it passed, and it turns out not to be as efficacious as 
I thought it was going to be. And I have tried in my career to 
acknowledge what doesn't work, whether it was the Violence 
Against Women Act, when we back and looked at it to see what 
worked and what didn't work, jettison what didn't work and add 
to what you needed to do.
    And that takes me to the local COPS program, and my 
question is: You having worked as a U.S. Attorney have worked 
with local law enforcement. How critical do you believe to the 
FBI is genuine cooperation and sufficient staffing and 
expertise at the local level to you being able to carry out 
your charge as Director of the FBI? In other words, how 
important are local cops?
    Mr. Mueller. The job cannot be done without a close working 
relationship with local police officers. As I said in my 
statement, local police officers are the backbone of law 
enforcement in this country, State and local police officers. 
And to the extent that we hope to have any successes--and if 
you look at the successes we have had in terrorist cases or 
white-collar crime cases or violent crime cases, more often 
than not the success will be a joint effort of State and local 
working with the FBI, where the FBI has expertise perhaps and 
some talents to bring to the table, but the knowledge of the 
community, the knowledge of the streets, the interrogation or 
the interviewing techniques of the State and locals are 
absolutely critically important to the completion of the 
investigation and the successful prosecution.
    Senator Biden. Mr. Chairman, thank you very much. I would 
like to end on a positive note here, from my perspective, 
anyway. Having had oversight over the FBI or been part of the 
oversight process for 26 years, there is one very good thing 
that has happened to the FBI, and it is better today than it 
ever was, and that is the coordination with local law 
enforcement. I would argue that that one factor is one of the 
most significant factors in dealing with the reduction of 
violent crime in America than anything else. So for all the 
things you are not doing, I would argue that the Bureau has 
done that pretty well.
    And, I ask my colleagues, just check with your local 
police. It used to be when you would say, ``I am bringing in 
the FBI, Senator Biden, I am going to get the FBI to come help 
you,'' it was similar to saying, you know, ``I am from the 
Federal Government, I am here to help.''
    Today, I get asked. Today, they want it. Today, the 
relationship seems, at least in my personal experience, to be 
working very well. I hope you keep it up. I am sure you will.
    I thank you, Mr. Chairman. I thank my friend from 
Pennsylvania.
    Chairman Leahy. I would note that this is not always what 
you hear from local police, and it is, though, the goal to 
reach, and there are some significant areas of improvement. 
Some of the smaller law enforcement agencies will still want to 
be heard.
    Senator Specter, you have been waiting patiently.
    Senator Specter. Thank you, Mr. Chairman. I would like to 
associate myself with Senator Biden's comments, especially the 
one about crack cocaine, and acknowledge his leadership as 
chairman. I would associate myself, I think, with all of his 
comments except for the opening statement that he had only had 
two brief questions.
    [Laughter.]
    Senator Biden. The questions were brief. The statements 
were long.
    Senator Specter. But I am always glad to defer to Joe 
Biden.
    Mr. Mueller, on the issue of what you are going to do, 
computerization or whatever the techniques are to get the 
records produced, how will you tackle that specifically? And 
let me give you just one illustration of what happened at Waco, 
April 1993, and it wasn't disclosed until August 1999 that 
there were records about the pyrotechnics, the devices which 
were incendiary. The other aspect of that matter is that when 
Attorney General Reno and FBI Director Freeh testified before a 
House committee, there was an FBI agent present who knew there 
were pyrotechnics used and did not correct the testimony of the 
Attorney General or the FBI Director or tell them that they 
were incorrect when they said there were no pyrotechnics. So it 
is a two-part question.
    First, how do you deal with the mechanization of the FBI to 
be sure that you will have those kinds of records available in 
a timely way? This goes to McVeigh and many, many other lives.
    Mr. Mueller. Well, two things. Actually, the platform for 
making records readily available, as most law firms would see 
now, is the imaging of documents and coding of documents and 
easy retrieval from a data base. If, for instance, you had all 
the documents relating to Waco in a data base that had been--
where they had been imaged, and once they had been scanned, 
even read it, you could run a search on pyrotechnic and find 
every document in which that word appears. And so if there is 
an issue, a question about were pyrotechnics used, you don't 
have to go through 10,000 documents, track down 4, 5, 10, 15, 
50 FBI agents to determine whether or not they were used.
    Senator Specter. But suppose you don't know the word or you 
don't have a reason to think pyrotechnics were used. It is just 
a matter of having the relevant records available that happened 
in Waco in April 1993.
    Mr. Mueller. Well, you can do any number of searches to 
pull out that which is more specific. I mean, the 
computerization of records today would be exceptionally helpful 
in responding, I think, to the requests, specific requests of 
Congress.
    Going to the point about not correcting the testimony, 
quite obviously, if there is some error on testimony, it should 
be corrected immediately. If there was--as a result of a 
mistake, if I make a mistake here, and somebody--I walk out in 
the hall and somebody says, Now, Mr. Mueller, you told the 
Senate committee ``x,'' I think if you look at this document it 
is ``y,'' then I have got an obligation as soon as possible to 
rectify that mistake and to explain to you why it was made.
    Senator Specter. Well, in the absence of correcting the 
mistake--and we covered this on Ruby Ridge--where matters are 
not disclosed, what is your response going to be when somebody 
deliberately does not correct a mistake or deliberately does 
not disclose important information as it appears in Ruby Ridge?
    Mr. Mueller. There are a range of sanctions, and I would 
take action, absolutely. I mean, the bedrock principle for the 
Bureau has to be candor and truthfulness, whether it be in 
response to oversight, whether it be in response to Assistant 
United States Attorneys, whether it be in response to defense 
counsel, with the structure itself.
    Senator Specter. What kind of action?
    Mr. Mueller. It depends on the circumstance. I mean, 
anybody that lies, absolutely anybody who lies deserves the 
strongest sanction, up to and including a dismissal from the 
FBI.
    Senator Specter. Mr. Mueller, the Hanssen case is an 
illustration, along with Aldrich Ames, of very, very enormous 
damage done. I chaired the Intelligence Committee at a time 
when Aldrich Ames was detected. And the CIA Inspector General, 
Fred Hitts, testified before the Intelligence Committee as 
follows: ``Although we found no reason to believe that the 
Directors of Central Intelligence who served during the 
relevant period were aware of the specific deficiencies 
described in the special assessment, I believe Directors of 
Central Intelligence are obligated to ensure that they are 
knowledgeable of significant developments related to crucial 
agency missions.''
    Now, this has been interpreted, when he used the word 
``ensure,'' that there was absolute liability on the Directors. 
And there was a very heated reply given by the former 
Directors--Director Gates, Director Webster, and Director 
Woolsey--that it was unfair to hold them responsible when they 
did not know about Ames or have reason to know. And the thrust 
of Inspector General Hitts' point was that when you are dealing 
with national security, it is incumbent upon the Director to 
take whatever action is necessary to find out, and that when it 
was a matter of that magnitude, it is not sufficient that he 
didn't know or have reason to know that he has an obligation to 
find out.
    Now, that is a pretty tough standard, but do you think it 
is appropriate?
    Mr. Mueller. I can't speak to the circumstances of that 
exchange. What I can tell you, Senator, is that I believe 
anything that happens or does not happen in the Bureau, should 
I be confirmed, is my responsibility. If I did not assure that 
there is sufficient security for the computers, to assure that 
there is no additional Hanssen, then that is my responsibility. 
I need to learn the institution from top to bottom because I am 
going to be responsible for that which does happen and that 
which does not happen within that institution.
    Senator Specter. Well, responsibility and accountability 
are words that you can articulate, but CIA Inspector General 
Hitts imposed a very tough obligation. I think it would be 
applicable both to the FBI Director and the CIA Director, that 
when you are dealing with a Hanssen or you are dealing with an 
Ames, you have got a duty to find out. And I don't know quite 
how you discharge that duty, but it is a very, very heavy 
burden, which I think someone who is the Director of the FBI 
has.
    Let me go on to two other very brief questions, Mr. 
Mueller. One is--and I discussed this with you--that I hear 
complaints from time to time, too frequently, about FBI agents 
asking someone who has been arrested against whom the Federal 
Government has a case if they have some information about some 
other person who is a public figure, with the suggestion that 
the case against the individual under arrest will go easier if 
that individual is able to target and identify somebody who is 
well known.
    This is not a situation where there is a question of a co-
conspirator to implicate somebody else where there is a 
predicate to believe is involved in a matter, but just somebody 
out of the blue, the person under arrest against whom a case is 
built knows X, who is a prominent person. Obviously that is a 
very, very bad tactic.
    What can be done by the Director to preclude that sort of 
thing being done?
    Mr. Mueller. I must say, Senator, in all the years I've 
worked with the FBI, I've never seen an occurrence of that. And 
if that--I will tell you that I think there are precautions 
within the system to assure that that is very, very--well, 
very, very rare circumstance because if somebody is indicated, 
the conversations generally with the cooperators come out in 
trial, as well they should. But that, a general targeting, 
without predication, is anathema to the Bureau, and to the 
extent that any incident such as that comes to the attention of 
the Director, it should be dealt with firmly.
    Senator Specter. My final question, Mr. Mueller, is about 
FBI leaks, and I wrote to FBI Director Freeh on June 8th this 
year asking, saying, ``I am interested to know whether you have 
initiated any investigation on the leaks which have appeared in 
the press concerning an alleged investigation of Senator Robert 
Torricelli, and if so, what that investigation has disclosed.'' 
And I have had no response. I would like to have that made a 
part of the record, Mr. Chairman.
    Chairman Leahy. It will be.
    In fact, I should note that also Senator Feinstein and I 
along with the Senator from Pennsylvania have asked similar 
questions, and my recollection is we have not gotten an answer 
either.
    Senator Specter. Well, I was told--and I wasn't here for 
the entire sessions, had other obligations--that the question 
about Senator Torricelli had not been asked. But what do you 
think about that and what action can the FBI Director take to 
try to preclude these leaks which are so prevalent?
    Mr. Mueller. Generally speaking--not being familiar with 
that, the facts of that particular investigation, but generally 
speaking, I abhor leaks. They are detrimental to the mission of 
the FBI. They are detrimental to most particularly the 
individual who is the subject of them. I think you set a 
standard of very harsh treatment when an investigation is 
conducted and somebody is determined, has been determined to 
have leaked.
    I know that in the 3 years I have been U.S. Attorney in San 
Francisco, I believe we developed a reputation as an office in 
working closely with the FBI of not countenancing leaks in any 
way, shape, or form on ongoing investigations and being 
scrupulously careful to assure that any public statements that 
are made are made at the appropriate time and with the 
appropriate information as that is allowed under the 
regulations put out by the Department of Justice. And I will do 
everything in my power to assure that those regulations are 
abided by and that any breach of those regulations is treated 
firmly.
    Senator Specter. As I say, I don't know what was done. All 
I know about the Senator Torricelli matter is what I have read 
in the papers myself. But I did not know whether the FBI has 
conducted any inquiry. But, if confirmed, will you conduct an 
inquiry on those leaks?
    Mr. Mueller. I will look at it to determine whether there 
is predication. If predication for that, absolutely, I will 
conduct an inquiry.
    Senator Specter. Thank you. Thank you very much, Mr. 
Mueller, for being so forthcoming.
    Mr. Mueller. Thank you, sir.
    Senator Specter. Thank you, Mr. Chairman.
    Chairman Leahy. I thank the Senator from Pennsylvania both 
for rearranging his schedule yesterday and again today to come 
back and wrap this up.
    I will close with this. The question you asked on leaks is 
one that bothers me. I look at cases like Wen Ho Lee, which 
Senator Specter has talked about; Richard Jewell, who was 
announced to the public--I mean, the public just assumed he had 
tried to blow up the Olympics because the FBI leaks and stories 
that came out. Tom Stewart, who was a decorated Navy flier and 
investment banker, who won last year a $6 million settlement 
against the FBI because the agency leaked false and damaging 
information against him.
    Not only is this wrong, but the three of us know as 
prosecutors, if you are doing it against the wrong person, it 
takes attention away from who is the real person. Everybody is 
focusing on the wrong person, and the real culprit might escape 
detection.
    So I would ask you to move this into a real priority. They 
are getting too much the idea that the ``guilty accused,'' as 
somebody once said, but that is not the way our Constitution 
is. People's names and reputations can be ruined. You can 
imagine if you own a small business and all of a sudden it is 
announced, well, the FBI is looking at You. You know what that 
does. And the smaller the area, the harder it is.
    I will also put a number of questions in the record, 
primarily on some management issues. Because I am putting them 
in the record, I would not want you to think that they are not 
of significance to me. They are on everything from how the IG 
works to how people are disciplined. I would like you to look 
at them, and I would like a response. Obviously we are not 
going to delay things for such responses because I don't want a 
quick and easy response. I want you to have time to do it.
    I will put this nomination on the agenda for our exec 
meeting on Thursday of this week. I think you understand from 
what you have heard from this committee how the committee will 
vote. But I hope you also understand that, in doing that--and 
this is probably as diverse a group of Senators as you are 
going to see here in the Senate--that we are putting a lot of 
faith in you and a lot of hope in you as Americans and as U.S. 
Senators. We all share the same goals for our country, and you 
are given one of the most crucial places to fulfill those 
goals, because what we are saying is what 250 million other 
Americans would say. You have got to be our chief law 
enforcement officer of the FBI. You have got to set the 
standard for everybody else. I think you know how in small 
States like mine law enforcement looks up to the FBI. I know in 
my years as a prosecutor, some of the proudest things was when 
officers who had to report to my office, would come and say, 
``I have been accepted at the FBI Academy, I am going to the 
training program.'' There wasn't a single one of those officers 
afterward I didn't go in their office and see on the wall that 
plaque. Usually the plaque from there along with pictures of 
their family, and actually the two of them together says a lot.
    So you understand that you have to give that image, the 
image of the best and the most honest. And I think, frankly, 
you are going to be helped in that by your own experience and 
your own background, which is extraordinary.
    And if I might say on a personal note, I think you benefit 
by your family, by your wife and your children and your 
grandchildren, because ultimately that is the bedrock all of us 
can go back to.
    So, Mr. Mueller, I appreciate your being here. I wish you 
well.
    Mr. Mueller. Thank you for your courtesies, Mr. Chairman, 
and I can't leave without saying, yes, my wife and my family, I 
would not be here without their support over the years and the 
reliance upon them. So thank you, sir.
    Chairman Leahy. With that final word, we stand adjourned.
    [Whereupon, at 12:25 p.m., the committee was adjourned.]
    [Submissions for the record follow.]

                       SUBMISSIONS FOR THE RECORD

 Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator from the State 
                              of Delaware

    Today, the Committee considers the nomination of Robert S. Mueller 
III to be the director of the Federal Bureau of Investigation. I have 
met with Mr. Mueller, I have reviewed his record, and while I have 
several questions for the nominee I intend to support his nomination.
    At the outset, I would like to thank Chairman Leahy for moving so 
quickly on President Bush's nomination. I understand the Committee 
announced its intention to hold confirmation hearings for Mr. Mueller 
the very day his nomination was officially received in the Senate. It 
has been the Judiciary Committee's practice over the last
    28 years to address the nominations of FBI directors expeditiously. 
This is a tradition that reflects the importance of the post to which 
Bob Mueller has been named.
    Today's FBI is a $3.5 billion, 28,000-person operation--a sprawling 
agency spanning 56 field offices, 400 satellite offices, and more than 
40 foreign liaison posts. The FBI has 11,400 Special Agents and over 
16,400 other employees.
    We have entrusted the FBI with vast powers, powers designed to 
ensure that the Bureau has the tools and the resources it needs to lead 
our Nation's fight against domestic terrorism, violent crime, organized 
crime, drugs, and other law enforcement priorities. The twenty-first 
century FBI also must be ready to confront new threats: cybercrimes, 
health care fraud, environmental crimes, and new terrorist groups that 
have the potential to threaten Americans here at home as never before.
    While the priorities of the FBI may have grown and changed, its 
mission and our high expectations for it remain the same. The FBI must 
pursue tough, aggressive law enforcement, but it must also work within 
the confines of the Constitution's guarantee of individual liberties 
respecting both the spirit and the letter of the law.
    Unfortunately, despite the historic drops in violent crime the 
country has benefitted from over the past eight years, despite all of 
the counterintelligence successes of the Bureau, despite the vast 
resources this Congress and the American people have dedicated to the 
FBI's success, today's Bureau finds itself awash in a culture of 
arrogance, and amongst a populace that increasingly does not trust its 
work. Few Members of Congress have been as supportive of the FBI as 
have I, but that support becomes increasingly difficult to defend as 
more and more management issues come to light.
    With that in mind, it is our job in the hearing today to ensure 
that the nominee before us embodies the ideals we expect the FBI to 
uphold, and to ensure he is the right man for the daunting task of 
restoring confidence in the Bureau's operations.
    As I have required of all nominees to the FBI Director post, I 
believe that the Committee must inquire as to whether Mr. Mueller has:

        First, the strong moral character and appropriate personal and 
        professional background required to be Director of the Nation's 
        chief law enforcement agency;
        Second, the qualities necessary to maintain the FBI's 
        independence from partisan political influences;
        Third, a healthy respect for the individual rights guaranteed 
        by our Constitution along with a commitment to ensuring the FBI 
        always respects the rule of law; and
        Fourth, an ability to lead and inspire the FBI's thousands of 
        heroic agents and employees to continue to make the Bureau the 
        finest law enforcement agency in the world.

    During my 28 years in the Senate and my membership on this 
Committee, I have come to recognize the position of FBI Director as one 
of the most difficult and sensitive within the entire Federal 
government.
    Those of us committed to aggressive law enforcement must insist on 
strict adherence to high standards of conduct. We must insist on an FBI 
director who knows how to lead, how to institute reforms when reform is 
necessary, how to give our citizens faith that their liberties are 
being protected at the same time their laws are being enforced so as to 
keep them secure.
    Robert S. Mueller comes to the committee with a reputation for 
tough prosecution, integrity, and dedication. He has been appointed to 
high law enforcement posts by two different presidents in two different 
parties--a rare feat. The first President Bush named him Assistant 
Attorney General for the Criminal Division; President Clinton named him 
to be U.S. Attorney for the Northern District of California. Through 
May of this year, Mr. Mueller served as Acting Deputy Attorney General.
    Mr. Mueller, you are clearly qualified for this difficult task. I 
congratulate you on your nomination, I welcome you and your family here 
today, and I look forward to asking you specific questions about your 
goals and your vision for the FBI.

                                

  Statement of Hon. Mitch McConnell, a U.S. Senator from the State of 
                                Kentucky

    I would first like to congratulate Mr. Mueller on his nomination to 
be the Director of the Federal Bureau of Investigation. Although 
highly-publicized problems at the Bureau over the last few years have 
taken some of the luster off its reputation, the FBI remains the 
world's preeminent law enforcement organization. Its successes over the 
years are both legion and legendary, and its agents and employees are 
some of our finest public servants. I am very happy for him to have 
this opportunity, and after carefully reviewing his background and 
experience, I am confident he will make the most of it.
    Now, his job, as he well knows, will not be an easy one. As I 
alluded to, Americans have been troubled by the Bureau's high-profile 
missteps and mistakes over the last eight years or so. Indeed, even as 
Americans hoped the FBI's troubles were behind it, it was reported on 
the day he and I recently met that hundreds of Bureau firearms and lap 
top computers had been stolen or lost over the last several years. The 
number and significance of these incidents illustrate systemic problems 
in the Bureau's operations.
    But I believe that many of these problems can be solved by strong 
and effective management from the top. The performance of Attorney 
General Ashcroft bears this out. In his short tenure, he has proven to 
be an able manager, being both proactive and appropriately reactive, 
particularly with respect to the Bureau's operations. For example, he 
created the DOJ's Strategic Management Council to provide leadership on 
long-range planning, and he has directed the Council to comprehensively 
review the FBI in order to improve its performance. Attorney General 
Ashcroft has also, on his own initiative, wisely broadened the 
authority of the DOJ's Office of Inspector General to include 
investigations of Bureau personnel. While by no means a panacea, this 
important change should go a long way to remedying some of the ills 
that have plagued the Bureau for years.
    Like the Attorney General, I believe Mr. Mueller will provide 
strong and effective leadership. Mr. Mueller has both impressive 
management and law enforcement experience. He has been a career federal 
prosecutor for most of the last twenty-five years, so he is well-
schooled in avoiding the problems and pitfalls inherent in criminal 
investigations and prosecutions. But Mr. Mueller has also managed 
offices and units of all sizes and complexities, from supervisor of a 
Special Prosecutions Unit and chief of a homicide unit, to Chief of the 
Criminal Division with two U.S. Attorneys' Offices, to U.S. Attorney, 
to Assistant Attorney General for the DOJ's Criminal Division. He even 
helped run the Department of Justice itself earlier this year as Acting 
Deputy Attorney General during a critical period when General Ashcroft 
was by himself, ``home alone'', so to speak.
    And to the extent the FBI's institutional culture has been an 
impediment rather than an asset, it is important to note that Mr. 
Mueller knows the Bureau well, both from his long career as a federal 
prosecutor and from serving as liaison between DOJ and the FBI, when he 
was an Assistant to Attorney General Richard Thornburgh. But Mr. 
Mueller is not ``of"the FBI, and therefore I believe institutional 
loyalty will not blind him to making the hard decisions when he needs 
to.
    In closing, Mr. Chairman, I hope the FBI's best days are ahead of 
it. I am optimistic that Mr. Mueller and the Attorney General will work 
well together. Both are committed to vigorously enforcing the law 
without regard to politics or partisanship. And both recognize that a 
well run agency is instrumental to that end. I look forward to hearing 
Mr. Mueller's testimony and seeing him get quickly to work. Thank you.

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