[Senate Hearing 107-920]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-920

                 OVERSIGHT HEARING ON COUNTERTERRORISM

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 6, 2002

                               __________

                          Serial No. J-107-83

                               __________

         Printed for the use of the Committee on the Judiciary



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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

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delware........................................................    68
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington    61
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........    47
Durbin, Hon. Richard, a U.S. Senator from the State of Illinois..    57
Edwards, Hon. John, a U.S. Senator from the State of North 
  Carolina.......................................................    64
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    43
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    36
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    24
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     4
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    21
    prepared statement...........................................   287
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin......    28
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    39
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   289
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    50
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    54
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    31
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   338

                               WITNESSES

Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C................................................    11
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, Department of Justice, Washington, D.C..........     8
Rowley, Colleen M., Chief Division Counsel, Federal Bureau of 
  Investigation, Department of Justice, Washington, D.C..........    76

                         QUESTIONS AND ANSWERS

Responses of the Department of Justice to questions submitted by 
  Senator Feingold (July 21, 2003)...............................   107
Responses of the Department of Justice to questions submitted by 
  Senators Leahy, Cantwell, Kohl, and Sessions (July 22, 2003)...   122
Responses of the Department of Justice to questions submitted by 
  Senators Leahy and Cantwell (August 29, 2003)..................   189
Response of Coleen M. Rowley to a question submitted by Senator 
  Feingold.......................................................   205
Responses of Glenn A. Fine to questions submitted by Senators 
  Leahy, Cantwell and Feinstein..................................   210

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Marvin J. Johnson, Legislative 
  Counsel, Washington, D.C., analysis............................   210
Associated Press, Doug Simpson, June 4, 2002, article............   231
Center for Democracy and Technology, Jerry Berman, Executive 
  Director, Washington, D.C., observation........................   232
Department of Justice:
    John E. Collingwood, Assistant Director, Office of Public and 
      Congressional Affairs, letter..............................   236
    Coleen M. Rowley, Special Agent and Minneapolis Chief 
      Division Counsel, letter...................................   240
    paper, June 5, 2002..........................................   253
Federal Bureau of Investigation:
    memorandum, May 18, 1998.....................................   259
    instruction to all field offices, April 4, 2001..............   260
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C., prepared statement...........................   274
Leahy, Hon. Patrick J.:
    letter (October 25, 2001) and attachment.....................   293
    letter (November 8, 2001) and attachment.....................   296
Leahy, Hon. Patrick J. and Hon. Charles E. Grassley, letter and 
  attachment.....................................................   299
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, prepared statement..............................   303
New York Times, June 6, 2002, editorial..........................   322
Rowley, Coleen M. Rowley, Special Agent and Minneapolis Chief 
  Division Counsel, Federal Bureau of Investigation, prepared 
  statement and attachment.......................................   324
Washington Post, Adam Nossiter, June 3, 2002, article............   346
Wellstone, Hon. Paul D., a U.S. Senator from the State of 
  Minnesota, prepared statement..................................   349

 
                 OVERSIGHT HEARING ON COUNTERTERRORISM

                              ----------                              


                         THURSDAY, JUNE 6, 2002

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:34 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, 
Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Grassley, 
Specter, Kyl, DeWine, Sessions, and Brownback.

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

    Chairman Leahy. Just so people understand what we are going 
to do here today, we are going to have two panels. Mr. Fine, 
good to have you here, too. The Director of the FBI and then 
the Inspector General Glenn Fine will testify. We will have 
questions there. Once this panel is finished, we will go off 
and take a break, and then we will do the second panel, which 
will be Ms. Rowley.
    I would note that I have been reminded that there will be a 
vote around 11 o'clock. We will take a break at that time for 
about 10 minutes just to go and vote and come back.
    Last week FBI Director Mueller and Attorney General 
Ashcroft made some extraordinary and, actually in the case of 
the Attorney General, unexpected announcements of changes in 
the organization of the FBI and the guidelines for its 
administration.
    Now, the Congress and the administration share a common 
goal. The goal, of course, is ensuring the safety and security 
of our country. I look forward to hearing from the Department 
and the FBI why these changes are necessary, the changes they 
propose, to prevent future terrorist attacks. And they may be 
right, but this oversight Committee has both a duty and a 
responsibility to review these changes and their justification.
    Ten days earlier, Inspector General Glenn Fine issued a 
critical report on the handling of visas of two 9/11 hijackers 
by the Immigration and Naturalization Service and made 24 
recommendations to address deficiencies in INS practices and 
procedures. These suggestions, too, may be justified, and this 
oversight Committee has the job of examining whether identified 
deficiencies are being fixed.
    At the same time, the American people have been barraged 
with new reports about the government's performance before the 
9/11 attacks, including charges and countercharges of mistakes 
by the FBI and the CIA, the handling of the Phoenix Electronic 
Communication, the critical letter from FBI Agent Coleen Rowley 
in the Minneapolis FBI office, and a report that the Attorney 
General turned down a proposal to increase the FBI 
counterterrorism budget by $58 million shortly before the 9/11 
attacks.
    Now, Director Mueller has confronted this mounting 
evidence, and he has candidly admitted what we all now 
realize--that today we can't say for sure whether the 9/11 
attacks might have been stopped of all the dots had been 
connected and all the leads been followed. And I commend the 
Director for the candor of his recent statements. I don't want 
a return to the worst aspects of J. Edgar Hoover's FBI when no 
one at the FBI could admit or learn from mistakes and anyone 
who raised a question did so at his or her peril.
    Now, the Judiciary Committee has always been the standing 
Committee of the Senate responsible for oversight of the 
Justice Department. We are accountable to the Senate and the 
American people for ensuring that the FBI, the INS, and other 
Department components are effectively organized with adequate 
resources, with proper leadership. This Committee considered 
the nominations of the FBI Director, the INS Commissioner, the 
Inspector General, and the Attorney General. We have a 
continuing responsibility to follow what they have done. We 
started hearings, oversight hearings, on June 20th. Now, more 
than ever, in the age of terrorist attacks on our shores, close 
oversight of the FBI and our other law enforcement and 
intelligence agencies is not an option. It is an imperative.
    I wrote to the Attorney General and the Director on October 
25 last year, as we enacted the USA PATRIOT Act, to ask what 
internal reviews they were conducting in connection with the 
events of September 11th. I told both the Attorney General and 
the Director to preserve any documents and information they had 
from before September 11th, especially those documents and 
information that had been overlooked prior to September 11th, 
and that they share with us important matters they uncover as 
they conduct an internal review of the events leading up to the 
tragedy of 9/11. I was disappointed to learn only this week 
that the Justice Department Inspector General conducted an 
inquiry into the FBI's Phoenix Electronic Communication as 
early as last October. This was the type of thing that I had 
asked the Attorney General to let us know about. I was 
concerned to read about it from the press and not to hear it 
from the Attorney General. So we are going to want to hear from 
Inspector General Fine about the circumstances and results of 
his earlier inquiry.
    Even more disappointing was the Justice Department's 
failure to advise the Committee that its review of FBI 
guidelines after 9/11 had uncovered issues that called for 
revision. Instead, we are presented with a fait accompli 
reflecting no congressional input whatsoever. From his comments 
over the weekend, it seems that Chairman Sensenbrenner and our 
counterparts in the House Judiciary Committee were likewise 
surprised by the unilateral actions taken by the Attorney 
General in revising longstanding guidelines that have worked 
for decades.
    I might say that Attorney Generals come and go. FBI 
Directors come and go. The members of this Senate Committee 
come and go. The Constitution of the United States stays the 
same. It has been the basic bulwark of our freedoms, and no 
matter what the short-term gains might be, no one in the 
Congress or in the administration can ignore the Constitution 
of the United States. To do so, we do it at our peril and we 
weaken the United States. We do not strengthen the United 
States.
    After the AG's news conference last week, the Department 
did post 100 pages of new investigative regulations on its Web 
site. They may tell us these changes are relatively 
straightforward and reflect good common sense, that there is a 
need to change the guidelines that were followed in the Ford 
administration, the Carter administration, the Reagan 
administration, the first Bush administration, the Clinton 
administration, and suddenly with a stroke of the pen should be 
changed. Well, I understand the need to re-examine policies, 
but we should not throw out decades of wisdom just because of a 
bad week or two in the press. I agree with Chairman 
Sensenbrenner that, ``These important safeguards of American 
privacy and freedom should not be significantly altered without 
careful consideration and a full explanation of the reasons for 
any changes.''
    Now, we have shown in Congress bipartisan work on the USA 
PATRIOT Act, the Aviation and Transportation Security Act, the 
Border Security and Visa Reform Act, and the Bioterrorism 
Preparedness Act. We showed that we can work with the 
administration. So I cannot understand why the Department of 
Justice continues to insist on acting unilaterally and, as 
Chairman Sensenbrenner pointed out, without consulting with the 
Congress. It just disrupts the overall effort.
    The regulations on surveillance of Americans not suspected 
of any crime are there for a reason. They were intended to 
change the culture of the FBI--something all of us understand 
here in the Congress.
    The regulations on the handling of confidential informants 
were also carefully crafted. Just last month, an FBI agent in 
Boston was convicted of Federal crimes based on his improper 
handling of Mob informants. Two men spent years in jail for a 
crime they did not commit. The FBI knew they did not commit it. 
And the FBI kept quiet while these two men spent year after 
year after year in jail. That is wrong.
    Two weeks later, we are planning on simultaneously 
loosening both the Headquarters control and the rules for 
handling informants. These controls are there for a reason. 
They should not be changed simply to fit a press conference.
    I do appreciate the Director's consultation with the 
leaders of the House and Senate Judiciary Committees and other 
Members of Congress before he announced Phase 2 of his 
reorganization last week. I look forward to hearing more steps 
on that. I believe the steps he has taken to refocus and 
redesign the operational structure of the FBI to prevent 
terrorist attacks are the right ones. And I want to commend the 
hard-working men and women of the Bureau and other agencies of 
the Department who are working tirelessly and conscientiously, 
in the best interests of the United States, to protect us.
    No flow chart or press conference can fully reassure the 
American people that our Government institutions are up to the 
present challenges, particularly in light of daily revelations 
of new lapses.
    The Director has outlined ten clear priorities for the FBI, 
and I agree with the Director that the Bureau cannot continue 
to devote scarce manpower and technical surveillance resources 
to cases that could easily be handled by State or local police. 
We don't have enough manpower to do the things that really 
protect us. State and local police are very good. Let them 
handle the local things.
    An example is a report this week of an extensive, year-long 
Department of Justice and FBI investigation of the operators of 
a prostitution ring in New Orleans. I realize it comes as an 
enormous revelation to the American public that there might 
have been prostitutes in New Orleans. I mean, who knew? But 
according to press reports, FBI agents were listening to 90 
calls a day and wiretaps that continued for months and amounted 
to more than 5,000 phone calls. The Department of Justice and 
the U.S. Attorney claimed it was a Federal case. Well, there 
are a whole lot of local laws in this. In fact, the local 
prosecutor said they wanted to worry about things of real 
importance and said they would pass up the list of all those 
wiretaps.
    Now, Director Mueller's new priorities make clear that the 
FBI has more urgent things to do. I would encourage the 
Department of Justice to find more urgent things to do. Dealing 
effectively with counterterrorism is an important and immense 
task. We are not going to do it in only one branch of 
Government. We have got to work together. The Congress has to 
be involved.
    This series of hearings is focused on problems and 
constructive solutions to those problems. Many of them are 
reflected in the FBI Reform Act, which we passed unanimously, 
Republicans and Democrats. Not an easy chore in this Committee, 
but we did it. These problems include the inadequacy of the 
FBI's information management and computer systems, security 
failures in the Hanssen case, the resistance of Bureau 
officials to admit mistakes and double standards in discipline. 
Senior FBI managers testified at these hearings. They laid out 
in detail what we need to do to get the FBI back on track, and 
I commend the Director in working with those and being very 
candid in his own responses.
    So the Department of Justice, the FBI, this Committee, and 
others have to stay the course. We want to make the FBI the 
most effective tool we have in this country to protect us 
against terrorists because, unfortunately, we know the 
terrorists still want to strike at us.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Hatch?

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

    Senator Hatch. Well, thank you, Mr. Chairman. I want to 
commend you for holding this hearing on the oversight of the 
Department of Justice. The hearing raises many critical issues, 
and our duties on this Committee of examining and finding 
solutions to the problems where needed could complement the 
investigation of the bipartisan, bicameral Intelligence 
Committee, on which several members of this Committee, 
including myself, happen to sit.
    We have today before us Robert Mueller. He started the job 
as Director of the FBI one week prior to September 11th. At the 
time Bob Mueller stepped into the position of Director, the FBI 
was the subject of intense criticism and media coverage due to 
several high-profile embarrassments, such as the handling of 
the McVeigh documents, the belated discovery of the Hanssen spy 
case, and the troubled Wen Ho Lee investigation. Now, despite 
these problems, Director Mueller willingly and enthusiastically 
accepted the difficult challenge of reforming the FBI. It has 
to be overwhelming, as it is to lead any major organization, 
including the Justice Department. On September 11th, his 
challenges increased by several orders of magnitude.
    But there was no question then and there is no question now 
that Bob Mueller is the right person to implement essential 
changes at the FBI. His extraordinary qualifications, 
integrity, and resilience make him the perfect fit for the job, 
especially in these trying times. Indeed, Director Mueller has 
demonstrated he has the ability to reform a troubled 
organization. In August 1998, the Clinton administration asked 
him to serve as interim U.S. Attorney for the Northern District 
of California at a time when the office was experiencing great 
institutional problems. In short order, Director Mueller turned 
the office around and rebuilt it into one of this Nation's 
best. When it comes to management of a Government office, 
Director Mueller's no-nonsense style has served him well. He 
has shown he has the ability to inspire others to do their best 
work for all of us American people.
    While the FBI is composed of dedicated, hard-working agents 
who are some of the best in the world, we cannot let our 
respect for these accomplished men and women blind us to the 
fact that reforming the FBI--its structure and its culture--is 
a critical mission, one that is imperative to the safety of all 
Americans in the face of a continuing terrorist threat to our 
country. This is what Bob Mueller has begun at the FBI which we 
will hear about today in detail.
    There is no question that there are significant issues 
concerning the specific steps the FBI took in its pre-9/11 
investigation and analysis, particularly in Minneapolis and 
Phoenix. Special Agent Coleen Rowley has raised important 
issues relating to the FBI's handling of the Moussaoui 
investigation in Minneapolis. This Committee will not, and 
indeed cannot, shrink from its duty to examine these difficult 
and troublesome issues.
    However, I want to emphasize that this inquiry should be 
forward-looking with an eye towards reforming the FBI, 
protecting the American public, and making sure that such an 
act never occurs again on our soil. A forward-looking 
examination will serve the American people far more than a 
typical Washington ``gotcha'' investigation of missed clues and 
political fodder. We cannot afford such an inquiry. As we all 
recognize on this Committee and on the Intelligence Committee, 
this is a serious matter. Our focus must remain on reforming 
the FBI and giving Director Mueller the support and resources 
he needs to change the direction of this massive law 
enforcement agency. The American public deserves nothing less 
than the full and complete cooperation of this Committee to 
ensure that the FBI is reorganized and given the tools it needs 
to face the challenges of the future of our country.
    Also, very seldom are mentioned the tremendous 
accomplishments of the FBI, the number of terrorist incidents 
all over the world that they have helped to interdict and stop 
over the intervening years, both before and after 9/11, some of 
which can't be mentioned.
    I want to take time here to specifically commend Director 
Mueller for his handling of Special Agent Rowley's letter. 
While it would have been easy to play the typical Washington 
game of pass the buck and blame somebody else, Director Mueller 
has embraced Special Agent Rowley's letter and recognized that 
her observations underscore the need to implement his 
reorganization plan--one which aims at the heart of the issue--
the FBI culture and possible structural roadblocks to effective 
law enforcement. To this end, Director Mueller has the 
confidence and the courage to welcome criticisms, to examine 
their merit, and to make sure that such criticisms are not 
simply swept under the rug, but are carefully and candidly 
weighed.
    I think it is important to note that the new Director's 
recently announced reorganization proposal addresses some of 
the criticisms and problems identified through the pre-9/11 
inquiry. First and foremost, Director Mueller's reorganization 
proposal fundamentally alters the FBI's mission. Director 
Mueller has proposed a new forward-thinking approach--one that 
is built on proactive detection and is aimed at preventing 
another deadly terrorist attack. To this end, Director Mueller 
has proposed a reorganization plan which will improve the FBI's 
analytic capacity; enhance its ability to gather, analyze, and 
dissemination intelligence concerning terrorists and 
racketeers; further its ability to share information internally 
and with other law enforcement and intelligence agencies; and 
decentralize those functions that need to be reallocated to the 
field while centralizing critical intelligence-gathering and 
analysis functions to support its overall mission of preventing 
crime before it occurs.
    Director Mueller's recently announced comprehensive 
reorganization package comes on the heels of his initial 
reorganization of FBI Headquarters. As we all know, in late 
2001, Director Mueller reorganized the FBI's Headquarters to 
reflect the changing priorities and direction of law 
enforcement by assigning four new Executive Assistant Directors 
to oversee counterintelligence and counterterrorism matters, 
criminal investigations, law enforcement services, and the 
administration of the FBI. He also created two new divisions to 
address computer-facilitated crimes and security, and four new 
offices to address information technology, intelligence, 
records management, and law enforcement coordination with State 
and local law enforcement partners. He couldn't have done that 
before the enactment of the PATRIOT Act, which this Committee 
played a significant role in doing. Finally, Director Mueller 
accelerated a major overhaul of the FBI's technology system 
which will better enable it to gather, analyze, and share 
information and intelligence.
    Like Director Mueller, Attorney General Ashcroft recognized 
the need for increased FBI oversight and reform as soon as he 
took office. And prior to September 11th, he enlisted the 
assistance of a number of independent reviewers. In March 2001, 
in response to the Hanssen case, Attorney General Ashcroft 
established an independent review board headed by William 
Webster to examine the FBI's security procedures. In July 2001, 
the Attorney General hired management consultants to study the 
FBI, and he expanded the jurisdiction of the Justice 
Department's Inspector General to include oversight over the 
FBI. We are very pleased to have Mr. Fine here with us today as 
well.
    In the wake of September 11th, Attorney General Ashcroft 
worked closely with this Committee and Congress to ensure 
passage of the PATRIOT Act, which has provided the law 
enforcement community with additional tools and resources they 
did not have and which are necessary to attack terrorist 
organizations. And like Director Mueller, Attorney General 
Ashcroft took quick and affirmative steps to protect the 
American public and fight the war against terrorism. The 
Attorney General established 93 Anti-Terrorism Task Forces 
across the country which are working to integrate the 
communications and activities of local, State, and Federal law 
enforcement officers, something he could not have done before 
the PATRIOT Act. He created the Foreign Terrorist Tracking Task 
Force in order to assist the FBI, INS, Customs Service, and 
other Federal agencies in coordinating their efforts to bar 
from the United States aliens who are suspected of being 
involved in terrorist activities.
    Last week, Attorney General Ashcroft announced amended 
investigative guidelines that will assist the FBI in conducting 
investigations capable of preventing terrorist attacks. These 
guideline changes support and, in fact, are critical to the 
FBI's reorganization plan.
    Now, although I am pleased to learn that there is 
bipartisan support for these guideline revisions, I understand 
that concerns have been voiced about their scope. It seems 
obvious to me, however, that if we are serious about ensuring 
that the FBI can and does operate proactively, investigating 
future rather than merely past crimes, the Bureau must be given 
the ability to do things our Constitution permits like search 
the Internet, use commercial data-mining services, and visit 
public places. There is little question that the number one 
concern of all Americans is to make sure that we protect our 
country against terrorist attacks, not provide more rights to 
suspected terrorists than our Constitution requires. Our safety 
and security depend on striking the right balance.
    Now, Director Mueller and Attorney General Ashcroft should 
be commended for the degree to which they have focused their 
cooperative attention on reforming their respective 
institutions. Both have instituted independent investigations, 
and both have been responsive to the inquiries of this 
Committee and the Joint Intelligence Committees. As a member of 
the Joint Intelligence Committee, I can assure you of that. Not 
only has the Director testified before this Committee, he has 
also briefed members of this Committee and made other senior 
FBI employees available to address various issues of concern, 
including those raised by the Phoenix memorandum and the Rowley 
letter. This is the first time in the past decade that the 
Director of the FBI and the Attorney General actually have a 
cooperative working relationship, as they should. The first 
time.
    We will also hear today from the Honorable Glenn Fine, the 
Inspector General of the Justice Department, who is in the 
process of completing a number of investigations relating to 
subjects of this hearing. His conclusions will naturally be a 
valuable resource in this restructuring process, and I look 
forward to hearing from you, Mr. Fine, as well. I appreciate 
the work that you are trying to do.
    There is no question we need to consider how to improve all 
components of the Department of Justice to best protect the 
American people. In our oversight role, we should not blindly 
accept proposed reforms, but instead ask tough questions to 
ensure that they will address the problems that exist. However, 
we cannot and we should not try to micromanage the Department 
of Justice. We will succeed in being a constructive and 
integral part of the reform process if, and only if, we work 
collaboratively with those in the Department of Justice, the 
FBI, and the INS--the Immigration and Naturalization Service. 
We all need to recognize that this is a process that will take 
time. At the same time, we must act as expeditiously as 
possible because the stakes are so high.
    So I appreciate you, Mr. Chairman. I appreciate this 
hearing. I appreciate our witnesses who have agreed to testify 
today, and I look forward to working with you to help resolve 
any and all problems that we might have.
    Chairman Leahy. Director Mueller, the floor is yours. I 
know that you have eagerly awaited this opportunity to be here. 
But, no, we do appreciate it, everybody on both sides of the 
aisle appreciates it, and I think you heard from both Senator 
Hatch and I that the two of us appreciate your willingness to 
be available, as you have, to all of us with our questions. 
Please, go ahead, sir.

  STATEMENT OF HON. ROBERT S. MUELLER, III, DIRECTOR, FEDERAL 
  BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Mr. Mueller. Thank you very much, Mr. Chairman and members 
of the Committee. It has been 9 months now since the attacks of 
September 11th----
    Chairman Leahy. Pull the microphone near you, would you, 
please, sir?
    Mr. Mueller. Surely. Is that better?
    Chairman Leahy. Yes.
    Mr. Mueller. Can everybody hear now?
    Let me just say thank you again, Mr. Chairman, and let me 
start by saying it has been 9 months now since the attacks of 
9/11, and when I came to the FBI just one week short of 
September 11th, I must say that I did not anticipate what lay 
around the corner. And in the span of a few short minutes, our 
country was changed forever. Terrorism had taken the lives of 
thousands, and our country looked to the FBI to find out who 
did this and to not let it happen again.
    A massive investigation ensued, mobilizing, as only the FBI 
can, over 6,000 agents who poured themselves into the effort 
both here and broad, following up on some 500,000 leads.
    All of these shreds of information we painstakingly 
uncovered led to figuring out who was responsible and how it 
was done. And I, as you also, Mr. Chairman, and others have 
expressed, am extraordinarily proud of the men and women of the 
FBI and of the CIA and of all of the agencies who made the 
sacrifices and did the work that ultimately led us to knowing 
who was responsible for these acts. And as we go through this 
process, their efforts should never be lost or go unrecognized 
in our haste to look back and see how we can do things better.
    Just as we know on September 11th that we had to find out 
who was responsible for this, we also knew our charge had 
changed forever. An honest and comprehensive examination of the 
pre-September 11 FBI reflects an agency that must evolve and 
that must change if our mission, our priorities, our structure, 
our workforce, and our technologies are to revolve around the 
one central, paramount premise of preventing the next attack. 
The need for change was apparent even before September 11th. It 
has become more urgent since then.
    Now, when we looked back, we saw things that we should have 
done better and things that we should have done differently. 
But we also saw things that were done well and things that we 
should do more of. But almost from day one we began to change.
    At the end of last year, I described to Congress a new 
Headquarters structure, one designed to support, not hinder, 
the critically important work of our employees, particularly 
the Special Agents in the field. And since then, I have taken 
any number of steps to put in place what can be described as 
the tools of prevention and to put in place permanent solutions 
to the painful lessons of Robert Hanssen and the McVeigh 
documents. This Committee knows from prior hearings about much 
of this.
    Let me just spend a moment talking about some of these new 
functions and organizations that we have put in place in the 
process of developing an FBI that is more focused on 
prevention.
    As an example, we have a financial review group, which is 
dedicated to the financial transactions aspect of terrorism. 
And the Foreign Terrorist Tracking Task Force is exploiting new 
data-mining capabilities. The number of joint terrorism task 
forces across the country has expanded. A national joint 
terrorism task force now gives interagency coordination and 
information sharing new dimensions. We have document 
exploitation teams to maximize the intelligence value of the 
troves of documents being recovered overseas.
    Interview teams are exploiting those individuals who have 
been detained by our military. Former Police Chief Louis 
Quiljas is now in place as the Assistant Director in Charge of 
Law Enforcement Coordination to better bring our partners to 
the table.
    A College of Analytical Studies has been established at our 
Training Academy. New agent training has been revised to 
reflect the post-9/11 realities. And, last, as important, is 
that several FBI/CIA information-sharing and coordination 
initiatives have been implemented to increase our coordination 
and sharing of information. These include both changes at the 
top--Director Tenet and I meet almost daily--to changes 
throughout the organization, ranging from daily exchanges of 
briefing materials, a joint daily terrorism threat matrix, more 
CIA personnel at the FBI, and more of our personnel at CIA.
    Finally, as I think, Mr. Chairman, you pointed out, we have 
a new Security Division which is up and running, as well as a 
new Records Management Division. Both of those initiatives 
address those issues that arose in the course of the review of 
the Hanssen and McVeigh issues.
    Even in the midst of the post-9/11 fervor, much more has 
been accomplished, but more needs to be done. In the last few 
weeks, I have presented for congressional consideration the 
next and arguably the most important phase of reorganizing the 
FBI. This reorganization proposal comes after consultation 
within the Bureau, with the Attorney General, with 
administration officials, with State and local law enforcement, 
and with Members of Congress.
    I have provided a lengthy statement for the record which 
details the shifts in resources and the additional 
organizational changes I believe are imperative to fully 
support the complete transition to prevention. These changes, 
which include new resources, new analytical capability, and new 
technology, are critically important to supporting our new way 
of doing business.
    Coupled with these changes are new, more focused 
priorities, again, outlined in that statement which I have 
provided to the Committee. And while we believe these changes 
to be a dramatic departure from the past, in the end our 
culture must change as well. And I believe Senator Grassley has 
it right when he says that there has to be a wholesale change 
in the culture away from reacting to crime to preventing new 
terrorist attacks. And with that, I think we all agree.
    In the end, two things have come to symbolize that which we 
are changing: first, what did not happen to the Phoenix memo 
points squarely at the need for greater analytical capability 
and greater ability to share our information; and, second, the 
critical but welcome letter from Agent Rowley reinforces the 
need for a different approach, especially at Headquarters. What 
we are doing squarely addresses both of those concerns. And 
what we are proposing will help provide a more agile, flexible, 
and focused FBI that we need to meet that primary objective of 
preventing the next attack.
    I might also add that what may be the most critical 
component in giving us a better capability to prevent the next 
attack is substantially increasing our capacity to both analyze 
and share information. The new Office of Intelligence is 
critically important to this, and that is why I wanted this 
office to be headed by a senior career CIA analyst who will 
instantly bring to us a wealth of experience and expertise and 
who will guide not only the FBI's analysts but also the 25 CIA 
analysts that Director Tenet has generously given to us to 
assist us in our efforts.
    Let me just spend a moment talking about the urgency of 
these moves.
    The world remains a very dangerous place. The information 
gleaned from Guantanamo and other captured Al-Qaeda officials 
reflects that disrupting is not dismantling and that the 
inherent vulnerabilities of a free society are well understood 
throughout the terrorist community. Those who want to hurt us 
remain highly motivated, well funded, and spread out around the 
world. They and the other recognized international terrorist 
groups are as determined as ever. And while we and our CIA 
counterparts continue to identify, continue to arrest, continue 
to deport, and continue to otherwise address operatives and 
sympathizers around the world, there are still loose and 
dangerous alliances remaining around the globe. And we must 
take the long view and be prepared to mobilize whatever level 
of resources circumstances dictate. The restructuring I have 
proposed is critical to sustaining those efforts.
    Now, let me briefly address the changes in the Attorney 
General guidelines. I know you mentioned that, Mr. Chairman, 
and I know they are a subject of interest to many of you. The 
changes are designed to increase the ability of our field 
agents to gather the intelligence we need to prevent terrorist 
attacks. To that end, they reduce some of the bureaucratic 
hurdles requiring Headquarters approval for certain steps, and 
in the provision that has gotten a great deal of attention, 
they permit FBI agents to go to public places where anyone else 
except FBI agents, including State and local police and non-
Justice Department law enforcement agents, were always free to 
go.
    Remember, though, that they may do so solely for the 
purpose of detecting and preventing terrorist activities, and 
there are strict limits on recordkeeping in such instances.
    Now, information obtained from such visits may be retained 
unless it relates to potential criminal or terrorist activity, 
and I must say and emphasize, as an institution we are and must 
be and continue to be deeply committed to the protection of 
individuals' constitutional and statutory rights. Nothing in 
the amended guidelines changes that.
    I would be happy to answer any questions. I know that some 
of you have questions relating to the handling of various cases 
and investigations. I have previously discussed those with 
members of the Committee in executive session and would be 
pleased to do so again. Because of the applicable legal rules 
and because of the sensitivity of ongoing investigations 
relating to our efforts to prevent terrorist attacks, I am 
obviously limited in what I can say about such matters in open 
session. I appreciate the Committee's agreement that we may 
continue to discuss such matters, those matters, in executive 
session.
    Thank you, Mr. Chairman, for the opportunity to give a 
statement.
    [The prepared statement of Mr. Mueller appears as a 
submission in the record.]
    Chairman Leahy. Thank you, Mr. Mueller, and thank you for 
being available to members of the Committee as you have.
    Inspector General Fine, would you go ahead, sir? And we 
appreciate having you back here, as we always have on other 
occasions when you have been here.

 STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF 
                   JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Thank you. Mr. Chairman, Senator Hatch, and 
members of the Committee, I appreciate the opportunity to 
appear before the Committee to discuss the work of the Office 
of the Inspector General relating to counterterrorism issues in 
the Department of Justice.
    At the outset, let me express my respect for the many 
employees in Department components like the FBI and the INS who 
serve on the front lines in our Nation's counterterrorism 
efforts. While the OIG has found significant deficiencies in 
FBI and INS operations over the years, this should in no way 
diminish the important contributions that thousands of 
employees at these agencies make on a daily basis.
    Since the September 11th attacks, the OIG has redirected 
significant resources to examine programs and operations that 
relate to the Department's ability to detect and deter 
terrorism in the United States. This morning, I will highlight 
a few of the reviews that are discussed in greater detail in my 
written statement.
    The OIG recently released a lengthy report that examined 
why the INS mailed forms notifying a Florida flight school that 
two September 11th terrorists had received approval to change 
their immigration status from visitors to students 6 months 
after the terrorist attacks.
    The OIG found that the INS' adjudication of Mohamed Atta's 
and Marwan Alshehhi's change of status applications and its 
notification to the flight school were untimely and 
significantly flawed. First, the INS took more than 10 months 
to adjudicate the applications. As a result, they were not 
adjudicated until well after the two had finished their flight 
training course. Second, the INS adjudicator who approved their 
applications did so without adequate information, including the 
fact that Atta and Alshehhi had left the country two times 
after filing their applications, which meant that they had 
abandoned their request for a change of status. And, third, the 
notification forms were not sent to the Florida flight school 
for an additional 7 months because the INS failed to adequately 
supervise a contractor who processed the documents.
    Atta's and Alshehhi's case highlights important weaknesses 
in the INS' handling of foreign students. Historically, the INS 
devoted insufficient attention to foreign students, and its 
current, paper-based tracking system is inaccurate and 
unreliable. SEVIS, the new Internet-based system the INS is 
developing, has the potential to dramatically improve the INS' 
monitoring of foreign students.
    But unless the INS devotes sufficient resources and effort 
to implement and use SEVIS effectively, many problems will 
continue to exist. Our report offers 24 recommendations to help 
address the problems we have found.
    We have also conducted five follow-up reviews after the 
September 11th attacks that examined the INS' efforts to 
address national security deficiencies that were highlighted in 
previous OIG inspections. These reviews examined the INS' 
progress in securing the Northern border, linking INS and FBI 
automated fingerprint identification systems, the Visa Waiver 
Program, addressing security concerns regarding the Transit 
Without Visa Program, and tracking non-immigrant overstays. In 
each of these follow-up reviews, we found that many of the 
security concerns we identified in our original reports 
continued to exist.
    Let me now turn to OIG reviews in the FBI. The OIG has 
initiated a wide range of audits, inspections, and 
investigations in the FBI related to information technology, 
counterterrorism, and national security issues. I testified 
before this Committee in March of this year about the OIG 
report on the belated production of documents in the Oklahoma 
City bombing case. That review highlighted the significant 
weaknesses in the FBI's computer systems, which we found to be 
antiquated, inefficient, and badly in need of improvement. We 
concluded that the FBI's troubled information systems are 
likely to have a continuing negative impact on its ability to 
properly investigate crimes and analyze information throughout 
the FBI.
    Following up on these findings, the OIG is currently 
reviewing whether the FBI is adequately managing the 
acquisition of its information technology systems. We are also 
reviewing in another audit how the FBI managed the 
counterterrorism funding it has received since 1995. As part of 
this review, we are evaluating the processes by which the FBI 
determines counterterrorism resource requirements, manages 
those resources, conducts threat assessments, and develops its 
strategic planning related to counterterrorism.
    Another ongoing OIG review is examining the FBI's 
allocation of resources to investigate the varied crimes under 
its jurisdiction. Our objectives are to determine the types and 
numbers of cases the FBI investigates by office over time, 
assess performance measures for FBI casework, and determine if 
the mix of cases investigated by the FBI comports with FBI 
priorities.
    Last week, the OIG initiated an investigation that will 
examine aspects of the FBI's handling of information and 
intelligence prior to the September 11th attacks. The 
investigation will focus on, among other things, how the FBI 
handled an electronic communication written by its Phoenix 
Division in July 2001 and issues raised in the May 21, 2002, 
letter to the FBI Director from Special Agent Coleen Rowley.
    The OIG had conducted a preliminary inquiry in the fall of 
2001 into the handling of the Phoenix EC at FBI Headquarters. 
We determined that the matter should be referred to the Senate 
and House Intelligence Committees Joint Inquiry, the 
congressional Committee that had been established to review the 
range of intelligence and law enforcement information related 
to the September 11th attacks. Our referral to the Joint 
Inquiry was based on our view that the Phoenix EC should be 
analyzed in the context of other information available to and 
handled by the FBI and other intelligence agencies prior to 
September 11th.
    However, in light of recent events and several requests for 
the OIG to conduct a full review of how intelligence 
information was handled at the FBI prior to September 11th, 
including a specific request from Director Mueller, we have 
agreed to undertake a full investigation of the Phoenix EC, the 
issues raised by Special Agent Rowley's letter, and the FBI's 
handling of other intelligence information prior to the 
September 11th attacks.
    Finally, I would like to briefly mention FBI whistleblower 
issues.
    One of the most important changes the FBI can make as it 
looks to the future is to foster a culture in which employees 
are able to raise deficiencies in programs and operations 
without fear of retaliation. In my statement, I describe the 
regulations that apply to FBI whistleblowers. The OIG supports 
protections for FBI whistleblowers as a way to improve agency 
operations. In the past, FBI whistleblowers have been the 
impetus for significant positive change in the FBI.
    In sum, we believe that these important OIG reviews that we 
have conducted and are conducting within the FBI will provide 
useful information and analysis to the Department and Congress 
in conducting oversight of the FBI's critically important 
mission.
    That concludes my statement, and I would be pleased to 
answer any questions.
    [The prepared statement of Mr. Fine appears as a submission 
in the record.]
    Chairman Leahy. Thank you.
    The memo to do the inquiry on the Phoenix electronic 
communication, you got that in September. Is that correct?
    Mr. Fine. We received----
    Chairman Leahy. September 29th?
    Mr. Fine. I believe it was September 28th we received the 
Phoenix EC from the FBI.
    Chairman Leahy. And you gave it to the joint Committee 2 
weeks ago.
    Mr. Fine. We gave the results of our preliminary inquiry I 
think May 22nd, correct.
    Chairman Leahy. About 6 months later, more than that.
    Director Mueller, the Phoenix EC, or electronic 
communication, is classified, but let's just, referring just to 
what has been in the press accounts, make clear that this July 
2001 document warned about radical Middle Eastern 
fundamentalists connected to terrorist groups, attending flight 
schools in this country, possibly for purposes of training for 
terror operations. The warning was certainly relevant to the 
profile of Zacarias Moussaoui, especially at the time when the 
Minneapolis field office and the Headquarters personnel were 
trying to complete a FISA application--FISA, again, for anybody 
who may be watching, is the special foreign intelligence court. 
They were trying to get an application to the FISA court for 
possible searches.
    Now, obviously it is very apparent that the information in 
the Phoenix EC would have helped bolster the request for a FISA 
search on Moussaoui. You told us on May 8th at your last 
appearance before the Committee that the Phoenix memo was not 
used by agents who were investigating the Moussaoui case in 
Minnesota or at Headquarters.
    But the Phoenix EC was just that, an electronic 
communication. It was uploaded onto the FBI's computer. It was 
sent to Headquarters on the FBI's computer system. I understand 
it was accessible both at Headquarters and in certain field 
offices on the FBI's automated case system, but it was not 
accessible in the Minneapolis field office. Is that correct?
    Mr. Mueller. I understand that that is correct.
    Chairman Leahy. Well, if this EC was fully accessible in 
the FBI's automated case system, did the agents at Headquarters 
do what most of us are used to doing on a computer, do a 
routine search for key words, like aviation schools or pilot 
training?
    Mr. Mueller. Well, in response to the question as to 
whether or not the Phoenix EC was available to other offices 
around the country, my understanding is that it was not 
available to other offices around the country. It was, quite 
obviously, available to Headquarters. It was sent to 
Headquarters. And it was available to other offices to whom 
that EC was sent, New York, I believe, and perhaps one other 
office out West.
    Chairman Leahy. Well, let's just take those to which it is 
available, Headquarters. Did they do a search beyond just the 
name but things like aviation schools or pilot training?
    Mr. Mueller. It is my understanding that they did not.
    Chairman Leahy. That would have been helpful if they had, 
wouldn't it?
    Mr. Mueller. I believe it would have been helpful, and one 
of the things that I have stated on many occasions is that what 
I would hope to have in the future is the technology in the 
computer system that would better enable us to do exactly that 
type of search. It is very cumbersome, very difficult for a 
variety of reasons, given our technology, to do that kind of 
search now. My hope in the future is to have the kind of 
soundex searching capability that would give an agent the 
capability of pulling out any EC relating to aviation; and, 
beyond that, my hope is that we would have the capability of 
some form of artificial intelligence so we wouldn't have to 
make the query. The technology itself would alert us to those 
commonalities.
    Chairman Leahy. That, of course, is something that a number 
of us on this Committee have been urging the FBI to do for 
years, I mean, long before you came there. And I really think 
it is, as I have said at other hearings, very much of an 
Achilles heel that you can't do the kind of things that all of 
us are used to doing on our computers if we are looking for the 
best buy on an airplane ticket or something we want to 
purchase.
    Now, the so-called Woods Procedures that were put into 
place April 15th--and thank you for having the procedures 
declassified. I don't know why they were classified in the 
first place, but I do appreciate you having them declassified 
so the Committee members here could have them. But that talks 
about processing FISA applications. It directs agents in the 
field to do an ACS computer search for targets to see if any 
other information pops up. And there is a requirement for 
Headquarters personnel to check the ACS system.
    I would assume, am I correct, that that would be because 
Headquarters personnel are apt to have access to more 
information than a field agent might have? Is that correct?
    Mr. Mueller. I think it is to make certain that we cover 
both bases, that for purposes of the court, the court needs to 
know whether there are other outstanding investigations 
relating to those targets. And, consequently, it is important 
that the searches be done by the case agent who is most 
familiar with the facts of the case, but also more broadly in 
Headquarters to assure that nothing is overlooked.
    Chairman Leahy. In fact, the Woods Procedures tell the case 
agent to do that.
    Mr. Mueller. I am not intimately familiar with the Woods 
Procedures, but I believe that is the case.
    Chairman Leahy. Well, so if they don't do the search, 
either in the field or Headquarters, they actually violate the 
FBI's own procedures.
    The reason I bring this up is that if we are talking about 
new procedures, I would hope that we are following the 
procedures that are already in place. I mean, this is a case 
where we are going to go back and forth whether there could 
have been a FISA application on Moussaoui, whether there could 
have been the kind of searches that, in hindsight, we all wish 
had been done. But yet all the information was there, and I 
think they could have gone to it.
    Mr. Mueller. Mr. Chairman, I think there is--the searches 
are done for the FISA under the Woods Procedures, as I 
understand it--and I would have to go back and review them and 
make certain, but go through and search the names to determine 
whether any of the names that are going to be the subject of 
the scrutiny in the FISA have turned up in any other 
investigation, as opposed to picking up a piece of information 
from an EC which relates, for instance, to flight schools. And 
what we have to do a better job of, both technologically and 
with the analytical capability that I am suggesting that we are 
establishing, is to pull out pieces of information from an EC 
that may relate to flight schools and be able to put that 
together with other pieces from other investigations, not just 
focusing on the targets and the names of the individuals who 
are the subject of the scrutiny, which I believe, if I am not 
mistaken, the Woods Procedures are in part directed towards.
    Chairman Leahy. Well, in fact, it would make just common 
sense that it is going to be a lot more than just the names. I 
mean, it is the type of things they are doing, method of 
operation and so forth, that could be very, very important. 
People can change names very easily. What they are trying to 
accomplish, though, is what we are interested in. Is that not 
correct?
    Mr. Mueller. That is correct.
    Chairman Leahy. And you have talked in your reorganization 
of forming flying squads to coordinate national and 
international terrorism investigations. The Attorney General 
has announced new FBI investigative guidelines to allow field 
offices more discretion to open these terrorism cases without 
Headquarters approval--in fact, be able to keep them open for 
as much as year before they are reviewed at Headquarters.
    Were you involved in crafting these new guidelines?
    Mr. Mueller. Well, I know we in the FBI, we had individuals 
who consulted with and participated in discussions with the 
Department of Justice, yes.
    Chairman Leahy. Did you sign off on them?
    Mr. Mueller. I was aware of the guidelines, yes.
    Chairman Leahy. Senator Grassley and I wrote to the 
Attorney General asking that he personally guarantee 
whistleblower protection for Special Agent Rowley. I will let 
Senator Grassley speak for himself how he felt about the 
response. I think he was disappointed by it.
    Can you personally assure this Committee, unequivocally, 
there will be no retaliation of any kind against either Coleen 
Rowley or Kenneth Williams or any FBI employee because they 
provide information to the Congress or the Inspector General or 
any supervisory FBI official about counterterrorism efforts?
    Mr. Mueller. Absolutely. I issued a memorandum on November 
7th reaffirming the protections that are afforded to 
whistleblowers in which I indicated I will not tolerate 
reprisals or intimidation by any Bureau employee against those 
who make protected disclosures, nor will I tolerate attempts to 
prevent employees from making such disclosures.
    In every case where there is even an intimation that one is 
concerned about whistleblower protections, I immediately alert 
Mr. Fine and send it over so that there is an independent 
review and independent assurance that the person will have the 
protections warranted.
    When I go around the country and talk to the various 
offices, one of the things I say is that the good news always 
comes to the top. What does not come to the top is the bad 
news. What does not come to the top are those things that need 
to be changed. What I need to know are those things that are 
broken that need to be fixed. And throughout those discussions 
in the field offices or with individuals, I have reiterated I 
want people around me who will tell me what is happening. I 
want people in the field to tell me what is happening. I cannot 
get out to talk to every one of the 11,000 agents or the 27,000 
total employees, but I need to know what is happening 
throughout the field. And I encourage, welcome the criticism, 
the insight, the suggestions, whether it be from within the 
organization or from without the organization.
    Chairman Leahy. And the reason I ask, of course, Mr. 
Director, is that the FBI is currently exempted from the 
Whistleblower Protection Act, so we have to rely on your 
assurance. And I accept your assurance.
    Senator Hatch?
    Senator Hatch. Thank you, Senator Leahy.
    Mr. Mueller, as I understand it, the PATRIOT Act has worked 
quite well so far, but there is one area where you are having 
difficulties, and that is FISA requests where currently to get 
a warrant there is a requirement of proof of association with a 
foreign power. Am I right on that?
    Mr. Mueller. There is a requirement under the FISA statute 
that we demonstrate a belief that the person who is under 
scrutiny and for whom we wish to obtain court-ordered 
interception is an ``agent of a foreign power.'' And that has 
been defined as including an individual who is associated with 
a terrorist group.
    Senator Hatch. How many of these approximately 20 
terrorists that we have been very concerned about that 
participated in the September 11th matter, for how many of 
those could you have gotten a warrant?
    Mr. Mueller. Well, prior to September 11th, the 20 
hijackers, it would have been very difficult because we had--I 
mean, looking at it, trying to go back, we had very little 
information as to any one of the individuals being associated 
with----
    Senator Hatch. A foreign power.
    Mr. Mueller.--a particular terrorist group. One of the 
issues in the Moussaoui set of circumstances was whether or not 
the evidence was sufficient to show that Mr. Moussaoui was 
associated with any particular terrorist group.
    If you talk to the agents--and I know we have had Ken 
Williams and other agents up briefing the Congress--I believe 
the agents will tell you that one of the problems they have in 
this area, which we believe Congress ought to look at, is the 
requirement that we tie a particular terrorist to a recognized 
terrorist group.
    Senator Hatch. Or foreign power.
    Mr. Mueller. Or the foreign power, agent of a foreign 
power.
    Senator Hatch. I think that you probably would have had a 
difficult time showing that any of them were agents of a 
foreign power.
    Mr. Mueller. A terrorist group, a defined--and it is a 
loose definition. A terrorist group has been defined as an 
agent of a foreign power.
    Our problem comes in trying to show that a particular 
individual is connected to a specific, defined--in a variety of 
ways--terrorist group. Once we get a connection with Al-Qaeda, 
for instance, even though it is not a foreign power, Al-Qaeda 
is a sufficiently distinct group so that we can get the FISA 
that we need. But we have problems where you have a lone wolf, 
for instance, who may be out there who we think is a threat, 
but we have difficulty tying to any particular defined 
terrorist group.
    Senator Hatch. Well, if we try to change that, I assume we 
will have civil liberties groups and persons that will be very 
much against making that change.
    Mr. Mueller. I can't speak to that, Senator, but I do think 
that is something that we need to look at and that Congress 
should take a look at.
    Senator Hatch. It is my understanding that Senators Schumer 
and Kyl have just introduced a bill----
    Mr. Mueller. I heard yesterday that there was a bill, and I 
have not had a chance to review it.
    Senator Hatch. I have real concerns that some terrorist 
groups have been able to hide and operate in this country under 
the cloak of political and religious institutions. We have seen 
that. This is obviously a very sensitive issue, and I have two 
questions relating to this topic, as one who has championed 
both religious freedom and protecting, you know, our First 
Amendment rights. Under the old guidelines, were there any 
situations where the FBI was unable to pursue legitimate 
investigations because of a fear that investigating criminal 
activity occurring under the guise of political and religious 
activity?
    Mr. Mueller. Yes, I am led to believe that that is the 
case.
    Senator Hatch. Can you provide us any examples of how such 
institutions were able to facilitate terrorist activities?
    Mr. Mueller. I would have to go back and query the field 
with specific examples, but in my general discussions and 
general briefings, the understanding of the agents was that you 
needed predication to start a preliminary inquiry, predication 
to the extent that somebody was contemplating criminal acts, 
and after that there were a limited number of options that you 
had that you could follow in the course of that investigation.
    What the guidelines change does is open up the 
possibilities that the agent can utilize once the agent has 
determined that there is information pertaining to terrorists 
or terrorism activity.
    Senator Hatch. The prior investigative guidelines were 
adopted in response to significant FBI abuses, according to 
some, that occurred several decades ago. Now, some have raised 
concerns that the new guidelines the Department has put forth 
may infringe on civil liberties. In public statements, however, 
you and Attorney General Ashcroft have emphasized that the new 
investigative guidelines are necessary to prevent and detect 
terrorism and other crimes before they occur, which is what the 
FBI is bring criticized for, for not having done--being great 
after the crimes occur but not so good before in the prevention 
area before they occur.
    Now, you have also indicated that these guidelines will 
preserve and prohibit any action which would impact our 
constitutional freedoms and statutory protections.
    Now, would you explain to us how the new guidelines will 
assist law enforcement officers in detecting and preventing 
crime while at the same time preserving our civil liberties?
    Mr. Mueller. One of, I think, the best examples is the use 
of the Internet. Just about every 12-year-old, not just law 
enforcement individuals in other agencies, could go onto the 
Internet and determine whether or not there are Web sites that 
have an address manufacturing explosives, encouraging persons 
to commit violent acts against the United States, encouraging 
people to sign up to commit violent acts against the United 
States.
    What the guidelines do is free the agents to go and do that 
preliminary analysis without believing that it is contrary to 
the guidelines, and it covers most specifically in the 
terrorism area. And that freedom is critically important for us 
to keep abreast of what terrorists are doing, utilizing the 
modern means of communication.
    Senator Hatch. On the issue of profiling, which, of course, 
is a very sensitive issue, can you say one way or the other 
whether fear of being accused of improper ``racial profiling'' 
may have caused law enforcement agents to be reticent in 
investigating claims or approving investigations into certain 
suspects? How does the FBI define racial profiling? And has 
this definition changed in any way since September 11th? And I 
am very much aware of the fact that the Phoenix memo and the 
Rowley letter includes suspicions of terrorist activity that 
were based in part on ethnicity.
    Mr. Mueller. I think I have seen indications of concerns 
about taking certain action because that action may be 
perceived as profiling. The Bureau is against, has been and 
will be against any form of profiling. The new guidelines 
address individuals, not members of a particular group, not 
members of a particular political persuasion or anything along 
those lines. The new guidelines look at individuals and groups 
of individuals who may be--and the changes--who may be 
contemplating terrorist activity.
    Senator Hatch. Whether or not they are religious 
activities.
    Mr. Mueller. Whether or not it is religious, whether or not 
it relates to any particular religion, whether or not it 
relates to any particular country.
    Senator Hatch. Let me first state, Director Mueller, you 
have publicly commented on both the Agent Rowley letter and the 
Phoenix memo, suggesting that their contents underscore the 
need to reorganize the FBI, both structurally and culturally.
    Now, can you specifically address how your proposed 
reorganization plan addresses the particular issues raised by 
Special Agent Rowley in the FBI's handling of the Phoenix memo?
    Mr. Mueller. I think at base both the Phoenix EC and the 
Rowley memo point out a deficiency that I spoke to when I was 
before this Committee on May 8th, and that is, our ability to 
gather intelligence information, snippets of information from a 
variety of various investigations around the country, and pull 
them together, analyze them, coordinate that analysis with the 
CIA or the DIA or NSA or other agencies who may also have 
snippets of information, and then be better able to disseminate 
the results of that analysis back to the field so that 
appropriate action can be taken.
    I have said before that the procedures should have been in 
place so that the Phoenix memorandum went to the CIA and that 
the Phoenix memorandum was made available to those in 
Minneapolis and the determination as to whether or not they had 
sufficient evidence to have the FISA application approved.
    What we have done since then is taken a variety of steps to 
assure that information like that comes up higher in the 
organization, that it is disseminated across the various 
organizations. For instance, I get a briefing book every day. 
It is about an inch, inch and a half thick. And most of this, 
the distillation of that goes to the CIA. I am briefed by the 
CIA every day on what the CIA has.
    The procedures in place on the FISA have changed somewhat. 
To the extent that there are concerns in the field about 
whether or not we have sufficient information, if there is a 
belief that we do not have sufficient information, it goes to 
the new head of the Counterterrorism Division and ultimately to 
me. I get briefed every day on the status of our FISA 
applications to determine whether or not we are being 
aggressive enough, whether or not there is other information 
out there to determine whether or not we should go forward.
    What would be helpful, what we need is augmentation of our 
analytical program because there are torrents of information 
coming in daily, and also the augmentation of our technology to 
which I have spoken at some length.
    Senator Hatch. Thank you.
    Mr. Chairman, my time is up. I happen to be also on the 
Joint Intelligence Committee that is meeting at the same time, 
so I will have to try and alternate between the two meetings. I 
hope you will forgive me for that.
    Chairman Leahy. What we are going to do is go now to 
Senator Kennedy. We will then go to Senator Grassley. And when 
the vote occurs, once whoever is asking questions finishes the 
questions, we will then recess so we can all vote and then come 
back quickly thereafter.
    Senator Kennedy?

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you. Thank you very much, Mr. 
Chairman. Thank you, Mr. Mueller, for being here this morning.
    Obviously, no challenge we face today is more important 
than dealing effectively with the terrorist threat facing the 
Nation, and reform of the FBI is an essential part of meeting 
that challenge.
    In relationship to the September 11th attacks, the FBI has 
been criticized for failing to act on the information it had 
and to coordinate effectively with other agencies. To your 
credit, you have acknowledged the existence of serious problems 
and have committed yourself to addressing them. I am sure you 
agree that we must do so in a way that preserves the basic 
constitutional rights that are at the heart of our democracy.
    On September 11th, the Justice Department arrested and 
detained more than 1,200 Arab and Muslim immigrants. Yesterday, 
the Justice Department unilaterally announced it will require 
tens of thousands of Muslim and Arab visa holders--students, 
workers, researchers, and tourists--to register with the 
Government and be fingerprinted and photographed. INS 
inspectors will apply secret criteria and their own discretion 
in deciding which visa holders will be subject to this 
registration requirement.
    I know the FBI has been recruiting as agents U.S. citizens 
who are Arabs or Muslims. Their service is critically important 
to our fight against terrorism. I am very concerned, however, 
that the Justice Department's post-September 11th policies with 
respect to Muslims and Arabs will seriously undermine your 
recruitment efforts. In particular, I am troubled by the visa 
holder registration policy announced yesterday. Your agency is 
expending valuable time and resources to recruit these U.S. 
citizens in our Arab and Muslim communities at the same time 
the Justice Department is photographing, fingerprinting, and 
registering their law-abiding siblings and cousins visiting the 
United States.
    So what impact do you think these policies will have on the 
Arab and Muslim communities in the U.S. if you are holding job 
fairs in the morning and fingerprinting them in the afternoon?
    Mr. Mueller. Senator, if I might, going back to what we had 
done in the wake of September 11th in the course of the 
investigation, immediately after September 11th, we understood 
that the first thing we had to address was whether or not there 
was a second wave of terrorists out there who may conduct the 
same or similar terrorist attacks. And immediately what we did 
was to determine everything we could about the 19 hijackers, 
how they got their tickets, where they lived, where they went 
to flight schools, and immediately came up with individuals who 
had information about them whom we wanted to interview.
    In the course of those interviews, we would find that a 
number of individuals of all religions, from a number of 
different countries, would fall into one of three categories:
    One, there may be an individual who is a subject of 
Federal, State, or local charges and had not been arrested, and 
we would detain them; there would be an individual perhaps who 
was out of status with Immigration and would be detained by 
Immigration; and then there was, third, a handful of 
individuals who were detained pursuant to material witness 
warrants issued by judges.
    We were not looking for individuals of any particular 
religion, from any particular country. Each one of those 
individuals detained was interviewed because we had predication 
to do those interviews.
    Now, turning to the initiative announced by the Attorney 
General yesterday, my understanding is that there is a mandate 
from Congress to institute entry and exit precautions. My 
understanding is that what was announced yesterday is in part 
responsive to that, and----
    Senator Kennedy. Well, I would like to go over it. I was 
very involved in that legislation on border security as well as 
immigration, and I would like your references on that 
legislation. And if you are relying on it, I would like to know 
specifically what that authority is in there.
    We looked through it last night again in anticipation of 
this kind of response, and I would like to get that information 
from the Department at another time.
    Mr. Mueller. I am not familiar with it myself, but we will 
provide that, Senator. But I will say, if I could, that it is 
critically important that we do a better job of--we are a very 
open country, and we want to stay a very open country. But we 
have to do a better job of knowing who is coming in our 
borders, where they are within the United States when they are 
here, and when they leave. And that is one of the areas that we 
just have to do a heck of a lot better job at, and I believe 
the proposals yesterday address that concern.
    Senator Kennedy. Well, one of the most important proposals 
which we passed with bipartisan support stated that the CIA was 
to share information with the FBI in granting these visas, 
which they never did in the circumstances before. It also 
stated that they have commonality in terms of their computers, 
using biometric information. We are working on that and want to 
work with the administration on it. However, what the 
Department did yesterday, relying on that legislation is 
something of concern to me.
    Isn't it true that after September 11th, none of the 1,200 
or more Arab and Muslim detainees that were held were charged 
with any terrorist crimes or even certified under the PATRIOT 
Act as persons suspected of involvement in terrorist activity? 
I understand the FBI is still conducting clearances in a small 
number of these cases, but hasn't the overwhelming majority 
been positively cleared by your agency of any involvement in 
the September attacks? In fact, weren't these detainees only 
charged with technical and minor immigration violations?
    Mr. Mueller. Well, I think that the violations cut across 
the board. There were some that were charged, I believe, with--
--
    Senator Kennedy. I am referring to charges with terrorism 
as distinct from immigration violations. I think I am correct 
if I say that they have not been associated with the terrorist 
acts.
    Mr. Mueller. Well, a specific terrorist charge of somebody 
who was going to or had committed a terrorist act, no. But 
there are a number of persons who have been charged with 
facilitating either the hijackers or lying about their 
association with the hijackers or other terrorists.
    Senator Kennedy. You understand that in order to get the 
visa, extensive review and investigation has to be done. That 
should be the result of FBI and CIA information and 
investigation before the individual is even granted the visa. 
And when we have follow up procedures after they come to this 
country providing biometric information so we know that that 
person is here, and when there is discretion obviously, even on 
the entry officer, about how they are going to treat it we have 
a significant amount of information.
    So now you have added this additional layer of 
fingerprinting. We are trying to understand the basis for that 
since there has already been an investigation of these 
individuals for visas in the first place.
    The question is, as I think you mentioned this morning with 
regards to focusing the attention on taxing the agency's 
resources. Is the round-up and detention and now the 
registration of vast numbers of Arabs and Muslims an effective 
investigative technique or is it wasting law enforcement 
resources? It has been apparent to many people that the problem 
hasn't been so much the collection of information. It has been 
in the analysis of information by the agency. And we see in 
response to that kind of gap a great deal of increased outreach 
for information which, in a number of instances, seriously 
threatens Americans' rights and liberties. I don't know 
whether--my time is running down--whether you want to make some 
brief comment about it.
    You were very clear in your confirmation hearing about 
these rights and values and you made a very powerful statement 
which I believe is your view, but I----
    Mr. Mueller. And it is still my view. I still believe that 
we have to protect the freedoms that we have in this country 
that are guaranteed by the Constitution, or all the work we do 
to protect it will be for naught. But there are things that we 
can do well within the Constitution that will assist us in 
identifying those amongst our midst who wish to kill Americans. 
And to the extent that within the Constitution we have greater 
capacity to address the threat against the American public, we 
are asking Congress to, with us, help us meet that challenge.
    Senator Kennedy. Let me pursue one final area--the changes 
in the FBI guidelines on the use of confidential informants. 
You know, very well, the terrible scandal with the Boston FBI 
office that led to the important changes in how the FBI is 
going to handle these confidential informants. These reforms 
were adopted only 2 years ago, and it is critical that they not 
be watered down. I know you are very familiar with the 
corresponding steps that were taken so that we do not have 
these kinds of abuses in the future. And now there is certainly 
a good deal of concern, up our way, about whether we are going 
to be opening Pandora's box on this. I know you are very 
familiar both with the challenge that we had up in Boston and 
the change in the rules and also the current changes.
    Could you comment about how you think that these current 
changes here will not re-open up the door to the kinds of 
abuses that we have seen in the recent past?
    Mr. Mueller. I am familiar with the circumstances of what 
happened in Boston, and it was not a good chapter in the 
Bureau, and that is an understatement.
    I participated in the development of and change in the 
informant guidelines to address the situation that you have up 
in Boston. The minor modifications that have been suggested to 
those guidelines in my mind do not in any way undercut the 
efficacy of those guidelines in addressing the kind of 
circumstance that happened up in Boston. But, also, within the 
organization we have to implement procedures, particularly in 
our inspection process, so that we just don't go out and look 
at paper but we look at what is represented by the paper. Too 
often our inspection process failed, and our inspection process 
should have picked up something like that, and it did not in 
the past. So we have the guidelines, and we are looking at and 
will look at our inspection process to determine how we can do 
a better job in assuring that this kind of circumstance does 
not happen again.
    Senator Kennedy. I want to thank you very much for your 
appearance here and for your response.
    [The prepared statement of Senator Kennedy appears as a 
submission in the record.]
    Chairman Leahy. Senator Grassley?
    Senator Grassley. Thank you, Mr. Chairman. And thank you, 
Director, for coming----
    Chairman Leahy. If the Senator would withhold just a 
moment, I have a number of items I would place in the record at 
the appropriate point.
    [The information appears as a submission in the record.]
    Chairman Leahy. Senator Grassley?

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

    Senator Grassley. Once again, thank you, Director Mueller, 
for coming to discuss a lot of important issues we have before 
us: the failure of the FBI to recognize warning signs of 
terrorist attacks; the cultural problems that hinder FBI's 
ability to be a top-notch agency preventing terrorism; a new 
reorganization plan that has some problems; last but not least, 
later on, as we will this afternoon, to hear Coleen Rowley who 
is one of the reasons that we are here.
    Special Agent Rowley, as we all know, has come forward on 
major problems with the FBI's handling of terrorists, 
specifically the Moussaoui case, and spotlighted some general 
flaws in the culture. Her courage, patriotism, and integrity 
will help the FBI improve even if the revelations are painful 
or embarrassing. In fact, I think she already has helped the 
FBI, and I think you have indicated that to some extent.
    I want to note, Director Mueller, as maybe you have said so 
publicly, that when you thanked Agent Rowley last week in your 
news conference, it was the first time I have ever heard any 
agency head, not just an FBI head, publicly acknowledge even 
the existence of a whistleblower, let alone thank that person. 
So I commend you for doing that.
    Along the lines of this issue that Senator Leahy has 
already addressed but as the author of the Whistleblower 
Protection Act and cosponsor of an FBI reform act with Senator 
Leahy--by the way, which contains essential protections for FBI 
whistleblowers, hopefully along the lines of things that Mr. 
Fine would approve of--I appreciate your assurances that Coleen 
Rowley will not be retaliated against in any fashion because of 
her letter to you or her testimony before Congress. And I say 
``any fashion'' because whistleblowers are often sent to out-
of-the-way posts or given less than desirable work or given no 
work at all, as I found in the case of the Defense Department, 
where people just give up and quit. And I trust that your 
assurances will extend to any form of retaliation.
    Before you say yes or no to that, I was really depressed 
with the Attorney General on Sam Donaldson's program when he 
had to be asked three times if she would be protected, and 
finally he said she would not be dismissed. The issue isn't 
dismissal. Very few whistleblowers are dismissed. They are 
retaliated against in ways that are very difficult to prove. 
And we have got to have people like the Attorney General saying 
that whistleblowers are going to be protected according to law.
    I would like your response.
    Mr. Mueller. I absolutely believe the Attorney General 
believes that, and I reiterate the assurances I gave to Senator 
Leahy. My own view is that when there is an allegation of 
retaliation, we, the FBI, should not be the institution that 
looks into it. I would like Mr. Fine to look into it and 
evaluate it and see if there is any veracity to it.
    But in terms of putting out the message that I want people 
to tell me what is happening wrong, what is wrong in the 
organization, the institution, I want the suggestions, I have 
tried to do that. But I will reiterate, as I said before, the 
assurances that I gave in response to the question put to me by 
Chairman Leahy.
    Senator Grassley. I don't think Coleen Rowley has got any 
concern, but I am not concerned just about her because down the 
road Congress has to depend upon that form of information, as 
you are willing to say you are willing to depend upon it.
    Mr. Mueller. I do, too. I mean, I need that information 
myself. I understand. I want that information so that I can 
change what is wrong in the institution.
    Senator Grassley. So it is not a case just of protecting to 
protect an individual economically or professionally. It is to 
keep an avenue of information open. Thank you.
    I would like to ask you about what some people see as 
redundancy and more bureaucracy at Headquarters or maybe in the 
organization generally. You mentioned the National Joint 
Terrorism Task Force in part for information sharing, but you 
have already set up an Office of Law Enforcement Coordination. 
I certainly have concerns about sufficient information sharing 
and coordination, so it is a problem you have to deal with. But 
it also seems to me that the first line of responsibility for 
accomplishing information sharing and coordination should be 
the Special Agents-in-Charge that we should hold them 
accountable.
    In addition to these new offices that you have set up, you 
have formed the Office of Intelligence for Analysis. You will 
create flying squads. You already have the Strategic 
Information Operation Center to coordinate for emergencies, and 
there has been a Counterterrorism Center with staff from the 
FBI and CIA, and maybe I am missing some other new or existing 
groups, but I am going to stop there. But I agree with some of 
these, especially the Office of Intelligence.
    So three questions. Can you explain to me what each of 
these groups--and please don't go into tremendous detail to 
take up too much time, but what they will do or are doing? And 
can you explain how they won't be duplicating each other's 
work? What groups will coordinate information sharing within 
the FBI and other agencies? And, three, what responsibilities 
then do you see the Special Agents-in-Charge for information 
sharing and coordination? And could you start with three?
    Mr. Mueller. I will start with three. The Special Agents-
in-Charge are supervising in each of our divisions the Joint 
Terrorism Task Forces. On those task forces, there are other 
Federal agencies and other State and local agencies in that 
region. We each day push out information to them to be shared 
in that vehicle, and that is a very important vehicle to share 
information at the local level.
    What we have to do a better job of at Headquarters is 
taking the information that comes in from our agents in the 
field and acting on that information, whether it be action 
through the Coast Guard, action through the FAA, action through 
other agencies, but also have those other agencies with the 
ability to plumb their databases.
    The Joint Terrorism Task Force at Headquarters replicates 
what we did in Salt Lake City. In Salt Lake City, we had a 
fused Intelligence Center where you had one set of computers 
with an Intranet, so if a question came in from a Utah State 
trooper, about an individual, immediately that would be put on 
one of the sets of computers to each of the representatives of 
the CIA, the DEA, the Immigration Service, and they would go to 
their own computer and look in their databases and pull up that 
information and put it out immediately to the person who needed 
to get that response.
    That is what we did in SIOC, as you point out, the 
Strategic Information Operations Center, in the wake of 
September 11th. But since we have run through all those leads, 
we have dropped back down and have not put that back up. We are 
doing that. That is the Joint Terrorism Task Force back at 
Headquarters. And that is critically important to our ability 
to share information and gather information from the various 
agencies.
    The Office of Intelligence is the analytical piece that we 
were lacking in the past to bring in the shreds of information, 
coordinate that information with the CIA or other entities, and 
make certain that we are looking and establishing the patterns 
that need to be addressed, and then develop--after that we have 
to develop a way of addressing those patterns, whether it be 
flight schools or crop dusters or threats on reservoirs or what 
have you. And so it is important to get the intelligence in to 
the Office of Intelligence, develop those patterns, evaluate 
the threats, evaluate the credibility, and then pass it on to 
people who will act on that intelligence to protect the 
country.
    Senator Grassley. I want to talk about your allocation of 
resources, and I am following what I believe is my 
understanding of your reorganization plan, and I guess I start 
with the premise that maybe it doesn't go far enough in moving 
agents into counterterrorism. With the number I have seen, it 
seems to me that it would be 25 percent or less of the FBI 
agents will actually be working counterterrorism when 
reorganization is done.
    You say the FBI is the lead agency for counterterrorism, 
and I believe that, and everyone knows that preventing future 
attacks is our number one priority. It is even the number one 
focus on the top ten list in your testimony today.
    But what sort of reaction do you have about this priority 
of stopping terrorists when less than 25 percent of the FBI 
total numbers of agents are working on that? Could a reasonable 
person infer from this that car thieves, gangs, kidnappers pose 
more of a danger than terrorists because of the number of 
agents working those crimes? We have the Drug Engagement 
Administration, for example, to do more narcotics that you plan 
to get rid of. State and local police can handle many bank 
robberies. We have inspectors general on Government fraud. We 
have the EPA's Criminal Division for environmental crimes, and 
we have Customs and Secret Service.
    I think it is coming to the point where Congress is at 
fault for some of this and maybe giving too much responsibility 
to the FBI. That will have to be addressed not by you but by 
us. But Congress may need to cap money for new agents until the 
FBI can get serious about terrorism and get rid of 
jurisdictional duplications with other agencies. If the FBI 
needs additional agents for counterterrorism, then at that 
point we can provide them. So could you tell me if you are done 
moving agents to counterterrorism or you are going to move 
more? And if you are not, how will you react to a congressional 
proposal to narrow the FBI's jurisdiction so it can truly 
concentrate on the mission of preventing terrorism?
    Mr. Mueller. Let me just say, since September 11th I have 
had several conferences with the SACs, Special Agents-in-
Charge, to determine what kind of shift in resources was 
necessary to address counterterrorism. My statement at the 
outset is--and was to them--that counterterrorism comes first. 
If you have a threat within your division, if you have a lead 
that must be pursued, that comes first before any other 
program.
    Now, I go to them and say, Okay, in your particular 
division what additional resources do you need to address 
counterterrorism? And the SACs, each of the SACs would come 
back to me: I need 10 or I need 15 or I need 20. And I go back 
and say, Okay, your division is unique. San Francisco is a 
little bit different than Des Moines in terms of what is 
necessary. What programs should we take those agents from?
    We looked at it from an overview to see what is necessary 
for national strategies and made the recommendation that we 
ought to shift these resources at this time permanently to 
address counterterrorism needs.
    Now, this is a work in progress. I don't know. Three months 
down the road, we may need in some division additional 
resources because something has popped up. Part of my program 
is to be more flexible and agile because, as I have seen these 
problems pop up in a particular community, we need the 
resources to address them for a week or 2 weeks or a month, and 
I don't want to permanently put the resources there. If we need 
Pashto translators in a particular place, we will push them in 
to resolve a particular threat, and then they will go back to 
their home station. So we want to be more flexible in sending 
the resources where they are needed across the country.
    In terms of ultimately where we will fall out as to what we 
need in terms of agent manpower to address terrorism, I do not 
know where we will be 3 months or 6 months down the road. What 
I need to see and make certain is that we are addressing every 
piece of information, every lead that potentially could lead us 
to preventing another terrorist attack, and each of the SACs, I 
believe, understands that.
    Senator Grassley. What about the jurisdiction part of my 
question? I don't think you touched on that.
    Mr. Mueller. I am always willing to look at the 
jurisdictional aspects of the FBI. In the course of looking at 
the programs that are going to be affected by the shift of 
resources, I have talked with the DEA, for instance, and we 
ought to eliminate in the narcotics arena those cases where we 
overlap, cartel cases with DEA, for instance.
    On the other hand, in particular parts of the country 
public corruption is intertwined with narcotics trafficking, 
and in my mind, we should not leave the field when it comes to 
public corruption that may be intertwined with narcotics 
trafficking.
    So what I have tried to do is look at particular areas and 
see what makes sense in terms of other agencies picking up the 
responsibility, but not leaving the field where we have 
particular priorities.
    Senator Grassley. Thank you.
    Chairman Leahy. At this point the vote has begun. We will 
recess and, when we come back, recognize Senator Kohl and then 
Senator Specter. This will give a chance for everybody to take 
a quick break. Thank you.
    We stand in recess.
    [Recess 11:11 to 11:41 a.m.]
    Chairman Leahy. I thank the Senators for coming back, and 
we are going to go to Senator Kohl. Just so you know, before we 
finish, Mr. Director, I am going to ask you a question about 
how the proposal of the President is going to make about a 
homeland defense agency, how that affects your jurisdiction. 
But, Senator Kohl, go ahead, please.

 STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE 
                          OF WISCONSIN

    Senator Kohl. Thank you. Director Mueller, the Washington 
Post this past Sunday ran a front-page story on the complete 
absence of pre-boarding screening for passengers on chartered 
aircraft. Today, anyone with a high enough credit limit can 
charter a 747, bring whomever they want on board, bring 
whatever they want on board, including weapons, and repeat the 
horrific events of September 11th.
    Now, after much, much prodding from my office, I understand 
that the Transportation Security Agency is about to issue a 
regulation requiring those passengers who charter very large 
aircraft over 95,000 pounds takeoff weight, or about the size 
of a DC-9, to undergo pre-boarding screening just as a 
passenger on a commercial airline would.
    Now, I am glad that they are considering taking at least 
this step, but I want to ask you a few questions about 
regulation of charter aircraft from the perspective of the 
administration official, which you say you are--and you are--
most responsible for preventing another terrorism attack on 
this Nation.
    Do you believe that we are at so little risk of a terrorist 
attack using a chartered aircraft as a weapon that we do not 
need any screening of chartered aircraft passengers and their 
carry-on luggage on chartered planes smaller than DC-9s? For 
example, a fully fueled 91,000-pound Gulfstream 5 has 
significantly more explosive power than the largest 
conventional bombs used today by the U.S. military. In other 
words, even under the new TSA regulations being proposed, we 
are making available to terrorists still a bomb bigger than 
anything that we dropped on Afghanistan.
    As the lead Government official in charge of preventing 
terrorism, are you prepared to make sure that this threat posed 
by chartered jets less than 95,000 pounds is addressed? I 
understand TSA writes these regulations, but I am asking you to 
take responsibility for this or to make a public statement if 
you cannot address the problem that the administration is 
keeping you from addressing this issue.
    Mr. Mueller. I can't say the latter because the 
administration certainly is not keeping me from addressing the 
issue, Senator. It is an issue that has been raised ever since 
the events of September 11th and discussions with Homeland 
Security. And I know the administration is concerned about and 
has undertaken steps to address that which would be a concern 
in the wake of what happened on September 11th, not only 
private jets or chartered jets but also other forms of jets 
that are shipping not passengers but merchandise or freight and 
the like. And there has been an ongoing discussion and efforts 
made to address the security concerns across the broadband of 
other aircraft that could be considered a risk.
    I am not familiar with the details. I am not familiar with 
the regulations for the Transportation----
    Senator Kohl. I appreciate what you are saying, and I want 
you to know that we have talked to Sen. Mineta, Mr. McGaw, Ms. 
Garvey, Sec. Rumsfeld, as well as the President, and we have 
not gotten a good answer. And you are not giving me a good 
answer.
    Now, you say that you and the FBI have a particular special 
responsibility today, and that is to prevent another terrorist 
attack. I am bringing to you a clear and present danger, which 
I do not think you would deny, that chartered aircraft today 
can be obtained by virtually anybody. They can board these 
aircraft without any screening.
    Now, I am sure you understand the implications of that. Are 
you prepared to say that you will address it? And if people in 
the administration just say bug off, you will announce that?
    Mr. Mueller. I absolutely am prepared to address it. I have 
in the past had discussions, not specifically addressing it, 
but, yes, I am prepared to address it, and I will follow up on 
it and will be back to your office.
    Senator Kohl. In the very near future?
    Mr. Mueller. Yes, sir.
    Senator Kohl. I do appreciate that.
    Mr. Mueller, the FBI has requested a tremendous increase in 
this budget and its staffing, as we know. You argue that the 
war on terrorism requires more and better equipped agents. For 
fiscal year 2003, the administration's proposal for the FBI 
budget is $4.3 billion. That is $700 to $800 million more than 
this fiscal year and more than double the FBI's budget from 10 
years ago.
    In terms of personnel, the FBI has almost 2,000 more 
authorized positions for fiscal year 2003 than this year and 
6,000 more than 10 years ago. And yet it appears that the FBI 
had information and enough resources at its disposal to 
possibly unravel the terrorist plot before September 11th. The 
Phoenix memo, the Minneapolis involvement, and the CIA's 
information were available, but the pieces were never put 
together in a way that might have prevented the attack. Had the 
FBI been totally alert and had the FBI used its current 
capabilities to the best of its ability, there was at least a 
very good chance that the terrorist plot could have been 
uncovered.
    Unless and until the resources that you have at your 
disposal are used effectively, I am sure you would agree it 
won't matter much how much money or how much personnel we throw 
at the problem. Instead, we will just be headed for a bigger 
bureaucracy that is by definition more unwieldy and less able 
to respond.
    Mr. Mueller, is money really the solution or even part of 
the solution to your problems? Aren't you worried that you will 
be spending so much time reorganizing and spending money that 
you won't use your current resources smarter but end up instead 
creating a more bloated bureaucracy?
    Mr. Mueller. Well, the request I have to Congress is to 
redirect resources, agents to address counterterrorism. And 
that is done after looking at our organization and how it could 
be better focused to address the problem at hand, number one.
    Secondly, the money that has been given to us in 
substantial part will address two of our problems--two of the 
problems that came to light in the events prior to September 
11th. Number one is technology. And, yes, we have not done a 
good job in the past taking the money that Congress has given 
to us and put it into the appropriate technology.
    I have brought in and am in the process of bringing in 
individuals from outside who will help us to utilize the moneys 
that Congress has given us to upgrade the technology in ways 
that actually will do it and accomplish what we need to do.
    Secondly, the analytical capability. I have a plan to 
upgrade our analytical capability. I briefed this Committee and 
Congress on the various aspects of that plan to upgrade our 
analytical capability. And I do believe that those are 
resources directed specifically at the problem we have to 
address, and it is incumbent upon me to get the analysts who 
are well educated, who are well trained, who have the various 
language skills, who have the background to do that analytical 
capability that we have not had in the past.
    What we have, we have excellent, superb investigators who 
do a terrific job in gathering the information and gathering 
the information so that it can be translated into further 
action. What we need is the analytical capability, the 
technological capability to maximize the capabilities of those 
agents that are out there doing the day-in, day-out 
investigations.
    Senator Kohl. All right. Well, as a follow-up to the 
question, in the final report after Ruby Ridge investigation of 
1995, one of the recommendations that this Committee made was 
the creation of an FBI civil oversight board. this group would 
act like the one that oversees the CIA and other intelligence 
organizations. The board would be appointed by the President 
and would be capable of objective criticism of the activities 
of Federal law enforcement and also receptive to external 
criticism. But it would be dedicated to strong and effective 
Federal law enforcement, obviously.
    Our concern then is the same that we have today. there is 
no way, Mr. Mueller, to measure the success or the failure of 
the FBI. And while we respect changes that you are making to 
the organization, we will likely not be able to objectively 
evaluate its performance. Can you comment on why an oversight 
board was never created and whether you believe one could be 
constructively created today?
    Mr. Mueller. This is the first I have heard about the 
possibility of an oversight board. I will tell you that I am 
bringing persons from the outside, from business, for instance, 
to bring in separate views. I have an individual named Wilson 
Lowry who I am bringing in from a long time with IBM who was 
with Lou Gerstner when he turned around IBM, who is coming in 
as a special assistant to help us get through the changes that 
we need to get through.
    I also have persons that I look to on the outside to give 
me a view, respected persons in the community, principally the 
intelligence community because this is the area where we need 
help as to what to do.
    I would be happy to consider the implications of some form 
of review board down the road.
    Senator Kohl. My time is up, but I would simply comment 
that you appear to be saying that having people take a look at 
what you are doing from another perspective more distant than 
the everyday involvement is not a bad idea.
    Mr. Mueller. I think it is a very good idea.
    Senator Kohl. And it might be a good thing for the FBI to 
have that kind of an oversight Committee or board to look to. 
Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Kohl.
    Going in the rotation, Senator Specter.

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

    Senator Specter. Thank you, Mr. Chairman.
    Thank you, Director Mueller, for coming in on a public 
hearing and making Agent Rowley available. I believe that the 
public hearings are indispensable if we are to have effective 
oversight. I think otherwise it is like a tree falling in the 
forest. If nobody hears it, there is no sound.
    When this Committee did oversight on Ruby Ridge in this 
room, I think it was very effective, and it is my hope that 
with the talents that we have on this Committee we can be of 
assistance to the FBI and the CIA.
    My own professional judgment is that it wasn't a matter of 
connecting the dots before 9/11. I think there was a virtual 
blueprint. I think had all of it been put together or leads 
followed that could have been put together, I think there was a 
distinct possibility of preventing 9/11.
    I want to cover with you four subjects. In the absence of 
an opening statement, I want to review a number of items and 
then ask you to comment after I have covered the four of them, 
because if we get into dialogue I will never get beyond one or 
two.
    The Rowley letter states that in determining probable 
cause, she was looking for a 51-percent likelihood that the 
U.S. Attorney's office was looking at 75 to 80 percent. Now, 
even a 51-percent standard is not correct. You don't have to 
have more likely than not or a preponderance of the evidence, 
and that was made explicit by Justice Rehnquist in Gates v. 
Illinois. So we have got to take a look at what is going on on 
these FISA applications as to whether you are looking for more 
than you have to.
    Then this letter from Agent Rowley refers to FBI 
Headquarters questioning whether this Zacarias Moussaoui was 
the same as the one that they knew about. Zacarias Moussaoui is 
not exactly a common name like John Smith. And when the 
Minneapolis office went back to Paris and had the phone books 
checked--they could only get the Paris book--there was only one 
in there. But according to Agent Rowley, there continued to be 
resistance.
    So what I think we have to do and pursue these in other 
hearings in detail is what is your Bureau looking for on 
probable cause. It seems to me you have a vastly inflated 
standard.
    Then there is the question of the Phoenix memorandum. When 
you appeared in this room on July 31st, you and I had an 
extensive discussion about what had been done in the past by 
way of oversight and the obligation for the Director to be 
forthcoming on oversight. And when that Phoenix memorandum was 
turned over to the Inspector General on September 28th--and I 
am going to give you a chance to comment on this in just a 
minute--I think it should have been turned over to this 
Committee. If we had known about the Phoenix memorandum, we 
could have made some pretty good suggestions to you.
    Now, the investigation wasn't finished until mid-December, 
and then it was turned over to the Intelligence Committees, but 
they didn't start to function until mid-February.
    Then we have the issue as to your interview yesterday 
published on the front page of the Washington Post today. And 
you are quoted here as saying, ``Our biggest problem is we have 
people we think are terrorists. They are supporters of Al-
Qaeda.'' And you are keeping them under surveillance.
    I am troubled by this for two reasons. One is putting 
people under surveillance is right up to the edge of 
problemsome. It isn't quite intimidation because you can 
conduct a really good surveillance without having people know 
about it. But it is troublesome to have surveillance unless 
there is really a good reason for doing so.
    And then when you say, ``We think these people are 
terrorists. They are supporters of Al-Qaeda,'' I am wondering 
if we ought not to take a look at a definition of prohibited 
conduct. Crimes are defined by the Congress, and if these 
people are really menaces and threats--and you say you don't 
have sufficient resources to follow them all, and I can 
understand that--we really ought to get the details from you as 
to what you are worried about. There is a lot of experience on 
this panel of ex-prosecutors, people who were investigators. We 
may need to define a different category of crime depending on 
what evidence you have.
    Then, Director Mueller, I am concerned about what goes on 
in your office with respect to how much you can keep track of. 
On the Sunday show ``Face the Nation,'' you were asked a 
question about a chart, whether there was some chart that was 
referred to in Newsweek, and this is what Newsweek said about 
it: ``To bolster their case, FBI officials have now prepared a 
detailed chart showing how agents could have uncovered the 
terrorist plot if they had learned about Almidhar and Alhazmi 
sooner. Given the frequent contacts with at least five of the 
other hijackers, there is no question we could have tied all 19 
hijackers together,'' the officials said.
    My staff called Mr. Michael Isikoff to ask him if there 
really was a chart and to ask him if we could see it. He 
declined, and that is his right. And I am going to take steps 
to see if the Committee would issue an invitation to see the 
chart. I am not talking about a subpoena. I am talking about a 
chart. But there are two things which trouble me here. One is: 
Was there a chart which showed a composite picture, as reported 
here? And, secondly, if there was one, I believe you, Director 
Mueller, when you say you didn't know about a chart. But is 
this kind of information getting through to you?
    Let me ask you for your comments, if I may, to start on the 
issue of why you didn't turn over the Phoenix memorandum to 
this Committee and why, when you had been asked about it, you 
never told the Committee that you had turned the memorandum--or 
the memorandum had been turned over to the Inspector General.
    Mr. Mueller. Well, my understanding from the early days was 
that Congress had determined that the Intelligence Committee 
was going to do the retrospective----
    Senator Specter. Well, that is not true. That is not true. 
It didn't happen until mid-February. This is an ongoing 
standing Committee. And we were emphatic on your confirmation 
hearings, and, of course, you and I discussed this privately. 
And you committed on the record to respect the oversight of 
this Committee on matters of importance. We didn't anticipate 
the Phoenix memo.
    Mr. Mueller. We did have that dialogue, Senator, and it is 
still in my mind. And my thoughts during that period of time, 
as I have said on a number of occasions, were directed at doing 
the investigation, trying to prevent the second wave of attack, 
in fact, if there was going to be a wave of attack, with the 
expectation that there would be a retrospective down the road 
and the expectation that we would turn everything over to that 
Committee.
    Senator Specter. I respect that and I agree with it. And I 
took a public position there ought not to be an inquiry 
immediately after 9/11 because the most important thing was to 
allow the intelligence agencies to regroup and stop another 
attack.
    But that doesn't go to the issue of turning over the 
Phoenix memo at least to the Chairman and ranking member. Had 
they seen it, had we seen it, we might have had some--we would 
have had some very good suggestions for you.
    Mr. Mueller. I understand, Senator.
    Senator Specter. How about the chart?
    Mr. Mueller. Well, with regard to the--my understanding at 
the time that I answered on the Sunday show, I did not know of 
a document that met that description. What I have come to find 
out is that there is a PowerPoint presentation that was 
prepared by an individual who had used the newer technology, 
the database-mining technology that we are now using, to show 
how, if we had had that database-mining technology in place at 
the time, we perhaps could have tied the individuals together.
    It is not a chart. It is a series of slides showing how 
this new technology would have worked.
    Senator Biden. Senator Specter, would you yield for a point 
of clarification? What did the Director mean when he said, ``I 
understand.'' You asked him a question. He said, ``I 
understand.'' I didn't know what the answer--what that means.
    Senator Specter. Well, I would be glad to answer that 
question for you, Senator Biden, but I will defer to the 
witness.
    Senator Biden. What do you mean by ``I understand''?
    Senator Specter. By the way, this is on his time, Mr. 
Chairman.
    Senator Biden. I am just curious what he means.
    Chairman Leahy. I intend to be----
    Mr. Mueller. In response to which question, Senator?
    Senator Biden. The question the Senator asked you is: Why 
did you not submit the memo to this Committee? He gave his 
explanation of what he thought the Committee would do, and you 
said, ``I understand.'' But I thought the question was: Why did 
you not submit this memo?
    Mr. Mueller. Because I believe that the retrospective would 
be done by the Intelligence Committee, and I thought I had 
indicated that.
    Chairman Leahy. Senator Specter?
    Senator Specter. Well, on that point, this is the oversight 
Committee of the FBI. You came here for confirmation. You made 
the commitments to this Committee, and they weren't constituted 
until mid-February. And one of the things which really troubles 
me is that we haven't had a look at this a lot sooner.
    But with respect to a slide, if it wasn't a chart--and I 
think they are indistinguishable, technically--is it true, as 
the report says here, that this detailed chart--strike 
``chart'' and put ``slide''--showing how agents could have 
uncovered the terrorist plot if they had put these pieces 
together, is that so?
    Mr. Mueller. I would have to go back and--it is a slide 
presentation. It is not one chart. It is a series of charts, as 
I understand it, that shows how the technology could have been 
used to associate these particular individuals together.
    Senator Specter. Okay. But the composite would have led you 
to a possibility of preventing 9/11?
    Mr. Mueller. I am not certain, Senator.
    Chairman Leahy. Well, if it might be helpful at all to the 
Committee, one of the things that we requested when we had our 
meeting with David Frasca--we have a list of things we 
requested. Number 11 on it is the JTTF chart or chronology or 
PowerPoint presentation. We have been told that parts of it are 
law enforcement-sensitive. My response is that it could be then 
looked at in closed session. In fact, I would be happy to do it 
and designate one member from this side, have Senator Hatch 
designate one member from his side. But I happen to agree with 
Senator Specter it is something we should look at.
    Senator Specter. Well, in conclusion, had the Foreign 
Intelligence Surveillance Act warrant been issued for Moussaoui 
and what we now know by 20/20 hindsight, it would have 
uncovered a wealth of information had that been done in August 
when Agent Rowley submitted it. And we have gone through these 
Foreign Intelligence Surveillance Act problems in detail on Wen 
Ho Lee. We have been on notice as to what went on. Attorney 
General Reno testified at great length about her turning down 
the Foreign Intelligence Surveillance Act warrant application. 
So we have been on notice as to what should have been done.
    Had that warrant been issued, the follow-up then on 
Moussaoui would have been a virtual gold mine. But the point is 
that all of this is prologue. What we all have to try to do is 
to see to it that the mechanism is now in place so that if you 
had this composite information, it could have been prevented.
    The media is always asking who is going to take the blame 
and who is going to be the fall guy. We have no interest in 
that. And this Committee is going to back you up, Director 
Mueller. Notwithstanding the fact that one prominent 
publication called for your resignation, we are going to back 
you up. You are just on the job, and we are not delighted with 
the number of things you have done, but you are the Director. 
And if we were to get a new Director, it would take weeks, 
confirmation a long time, and you are experienced. But we have 
got to put these pieces together.
    Thank you, Mr. Chairman.
    Mr. Mueller. I have tried to address, I believe, some of 
your concerns, Senator. For instance, on the FISAs, I agree 
that there are issues relating to FISAs. And as I indicated 
before, we have changed the procedure. I get briefed on the 
FISAs every day.
    We should look back to determine what there were in terms 
of problems, pre-existing 9/11. We are moving in a variety of 
ways to assure that we address those problems and that this 
does not happen again. And the proposal that I have before this 
Committee and before Congress as a whole is an effort to make 
certain that we better the FBI, give the FBI agents the tools 
they need, particularly in terms of pulling together the 
various pieces of information so that we do not--so that we can 
prevent any future attack.
    Senator Specter. I would like your comments in writing, 
Director Mueller, as to the standard 51 percent, 75 to 80 
percent, and I have already discussed with the Chairman the 
activity of pursuing this FISA matter, because we need to get 
down into the details of it and to lend the oversight and our 
own experience on these matters, which is considerable.
    Mr. Mueller. Thank you, Senator.
    Chairman Leahy. Thank you. I think on these questions of 
other Directors, the Director has the confidence of this 
Committee on both sides of the aisle. And we will continue 
asking the questions. This Committee has an oversight 
responsibility which we will carry out, entirely different than 
other Committees. It is unique and it is an obligation we have 
to the Senate, it is an obligation to the American people.
    The Senator from California, Senator Feinstein.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Mueller, I suspect there are times you wish you were on 
the West Coast, as I do.
    [Laughter.]
    Mr. Mueller. San Francisco was a lovely city.
    Senator Feinstein. This is a hard place.
    I want to just say a couple of things personally. I think 
you have come into a very hard job at a very hard time. I can't 
imagine a worse time. I have had occasion now to review your 
plans for reorganization, I think three times. I want you to 
know that I am here to support you. I do support you. I think 
your efforts to change the culture and the organization are 
very commendable.
    I may not agree with every specific, but that is 
irrelevant. I want to see that the American people are 
protected, obviously, consonant with our civil liberties. And I 
was very heartened to hear what you had to say along those 
lines.
    I also want to thank the Chairman because I think he is 
exercising the oversight, and I have been reading some of the 
testimony that goes back to the 1970s when there was real 
reason to be concerned. There wasn't the level of oversight 
that there is today. There wasn't the level of press inquiry 
that there is today. We held an oversight hearing I think less 
than a month ago, thanks to the Chairman, and this may be a bit 
rugged on you, but I think it carries out our responsibilities.
    I would like to ask for an answer to my letter that I wrote 
to you on May 7th with a substantial number of questions having 
to do with the Phoenix memo. I have not gotten that answer yet.
    Mr. Mueller. I thought that had come up last night or would 
be there with you today.
    It is going through a final review. It should be up there 
today or tomorrow.
    Senator Feinstein. Thank you very much. I will look forward 
to that.
    I wanted to concentrate my questions in two areas. One is 
the FISA procedure, and the second is regional authority versus 
flying squad. Let me take the FISA area.
    It has come to my attention that in at least one major case 
that I won't specify, the warrant never left the FBI. It never 
went to the Department of Justice. It never went to the OIPR 
where the attorneys are. I have read Mr. Freeh's memo of April 
the 15th which changed the FISA process, I think based on 
problems that prior FISA warrant requests had that were 
egregious, let me say, and so he wrote a memorandum that was 
very complicated, very difficult, I think, to carry out.
    There are different impressions of what you intend with 
respect to the FISA process. One is that applications would be 
automatically routed to Dale Watson and to you for further 
review and consideration. I would like you to lay out for this 
oversight Committee the specific process that you are going to 
use with respect to the processing of a FISA warrant.
    Mr. Mueller. Well, let me just go back to what they call, I 
think, the Woods changes that are reflected, I believe--and I 
am not certain of the date, but Mr. Freeh's memorandum--that 
relate to assuring the accuracy of the document that is going 
to be presented to the court. And the difficulty we have here 
is we have got one FISA court situated in Washington, but the 
persons who are drafting the affidavits and have the 
information from the investigations are out in the field. And 
so that is appropriate to assure that there is a certification 
from the agent in the field as to the accuracy of the document 
before it goes to the court.
    With regard to the FISA process, what we have done since 
relatively shortly after September 11th, whenever there are 
issues relating to FISAs relating to terrorism, that are on 
terrorism, I get briefed on that every morning. I have given 
directions to Pat D'Amuro, who I put in charge of the 
Counterterrorism Division, that if there is an issue there of 
turning down a FISA and not sending it across the street, then 
I want to be involved in the decisionmaking process.
    Senator Feinstein. Stop. By across the street, do you mean 
to the Department of Justice?
    Mr. Mueller. Department of Justice, yes.
    Senator Feinstein. To OIPR?
    Mr. Mueller. OIPR.
    Senator Feinstein. Will every FISA warrant go to the OIPR?
    Mr. Mueller. If we believe that we have met the criteria of 
probable cause, yes. But what----
    Senator Feinstein. And you will assess that personally in 
every warrant?
    Mr. Mueller. No, most of them go through. If there is one 
in which the field says we believe you have probable cause, and 
somebody at Headquarters is saying, no, I do not think you do, 
then I will be involved in that discussion. And the way I am 
currently alerted to that discussion is I have in my briefing 
book every day a piece of paper that gives me the status of 
those FISAs that are related to terrorism. And there are 
occasions where I have seen that there has been a hang-up for 
some reason or another, and I have given direction to let's get 
beyond that, do this investigation. There are other cases in 
which in the course of the daily briefing I will say we ought 
to go FISA on this, not criminal.
    And so, to the extent that the FISA process is perceived to 
have been held up by persons at the unit or section chief 
level, I want to make certain that that is not the case and 
that it gets the high-level review in those particular 
instances where it is appropriate.
    Senator Feinstein. Stop here for just a second. To what 
extent would foreign intelligence be incorporated in the 
warrant?
    Mr. Mueller. To the extent that we have information from 
the CIA, or some other agency, it should be incorporated in the 
warrant. There are no prohibitions to us using that, and more 
than often we use that kind of information.
    What I have to do a better job at is integrating our 
information with information at the CIA so that we have that 
information to put it into that FISA application to get that 
warrant.
    Senator Feinstein. Well, this is an important point. So 
what you are saying is that if there is foreign intelligence 
connecting an individual, let us say to al Qaeda, that should 
be included in the FISA warrant for probable cause?
    Mr. Mueller. Absolutely, absolutely, absolutely.
    Senator Feinstein. Because there are instances where I 
understand it has not been?
    Mr. Mueller. There may well be, but it should be. To the 
extent any piece of--regardless of where that piece of 
information resides, whichever agency, and it could be, as you 
well know, there are a number of separate intelligence agencies 
in the Government. I do not care where it is, it should be 
utilized where appropriate to provide the basis for obtaining 
the FISA warrant.
    Senator Feinstein. So just quickly go back, so you will 
receive notice of every warrant. If the warrant is normally 
being processed, it will go to OIPR, and if it is not, you will 
personally review it; is that----
    Mr. Mueller. If there is a dispute as to whether or not 
there is probable cause. What often happens in this case is you 
will have somebody who is familiar with the FISA Court talking 
with the agent who is drafting it and saying, ``Look, we need a 
little bit more here, we need a little bit more there.'' There 
are occasions, since September 11th where there has been 
somewhat of a dispute as to whether or not we had enough, and 
those are the occasions when I will weigh in and push it 
forward. And to the extent it is necessary to discuss it with 
OIPR I or persons close to me have had those discussions also.
    Senator Feinstein. Right. Now, as one who sat through both 
the Waco and the Ruby Ridge hearings here, I think it may well 
be that a false impression was given, and that is that because 
we were concerned, or some of us were concerned in the instance 
of a major event such as Ruby Ridge or Waco, the central 
administration did not take sufficient responsibility, but too 
much was placed on the SAC, and I have felt as I have watched 
this since that time, that that may well have had a chilling 
effect on regional offices' enthusiasm to move ahead in a 
vigorous way in certain cases.
    Having said that, I would be interested if you would spell 
out where your flying squad makes some of these determinations 
as to when an investigation would ensue and how much authority 
the regional head has in your 56 offices to really now say, 
``Okay, we have got this information about so-and-so. It is 
time we take a good look.'' You know, assign people and go 
ahead and take that look.
    Mr. Mueller. Let me talk about two things. In terms of the 
role of Headquarters versus the field in counterterrorism, we 
are an agency that has been built up with 56 separate field 
offices addressing crimes that from the beginning have 
generally been generated out of the conditions in a particular 
city or a state. When you look at the war on terrorism, we have 
to protect the Nation. We have to take pieces of information 
from Boston or Florida or San Francisco, and utilize those 
pieces of information in a predictive way, and there has got to 
be somebody accountable for getting that information together 
and then taking action on it, and it cannot be the SAC of a 
particular office. And so Headquarters has to have a management 
and supervision role to assure that the national program is 
maintained and that we are, as they say, tying the dots 
together.
    The flying squads will be individuals at Headquarters who 
develop an expertise in say, al Qaeda, and if you have a case 
such as Richard Reid up in Boston--you will recall he is the 
individual who was on the plane from Paris to Miami and had 
explosives in his shoes, and the very vigilant flight attendant 
saw it, and he was arrested and taken to Boston. Well, that 
particular case has information in it relating to al Qaeda with 
regard to Reid. They are putting together the facts for that 
particular case, and the flying squads, had I had them in 
place, would have had maybe two individuals that would go up 
and support that prosecution, that further investigation. They 
would bring expertise to the field. They would be under the 
control and reporting to the Special Agent-in-Charge, who is in 
charge of that particular investigation. And once the Reid 
prosecution or investigation is over, they would bring back to 
Headquarters that expertise, that experience that they learned 
there. So it is to supplement, on the one hand, the agents in 
the field doing the job they do in terms of their 
investigations, and on the other hand be a resource for the 
field in terms of expertise that can be made available to the 
field.
    Senator Feinstein. Does the Agent-in-Charge have to have 
Washington approval to institute one of these terrorist 
investigations?
    Mr. Mueller. Prior to the change in the guidelines of last 
week, yes. The change to the guidelines last week give the 
authority to the Special Agent-in-Charge to initiate the 
investigation. There is a reporting requirement. It has to be 
reported back, so that we know what particular investigation is 
being initiated and we can put investigation in Boston together 
with perhaps an investigation in San Francisco or Los Angeles.
    Senator Feinstein. Thanks, Mr. Mueller. My time is up.
    Thanks, The Chairman.
    Senator Biden. [Presiding] Senator Kyl.

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

    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Fine and Director Mueller, thank you very much for 
being here today.
    Mr. Fine, I am sorry you have not been afforded the 
opportunity the say much beyond your opening statement, but I 
appreciate your being here.
    Director Mueller, you have spent a lot of time with us in 
the last two or three weeks. We are asking you to help us fight 
the war on terror. We are also trying to get a lot of 
information from you, and I appreciate--you are probably 
burning the candle at both ends, and I very much appreciate 
both what you do and what the dedicated people at the FBI do.
    I want to give you an opportunity to clarify something and 
perhaps add a little bit to it myself, relating to the 
Chairman's opening statement in which he questioned the 
restructuring that you announced, the restructuring of the FBI 
and related changes in the FBI.
    It seems to me that that kind of criticism is inconsistent 
at best, and I would like to set the record straight to the 
extent I can. On the one hand people tend to criticize the FBI 
for not acting or not acting quickly enough to correct 
deficiencies that you found when you came on board roughly a 
week before September 11th. And then on the other hand you get 
criticized for initiating the reforms. Sometimes it is not 
actually criticism, as the Chairman said. He said, ``Maybe 
these reforms are right. They may be right. But the process was 
wrong because we were not consulted, we the Congress. Senators 
love to be consulted.''
    Now it seems to me there are two things wrong with that. 
First is we were consulted. I counted up how many hours I spent 
with you two weeks ago that you had to spend up here, on 
Tuesday, Wednesday and Thursday afternoon. It was over 11 hours 
that I spent and I left a couple of those meetings early. You 
had to be there for the entire time. As a member of the 
Intelligence Committee, then the next day the Judiciary 
Committee, and then the next day you afforded the opportunity 
for all Senators to brief you and ask you any questions--excuse 
me--for you to brief them on these restructuring changes and 
ask any questions. Somebody said, ``How much time do you 
have?'' You responded, ``I have all the time you need.'' And 
after about 2-1/2 hours, as I said, I left the meeting, you 
were still there. It was beginning to wind down, but everybody 
had a full opportunity to ask questions. And then there was the 
actual announcement.
    Now, you also said that you did not want to announce the 
changes at that time because you wanted to consult with the 
appropriators, and I have verified you did in fact consult, 
both with House and Senate appropriators. So I think the first 
point is that there has been a full opportunity for members of 
the Senate to talk to you about these recommendations that you 
told us about two weeks ago. And secondly, it does not seem to 
me that when you talk about restructuring the FBI and 
reassigning the agents and creating this team that you just 
talked about and making other internal changes, that this is 
the stuff of legislation. For us to be micromanaging it is 
rather the stuff of management that we expect you to do. We 
have an oversight role, but not a micro management role, and I 
do not think we can ask you to expeditiously reform the agency 
on one hand and at the same time be upset that you do not tell 
us everything you are going to do far in advance or seek our 
preapproval of it.
    And I want to conclude this point by saying that if you 
did, I would object anyway because has a sorry record in this 
regard. It is understandable because there are a hundred of us. 
There is one of you, although you have got a big agency to get 
your arms around. But for years--and I have the record here--I 
chaired this Terrorism Subcommittee, and Senator Feinstein was 
my ranking member; she is now Chairman--I count over 20 
hearings that we held on the subject of terrorism going back to 
1997, and we had your predecessor, Louis Freeh, testify on at 
least two or three of those occasions. He asked us over and 
over again for authority, that Senator Feinstein and I put in 
amendments and in legislation, and amendments to the CJS 
appropriations bill. Could we get our colleagues to pass it? 
No. After September 11th, miraculously everybody was the parent 
of these wonderful ideas and is now taking credit. Fine. But it 
takes something like September 11th, unfortunately, to get a 
cumbersome body like Congress, frequently, to act when it is 
the least bit controversial. And some of these things were 
controversial because civil liberties groups and others were 
concerned about whether or not they went too far. Well, after 
September 11th, we realized we had not gone far enough.
    So, I frankly, without going into more detail, want to 
compliment you for acting, and in the brief amount of time I 
may have left, ask you two questions.
    One, I would like to specifically elicit your views--and if 
you would pass this on to the Attorney General, his views, 
about the legislation that Senator Schumer and I introduced 
yesterday that would make one small but very important 
amendment to the FISA warrant definition of ``foreign agent'' 
the solve the problem that you have identified, that a lone 
actor out there, a person that you cannot necessarily tie down 
as a member of the al Qaeda organization or Hezbollah or some 
other group, or working directly on behalf of a specific 
foreign government. All you would have to do is prove that that 
person was a foreign individual and you have probable cause to 
believe that they are involved in terrorism.
    If you want to comment any further on that right now, fine. 
Otherwise, I would very much like to get the Department of 
Justice's and the FBI's recommendations with respect to whether 
we should proceed with that legislation.
    Mr. Mueller. I understand it was put in maybe yesterday or 
the day before?
    Senator Kyl. Yes.
    Mr. Mueller. And as I indicated before, this is a problem, 
and we are looking for solutions to address this problem and I 
know the Department will have the formal opinion on that, but 
we are looking for a solution for this problem.
    Senator Kyl. Great. I appreciate that. I would also like to 
raise one other point. I am very concerned about leaks and the 
effect that they may have on your work and the work of your 
agents. When we had Agent Williams here a couple of weeks ago 
and talked about the Phoenix memo, there was some discussion in 
any event about the effect of the leaking of that particular 
memorandum on possible investigations, and without getting into 
details that themselves would compromise investigations, I 
would like to have you at least remind us of the problems that 
can be created in ongoing investigations when material like 
that is leaked.
    Mr. Mueller. Well, it has an adverse effect on the 
investigation from the perspective of informants, persons 
willing to come forward. It may well alert subjects of the 
investigation to scrutiny. Although names are not mentioned, 
there may be other identifying data that is released that may 
put the person on alert that the Government is looking at them. 
And consequently that type of information, if out in the 
public, could undercut and adversely affect the ability to do 
the job.
    Senator Kyl. I just urge my colleagues, as part of the 
Intelligence Committee investigation and also to the extent 
that this Judiciary Committee has oversight of the FBI and the 
Department of Justice, that we have an obligation not to make 
your job or the CIA's or other intelligence agencies' jobs more 
difficult.
    Finally, in some of those sessions we also heard from 
agents in the field that even some of the reforms that we had 
instituted in the USA PATRIOT Act, while very well meaning and 
very helpful, were not necessarily working out exactly as we 
had hoped, and that there may be a need to--and I think the 
word was to--tweak some of those changes or some of those 
reforms, so that now that you have or your agents have 
experience with them in the field and know exactly how they are 
working or not working, that we will have a chance to make some 
additional changes.
    And I would simply ask that as a part of your internal 
reorganization process and so on, that you elicit views of 
those in the field and come up recommendations that might be 
useful to you, present them. I think this is the proper 
Committee to present them to, and I know that Chairman and 
others on the Committee will then want to perhaps hold 
hearings, but in other ways act expeditiously to try to effect 
those additional reforms. Can you do that as well?
    Mr. Mueller. Yes. We are looking at ways to tweak the 
PATRIOT Act. The PATRIOT Act has been exceptionally helpful 
already, but there are areas in which we think the provisions 
of that act could be tweaked to assist us.
    Senator Kyl. I might just add in closing that I think it 
was the CIA Director who testified that with respect to our 
laws and our procedures and the methodology that intelligence 
and law enforcement agencies interested United States use, and 
his words were, the terrorists have gone to school on us. What 
do you take his description there to mean?
    Mr. Mueller. The terrorists that we deal with are--many of 
them spent time in the United States. They understand our 
freedoms. They understand our liberties. And they are not at 
all unwilling to utilize that knowledge to their benefit. They 
have gone to school on not only what they have learned in the 
United States, what they pick up on our newspapers, what they 
pick up on the Internet, and are skilled at identifying 
loopholes and ways that they could operate more effectively and 
efficiently. And to the extent that we publicize how we do 
things, it feeds the information that they have to enable them, 
or better enable them to launch attacks against us.
    Senator Kyl. And I just make the final point, Mr. Chairman, 
that while it is important for the American people to 
understand generally how we work and it is also important to 
protect some of the ways in which our law enforcement and 
intelligence agencies work, so that we do not signal to those 
who would do us harm, every way in which we may try to thwart 
them. We have to have some capabilities that they simply are 
not aware of, or they are smart enough to figure out ways to 
get around it.
    Again, Mr. Chairman, I want to thank both of our witnesses 
here and particularly the good people at the FBI for all the 
hard work they are doing.
    Thank you, sir.
    Chairman Leahy. Thank you. While Senator Kyl is still here, 
he apparently made a comment while I was out of the room, 
suggested I was critical of you, Director Mueller, for not 
consulting with Congress on your reorganization. He perhaps did 
not have a chance to hear my opening statement in which I 
praised for consulting with both Republicans and Democrats 
about your efforts at reorganization and praised what you have 
done on your efforts for reorganization, as I have on the floor 
of the Senate and as I have to the press on numerous occasions. 
I did express, of course, the fact that I was surprised at the 
new revised guidelines of the Attorney General, basically 
quoting what the Republican Chairman of the House Judiciary 
Committee, Congressman Sensenbrenner said, that he was 
surprised at the lack of consultation on those guidelines, that 
he had heard of them only two hours before they were announced. 
I have yet to have any consultation on them, although I have 
read the 100 pages in the website.
    But just so the Senator from Arizona--and I am sure he did 
not want to misstate my position--but I will restate it. As I 
said earlier in the hearing, I commend the Director, as both 
Senator Hatch and I did in our opening statements for his 
consulting with us, and expressed my support of the 
reorganization plan and our intention to work with him to help 
implement it.
    Senator Kyl. I appreciate the Chairman's clarification.
    Chairman Leahy. I knew you would.
    Senator Feingold.

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

    Senator Feingold. Mr. Chairman, let me first thank you for 
your leadership and for holding the hearing on these important 
issues, and Director Mueller, Mr. Fine, welcome and thank you 
for joining us here today.
    Before I get into my questions, Mr. Chairman, I do want to 
express my deep concern about something you have mentioned: the 
revised Attorney General guidelines that expand the FBI's 
domestic surveillance authority. I fear what these revised 
guidelines might mean for law-abiding citizens who rightfully 
expect privacy in their daily lives and in their political 
associations.
    One sad chapter in our country's history, unfortunately, is 
the period when certain groups were unconstitutionally targeted 
for surveillance by investigators because of their race or 
because they held certain political views. I do not want the 
history of our present day to note that our citizens' basic 
rights of political expression were chilled by their 
government.
    The Judiciary Committee has a critical responsibility to 
exercise oversight of the Justice Department's activities, 
especially when these activities implicate fundamental freedoms 
guaranteed by our Constitution. So, Mr. Chairman, I urge this 
Committee to hold separate hearings on these revised guidelines 
once we have had more time to analyze the changes and assess 
their effect.
    Director Mueller, I am not going to spend all of my time on 
the guidelines, but I do want to clarify a couple of things. 
You were asked earlier today in a question from Senator Leahy 
about this, and I am not sure I understood your answer. Did you 
personally review and approve the revised guidelines before 
they were announced by the Attorney General?
    Mr. Mueller. I am not certain that there was any approval 
process, formal approval process. I know I was kept apprised of 
the ongoing discussions leading to the finalization of these 
guidelines.
    Senator Feingold. Did you personally review them?
    Mr. Mueller. I reviewed--well, I had discussions with 
persons in the Bureau who were involved in that process. Did I 
actually take and look at the guidelines before they were 
announced? No, but I had known and been briefed on the changes 
in the guidelines.
    Senator Feingold. With regard to the issue of the 
guidelines, is it not true that under the FBI's separate 
guidelines for foreign intelligence and international terrorism 
investigations, which have not yet been modified, that this 
kind of surveillance of, let us say, political meetings or 
religious services, can be done without a suspicion of criminal 
activity?
    Mr. Mueller. I would have to check. Off the top of my head, 
I have not looked at that and am not that familiar with that 
portion of those guidelines.
    Senator Feingold. Well, is there any evidence that the 
previous guidelines for domestic surveillance, with the 
restrictions that have now been lifted, inhibited the FBI 
investigation that might have prevented the September 11 
attacks?
    Mr. Mueller. I am aware of anecdotal evidence with regard 
to, say, using websites, for instance, using the databases that 
we would have liked to have used previously, yes. The one thing 
I want to make clear is that my understanding of the previous 
guidelines required certain predication for initiating a 
certain series of steps that agents were allowed to undertake. 
It never said you could not go into a public place, but it was 
read to mean you could not go into a public place because there 
was not specific authority given----
    Senator Feingold. Well, I am not sure about that, because 
what I am trying to point out here is that the FBI had 
authority in investigating international terrorism to do this 
kind of surveillance, as I understand it, under the current law 
and current procedure. So I do not understand why this 
additional----
    Mr. Mueller. This is a separate set of----
    Senator Feingold.--guideline is needed.
    Mr. Mueller.--separate set of guidelines that address the--
and the interaction of the two guidelines, I am not certain it 
is always the same, but these guidelines, the ones that were 
changed, the general criminal guidelines, did not have the same 
provisions as the international guidelines.
    Senator Feingold. What I am suggesting, though, is that the 
international ones did give you sufficient authority to do what 
you wanted to do here, and I am not sure what is the basis or 
predicate for these new domestic guidelines, but I will be 
happy to follow up with you on that.
    Mr. Mueller. I will have to go back and look at that.
    Senator Feingold. Director, we have talked a little bit 
today about the fact that the administration asked for and 
Congress passed the USA PATRIOT Act last fall. The Justice 
Department told Congress at that time that it needed more 
expansive powers to conduct surveillance and wire taps and 
other searches and seizures in order to protect our nation from 
future terrorist attack, and I do recognize that we live in a 
different world with different threats. Nonetheless, I voted 
against the so-called PATRIOT Act because I thought it went too 
far.
    Now, as we have heard today, the Justice Department seeks 
to expand the FBI's ability to conduct investigations and 
surveillance even more as set forth in these Attorney General 
guidelines that we are talking about. But, I think Congress is 
first entitled to know how the extra powers already granted to 
the Department and the FBI have been utilized. Senator Kyl 
questioned you about it, and you indicated it had been quite 
useful.
    I would like you to tell us, Director Mueller, how the FBI 
has used the new powers granted by the PATRIOT Act. For 
example, how many wire taps have been authorized? How many 
requests to seize records have been approved and executed?
    Mr. Mueller. Off the top of my head, I do not have those 
figures. We can get you those figures.
    I can tell you that there are two provisions that have been 
exceptionally useful. One is the changing of the language for 
the FISA from having to show a primary purpose, that the 
investigation or the request for the FISA was for the primary 
purpose of a foreign intelligence goal, to a significant 
purpose. That has enabled us to utilize the FISA capability in 
ways that we had not been able to use it before.
    The second area that I think has been helpful is removing 
the bar to the CIA obtaining grand jury testimony and testimony 
that may have arisen out of a grand jury proceeding that in the 
past had been--we had been barred from providing to the CIA. 
Those two provisions have helped us, I believe, tremendously.
    Senator Feingold. I am intrigued by that answer, and I 
thank you for that, but that second provision you mentioned I 
do not think raised a lot of concerns among civil libertarians. 
What I will be especially interested in is to what extent the 
more controversial provisions have provided any benefits.
    So I would ask you and the Department to provide the 
Congress with a full and comprehensive report about the use of 
the powers granted by the PATRIOT Act. I think we are entitled 
to that in any event, but when you are asking for more powers, 
surely we have a right to know what has been done with the new 
powers. An important way to ensure that a proper balance is 
struck between civil liberties and national security is 
obviously to monitor and review these powers, and I really feel 
we need this before some of these further powers can be 
examined.
    I would like to continue my questioning by turning to the 
subject of the FBI's performance prior to September 11 and how 
it handled the Phoenix memo. I have been very troubled to hear 
some of my colleagues and Justice Department officials quoted 
in the press saying that they believe concerns of being accused 
of racial profiling led the FBI to not act on the Phoenix memo. 
I think it is a distortion to say that acting on the memo would 
have resulted in racial profiling. That memo contains specific 
information about specific individuals.
    I think there has been a serious misunderstanding of racial 
profiling and what it means. Indeed, I think these claims may 
very well be a distortion, maybe even a deliberate distortion, 
to distract attention from real mistakes or to cast aspersions 
on responsible and still necessary efforts to eliminate racial 
profiling in our country, which both the President and the 
Attorney General have said is illegal or should be made clearly 
illegal. Under any version of a ban on racial profiling, when 
law enforcement has legitimate reason to believe that specific 
individuals may commit a criminal act, obviously, law 
enforcement may take whatever action is necessary.
    Director Mueller, you do not believe that concerns about 
being accused of racial profiling were a fact on in the failure 
to act on the Phoenix memo pre-9/11 or to connect it to the 
Moussaoui investigation, do you?
    Mr. Mueller. I have seen one indication that a person who 
was involved in the process articulated that as a possible 
concern.
    Senator Feingold. Do you think that was a legitimate 
reaction by that person?
    Mr. Mueller. I am not going to second-guess because I 
cannot put myself in that context. All I can say is that that 
person said that it may be--it was a concern to that 
individual.
    Senator Feingold. Well, I am troubled to hear that and I 
was hoping for a different answer. I was hoping for you to say 
that, clearly, what was needed there was not some sort of an 
exception from a rule against racial profiling. Do you believe 
that having FBI agents contact flight schools and ask whether 
any students had exhibited suspicious behavior, for example, 
maybe they expressed interest in flying but no interest in 
take-offs or landings----
    Mr. Mueller. No.
    Senator Feingold.--is racial profiling?
    Mr. Mueller. No. No.
    Senator Feingold. Well, this is a critical----
    Mr. Mueller. No, I am not. All I am saying, Senator, is 
that there was one person who had articulated that. Do I 
believe that--if the question is, do I believe that that was a 
valid concern, no.
    Senator Feingold. Good. That is what I wanted to hear and I 
think it is critical for you and for the Attorney General and 
everyone else to make it clear. What we can gain out of this 
whole disaster is a clear understanding of what is the 
difference between racial profiling, using a criterion like 
that as the only or main criterion, versus the very legitimate 
and important work that you are trying to do to follow up 
legitimate leads. Even though some people want to make 9/11 the 
excuse to not deal with racial profiling, I am hoping that the 
opposite will occur--that the public and all law enforcement 
people will come to realize that there is a big difference 
between illegitimate racial profiling and following up on 
legitimate leads. I appreciate your final answer there, because 
we need to fend off these claims that the inability to engage 
in racial profiling somehow had anything significant to do with 
what happened on 9/11. I thank you very much.
    Chairman Leahy. Is that all?
    Senator Feingold. Is there time left? I thought I saw a red 
light there.
    Chairman Leahy. You did.
    Senator Feingold. I would love more.
    Chairman Leahy. The problem is, you would think sitting 
this close to the dais, you could see them, but the way the 
lights are there, it is almost impossible. I do appreciate 
members who have tried to stay, at least by Senate standards, 
within the time.
    Senator DeWine?

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Director, thank you for staying with us through this 
long testimony today. This Committee will have the opportunity 
in an hour or so to hear Agent Rowley testify, and we have 
already had the chance to read a redacted portion of his letter 
and also to read her testimony. I would like to make a couple 
of comments about that and then I would like to ask you a 
couple of questions about that.
    One of the issues that I think we really cannot get into 
today is the whole issue of probable cause as far as the facts. 
That is just not something that we can explore as thoroughly as 
it would need to be explored to make any determination, whether 
each one of us in our own mind thought there was probable cause 
there. But I would like to make a comment.
    It seems to me that all the decisions, or the decisions 
that are made in regard to probable cause at the FBI, at the 
Justice Department, ultimately come back to two things. One is 
the statute, but then, also, how that statute is interpreted by 
the FISA court.
    I remember when I was a county prosecutor that the police 
would come in and want a search warrant. We were not dealing 
with anything of any magnitude such as this, but we were 
dealing with what we thought were important things. And I would 
tell them ``Judge So-and-So will not accept it,'' and that was 
my answer. That is not enough. I was guided by the 
Constitution, but I was also, frankly, guided by what I knew 
the judge I dealt with everyday would accept or would not 
accept.
    I just think that something that we need to keep in mind as 
we judge whether or not there is probable cause here, is that 
it is important for us at some point to look at how the FISA 
law is actually being interpreted and, therefore, what impact 
it has on the people at the FBI and how Agent Rowley's, the 
people who she has to kick it up the line to.
    While we are talking about FISA, let me also make a 
comment, if I could, and ask for your brief comment about 
something else, and that is Senator Kyl and Senator Schumer's 
bill which would change the FISA law. There is an interesting 
article in, I believe, today's Wall Street Journal that quotes 
Philip Heymann, who served as President Clinton's Deputy 
Attorney General. He said that that legislation does not go far 
enough and he is quoted as saying that the authorities should 
be able to monitor non-U.S. persons based on a reasonable 
suspicion that they are engaged in terrorism, not the higher 
probable cause standard, as the amendment proposes.
    I think that is something that we at least ought to look 
at. We are not dealing with U.S. citizens. We are not dealing 
with legal aliens. We are dealing with non-U.S. persons and it 
seems to me that if we had reasonable suspicion that they were 
engaged in terrorism or about to be engaged in terrorism, most 
Americans, I think, would think that we should grant that 
search warrant.
    I do not know if you want to comment on that or not. If you 
want to just pass, I will accept either answer.
    Mr. Mueller. I think it is something we definitely ought to 
look at with the Department and evaluate whether this is the 
proposal that we should back.
    Senator DeWine. I will accept that answer and I think it is 
something that we ought to at least look at. I think we need to 
understand how FISA really works in the real world. We also 
need to understand exactly or have a debate about where we 
think we should be, what we should be doing in the world we 
live in today in regard, not to U.S. citizens, but in regard to 
people who are not U.S. citizens and people who are not legal 
U.S. aliens.
    Let me move to another portion of Agent Rowley's letter, 
though, which I find to be the most important, and I think most 
interesting. I suspect that this letter, this testimony could 
have been written by thousands of FBI agents because, really, 
there is a tremendous amount of frustration there about the 
bureaucracy that the individual agent has to deal with.
    You inherited a great organization, but also a great 
bureaucracy, and with that comes all the problems of a very 
entrenched bureaucracy. And as you try to reshape this 
bureaucracy into a lean machine that can go after the 
terrorists, to me, that is your biggest challenge. Agent Rowley 
is very specific. She talks about, and again, I think this 
could have been written by any number of your 11,000 agents: 
administration--lift some of the administrative burden from the 
line field supervisor; culture--transition from a risk-averse 
to a proactive atmosphere by changing our evaluation process; 
inspection--performance evaluation; technology--something you 
and I have talked about many, many times--continued technology 
upgrades, integration projects. And it goes on and on and on.
    To me, your biggest challenge is how you are going to do 
that. I am going to give you a chance to answer, but let me ask 
you two other related questions, and they are related.
    That is, how are you going to carry out what you have 
stated as one of your objectives--to encourage and reward 
people who deal with counterterrorism, people who go into the 
FBI, who work counterterrorism every day. How does that become 
the thing that is rewarded just as much as somebody else who is 
not doing counterterrorism?
    And how do you reward those who are involved in internal 
security? The reports that I have read, the people who I have 
talked to have indicated to me that internal security within 
the FBI has been looked at, frankly, as something that is maybe 
important, but that is not how you advance. That is not how you 
move up the line. How do you emphasize those two things and how 
do you deal with the culture problem?
    Mr. Mueller. Let me start with the last two and then go to 
the former, and that is counterterrorism, counterintelligence. 
You start with new agents, explaining with the new agents what 
the mission of the Bureau is and what the two priorities of the 
Bureau are, number one, counterterrorism, number two, 
counterintelligence, and you include it starting with the new 
agents, promoting persons up in the ranks who have had the 
experience in counterintelligence and counterterrorism is 
critically important to turning that around. Finally, the third 
thing is put leaders in charge of those particular divisions 
who are dynamic, who can explain how important the work is and 
how interesting the work is.
    And as to the last, I have got leaders now in the 
Counterintelligence and Counterterrorism Sections that I think 
are dynamic, that people will look to as leaders in the future 
and will also, at the same time, understand that this is the 
critical mission of the Bureau. The Bureau has been terrific. 
Once you say, this is the hill, we have got to go take it, the 
agents have been terrific in lining behind that particular 
mission as articulated and getting the job done. They did it in 
the wake of September 11. They will do it in terms of the 
prevention side.
    The bureaucracy is frustrating.
    Senator DeWine. Your agents are frustrated. That is what I 
see. They are frustrated and there are so many good people out 
there who are doing so many good things, and that is what----
    Mr. Mueller. I am as frustrated often as they are. Part of 
it is the technology. We have not had the improvement in 
technology that allows us the horizontal information sharing. 
When I sign off on a memo, there are a bunch of people, there 
are eight people that sign off before me. It is a paper-driven 
organization that has established regimens that we have to look 
at from top to bottom, but we have to do it in the context of 
the new technology.
    I will give you an example of--there are things that occur 
that persuade people they do not want to be supervisors. One is 
doing file reviews. We do file reviews now. An agent has 100 
files. Somebody goes and pulls those 100 files down, puts them 
on a desk, and you go through that file one by one and put in 
notations. Why would one want to be a supervisor when you have 
that kind of paperwork to do, when you have the computer 
capability and capacity to do it on a screen in ten minutes?
    So much of it is tied in with the new technology, but with 
the new technology has to come new procedures, new lessening of 
the bureaucratic approvals and a view of doing things quickly, 
expedited, getting the job done with the assistance of the 
technology.
    When you look at the relationship between Headquarters and 
the field, it is critically important in counterterrorism and 
counterintelligence, in my mind, to have persons that are 
respected at Headquarters who are heading up those particular 
divisions--it is true in criminal also--so that when people 
come back to the field for advice, when people come back to the 
field to get something accomplished, they have got somebody 
there who has done it before, has done it maybe 20 times 
before, and is as aggressive, if not more aggressive, than the 
people in the field.
    And so it is people, it is technology, and it is changing 
the procedures and that is what we are attempting to do.
    Senator DeWine. Thank you very much. Good luck.
    Chairman Leahy. Thank you. I do appreciate the questions. I 
appreciate Senator DeWine's comments on FISA and Senator 
Feinstein's questions on the process. We have heard from Coleen 
Rowley that supervisors at FBI Headquarters made changes to the 
Minneapolis agent's affidavit, she said, to set up for failure.
    The New York Times also reported another Headquarters agent 
was basically banned from the FISA court by the judge based on 
his affidavits. Senator Specter has raised questions of this. 
He and I talked during the break about perhaps sitting down 
with Judge Lambert and the FISA court to find out what is going 
on. I worry about having a secret body of case law developing 
in a secret court system and not having any Congressional 
oversight. I am trying to dig out all the facts that go before 
that, but the legal reasoning, and I am concerned about that 
and we certainly would invite any Senator who would like to be 
involved in that, we will go into how the FISA court works, 
what the reasoning is behind it, because there has not been, 
until recently.
    Senator Schumer has shown the patience for which he is 
renowned.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. I appreciate it. 
In Brooklyn, I am one of the most patient people, you should 
know.
    Chairman Leahy. In Brooklyn, yes.
    [Laughter.]
    Senator Schumer. In any case, I want to thank you for 
having these hearings. I think they are needed, they are timely 
and extremely appropriate, and anybody who, I think, thinks we 
should not have hearings like this will change their mind after 
watching how it is done today and how you have conducted it.
    I also want to thank you, Mr. Mueller. This is not an easy 
job. I can see it on your face. You look a little different 
than you did when you were here first and sworn in----
    Mr. Mueller. I hope not.
    [Laughter.]
    Senator Schumer.--but I think all of us respect that you 
are doing your darn best here and it is not an easy 
circumstance.
    I would just like to make one point to you and maybe you 
can convey this to the Attorney General--I have myself--before 
I get into my questions, and that is this. We are dealing with, 
since 9/11, there have been so many changes in society, but 
there has been none that are probably more important in the 
future than reexamining the age-old balance between security 
and freedom. If you read the Founding Fathers in the Federalist 
Papers, that was one of the things that concerned them most. If 
there were ever a time and place where the Founding Fathers 
wanted debate, wanted discussion, wanted a variety of input, I 
think it is in that area where freedom and security, with a 
push and pull between freedom and security, which any 
democratic society has to deal with.
    I have found just too often an aversion to that in the 
Justice Department, and I think in the FBI, as well, although 
not necessarily to you, and I know the Justice Department can 
control some of the things you say and do. We would have been 
so much better off in areas like military tribunals and what 
happened at Guantanamo and some of these other things if there 
had actually been debate, and I think you know that if you came 
to this Congress and we debated it, the result would not be 
doctrinaire. There are people who are doctrinaire on the hard 
right who want to just remove everything and there are just as 
many on the hard left who say, do not change a thing. But I 
think the consensus of this Committee is somewhere balanced in 
the middle and I think we came out with a good product with the 
PATRIOT Act as a result of that consensus.
    I would just wish to convey the message that I think it 
would work out better for the Justice Department, for the FBI, 
and for the American people if there were more debate before we 
came to a conclusion, not just, you know, at 10:00 a.m., the 
Attorney General and you have a press conference and say, here 
is what we are doing when it comes to these very sensitive, 
very important issues where we do have to recalibrate and 
readjust. I think that would be better for everybody. What we 
have found when it has not happened, again, there has been sort 
of back-tracking because it is always better to do that.
    I would like to talk about a few issues, ask you some 
questions on a few issues here. The first is the computers, 
which, as you know, has been something I have cared about for a 
while. When I heard what you said earlier, it seemed to me that 
at least before 9/11, the FBI computer system was less 
sophisticated than the computer I bought my seventh grader for 
about $1,400, so let me get that straight again.
    In the trenches, in the Minneapolis office or somewhere 
else, before 9/11, if they punched in the word ``aviation'' or 
``flight school,'' not a name because you said it was different 
for a name, could they get every EC report that mentioned 
``aviation'' and ``flight school''?
    Mr. Mueller. It is my, and I am not sufficiently expertise 
in our computer systems, it is my--if you put in ``airline,'' 
you may well be able to pick up those--well, actually, can you 
excuse me just a second?
    Senator Schumer. Sure.
    [The witness conferred with staff.]
    Mr. Mueller. This gets into the technology. I do not 
believe it can be done because I do not believe there is full-
text retrieval, number one. And secondly, there was a system in 
place at the time of blocking certain cases from searches, not 
necessarily from Headquarters but searches from around the 
country as a part and parcel of the security provisions, so 
that there are certain--for instance, the Phoenix EC, if the 
Phoenix EC was uploaded on the computer, there are only a 
limited number of people that could see it. A limited number of 
people would be able to do the search of it to pull up ``flight 
school.''
    Senator Schumer. That is a different issue, but was the 
technology there that if you punched in certain words, that you 
can see every report that mentioned those?
    Mr. Mueller. I do not believe that is the case, but I am 
not sufficiently technologically astute to be able to say that 
with assuredness.
    Senator Schumer. Right.
    Mr. Mueller. The one thing I do know is that you have to 
put in the specific--if I put in ``Mueller,'' it has to be M-u-
e-l-l-e-r. It will come up M-u-e-l-l-e-r. What we will not pull 
up is M-u-l-l-e-r, M-i-l-l-e-r, or other variations of it.
    Senator Schumer. That is a little different. I mean, every 
day, every one of us goes on our computer and does searches of 
certain words.
    Mr. Mueller. We may have had----
    Senator Schumer. It is not very difficult to do, and I 
guess what I would ask you is, how was it? I mean, I think this 
is important for----
    Mr. Mueller. I think we are way behind the curve. I have 
said it from the first day----
    Senator Schumer. But how was it we were so far behind the 
curve that it was almost laughable? What was wrong? That is not 
something dealing with information sharing--well, maybe it is. 
Maybe it deals with turf in its most fundamental way. But it 
just makes my jaw drop to think that on 9/11 or on 9/10, the 
kind of technology that is available to most school kids, and 
certainly to every small business in this country, was not 
available to the FBI.
    Mr. Mueller. I do not want to go too much in a 
retrospective. One thing I will say, one of the, I think, one 
of the contributing factors over the years is the belief the 
FBI can do anything, that we have computer specialists, we have 
scientists, we have all of that. But when it comes to certain 
areas where there is expertise outside the FBI, we need to do a 
better job bringing that expertise into the FBI to utilize the 
funds that are given to us by Congress to get a product that 
will----
    Senator Schumer. I understand. I am trying to do this 
because I am trying to figure out the culture, because I think 
lots of the problems we have are just sort of simple--simple, I 
guess, is overstating it, but are things there should be no 
debate about, no ideological debate or anything else. Can you 
just elaborate a little. Why was it so hide-a-bound? Why was 
the agency so--that they did not have a computer system, given 
they knew they had, I do not know how many agents then, 
probably close to the same amount now, 10,000, 11,000 agents, 
and they knew that no individual could coordinate all this, but 
they did not get a rudimentary computer system to allow it to 
be coordinated.
    You know, when we talk about analysis, you have talked 
about it, you are right, but the word ``analysis'' these days 
is analogous to computer because you need to separate in your 
individual searches the wheat from the chaff, and it does not 
take a great expert to figure that out.
    I am trying to figure out what went wrong then, because 
that will give us some of the answer to how you correct it for 
the future.
    Mr. Mueller. I will tell you one anecdote. When I first 
came in and did a tour of the building, in the FBI, there is a 
computer room downstairs right behind where you get your badges 
and the like, and I walk in. It is a big room, and half the 
room has servers. Well, servers have gotten a lot smaller, so 
there is a lot of room over there. On the other side of the 
room, there were a number of different computer systems. There 
were Sun Microsystems, there were Apples, there were Compaqs, 
there were Dells, and I said, what is this? The response was, 
every division had a separate computer system until a year or 
two ago.
    Yes, that is reflective of the computerization of the 
Bureau, but many companies are the same way. I am interviewing 
now for CIO and I will talk about their experiences in going 
into Fortune 500 companies and it will be the same thing, the 
stovepipes, the various systems, and the necessity of getting a 
common architecture and a platform for the organization.
    Senator Schumer. Okay. My guess is, those companies are not 
doing too well. I would not hire the CIO from one of those.
    [Laughter.]
    Mr. Mueller. I need one of the CIOs who has taken one of 
those and brought them into the 21st century.
    Senator Schumer. Does every agent now and every employee 
who needs it have access to e-mail and the Internet?
    Mr. Mueller. They have access to the internal e-mail. We 
have a classified system and, consequently, to have e-mail 
outside the FBI you need to have a separate computer. Many do, 
but not all.
    Senator Schumer. Another area I am concerned about, what is 
our progress in terms of hiring people who speak Arabic, hiring 
people who speak Urdu and Farsi? This is something that we have 
been trying to get the FBI to do for a very long time. Can we 
translate every needed interception in those languages into 
English quickly?
    Mr. Mueller. In real time with regard to terrorism cases, 
yes, and that is the emphasis and the priority, to assure that 
we have anything that touches on terrorism, that we have real-
time translations. Now, it may be in certain instances 24 or 36 
hours for a particular--for some reason, but that is where we 
have got the emphasis. We have hired--I would have to get you 
exact figures, but well over 100 additional specialists in the 
last four to five months.
    Senator Schumer. By the way, just going back to the 
computer system, is it considerably better now, or it is just--
when Senator Specter asked the questions, I know you are on the 
way to improving it.
    Mr. Mueller. Yes.
    Senator Schumer. But right now, could Agent Smith in the 
Minneapolis office punch in the word ``aviation'' and get all 
the EC reports?
    Mr. Mueller. We are laying the groundwork. We have the 
new----
    Senator Schumer. You are not there yet?
    Mr. Mueller. No. We have the hard drives. We have the 
software packages, the operating systems, we have the LANs and 
we have the WANs, which is the foundation that we had to put 
in. We do not have the data warehousing. We do not have the 
software applications that we need to do the kind of searching 
that is necessary.
    Senator Schumer. How long will it take until we are up to 
snuff?
    Mr. Mueller. Well, when I came in, I said I wanted it done 
in a year and I have been, for a variety of reasons, been much 
more involved now in the inner workings of getting it and I 
cannot get what I would want in a year. Probably two years, but 
we will have varying stages of capabilities as we go through 
this two- to three-year period.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator.
    Senator Sessions?

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

    Senator Sessions. Thank you.
    Chairman Leahy. I thank you for your patience and your 
attention to this hearing.
    Senator Sessions. Thank you. I will follow up a little bit 
on Senator Schumer's remarks, but I would want to mention that 
with regard to your revised guidelines, as I see them, there is 
nothing close to a violation of constitutional rights as the 
courts have interpreted and certainly nothing that violates 
statutory rights, and it is within your power, is it not, to 
alter those guidelines as you have done so?
    Mr. Mueller. I believe it is within the power of the 
Attorney General, yes.
    Senator Sessions. I would just say it leaves it up to us. 
If people in this Senate or Congress are not happy with it, we 
can offer legislation that could alter those guidelines, but I 
do not think there would be much support for it. Some can 
complain about it, but I believe you are doing the right thing. 
You are taking some steps that will help your investigative 
power. It is not in violation of the Constitution or statute, 
and a bill to overrule what you did would not get ten votes.
    Let me ask this. You have been talking about the computer 
systems. As you have been a United States Attorney and dealt 
with a lot of Federal agencies, it strikes me that the last 
refuge of a bureaucratic person who has made an error is to 
claim the computer problem, and I am serious about this 
question.
    The Arizona memorandum that came up, as I understand it, 
according to the Los Angeles Times, it was sent off by a clerk 
to somebody. It did not reach the head person in the section. 
In the future, Mr. Mueller, would not you expect a memorandum 
concerning such a serious subject, so thoughtfully put together 
by an agent in the field, to go to that supervisor within 
minutes, within hours of being received, and be personally 
reviewed by that person?
    Mr. Mueller. Let me just start by saying that----
    Senator Sessions. Computer or no computer.
    Mr. Mueller. Computer or no computer. A computer is part of 
the issue, but there are other issues that had to be addressed 
and that is the procedures in the section and those were 
changed shortly after September 11 to assure that a unit 
supervisor reviewed each and every one of these electronic 
communications that comes in before they were deemed to have 
been completed.
    We also put into place a circumstance where items that come 
in that relate conceivable terrorist threats or terrorist 
activity are included in briefing papers that are provided to 
me daily so that those tidbits of information not only come up 
to the Unit Chief and the Section Chief and the Head of the 
Counterterrorism Division, but also to me.
    The other way we have changed things is that there is now a 
joint CIA-FBI threat matrix so that during the night, any 
threats that come in, any pieces of information about flight 
persons and persons at flight schools will be put into the 
threat matrix that is looked at the following day by George 
Tenet and myself and, ultimately, the President.
    Senator Sessions. Well, you were in office seven days when 
this attack occurred. You were not there when the memorandums 
were received either from Minnesota or Arizona. Certainly, it 
is not your direct responsibility. You cannot be held 
responsible for something that occurred before you took office. 
But I guess I know you are loyal to your troops and the people 
out there in the field, and I believe in the FBI. I have 
tremendous respect for it. But do you not think that was not an 
acceptable system, computer or no computer, that somebody 
should have picked up on, let us say, the Arizona memorandum 
and/or the Minnesota memorandum and that a central person 
should have been reviewing that and should have at least been 
able to raise questions about the possibility of those two bits 
of information that could have given indication of a terrorist 
plan?
    Mr. Mueller. The procedures in place were inadequate.
    Senator Sessions. I hope that you will feel free to say 
that. I know you are a good Marine and a good loyal prosecutor, 
but I think the Director should be quite direct about errors 
that occur and that procedures are being inadequate.
    Do you now, in this new plan, do you have an individual or 
close group of individuals who will be personally reviewing 
critical information and, for example, if the Phoenix 
memorandum or Special Agent Rowley's memorandum came forward, 
would even you see that under the present circumstances in 
short order?
    Mr. Mueller. The salient portions of that memo, I would 
see. I have a new Chief of the Counterterrorism Division, a guy 
named Pat D'Amuro, who I brought down from New York, who was 
head of the Joint Terrorism Task Force for a number of years 
and is an expert in al Qaeda who is heading it up. I have got a 
new deputy and I have new section chiefs throughout. We have 
changed the personnel, expanded the personnel, realigned the 
assignments, and are in the process of continuously doing that, 
particularly with hoping to get approval for the reorganization 
so that exactly that type of piece of information is not 
overlooked.
    The way we are doing it now is by extensive briefing all 
the way up the line. But we need to put into place the 
individuals that will make this as part of the day in, day out 
review. Part of it also is to bring in the expertise of the CIA 
who has a different expertise than our investigative agents in 
terms of being able to look at things and put pieces into a 
larger analytical composite so that we could provide a product 
to the decision makers but also take action on that product, 
and that is part of the reorganization that I proposed to 
Congress.
    Senator Sessions. I like the reorganization. I salute you 
for it. I believe it is going to open up the FBI. I believe it 
will vastly enhance your ability to spot and act on terrorist 
information. This is a quantum leap forward. There is no doubt 
about that.
    So you are telling me that you are confident now that 
agents in the field will promptly send in any reports of 
entities, FD-302s, they will come straight in and that somebody 
will be reading those with some experience and authority 
immediately upon receipt?
    Mr. Mueller. Well, we are not where I want to be. Congress 
has given us a number of additional analytical slots. Hiring up 
for those slots, getting the type of qualified analytical 
personnel that you want and having them trained will take a 
period of time. We have had persons helping out----
    Senator Sessions. But let me say this. I do not believe it 
takes that long to read the Phoenix memorandum or the Minnesota 
memorandum. Somebody can read key documents when they are 
coming in. If they are not, then you have a gap in there and we 
may not act when a pattern occurs.
    Mr. Mueller. We have changed the procedures to make certain 
that that happens, but we have more to do in terms of expanding 
on our analytical capability and that is what I have proposed 
to Congress.
    Senator Sessions. You know, I remember trying a case, a 
pretty significant corruption case, and we had a wonderful FBI 
agent on the stand and the defense lawyer was attempting to 
discredit her, and had her say that all FBI agents are Special 
Agents, and he said, ``So it is not so special, is it?'' And 
she looked him right in the eye and she said, ``I think it 
is.'' I think being a Special Agent in the FBI is a great thing 
and I do not want to have anything I say misconstrued as 
undermining the integrity and the work ethic and ability and 
skill of our agents.
    But I have, as I think you have seen, because you more than 
anybody that has ever held this office, I suppose, have been in 
the field trying hundreds of cases and know how the FBI works. 
That does not mean we cannot make it better.
    I think Agent Rowley, her complaints were driven by a high 
opinion of the FBI, a high goal for what she would like to see 
occur and I appreciate you working on it.
    Let me ask this. With regard to the Moussaoui search 
warrant, you early on in the matter responded in defense of the 
decision that there was not sufficient probable cause. Let me 
ask you, had you at that time personally reviewed all the 
documents or were you relying on the advice of others?
    Mr. Mueller. I was relying on what I was told in the 
briefing. I had not parsed the documents.
    Senator Sessions. Well, I do not think there is a person in 
the FBI that is better capable of determining whether probable 
cause exists or not than you. You tried some of the most 
important cases in the country. You know what probable cause is 
and I am glad you are there.
    But do you think those people that oftentimes say no to 
probable cause realize, and have they lost sight of the fact 
that they are not the judge, that they are not the Department 
of Justice, that they are advocates for national security and 
they ought to look at it in a positive light, and that if they 
believe it is important for the security of America, maybe they 
ought to take it to the judge and see what the judge says? Do 
they understand that sufficiently?
    Mr. Mueller. I do think they do, but I do believe we need 
education in the FISA, not just at Headquarters but also in the 
field, as to what probable cause means, how you can determine, 
get the facts to satisfy that standard, and there is more than 
we can do to educate not only persons throughout Headquarters 
but also in the field and we are undertaking that.
    Chairman Leahy. And I might add, we are going to do some 
education of the Committee, too, on the whole FISA issue. 
Senator Biden and I and others have been talking about that and 
we will. Thank you.
    Senator Sessions. Could I ask one yes or no question? My 
time is out.
    Chairman Leahy. Only because you are such a nice guy. Go 
ahead.
    Senator Sessions. Thank you, Mr. Chairman.
    Do you now believe that it was a correct decision or have 
you had a chance to review the documents personally?
    Mr. Mueller. I have not parsed it and there are a number of 
facts that may bear on that decision and I have identified the 
sequence of facts that went into that determination.
    Senator Sessions. I think it was a close call.
    Chairman Leahy. Trust me, the Director is probably going to 
get another opportunity to talk about that later on.
    Senator Durbin?

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman, and thank you, 
Director Mueller and Mr. Fine, for joining us today.
    Let me echo the comments of Senator Sessions about the 
feelings we all have about the men and women of the FBI. We 
have talked a lot about the management shortcomings, technology 
shortcomings, but when it comes to dedicated professionalism, 
there are no shortcomings. These are men and women who are 
dedicated to the safety of America. Many of them risk their 
lives every single day for us, and it bears repeating by all of 
us on this Committee that nothing we say will detract from 
that.
    Secondly, let me tell you that I continue to stand in your 
corner. You have been in the center of a maelstrom here, but I 
think that your honest, open, and candid answers and your 
commitment to reform have put you in the position in my mind 
exactly where you should be, leading this effort at the FBI, 
leading this effort to reform the FBI.
    I also want to say to the Chairman of the Committee that I 
thank him for this hearing and I think we cannot allow the fog 
of war to stop us from a frank discussion of security 
shortcomings in America. Your leadership in calling this 
hearing, I think, is highlighting things that we need to do to 
make America safer, and in that regard, I think we are meeting 
our obligation to the American people.
    Chairman Leahy. Thank you.
    Senator Durbin. Director Mueller, you have proposed an 
ambitious reorganization of the FBI, dramatic changes in 
criminal law, reallocation of thousands of law enforcement 
professionals. You have really suggested to us that we need to 
overhaul the FBI. Overhauling the engine of a car is no small 
task, but overhauling an engine of a car while it is moving may 
be impossible, and that is what I want to get to here, when we 
talk about how we are going to achieve some of the goals that 
you have set out.
    We are at a time where America needs the very best in 
defending our nation against terrorist threats, but we have 
been told that FBI computers cannot even access key words 
today. Yesterday, it came to light that the Department of 
Justice is going to implement, based on a 1952 law, the 
fingerprinting and photographing of those visiting the United 
States on visas. The range of possible numbers that could be 
affected by this, I have read from 100,000 to 35 million, 
somewhere in between, but it is a massive undertaking in terms 
of the collection of this data.
    I think it raises an important question as to whether or 
not the FBI can achieve this with the INS, collecting, 
processing, and transferring millions of pieces of information 
without establishing first that both of those agencies have the 
technical capacity to do that, as well as the management skills 
and personnel to collect it, evaluate it, and transfer it where 
it is necessary.
    Let me say that I have read Mr. Fine's report to this 
Committee and I am going to ask him if he would comment on 
this. You looked at two specific areas where the FBI and the 
INS were given instructions by Congress to start merging their 
collection of data and you found in both instances, over a long 
period of time, serious shortcomings.
    The automated I-94 system, that goes back to the 1996 Act 
related to illegal immigration reform. It directed the INS to 
develop an automated entry and exit control system that would 
collect a record for every alien departing the United States 
and automatically match the departure records with the record 
of arrival. Mr. Fine, you tell us that four and five years 
later, there is no clear evidence the system is meeting its 
intended goals. It really suggests to us that given four or 
five years, they have been unable to come up with the most 
basic information Congress instructed them to do five or six 
years ago.
    And then you go on to say, in the area of fingerprints--
this appears to me to be a two- or three-year undertaking--the 
merging of the INS and the FBI fingerprints, you looked at the 
progress that has been made so that those records can be merged 
and used and here is what you say. ``The primary finding of our 
follow-up review, similar to prior reports' conclusions, was 
the Department and its components have moved slowly toward 
integrating the fingerprint systems that the full integration 
calls for and remains years away,'' your language, ``years 
away.''
    I want to ask both of you, Director Mueller, the new idea 
of collecting millions of pieces of data, fingerprints, 
photographs, and information about people coming into the 
United States and making it of some value to protecting 
America, raises a serious question about when that might happen 
under the best of circumstances. If we are still over a year 
away from the most basic computer technology at the FBI and we 
have seen repeated shortcomings in efforts to modernize 
fingerprinting and collection of data between the INS and the 
FBI, we can stop here and not get into the racial profiling 
argument. We can ask the most basic question: Are you up to the 
job that was announced yesterday?
    Mr. Mueller. I understand the pilot programs with regard to 
the INS and our IAFIS, our fingerprints. I do believe the work 
that we do on our fingerprints, the systems that we have in 
IAFIS are much more advanced than, say, the computer 
capabilities of the computer system at an agent's desk. How 
that IAFIS or fingerprint system could handle this additional 
load, I am not certain, and that is something we would have to 
get back to you on.
    Senator Durbin. Mr. Fine, what is your opinion?
    Mr. Fine. I believe that both the INS and the FBI have had 
real problems in moving forward with information technology and 
they have suffered from a lack of attention, a lack of 
dedication to moving it forward, and a lack of persistent 
follow-up. We have seen in our analysis of varied systems that 
they are behind schedule, that they often do not meet their 
intended purposes, and that they are not coming in according to 
the benchmarks that you would establish for those systems. So 
through the history of our analysis of both the FBI and the 
INS, both of them are behind the times in information 
technology.
    Senator Durbin. So a new program that would introduce 
hundreds of thousands of fingerprints, photographs, and 
additional pieces of critical data to be gathered by the INS 
and FBI, processed and evaluated and transferred, seems to me 
to be a pipe dream, or at least so far in the future that we 
really ought to get down to basics before we start expanding 
the collection of data.
    Mr. Fine. We have not analyzed that aspect of it and that 
program, but they have had a difficult time assimilating and 
accumulating that kind of information and getting it to the 
right people, both in the INS and the FBI, at the right time, 
in a timely way. That is one of the significant problems we 
found in our reviews of both the INS and the FBI.
    Senator Durbin. Director Mueller, the last time you 
testified, we talked briefly about the Phoenix memo, and, of 
course, it pointed out at least Agent Williams' belief that 
there were suspected individual terrorist or at least suspected 
individuals involved in flight training in Phoenix, Arizona, 
and he brought that through a routine memo, I might add, to the 
attention of the Headquarters at the FBI.
    Had the FBI developed any other information linking 
suspicious individuals or suspected terrorists with aviation 
training schools before September 11?
    Mr. Mueller. There are a number of items that I think have 
come up, and I cannot be exhaustive because we are turning over 
hundreds of thousands of documents to the Intelligence 
Committee. There was in 1998 an FBI pilot, I believe, indicated 
in a report that I think stayed in Oklahoma City that he had 
witnessed individuals from the Mid-East who appeared to be 
either using planes or obtaining flight training and that could 
be used for terrorist purposes.
    There was back in 1995, I guess it is, out of the 
Philippines the report about the use of airplanes in this 
particular way, although not necessarily about flight schools.
    Senator Durbin. But anything more contemporaneous with 
September 11, 2001, where there was information collected where 
there were suspicions of people attending flight training 
schools or aviation departments at colleges and universities 
that raised a question as to whether there was a terrorist 
connection?
    Mr. Mueller. The most contemporaneous would be Moussaoui, 
quite obviously, right before September 11. But with Moussaoui, 
with the Williams EC, with the Oklahoma City observation, those 
are the three that I am aware of. There may be others out 
there, but I am not aware of them.
    Senator Durbin. Could I ask you to look into that, please, 
to verify that? I think that is an important issue that has 
been raised in some press reports that I would like to hear 
directly from you.
    I guess the question that leads me to is do you believe, 
Director Mueller, that based on all the information that has 
come to light, particularly over the last several weeks as we 
have delved into all these memos and all this conversation, 
that we were forewarned as a nation and that we should have 
taken additional steps to protect ourselves before the 
September 11 attack?
    Mr. Mueller. There are things that we could have done 
better beforehand and I think on each occasion that I appeared 
before this Committee, I have indicated there are things that 
we should have done differently to ensure that pieces of 
information were followed up on in ways that they should have 
been followed up on and ways that we are now following up on 
them.
    I hesitate to speculate because I have just a piece of the 
puzzle, also. What the Intelligence Committee is doing is 
looking not just at the FBI, but at the CIA and other agencies 
that had pieces of the puzzle. So I am hesitant to speculate as 
to what would have happened if.
    Senator Durbin. Thank you very much. Thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you. Originally, we would have broken 
at this time, but we have two Senators remaining, Senator 
Cantwell and Senator Biden. Gentlemen, I would ask you--this 
will take probably about another 20, 25 minutes to wrap up 
everything in one last wrap-up, one simple question at the 
end--do you want to take a break? Do you want to----
    Mr. Mueller. I would like to go right on through and wrap 
it up.
    Mr. Fine. Same here.
    Chairman Leahy. You want that ``get out of jail free'' 
card, is that it?
    [Laughter.]
    Chairman Leahy. I should probably use a different--I was 
playing Monopoly with a grandchild. I probably should use a 
different----
    Mr. Mueller. Yes. I would not say ``get out of jail free.''
    [Laughter.]
    Chairman Leahy. I understand. Wrong hearing. Wrong witness.
    Senator Cantwell?

STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE 
                         OF WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman, and thank you, 
Director Mueller, for being here, and Mr. Fine. I certainly 
appreciate your attention to this hearing and the details that 
you have put forth so far and the work that both of you have 
done within the agency. The one fact that amazes me about all 
of this is that you took your position on September 4 of 2001. 
We should not forget that because some of the issues that we 
are dealing with here are very complex and arose long before 
you were confirmed as director of the FBI.
    Having said that, I hope you will indulge me in what I 
think is the basic thinking of my constituents. My State 
probably has more wired home users than any other. At least 53 
percent of the public has Internet access. And what does not 
square with them is the fact that they can have access to the 
paragraph that is available from the Phoenix memo and they can 
read the Rowley memo. The Phoenix memo says ``Phoenix believes 
that the FBI should accumulate a list of civil aviation, 
universities and colleges around the country,'' that the field 
offices with these types of schools should evaluate them, and 
that the FBI should discuss this matter with other elements of 
the U.S. intelligence community.
    And then they read in the Rowley memo and learn that in all 
of their conversations and correspondence, FBI Headquarters 
personnel never disclosed to the Minneapolis agents that the 
Phoenix Division had only approximately three weeks earlier 
warned of al Qaeda operatives in flight schools. They read the 
memo that goes on to talk about how the Moussaoui information 
was never shared, either.
    So a great number of my constituents have written to me, 
having read both of these memos and information. And what it 
looks like to them is that the right hand does not know what 
the left hand is doing. And then they hear the unveiling of the 
new guidelines by the FBI in which new measures, possibly for 
searching U.S. citizens are unveiled. And as one Seattle paper 
said it, and I think said it very well, this looks more like 
eavesdropping than house cleaning. I think that is what really 
has the American public concerned. Where is the house cleaning?
    My first question is, as it relates to the individuals that 
were involved in not approving the Moussaoui warrant at FBI 
Headquarters. Are they still in those positions and are they 
still responsible for that kind of decision making?
    Mr. Mueller. There are a number of people that were 
involved in various reviews of the two or three documents, or 
more documents when it comes to the Moussaoui operation. Some 
of them are gone. Some of them are still there. I have asked 
the Inspector General to review the conduct of anyone involved 
in the handling of those particular memoranda to determine 
whether or not there should be some action taken against them.
    I also brought in new leadership to the Counterterrorism 
Division and I have told the leadership to get the best people 
in here, and we have not only put in new leadership but we are 
pulling in Section Chiefs and Unit Chiefs from around the 
country to assure that what happened before will not happen 
again.
    Senator Cantwell. So were those individuals removed or 
reassigned as a part of some disciplinary action?
    Mr. Mueller. No, because in my belief, before disciplinary 
action is taken, the Inspector General ought to look at that 
conduct and determine whether or not disciplinary action is 
appropriate.
    Senator Cantwell. So where----
    Mr. Mueller. Each of the individuals who are involved in 
this ought to have a right to express what motivated them, what 
was their thinking, what was available to them to do the job 
before the ultimate determination is made, and I have asked the 
IG to go forward and do that.
    Senator Cantwell. Agent Rowley also said in her memo she 
was not looking for a witch hunt, but that she was concerned 
that these individuals were allowed to stay in their positions, 
and what is worse, in her words, occupy critical positions in 
the FBI's SIOC command post center after September 11. Is that 
the case?
    Mr. Mueller. I am not certain as to the particular 
individual or individuals she is referring to. Some of the 
individuals who were in the Terrorism Division, yes. I mean, we 
had 6,000 agents after September 14 working on the 
investigation. Most in Headquarters were working in SIOC. So it 
may well be that those persons were working in SIOC.
    Senator Cantwell. Was there a memo or an e-mail, either 
internal in the FBI or, maybe to the Attorney General, maybe to 
the White House, that talked about and analyzed this 
information management and analysis failure? Was there any memo 
like that where you discussed internally the shortcomings of 
how information was available but was not analyzed?
    Mr. Mueller. You mean with regard to what happened before 
September 11, or are you talking about generally?
    Senator Cantwell. Post-September 11. To my constituents, it 
seems like the information was all there. Why was it not put 
together? Has there been a memo about the shortcomings?
    Mr. Mueller. Well, in terms of there have been discussions, 
tons of memoranda as to our technological shortcomings. In 
terms of specifically addressing each of the pieces of 
information that have arisen over the months, not that I am 
aware of, not a particular memorandum. The Inspector General 
did a brief memorandum with regard to what was happening with 
the Phoenix EC, but beyond that, I do not believe that there 
has been a retrospective done. Our understanding was that the 
retrospective was going to be done not just with the FBI, but 
with looking at the intelligence community and the FBI as a 
whole by the Intelligence Committee, and that is what we had 
anticipated would happen.
    Senator Cantwell. So you do not know of any memos that were 
written to the Attorney General or to the White House 
discussing this information analysis failure?
    Mr. Mueller. No, I am not aware of such a memo.
    Senator Cantwell. Do you not think that putting together a 
document like that would have been a key component to 
understanding how to move forward on the reorganization?
    Mr. Mueller. Well, there are certain----
    Senator Cantwell. If you will allow me, what you are going 
to do is exacerbate the problem. We are going to have over more 
information collected under the new guidelines. Our fundamental 
problem before Sept. 11 was that at the end of the funnel of 
information we were not processing it correctly, and we are now 
only going to widen that funnel and put more information into 
it. So if we have not analyzed the shortcomings prior to Sept. 
11 or listed the key points besides technology----
    Mr. Mueller. Well, I think I know enough about what we did 
not do well before September 11 to make a judgment as to what 
we need to change to do it better, which is the basis for what 
I have suggested that I want Congress to approve. My 
understanding is that there will be a lengthy--there will not 
be a memo, but you will have, in the Intelligence Committee, 
each of the witnesses come in and there will be an extensive 
exegesis of what should have been done, should have happened 
before September 11.
    For my purposes in turning around the agency, I think I 
know enough about what was lacking to be able to make decisions 
on where we should go.
    Senator Cantwell. But you may not know enough about the 
culture and why the culture in the intelligence community is 
not responding. I guess my primary concern is, if I could say 
it most specifically, on this chart, of the reorganization 
effort you are now saying one of the key elements of the 
reorganization is creation of an Office of Intelligence----
    Mr. Mueller. Yes.
    Senator Cantwell. That is the wrong word. It should be an 
Office of Information Management and Analysis, because that is 
really where the failure was. You had all the information. It 
was not processed. It was not analyzed. It was not 
disseminated. It was not shared across agency line in a way 
that was helpful.
    So instead of showing the American public or saying to the 
American public, here is our problem: We are not sure the right 
hand knows what the left hand is doing. Instead you are saying 
we need to do more eavesdropping. We have to convince people 
that we are going to put new processes in place to prevent more 
terrorist attacks, and so the fact that we have not had that 
thorough analysis about the culture and what you need to change 
there, is of concern.
    I see my time is up, but I did have one more question, if I 
could. I do not know if we are going to have a second round, 
Mr. Chairman. I know we want to get to the next witness.
    Chairman Leahy. All right.
    Senator Cantwell. This question is about the new FBI 
guidelines. Several of my colleagues have also raised questions 
about them. I have read the Attorney General's comments about 
how he believes that we need to make sure that, the agency 
fights for and respects the civil liberties of individuals.
    If the agency is expressing this level of concern and 
interest in making sure that we have the protection of the 
civil liberties of individuals, why not look at something--like 
what the private sector does on the issue of privacy. In the 
private sector if they want to change their culture, and they 
want to make sure that privacy is protected, even though they 
have rules in place, they create a privacy officer. Why not 
create a Director of Privacy and Civil Liberties Accountability 
within the FBI, to the person that makes sure that the culture 
and the organization is adhering to the policies that protect 
those individual civil liberties. Not from a response from an 
IG saying, have we broken the law, but within the interna 
cultural process?
    Mr. Mueller. Well, I will tell you that I try to reach out 
to other opinions articulated, whether it be the ACLU or the 
privacy groups that have particular concerns. I did in my 
previous positions. I will continue to do it in the future so 
that I get the input before we make--as we go along making 
decisions, and I would be happy to consider, let me just put it 
that way, what you are suggesting.
    Senator Cantwell. I have read I do not know how many 
editorials where people have said, this is the group. This 
body, this organization is going to have the oversight on the 
FBI and to make sure that these abuses do not occur--I am sure 
we will have more hearings on this subject.
    Chairman Leahy. We are.
    Senator Cantwell. I am sure we will have listings and 
accountabilities of how many warrants were issued and a variety 
of things. But if the FBI is serious about those new guidelines 
and serious about protecting civil liberties, then having 
someone in the agency whose main job is to help that culture 
understand those civil liberties seems to me to be a wise 
investment.
    Chairman Leahy. Thank you. Thank you, Senator Cantwell.
    We will go to Senator Edwards and Senator Biden. Then we 
are going to have a vote actually occur just about that time 
and we will finish this panel. I would note that the record 
will be kept open for those that have questions and the next 
panel would then begin at a quarter of 3:00. Senator Edwards?

 STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM THE STATE 
                       OF NORTH CAROLINA

    Senator Edwards. Thank you very much, Mr. Chairman. Good 
afternoon, Mr. Director.
    When the FBI initially rejected the FISA application for 
Minneapolis, my understanding is it is because the General 
Counsel at the FBI believed there was not sufficient legal 
basis to pursue it at that time. Is that basically correct?
    Mr. Mueller. I have not--there is an ongoing investigation 
into who said what, when, during that. At one point in time, I 
was briefed to believe that there was the individual, and I am 
not certain who the individual was, I am not certain it was the 
General Counsel, but a lawyer in that shop who believed that 
there was insufficient probable cause.
    Senator Edwards. I did not mean to get hung up on who the 
particular person was, but a lawyer within the General 
Counsel's Office?
    Mr. Mueller. I believe that is the case.
    Senator Edwards. Okay. Did that office of lawyers have 
available to them at that time the Phoenix memo?
    Mr. Mueller. I do not believe so.
    Senator Edwards. In your opinion, had they had the Phoenix 
memo available to them at that time, from your own experience 
and your own training as a lawyer, do you believe the FISA 
application would have been approved?
    Mr. Mueller. I am hesitant to render an opinion because I 
have not parsed it. I have not sat down and looked at the 
facts. I have not looked at the evolution of each of the 
iterations of the document and I am hesitant to do that without 
having done it myself.
    Senator Edwards. Do you know generally, though, what 
information was available to the lawyers within the office at 
that time?
    Mr. Mueller. I know some of it generally, but not with 
specificity. For instance, so much would depend on the 
information that perhaps came from overseas that might be 
specific in a particular way or fit in with another fact that 
could give probable cause. I have not gone through and done 
what I would do as a prosecutor to determine whether or not 
there is probable cause or not in the document.
    Senator Edwards. Do you know what the lawyers within the 
General Counsel's Office believe the impact on their opinion 
would have been had they had the Phoenix memo?
    Mr. Mueller. I do not. I have heard at some point in time 
that one lawyer expressed a view that if he or she had had the 
Phoenix memo, it would have made a difference.
    Senator Edwards. And that was a lawyer within the General 
Counsel's Office, as you understand it?
    Mr. Mueller. I believe that is the case. I believe that is 
the case.
    Senator Edwards. If a FISA had been gotten before September 
11, and I am sure you have seen there are press accounts today 
about--I am not asking you to confirm this, but there are press 
accounts today about connections between Moussaoui and three of 
the terrorists, do you think that FISA and the information that 
would have been gotten from it could have disrupted what 
happened on September 11, and then--please notice the word I am 
using. I am not saying prevent, I am asking disrupted.
    Mr. Mueller. Again, I have done some speculating in the 
past. I prefer not to speculate as to what might have happened. 
I am not familiar with all the intricacies of what was on the 
computer, what other pieces of information might have been 
found in his personal effects, and it is not only in 
Minneapolis but it is also apparently in Oklahoma City, and I 
have not done the analysis to determine whether or not if you 
put them all together there are steps that could have been 
taken that would have enabled us to disrupt that which happened 
on September 11.
    Senator Edwards. Based upon the information that you do 
have, do you believe that information could have disrupted the 
operation?
    Mr. Mueller. I do not believe it is likely that it would 
have.
    Senator Edwards. And there is some of the information that 
you have not yet looked at, I gather----
    Mr. Mueller. That is true, and the other point of it is 
there may be information in other agencies.
    Senator Edwards. Sure.
    Mr. Mueller. In other words, I do think it is important to 
look back and see how we interfaced with the CIA, what 
information was made available and when it was made available 
in order to reach the conclusions that you are asking us to 
reach, and my understanding is that is the exercise that the 
Intelligence Committee is going through.
    Senator Edwards. Last fall, toward the end of last year, 
actually, I asked for a briefing on the Moussaoui 
investigation, the Moussaoui situation, and there was a 
briefing that took place in January with Mr. Frasca, David 
Frasca, and Spike Bowman, who are, as you know, two senior FBI 
officials. Based upon that briefing, I actually felt reassured 
about the vigor with which the Moussaoui investigation had been 
conducted.
    There are some things that have come to light since that 
time that I was not told about, we were not told about, at the 
time, and I just want to ask you about three of those, if I 
can.
    First is that neither Mr. Frasca or Mr. Bowman mentioned 
the existence of the Phoenix memo. Second, they did not mention 
any direct or indirect links between Moussaoui and three of the 
September 11 hijackers. And third, they did not mention to me, 
or to us, because the briefing actually took place through 
staff, they did not mention that the Minneapolis office had 
some serious concerns about the handling of the Moussaoui 
matter by FBI Headquarters here in Washington. Did you follow 
those three things?
    Mr. Mueller. I believe so.
    Senator Edwards. Okay. At the time of the briefing, which 
was on January 15, were the briefers, Mr. Frasca and Mr. 
Bowman, aware of those three things?
    Mr. Mueller. I am not certain to what extent they were 
aware of the Phoenix EC. I do not believe that they--I am not 
certain what you are referring to when you talk about the links 
of Moussaoui to three of the hijackers myself, so I rather 
doubt that they were aware of that at that time. And I believe 
that they may well have been aware about the Minnesota, the 
Minneapolis concerns, but I do not know that for sure.
    Senator Edwards. Do you know whether the Phoenix memo, in 
fact, was addressed to Mr. Frasca?
    Mr. Mueller. I believe it was.
    Senator Edwards. Okay.
    Mr. Mueller. Let me, if I could, just check for a moment to 
make certain that I am right on that.
    Senator Edwards. Sure. I think you are right.
    [The witness conferred with staff.]
    Mr. Mueller. Yes, it was.
    Senator Edwards. Okay. So Mr. Frasca got the Phoenix memo. 
He was in the briefing. You indicated that you believe they 
knew about the concerns.
    Mr. Mueller. It may well have been addressed to Mr. Frasca. 
I am not certain that he had ever reviewed it.
    Senator Edwards. Okay. Let me ask you a follow-up question.
    Mr. Mueller. Mr. Fine can, perhaps. He did the 
investigation.
    Senator Edwards. If he knows the answer, go ahead.
    Mr. Fine. I believe the answer is that while it was 
addressed to him, he says that he did not receive it at the 
time, but in the fall of last year, he was aware of it, so that 
was before the briefing.
    Senator Edwards. Which would mean that by the time of this 
briefing in January, he would have been aware of the Phoenix 
memo, would have been aware, Mr. Director, based upon your 
testimony, aware of the Minneapolis Field Office's concerns. 
And the third area I asked about, or----
    Mr. Mueller. Well, I would presume, but I cannot speak for 
him on that.
    Senator Edwards. Did you know it at that time, in January?
    Mr. Mueller. About what?
    Senator Edwards. About the Minneapolis office concerns?
    Mr. Mueller. I knew there was an issue with regard to 
probable cause to show that Mr. Moussaoui was an agent of a 
foreign power. I knew that there was that issue. How that 
played out in terms of the--I am not certain when I learned 
about the discussions back and forth. I knew at least by 
January that there was that issue.
    Senator Edwards. Let me ask you this. Assuming for purposes 
of this question, since some of this you do not know about 
personally, and in fairness to you, I am asking you about other 
people, if some or all of that information was available to Mr. 
Frasca and Mr. Bowman and they were here for the purpose of 
briefing us about the Moussaoui case, the Moussaoui 
investigation, what had been done, what had not been done, do 
you think it was appropriate for them not to tell us about 
those things?
    Mr. Mueller. I always think it is appropriate for FBI 
briefers to be open and candid whenever they come up to the 
Hill and brief. I do not know whether they at that point tied 
in. The question has come up, if you had had the Oklahoma, or 
the Phoenix EC in hand, would that have changed the view as to 
whether or not you would have gotten a FISA warrant. I am not 
certain they had that in the back of their mind when they were 
doing the briefing.
    But absolutely, I believe--I believe when they came up that 
they tried to be honest and straightforward. I do not think 
they were hiding anything at all, and I expect FBI agents when 
they come to brief you or other Senators or others on the Hill 
to be absolutely straightforward and honest.
    Senator Edwards. Do you----
    Mr. Mueller. I have no reason to believe that they were not 
trying to do it on that occasion.
    Senator Edwards. Do you know why they did not tell us about 
any of those things?
    Mr. Mueller. I do not know.
    Senator Edwards. Let me do one other thing very quickly, 
because I know my time is about up and Senator Biden has been 
kind enough to let me go, and I appreciate that very much, 
Senator.
    Quickly, about the new guidelines, I think the rationale 
for it makes sense to me, that if people can go to religious 
services, regular folks can go to a religious service, FBI 
agents ought to be able to do the same thing. That makes some 
sense. On the other hand, of course, your agents have some 
powers that regular folks do not have and I think our concern 
is to make sure that there are safeguards in place to make sure 
that there are no abuses that occur.
    I actually have no doubt about your personal commitment to 
that. When the Attorney General was here, though, six months 
ago, he said, and I am quoting him now, ``To those who scare 
peace-loving people with phantoms of lost liberty, my message 
is this. Your tactics only aid terrorists.''
    My concern is to make sure that these guidelines, which I 
think on their face make a great deal of sense, actually, that 
they are not abused, that we do not have individual agents out 
around the country conducting their own ad hoc personal 
vendettas against people for who knows what reason. And I do 
think that we strongly support what you all are doing to make 
sure that our people are protected. But at the same time, as 
you stated earlier, we believe those liberties need to be 
protected at the same time.
    Can you tell me whether, from your perspective, you draw a 
line between political discussion that we may, you and I both 
may strongly disagree with, and what people would characterize 
as terrorist activity or terrorist support activity?
    Mr. Mueller. I think I can use examples of going over the 
edge, and that is if there is discussion about harming other 
individuals, killing people, undertaking some form of terrorist 
attacks, that clearly would fall in the range of what it states 
here, for the purpose of detecting or preventing terrorist 
activities. We can disagree politically often, and that 
certainly would not fall in that category, and the category is 
fairly narrow with regard to going to public places for the 
purpose of detecting and preventing terrorist activities.
    Senator Edwards. I will just mention this in closing. We 
have had some discussion with you and with your staff about 
making some of the information, big-picture information about 
the use of FISAs, trends, the extent to which they are being 
used, available to the American people without in any way 
interfering with the investigations and the fight against 
terrorism that you all are engaged in. I hope we can continue 
that because I think it is an important issue. I think you 
would agree with me, actually, that it is a good thing for the 
American people to have whatever information we can make 
available to them without inhibiting what it is you are trying 
to do, so we will continue to work on that with you. Thank you, 
Mr. Director.
    Mr. Mueller. Thank you, sir.
    Senator Edwards. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Biden, who gets the award as the second most 
patient person at this hearing.

STATEMENT OF HON. JOSEPH R. BIDEN, JR, A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. Thank you, Mr. Chairman. One of the good 
things about not being Chairman of this Committee anymore, I do 
not have to turn the lights off like you do.
    [Laughter.]
    Senator Biden. Your patience and your physical 
constitutions are admirable and I thank you. You may be pleased 
to know I am going to not focus so much on the memos. I will 
come back on that. But one of the things that does concern me 
here is you are only a piece of the puzzle and we are not--we 
talk about connecting the dots. I am not sure this government, 
us included, are connecting the dots on law enforcement here. 
Let me be more precise with you.
    You are necessarily reorganizing the FBI. What you move, 
the pieces you move, affect other pieces. DEA is significantly 
affected. The COPS program, which this administration is 
eliminating, is deeply affected. The Homeland Defense Office, 
which you are about to eliminate, I guess--I do not know what 
the hell we are doing--is about to be changed.
    Now, in fairness to the President, in fairness to the 
President, this is all new. I wish we would not all--I think 
this is a place and a time where a good dose of humility is in 
order for Senators, for Presidents, for Directors of the FBI, 
for everybody, because understand, everybody should understand, 
you move one piece, it is affecting every other piece in this 
puzzle, every other piece in this puzzle. And so even if you 
get it 100 percent right, if you do the perfect job, you may 
inadvertently by what you do impact negatively on what are we 
all about. We are about the public safety of individuals.
    I have been on this Committee for 30 years. I used to be 
the Chairman of this Committee. I have been the head of the 
Crime Subcommittee and the Drug Subcommittee and the oversight 
of the FBI for over 20 years. There have been a lot of changes 
that have taken place. The bottom line is, whether or not my 
mother gets killed by a terrorist or my mother gets killed by a 
drug lord or my mother gets killed by a junkie or my mother 
gets killed by a bank robber in the parking lot of the 
supermarket, it does not matter. She is dead. She is dead.
    The single biggest problem we have facing America every 
single day is the drug problem. This causes 68 percent of all 
the violent crime in America, relates directly to drugs. More 
people are killed in drug-related occurrences than have 
occurred in all of the terrorist acts combined, not even close. 
Now, that does not mean we should not focus on terrorism. What 
I am trying to get a handle on here is whether we are doing 
this on the fly or we are doing this really intelligently, so I 
want to ask you a few questions.
    Was the FBI consulted on what the President is going to 
announce tonight? Were you consulted? The President says thus 
far, there is a--what we are talking about here is there is 
going to be a new Homeland Defense Office, not the old one, a 
new one. We are doing this again. Were you consulted on the 
details of this new office? Will the FBI gain or lose 
jurisdiction as a result of this new office?
    Mr. Mueller. Respectfully, Senator, I do not believe it 
appropriate for me to disclose discussions I might have had 
with the President.
    Senator Biden. I think that is malarkey. That is not 
legitimate. I am not asking you what he said. I am asking you, 
were you consulted?
    Mr. Mueller. Senator, I believe that I should not be 
forthcoming with regard to consultations with the President. I 
believe the President is entitled to the advice from a number 
of people and I do not believe that it would be appropriate for 
me to get into it.
    Senator Biden. With all due respect, fortunately, I am not 
the Chairman of this Committee because I would not accept that 
answer. You are in this Committee. I am not asking you--there 
is no executive privilege here. I am asking you whether you 
were consulted. That is all I am asking you. If you cannot tell 
us if you were consulted before the President of the United 
States is about to announce a total reorganization of the 
entire homeland defense effort, you cannot tell us whether or 
not your jurisdiction is going to be changed, you cannot tell 
us whether or not there will be a synthesis of intelligence 
from the White House sources, including all of these agencies, 
how are we going to----
    Mr. Mueller. I think the President is entitled to make 
whatever announcement the President is going to make tonight 
and I would be happy to come back tomorrow after the President 
has made his announcement and discuss it. But I do not believe 
that it is appropriate for me to, because of the coincidence of 
this hearing today, to get into discussions that the President 
may have had with regard to whatever he is going to announce 
tonight.
    Senator Biden. I am not even asking you. Has he spoken to 
you about this?
    Mr. Mueller. Again, Senator----
    Senator Biden. I think this is ridiculous. That is all 
right. I will move off this.
    Chairman Leahy. And there will be order in the Committee.
    Senator Biden. I will move off this. This is one of the 
reasons why there is this pall that sort of hangs over the 
office and this whole question about what we do about homeland 
defense. You cannot sit here and say whether or not you have 
been consulted about a reorganization, I find astounding, but 
let me move on to another issue, the reorganization of the FBI.
    How many agents are currently assigned--by the way, you all 
stayed, and you are right. As the author of the Violent Crime 
Control Act to put 100,000 cops on the street, and I wrote that 
myself, I want you to understand that I congratulate the FBI on 
their work. In your budget submission to Congress, you noted 
that the FBI's Violent Crime and Major Offenders Program is 
partially responsible for the fact that the crime rate has 
declined an average of seven percent per year from the 
beginning toward the end of the 1990s.
    Now, we have some things that are happening out there. 
There is a demographic shift. Those folks, 37 million of them 
in the crime-committing years, are about to get into the 
system. We have a new demographic bulge. The only thing you 
know about crime and I know about crime, and I have been doing 
it as long as you have, is that when you get to be 35 or 40, 
you commit fewer violent crimes because you cannot jump the 
chain-link fence when the cop is chasing you, and the only 
other--for real. We do not know a whole lot more about these 
things.
    And we also know that the crime-committing years are those 
kids who think they are invincible and not at all vulnerable 
between the ages of 12 and 18. There is a direct correlation 
between how many of them are out there and the crime that 
exists, violent crime that exists. Now, we are about to get a 
bulge in violent crime based on past track record because we 
have this new cadre of young people, the baby boomlet that is 
out there. We also have the emergence of new threats and we 
have all the other things we know about.
    Now, totally, can you tell me how many FBI agents are 
currently assigned to your Violent Crime Section?
    Mr. Mueller. I would have to get you the figures. I do not 
have them off the top of my head.
    Senator Biden. Do you know, Mr. Fine?
    Mr. Fine. No, I do not, Senator.
    Senator Biden. I can tell you. There are approximately 
1,800 of them. Now, do you know what percentage, anyway, are 
going to be shifted out of violent crime?
    Mr. Mueller. I believe that we are shifting approximately 
59 agents out of violent crime.
    Senator Biden. How will this----
    Mr. Mueller. Not approximately. I think it is 59 agents in 
the proposal.
    Senator Biden. It is. How will this shift be felt in your 
field offices? Do you have any sense of what that means in 
terms of man hours used that now will not be available to deal 
with violent crime?
    Mr. Mueller. Yes. The process we went through to determine 
whether or not, or what programs will be affected by the shift 
of resources to counterterrorism was to go to the agents in the 
field, the Special Agents-in-Charge, and say, okay, where can 
you pull people back from task forces? And my belief is those 
59 bodies that will come off of violent crime will be where we 
have 12 bodies, or not bodies, where we have 12 individuals, 
Special Agents working on a task force addressing violent 
crime, we will now have nine or ten, and that will be across 
the country, so I think it will be a minimum impact in 
particular divisions. But I have also told the SACs that if 
there is a particular crisis or a particular threat in a city, 
then they should use their discretion to take others off of 
other programs to address that violent crime problem.
    Senator Biden. Keep in mind, I am not being critical of 
your decision because you are the only guy that can do the 
terrorism side of this. You have got to do this. I am trying to 
make sure we understand what is going to be left out there.
    Can you tell me what specific functions--have you 
categorically made judgments about local functions that have 
overlapped? For example, FBI agents have handled interstate car 
theft. FBI agents have handled bank robberies. FBI have handled 
things that are local concurrent jurisdiction, but we have 
looked to the FBI to do them. Have you made any categorical 
judgments about things you are not going to be in on anymore 
because you have to shift your resources to deal with 
terrorism?
    Mr. Mueller. I have made judgments. I do not know whether 
you would call them categorical judgments, but----
    Senator Biden. Well, I mean categories of----
    Mr. Mueller. Categories, yes.
    Senator Biden. I am sorry.
    Mr. Mueller. In bank robberies, I think we ought to stay in 
multi-county bank robberies. I have met with IACP, for 
instance, and they believe that we ought to stay there because 
we provide a service that they cannot replicate or we would not 
do one-note bank robberies in the future. They can handle 
those. Armed bank robberies, we probably will stay in those, 
when it comes to narcotics.
    The areas that I would like to withdraw from are those 
where we overlap with DEA, particularly in the cartel cases, 
but not do it abruptly. When we have agents that are involved, 
intimately involved in investigation of one of the cartels, we 
ought to withdraw slowly from that. We ought to probably no 
longer be doing cases such as marijuana cases, stand-alone 
methamphetamine cases, the Ecstacy cases where the State and 
locals can do those cases. But by the same token, we ought to 
be flexible in a particular area where they need our resources, 
where DEA is not there, be flexible to address the crime on the 
local level.
    Senator Biden. I appreciate that. I know my time is up, but 
there is one area maybe I will submit in writing, but 400 FBI 
agents are coming off of drug cases into counterterrorism. 
Again, I do not think you have any choice but to do that. Did 
you discuss that, since it has happened already? Did you 
discuss that with the Director of the DEA?
    Mr. Mueller. Well, it has not happened because the 
proposal----
    Senator Biden. Let me put it this way, you are formally 
proposing it.
    Mr. Mueller. Yes. I did discuss it----
    Senator Biden. Did you discuss that with DEA?
    Mr. Mueller. I have discussed it, yes.
    Senator Biden. And what was the response of the DEA, unless 
that is executive privilege, too? Are they telling you that 
they are going to need more money?
    Mr. Mueller. No, sir.
    Senator Biden. Do you think they need more agents? I mean, 
what do you think is going to happen?
    Mr. Mueller. What I discussed with Mr. Hutchinson, was the 
process whereby we would assure that nothing falls through the 
cracks as we reassign these individuals. Now, my understanding 
is that he believes in the short term he can undertake that, 
but I also believe that he will be looking for additional 
resources down the road.
    Senator Biden. Just so you know, you have 400 agents, 
roughly $100 million. You have been aiding the DEA. You have 
been doing a great job. You are going to be gone from that. 
They are going to end up $100 million short in terms of 
resources. They are the resources you are contributing now to 
the drug war, about $100 million.
    I hope that as we put this all together, and I will be back 
to this a lot, Mr. Chairman, and it is not the Director's 
responsibility, but there is more than one piece to this 
puzzle. We will not have served our communities well if we have 
focused more on anti-terrorism, reduced the total number of 
cops that are on the street, impacted by a $100 million 
reduction in the anti-drug effort, moved in a way where we find 
that we are going to have additional responsibilities taken 
from you or added to you through this new Homeland Defense 
Office.
    You cannot do the whole job with the same amount of money 
and the same number of people. You cannot re-slice the pie, I 
would respectfully suggest. You need a much bigger pie, a much 
bigger pie, and I am here to tell you you will get my support 
to make the pie bigger for the FBI and I hope someone in the 
administration is listening, that there is more than one piece 
of this pie.
    I would conclude by saying, Mr. Chairman, that when you 
were out, the Senator from Arizona talked about how he had held 
all these hearings and so on, which he did in the Terrorism 
Subcommittee, and we did not pass any of that stuff, and he 
said that----
    Chairman Leahy. Actually, we did pass it. It went over the 
House of Representatives----
    Senator Biden. I agree. Well, that is what I was about to 
say----
    Chairman Leahy.--and the public analysis----
    Senator Biden. And then civil libertarians were opposed to 
it. Right after 1994, and you can ask the Attorney General this 
because I got a call when he introduced the PATRIOT Act, he 
said, ``Joe, I am introducing the Act basically as you wrote it 
in 1994.'' It was defeated then not by any liberal. It was 
defeated then by the folks who worried that we would have the 
Minuteman would get in trouble, by the Mr. Barrs of the world 
who were worried about the right wing, not anything else. That 
has nothing to do with you all, but just to set the record 
straight.
    Almost the same thing that got passed, the PATRIOT Act, was 
introduced by me in 1994 and it was the right wing that 
defeated it. You guys tried to help get it passed, including 
the wire tape changes and the rest, so----
    Chairman Leahy. Good, because we have a vote on. I would 
note that we have corrected a number of Senator Kyl's earlier 
statements, but the point is, we did pass a piece of 
legislation out of here which then passed it out of not only 
this Committee but the Senate and it died in the Republican-
controlled House, I mean, for those who think there is 
something critical.
    Director, I just want to correct one thing. You said it was 
a coincidence that the announcements were on the date of your 
discussion here, your hearing here, the announcement the 
President is going to make. You said it is a coincidence it 
happens to be today. The press is already reporting from the 
White House that it was purposely done today. I am not sure 
why. I do not understand these things.
    I would hope not done to distract from this hearing because 
this hearing, I think, has been an extremely good one. I think 
the questions asked by both Republicans and Democratic Senators 
have been very good. I think you and Mr. Fine have given very 
good answers. I know you are not going to answer--I happen to 
disagree with you. I happen to agree with Senator Biden on the 
executive privilege. But just so you know what the questions 
are that you are going to be asked after the President's 
announcement.
    In a way, I feel a little bit sorry for Governor Ridge, who 
I think is a great guy. I have the highest regard for him, like 
you, a former Marine.
    Mr. Mueller. I actually think he was in the Army, but I may 
be wrong.
    Chairman Leahy. Whoops. I have higher regard for the former 
Marines, and you know the reason why, having been the father of 
a former Marine.
    Mr. Mueller. I am standing defending Tom Ridge.
    Chairman Leahy. But I do have very high regard for Governor 
Ridge. I served here when he was in the House. I feel somewhat 
sorry for him, though, because he is put in an impossible 
position where he has no line authority, no budget, no 
confirmed status, all of the things that many of us have said 
would be a problem. We have been told for eight months that 
that is no problem. Now, apparently, the White House has 
realized that a lot of people up here in both parties told them 
it is.
    I am going to want to know whether the agency will be 
operational, will be able to conduct or direct an 
investigation, will be able to collect information in this 
country. Will your foreign terrorism tracking task force be 
transferred to this new agency? Will all the investigations on 
terrorism be reported to this new agency or will it be along 
the lines of what you have talked about? What about all the 
information you collect in this country on terrorism? Will all 
that be given to the new Homeland Security Office?
    You said, Mr. Director, that you would be willing to come 
up here and talk to us about this. You can be guaranteed you 
will be given that invite because there are only so many times 
one can reinvent the wheel on this. As you have heard some 
strong support for some of your reorganization plan, I do not 
want every time somebody raises questions of past mistakes that 
the White House is going to announce some kind of a new 
reorganization so we can just talk about that.
    What I want to do is fight terrorism. I do not want to be 
moving organizational charts around. I know you want to fight 
terrorism. But those are the things that we have to do. We have 
to look at real issues. Right now, the Radical Fundamentalist 
Union to which the Phoenix EC was staffed 100 percent by agents 
who have been at FBI Headquarters for under a year. I mean, 
these are the kinds of things we should be looking at.
    Senator Biden. Mr. Chairman?
    Chairman Leahy. And so I appreciate it. I will be anxious 
to turn on my computer tomorrow and read the transcript of 
whatever is announced tonight, but just so you understand, 
there are still going to be a lot of questions. All we want to 
know is, who is doing the job? Who is doing the job? Who is 
making sure that we do not have another major screw-up like we 
saw with the memos prior to September 11? We just want to 
protect Americans against terrorism. I do not care who gets the 
credit for it. I just want Americans to be protected.
    Senator Biden. Mr. Chairman, may I just have 30 seconds? I 
realize I was confrontational with you because you surprised 
the hell out of me. You have come and suggested a whole new 
reorganization to us and the President is going to announce a 
reorganization tonight and you cannot tell us whether or not 
the reorganization you are asking us to consider has been 
vetted and has been discussed with and coordinated with the 
other one.
    That is the reason for my frustration. I just assumed you 
were going to answer my question. It is nothing about you, 
nothing about you, but I hope to the Lord that after you are 
submitting to us a reorganization and the President announces 
today he is submitting this most significant reorganization, I 
think they said, in 50 years or 100 or something, that you all 
had talked.
    Chairman Leahy. And we will stand in recess until 3:15. 
Thank you.
    [Recess.]
    AFTERNOON SESSION [3:19 p.m.]
    Chairman Leahy. I am just going to need a little bit of 
cooperation so I can see.
    I do want to welcome Special Agent Coleen M. Rowley of the 
FBI. She has been an FBI Agent for 21 years. She is currently 
the Chief Division Counsel for the Minneapolis Field Office of 
the FBI. She came to the attention of this Committee when she 
wrote a letter to Director Mueller that was given to members of 
Congress. And her letter refers to a number of issues this 
Committee has heard from other FBI Agents in the past. And 
Senator Hatch and I felt that by the nature of the hearing we 
are having today, it would be good if she testified.
    Did you want to say something, Orrin, before it starts?
    Senator Hatch. No, I am fine. I am just looking forward to 
your testimony.
    Senator Grassley. Mr. Chairman, could I say something?
    Chairman Leahy. Yes. The Senator from Iowa, of course.
    Senator Grassley. Well, I thank you, Mr. Chairman, because 
Special Agent Rowley is a native of my home State of Iowa and 
she is also a native of my wife's hometown of New Hampton, 
Iowa, but more importantly, Agent Rowley is a patriotic 
American who had the courage to put truth first and raise 
critical but important questions about how the FBI handled a 
terrorist case before the attacks and about the FBI's cultural 
problems.
    Agent Rowley, your testimony today is a great service to 
this Committee, the entire Congress, the FBI, and the American 
people and I thank you for coming. We should be honored to hear 
your testimony today. People like you who come forth to, as I 
put it, to commit the truth, a very terrible sin among some 
Federal employees, but you come forth with important 
information about the FBI. There has been heroes like Fred 
Whitehurst before you, who exposed the FBI Crime Lab scandal, 
and we had four agents last summer who revealed disparities in 
discipline and a pattern of retaliation against those who 
investigated misconduct inside the FBI.
    Agent Rowley has thrown the spotlight on specific and 
general problems happening at the FBI before the terrorist 
attacks, and she has important insights with her perspective 
from the field about what the FBI can do to change. The FBI 
must improve so it can prevent future terrorist attacks, and 
her testimony, I believe, it very important to help this 
happen.
    Ms. Rowley, I believe, is a dedicated public servant who 
tells it like it is. She wanted to be an FBI Agent since fifth 
grade, and she has had a distinguished 20-year career at the 
FBI. She worked in a variety of offices, including New York 
where she investigated Mafia after learning Italian and worked 
with people like Rudy Guiliani, Louis Freeh and Michael 
Chertoff. She worked in the Minneapolis Division now since 1990 
in a number of areas including as the ethics officer.
    Agent Rowley, I thank you again for agreeing to testify 
today so that we can hear your constructive criticism of the 
FBI to help it reform and to help it improve.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Well, Ms. Rowley, both Senator Wellstone, the senior 
Senator from your State and Senator Grassley, who is from your 
State of birth, have said very good things about you, and they 
both have gone out of their way to talk to members of the 
Committee. With all that, now we would like to hear from you.
    I should mention a roll call vote has started. Why do you 
not being your statement? If we have to stop at some point, I 
will. It will not be because of something you said. It is only 
because we have to vote in person. Go ahead.

  STATEMENT OF SPECIAL AGENT COLEEN M. ROWLEY, CHIEF DIVISION 
    COUNSEL, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES 
         DEPARTMENT OF JUSTICE, MINNEAPOLIS, MINNESOTA

    Ms. Rowley. Well, the first thing I want to do is thank you 
for the opportunity to appear today. I never really anticipated 
this kind of impact when I wrote this letter to Director 
Mueller two weeks ago. I do not know if you know, I think they 
have been saying I anguished over this a week. It was not even 
quite a week. It was more like a 3-day period, and it was a 
fairly sleepless 3-day period when I began to initially just 
jot down my thoughts because I knew I had to appear before the 
staffers of the Joint Intelligence Committee, and I did not 
want to forget anything. And also you will probably find out I 
am a little better on paper than I am verbally, so I was kind 
of afraid of that. That was one of the reasons I started to 
write it down.
    I also had another big impetus that was kind of behind this 
all, and one of the things was that I saw the new direction of 
the FBI perhaps--it was kind of hard to discern when it was 
first announced--but I thought I saw some impetus towards a 
little more additional bureaucracy and micromanaging from 
Headquarters, and I wanted to point out to Director Mueller 
that that seemed to fly in the face of what we should have 
learned from September 11th. And the two things were the 
impetus for the letter.
    Of course you know I have many years of experience in the 
FBI. I really do care about the FBI. I have invested almost 
half my life in it, and I do care also about our protection 
now. I have got four children. A lot of my friends have 
children. And I really think we ought to be doing our best to 
try to prevent any future acts of terrorism.
    I did, in the last couple of weeks, receive hundreds--i was 
counting them for a while but I lost track--but I received 
hundreds of e-mails and telephone calls from agents, mostly 
agents, some supervisors, some prosecutors, some retired FBI 
leaders, and I am not going to presume to speak for all of 
those people, but when I looked at them, and I have read most 
of them--there are a few that I probably have not gotten a 
chance to look at that have come in since I left, but of the 
ones I looked at, I did see a real common theme emerging. It 
seems like I kind of struck a chord with a lot of people about 
this idea about the bureaucracy. A lot of other agents told me 
similar stories about cases that had maybe unjustifiably not 
gotten anywhere, and I have a whole stack of those.
    I think there is really the main thing being a real strong 
consensus that we need to streamline the FBI's bureaucracy in 
order to more effectively combat terrorism. We need that 
agility that Director Mueller was speaking of this morning, 
that agility and ability to quickly react, and I really see 
that as you get too top-heavy with too many layers--he also 
mentioned that problem--that you are going to be stymied. I was 
encouraged by Director Mueller's testimony this morning, 
because I think many of his ideas do seem to go in the right 
direction and actually are quite consistent with the various 
items I had in my letter to him.
    He really has an extremely difficult job, and that is an 
understatement. When I talk about trying to trim the 
bureaucracy a little bit, I do not know how you can 
underestimate that. It has been tried before and failed, and he 
just has a tremendously difficult job which I can appreciate.
    I want everyone to know that no one today previewed in the 
FBI--of course they gave me approval to be here, but no one 
read the statement I did. I did this one quite quickly because 
I did not know I was coming until recently. And in this 
statement, which I am not going to read because you can read it 
when you want to, I have some ideas in here. Some of these 
ideas again come from other agents, some of whom are more 
experienced in intelligence than I am. And then some of them 
are my own ideas. I am the legal counsel, so some of the legal 
issues are things that I have seen as an issue that have arisen 
in the past few years. And you can read that at your leisure, 
and if someone wants to ask me a specific question about any of 
those, that is fine.
    I guess what I can maybe go on beyond what Director 
Mueller, I guess what I am going to try to do is the FBI made 
mistakes prior to September 11th. I made a little mistake. If 
you will look at my letter, I made a mistake on the first page. 
I got the date wrong. It was August 16th. I proofread it once 
and I missed it. We all make mistakes, and I think that there 
are other levels of our criminal justice system, there are 
other Federal agencies I am not going to talk about, but there 
are also the prosecutors when you try to go criminal, there are 
entities in the Department of Justice, so to some extent I have 
kind of broadened some of what I have written in my statement 
to include those other criminal justice entities. You know the 
FBI is real important, but there are certainly other entities 
that are very important here too.
    I was also encouraged--I do not know if anyone asked a 
question about it today, but when I read Director Mueller's 
statement, he points to integrity. I think it is the last page 
also. And he does point to that as an issue. And I am very 
encouraged by that, because of course, if you look at the end 
of my statement, I think integrity is extremely important.
    Some of the people this morning did ask questions about how 
are we going to effectively combat terrorism? We are going to 
be in a proactive environment which definitely has the 
potential of maybe interfering with people's civil liberties, 
and how are we going to still protect those civil liberties? 
And I honestly think integrity really plays into this whole 
item. A lot of when you are asking for some new law or some new 
authority, it is perhaps not only what the law allows you to 
do, but it is how it is going to be done. And then it really 
boils down to an issue of trust with the agency or the entity 
that you are giving this particular power to. And there are 
potentials for abuse if you go over that line, and I think as 
an agency we have to be so completely truthful and honest that 
people are able to trust the FBI, that we will not cross those 
lines or commit any kind of civil rights violation or collect 
too much information, et cetera.
    That basically is all I want to say, and then if anyone has 
a question from my statement.
    Chairman Leahy. Ms. Rowley, we will. And what I am going to 
do now, we have about 4 minutes left in this vote. I am going 
to suggest everybody go and vote. We will stand in recess for a 
minute or the amount of time it takes, come back, and that way 
we will be uninterrupted. Thank you.
    [Recess from 3:31 p.m. to 3:47 p.m.]
    Chairman Leahy. Agent Rowley, you may be interested I 
knowing, and I have not even had a chance to share this with 
Senator Grassley, a copy of this has gone to Senator Hatch. Dan 
Bryant of the Department of Justice has sent me a letter 
following a request I made, assuring both me and Senator Hatch 
there will not be any retaliation against you in any form for 
the letter you sent to the FBI Director. Of course that would 
also extend to the testimony here. I will put this letter to 
Senator Hatch and myself in the record, and Senator Grassley 
and I both notified the Attorney General and the Director that 
we would be following this matter carefully anyway.
    [The letter of Mr. Bryant appears as a submission in the 
record.]
    Chairman Leahy. Let me ask this question of you, and I 
asked this question basically to Director Mueller this morning, 
so I want to ask you as well. To your knowledge, did the agents 
in Minneapolis or at Headquarters for that matter, ever try to 
do a routine search for reports on aviation schools or pilot 
training on the automated case system? I am not talking about 
putting in somebody's name, but for search warrants, like 
``aviation schools'' or ``pilot training.'' Anybody do that?
    Ms. Rowley. Well, I know a little bit about our ACS system 
and the records we have, as well as the search methods we have, 
because I also do our Freedom of Information requests. Of 
course there are strict rules in place about how we search, and 
when people write to us, you know, if we find their name. Our 
main system of records, our central record system is indexed 
according to the name of the subject usually. So, for instance, 
in a case where a particular suspect was named, the normal 
method of searching would be to search that name only.
    We also do have the ability to search some text for a word, 
but unlike, for instance if you were doing Lexis-Nexis 
research, you can put in the ``and/or'' and there is all 
different ways that you can search. Our FBI search is probably 
the most fundamental, rudimentary thing. You can just put in a 
word. So for instance if you put in ``airline'' to do a text 
retrieval, you would get up such a volume of records that it 
would be impossible to review. It is almost impossible to do 
just a one-word text.
    Chairman Leahy. You can put in ``aviation schools?''
    Ms. Rowley. Well, what you cannot do--for instance, in 
Lexis-Nexis, when you are searching for things, you can put 
those qualifiers in that narrow it down, and we have no way of 
knowing that. We can put a word in.
    Chairman Leahy. You could put in ``aviation.''
    Ms. Rowley. I think we could. And then----
    Chairman Leahy. But you could not put in ``aviation 
schools?''
    Ms. Rowley. No. You would be getting aviation, and you 
would just be getting records that you could not possibly 
review. Now, what the normal method is, is we do search those 
names, and that is because the subjects' names are indexed. So 
for Freedom of Information, that is what I do. And I think he 
mentioned that you have to have the correct spelling. That is 
right. I mean if you are one letter off, you may not turn up a 
record.
    Chairman Leahy. But this does not do you much good if you 
are looking for somebody, for example, who used nitroglycerine 
in types of bombings and is going around with an alias which 
changes bombing to bombing.
    The Director said in his testimony that your office could 
not have brought up the Phoenix electronic communication on the 
computers and use it in connection with the Moussaoui case, but 
that Headquarters could have done that. Is that your 
understanding?
    Ms. Rowley. I do not know specifically about that EC, but I 
do know that prior to September 11th a number of classified 
documents, probably almost all classified documents, were 
blocked, so that only certain people, on a need-to-know basis 
would be able to--if you went into the computer, for instance, 
and you did not have that access, you are not going to be able 
to see those things. It was also in public corruption cases, 
other types of cases that we had this blocking. And it served a 
good purpose in a way because it really keeps the people maybe 
from abusing it.
    Chairman Leahy. But suppose you are a cleared person, the 
head of your office, head of the Phoenix office and others, 
they want to do a computer search on the FBI ACS computer 
network, it is still difficult for them to do; is that correct, 
even if they are cleared?
    Ms. Rowley. That is true. I do not know exactly how this 
blocking, you know, what people in each office were unblocked 
and which were not. Typically it was the people who had a need 
to work on that case only.
    Chairman Leahy. Unfortunately, some of the people who may 
know something about it are not going to be able to go much 
further. You wrote that a supervisor at FBI Headquarters made 
changes to the Minneapolis agent's affidavit. I am talking 
about the FISA process now. You wrote that they made changes to 
the agent's affidavit that, quote, to use your words, ``set it 
up for failure.'' Now, the New York Times has also reported 
that another Headquarters agent was basically banned from the 
courts, from the FISA Courts, by the Judge, based on his past 
affidavits. I know that in response to some of these problems 
the FBI has instituted so-called Woods Procedures. And we have 
put that in the record. It has been declassified. We put it in 
the record this morning.
    Do you think that some of these problems with the FISA 
Court made Headquarters more cautious and risk adverse in 
processing the FISA applications to the Court?
    Ms. Rowley. I have never actually served at Headquarters, 
so I guess I would only be speaking from hearsay, and as well 
as maybe the opinions of some of the people that have called me 
and e-mailed me. I think that when incidents occur where people 
in the FBI are disciplined or even investigated possibly, I 
think there are some consequences to that, and it does in the 
future make them much more careful. In the instances that I am 
aware of in our office where that has happened, we have 
typically, in order not to repeat the problem, we have 
instituted some kind of procedure that makes it more difficult. 
So I think that in a way, from what I know of it, and again, I 
have never served in Headquarters, that I would probably agree.
    Chairman Leahy. He also wrote that you and the agents in 
Minneapolis were frustrated with the Headquarters agent that 
was assigned to the Moussaoui case, and had actually hindered 
your investigation. Did you or any other supervisor or agent in 
Minneapolis call--the agent you were concerned with--call his 
supervisor or others in Washington, to complain about this 
before September 11th?
    Ms. Rowley. I am of course a little bit restricted in what 
I can talk today about the events of pre-September 11th. I had 
put that in my statement. I failed to mention it earlier. When 
I comment, I am going to try to comment in a general way and 
just avoid the specifics prior, the events prior and not get 
into true real facts.
    Chairman Leahy. I understand.
    Ms. Rowley. When I wrote the letter to Director Mueller, I 
think some of the news accounts maybe misunderstood, I really 
was speaking more from a third-party perspective in talking 
about what I saw our agents and other people in our office, as 
opposed to me personally. There was a word in the first page, I 
said I had a peripheral role, and I think that is very 
accurate. I did have a role, but it was peripheral, and when 
you ask if other people took these actions, I will say this. We 
have a culture in the FBI that there is a certain pecking 
order, and it is pretty strong, and it is very rare that 
someone picks up the phone and calls a rank or two above 
themselves. It would have to be only on the strongest reasons. 
Typically you would have to pick up the phone and talk to 
somebody who was at your rank. So when you have an item that 
requires review by a higher level, it is incumbent for you to 
go to a higher level person in your office, and then for that 
person to make a call.
    Chairman Leahy. Has the Inspector General talked to you 
about this case?
    Ms. Rowley. I have had a call from the Inspector General, 
but so far we have not gotten into any real facts or anything.
    Chairman Leahy. And when did he first contact you?
    Ms. Rowley. I was contacted by an investigative counsel 
from the Office of Inspector General, and it was basically just 
to introduce herself.
    Chairman Leahy. How long ago?
    Ms. Rowley. It was last week, I think just a day or two 
after Director Mueller announced that it would be turned over 
to the Office of Inspector General.
    Chairman Leahy. Thank you. And you have raised an important 
issue also about the so-called McDade Law in your testimony. As 
you know, that law was slipped into a massive omnibus 
appropriations bill, that some of us called ``ominous 
appropriations bills,'' back in 1999. Senator Hatch and I and 
Senator Wyden have been trying to fix this problem. In fact, we 
introduced S. 1437 to fix the problem. I want you to know there 
are some of us on the Committee that recognize it is a problem, 
and Senator Hatch and I are trying very much the fix the 
problem. We will keep trying. Eventually, hopefully we will be 
successful. We came very close. We thought we had it fixed in 
the USA PATRIOT Act, but others did not want it to go through, 
but I am committed, and I think I can speak for Senator Hatch, 
he is committed to get it fixed.
    Senator Hatch?
    Senator Hatch. Well, thank you, Mr. Chairman.
    I want to welcome you to the Committee, Ms. Rowley, and at 
the outset I wanted to thank you for appearing before the 
Committee. I also commend you for your letter of May 21st to 
Director Mueller. That letter raises a variety of significant 
issues that need to be considered during any reorganizing of 
the FBI. And I can only imagine how difficult it was for you to 
write the letter and then forward it to Director Mueller and 
others. So I want to ask you a few questions to clarify some 
statements in the letter and to seek your views on aspects of 
the specific reorganization plan.
    I believe that the FBI is the most important law 
enforcement agency in the world, and I know you do too, and 
that is why you wrote the letter, and you would like to have it 
continue to be a great agency. But in your letter you detailed 
the difficulties you and the Minneapolis agents encountered in 
seeking a search warrant under the Foreign Intelligence 
Surveillance Act procedures. We have been referring to that as 
FISA all day. With the FISA and your legal training, what 
modifications do you believe may be warranted to the FISA 
statute in order to enable the FBI to obtain such approvals 
when investigating terrorists?
    Ms. Rowley. Well, I heard some of the discussion this 
morning about the necessity to perhaps take out the ``working 
on behalf of a foreign power'' aspect. In thinking about that, 
and to be honest, I have not thought about it a whole lot, and 
in addition I have not had that much personal experience in 
working with the FISA process. Our office is not as involved as 
other offices would be.
    However, I think in a way, just knowing what I know about 
criminal and totality of circumstances, et cetera, I am not 
quite sure that it needs to be modified. I think in a way, 
perhaps what we have is because probable cause and proving or 
making these showings that are required are not like a DNA 
test, they are not a litmus test. You cannot put it in and have 
it come out 100 times the same way. And what can happen is 
mindsets, and over time, different interpretations, and you can 
have something becoming unduly difficult. When you actually 
look back maybe 10 years ago, this was not the case, and there 
was basically a lesser standard. I think when you look at 
totality of the circumstances and probable cause, you are 
looking at more probable than not. I am not even quite sure if 
the FISA--well, I think the FISA statute requires it as well--
more probable than not, and I think that if you look at a 
totality, if someone is working on behalf of a foreign power, 
these terrorist entities are not like countries. They do not 
have embassies. They do not send us their membership lists. 
They do not send us their little organizational charts. I 
worked Mafia cases in the 1980s, and the Mafia did not do that 
either. They did not send us their membership. We had to figure 
it out. And after a few years we certainly did have hierarchies 
of each organized crime family. But that was gained from 
surveillance. It was gained from little snippets of information 
we would get from wiretaps, that so-and-so was working for so-
and-so. And I think we should be able to use that same type of 
thing for demonstrating that someone is working on behalf of a 
foreign power, especially with a terrorist organization. And I 
am not sure that the language needs to be modified, but I think 
we need to realize that it is almost the same type of thing 
that we are up against. We are not going to get concrete 
membership lists, organizational charts, that we can say--or 
even the definition of the group sometimes. These groups are 
very amorphous. And by nature terrorism groups operate more 
effectively without having real defined hierarchies and who 
reports to who, et cetera. So that is kind of my take on it.
    Senator Hatch. Of course to a large degree, we are talking 
about surveillance, and unless you can show that they are 
operatives for a foreign power or that you have probable cause 
to believe that they are part of al Qaeda, say, in this 
particular case, you cannot get a FISA right to surveil. And 
see, that is what I think--and many people are concerned on the 
other side that if we grant that broad right, then it will be 
misused sooner or later by somebody who would not be as 
perspicacious as you are or Director Mueller, but I see it as a 
big problem, because as you can see, we basically could not get 
surveillance on I think basically all of those----
    Ms. Rowley. Yes. I am not going to comment on all the facts 
of the case. My analysis of the case is that perhaps that it 
already--you have read my letter.
    Senator Hatch. Right.
    Ms. Rowley. And I think that it is an obstacle, and I think 
maybe it is a possibility to consider whether maybe that amount 
or that threshold should be somewhat eased, especially in cases 
with terrorists, where it is hard to--but I think things like 
surveillance and knowing who met who and things like that 
should figure into it.
    Senator Hatch. All right. Agent Rowley, since your letter 
of May 21st, the Attorney General has issued new investigative 
guidelines that will expand the FBI's investigative tools. Now, 
given you experience in the field, can you describe in 
practical terms how will these new guidelines assist the FBI, 
at least the field agents, in carrying out FBI mission or 
missions?
    Ms. Rowley. I have not had a chance to really fully read 
the modifications. I have heard what the three, the main topics 
that have been brought up about going into public meetings and 
surfing the Net. And there is one additional thing I think in 
those AG guidelines, which delegates down to the SACs the 
ability and the authority to open up a case, a preliminary 
inquiry.
    To the extent the I am definitely, and I think we, the rest 
of the agents I have heard from, are definitely in favor that 
when it is possible to delegate down to a lower authority 
level, we will be more nimble and agile. I am very much in 
favor of that ability to open up a preliminary inquiry by the 
SAC. That aspect is good.
    I do want to maybe at some point get the chance to talk 
about how--I know people this morning were talking about their 
fear that some of these new abilities to monitor public 
meetings, I have a little unique insight because I process 
Freedom of Information cases. And I read some of our old files 
from the 1950s. And I will see in there where we got, the 
people back then, for a lot of reasons, got a little carried 
away. When they went to a meeting, they recorded everyone who 
came, whether they were important or not, whether the person 
advocated whatever, you know, a terrorist point of view or 
whatever. And I see that type of thing that happened in the 
past. What I think that we need to do is a lot of it is in the 
how, and if you go to a public meeting, for instance, maybe we 
have gotten a little bit of information that someone in that 
meeting might be discussing a terrorist act.
    I think it is very good and logical that someone would go 
and sit in just to make sure that it doesn't happen. So if, in 
fact, a person stands up and says, hey, let's all do this, 
let's all, you know, undertake this, and gives a speech about 
undertaking an act of terrorism, we are now going to be in a 
position that we will know it.
    Now, if that same agent, even based on a good tip, goes to 
the meeting and people are merely engaging in their First 
Amendment rights, here is the thing: nothing happens from that 
information. That is the difference from the 1950s. We don't 
come back and record who was there. We do not look into the 
people that were there. It just ends.
    I think there is a difference between how we do this and 
exactly what the authority is, and I think to the extent that 
it gives us a little bit extra opportunity to perhaps detect 
something, I think it would be good.
    Senator Hatch. In your May 21 letter, you indicated your 
concerns about Director Mueller's proposal to create ``flying 
squads'' which would operate out of FBI Headquarters here. 
Could you tell us more specifically your concerns about such 
squads?
    Ms. Rowley. When I wrote the letter to Director Mueller, 
the term--and maybe it was the media that used this term, but 
the term that was being used was ``super squad,'' and that 
connotates in my mind that we are going to have more people at 
Headquarters who now, when let's say an office does detect some 
terrorism or an actual terrorist event occurs, that now we will 
get a whole contingent of managers from Headquarters who will 
direct the case.
    And when that term was first used, again by hearsay, I 
think a lot of people in the FBI had that connotation and it 
was a major impetus for my giving that letter to Director 
Mueller.
    Senator Hatch. I understand. Now, just one last question 
because my time is about up. In your testimony, you have 
identified a number of significant problems with the FBI's 
bureaucracy. You have stated that, quote, ``the problem is 
huge,'' unquote, and, quote, ``cannot be quickly cured,'' 
unquote.
    Now, in your view, what immediate steps could be taken to 
remedy some of the problems that you identified in your letter, 
and which problems will take more time to address?
    Ms. Rowley. You know, that is the $100 million question on 
how to reduce bureaucracy, and I really can't pretend--give me 
another week--I really can't pretend to understand.
    I know Director Mueller is also very cognizant of this 
problem. He iterated today that there are eight levels before 
you get to him. This is an unwieldy situation. If there is a 
way to somehow reduce the levels, I think that is the way we 
need to go. Seven to nine levels is really ridiculous, and it 
is just how do we do this once it gets started.
    Senator Hatch. Well, I am grateful for your testimony, 
grateful for your letter, and I think you have done a service 
and I think Director Mueller has taken it very seriously.
    Ms. Rowley. I agree.
    Chairman Leahy. We are going to take a three-minute break. 
I am wondering if the Senators could all meet with me out back. 
That will also give the photographers a chance to clear.
    We will be right back.
    [The Committee stood in recess from 4:09 p.m. to 4:13 p.m.]
    Chairman Leahy. Thank you, Ms. Rowley. You have been very 
patient. I want to turn to Senator Feinstein, who is actually 
doing double duty on this investigation, like several members 
on both sides of the aisle.
    Traditionally, just so you know, the Judiciary Committee 
has always had some members from both sides on the Senate 
Intelligence Committee, as does the Armed Services Committee, 
the Appropriations Committee, and the Foreign Relations 
Committee, for the obvious reasons. We handle classified 
material all the time, so we have members on the Intelligence 
Committee.
    Unfortunately, we are meeting and they are meeting, and 
Senator Feinstein has managed to be in both places at once and 
so I yield to her.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Ms. Rowley, welcome. We are delighted to have you here and 
we thank you for your letter and for your comments about your 
career in the FBI and your concern about it.
    You indicated earlier that you were watching this morning 
the testimony of Director Mueller. Well, I asked my questions 
really based on some of the things you said in the letter to 
the Director and one of them involved the FISA process. Without 
going into the details of it, you indicated your concerns in 
the letter about the FISA process, and I think Director Mueller 
put on the record the very clear way in which these FISA 
warrants are going to be processed in the future and the 
question of intelligence also being added in the warrant 
request.
    My question of you is do you believe that this is a 
substantial improvement now over the way things were?
    Ms. Rowley. Yes, and in my written statement, too, I think 
September 11 alone, just the acts, really created a huge change 
in mindset. In addition to that, of course, Director Mueller 
has announced that prevention will be our goal, over 
prosecution.
    Prosecution, I think, should still be an important thing 
that we should keep in mind, but there are those instances. And 
when you have the two, prevention definitely has to override. I 
think what he is stating is if there is an application that 
someone at a lower level disputes or does not think should rise 
up, it will then automatically get reviewed at a higher level.
    Senator Feinstein. By him. That is correct.
    Ms. Rowley. Right now, by him. I am not quite sure that--
maybe it could even be lower than him because I think he is a 
busy man and I don't know that it would necessarily have to be 
the Director, although it depends----
    Senator Feinstein. And that these would go then to the 
OPIR, as well?
    Ms. Rowley. Right. Well, obviously, it would depend on his 
review. He may well agree with the lower level, and that would 
be fine. We do need, though--as I said in my statement, we need 
a kind of a way to get around the roadblock, and I think with 
the FISA process this is a pretty good idea to have the ones 
that are not approved or disputed to go to a higher level for 
review. Obviously, the higher level may well agree that it is 
insufficient, and that is fine, but at least it has had a good 
review.
    Senator Feinstein. Right, and the second area that I asked 
about was really in direct reaction to your comments in your 
letter about what you called the super squad, which he has 
pointed out very carefully today was a flying squad and that 
the local SAC would have the authority to initiate the first 
inquiry.
    Ms. Rowley. The flying squad--again, kind of the difference 
that I see there is that with a small office that does not have 
translators, does not have enough forensic computer examiners, 
perhaps does not even have enough surveillance experts, that if 
an office had that need to have those additional resources, a 
flying squad could come and help out.
    It would really serve the purpose of flexibility and if 
they didn't try to take over and micromanage something that may 
well already be at a certain point, stage along, I think it is 
a very good idea. The only thing that I was really worried 
about was the fact that I saw this as managers coming to now 
take it over and micromanage or whatever. That is the 
distinction.
    Senator Feinstein. Thank you. Now, in your letter you also 
mentioned, and I quote, ``a climate of fear which has chilled 
aggressive FBI law enforcement actions, decisions.'' You 
attribute that to the fact that numerous high-ranking FBI 
officials who have made decisions or have take an action which, 
in hindsight, has turned out to be mistaken or just turned out 
badly have seen their careers plummet and end. That was a very 
profound statement.
    I want you to respond to that, but I also want you to 
respond to something else, and here is something which is 
enormously controversial. No matter who you talk to, everybody 
has got a slightly different view of how racial profiling 
should or should not be applied and exactly what it is, whether 
it involves a country, whether it involves a race, whether it 
has a chilling effect on FBI agents instituting this kind of 
inquiry.
    I would be interested in your observations if there are 
places where you believe you have actually seen racial 
profiling impact or chill an agent's perspicacity or desire to 
look into something.
    Ms. Rowley. Do you want me to answer that one first, the 
racial----
    Senator Feinstein. Yes.
    Ms. Rowley. I think one of the Senators this morning drew a 
distinction. Of course, racial profiling--I don't even like the 
term or the word because I think it already has this pejorative 
sense, and different people have different meanings in their 
own mind as to what it means.
    Senator Feinstein. I agree with you.
    Ms. Rowley. One of the Senators this morning made a good--I 
think it was a good line. When you use race, ethnic origin, 
religion, any one of those factors as a sole reason or the main 
reason to take an investigative action, that is what I would 
think of as racial profiling. So if a trooper goes out and 
stops all Indian males going down the street, that is racial 
profiling.
    Now, on the other hand what you have are--we could get a 
report that a black male with a red baseball cap wearing white 
trousers and sneakers just robbed a bank, and you don't 
disregard the race because it is just one of several factors 
that is describing that individual. So I think that is kind of 
what I see as the difference here between--courts, I think, 
follow that rule.
    Senator Feinstein. Do you think your colleagues have the 
same interpretation that you do, because I think you have a 
very substantial interpretation?
    Ms. Rowley. Well, the ones I train do. I am trying to think 
if I have brought this up in other law enforcement circles. I 
think in Minnesota it has been a very hot topic and to the 
extent that it has been discussed, I have tried to point this 
out at different times that I think a lot of times you see 
people arguing when they are not even hitting the issue because 
they have different definitions.
    I think the Senators' remarks today kind of show that maybe 
this kind of thing is rising, where people are getting this 
better understanding of what is permissible, what is logical 
and common sense, and then what is improper. And you use the 
term--it is just a pejorative term--and then people end the 
debate.
    Senator Feinstein. I see the red light. Could you go to the 
first part of my question, which is the quote?
    Ms. Rowley. Climate of fear?
    Senator Feinstein. Yes.
    Ms. Rowley. I think that, as I said in my letter, these 
high-visibility demotions, or even people ending their careers, 
have impact and everyone sees this. There are times when that 
results in less than aggressive law enforcement.
    There are actually times, though, I think it actually is 
the opposite because your boss, for instance, could be making a 
mistake the other way. Let's say that your boss has said 
something that you think could be--I am just using an example 
now--it comes close to racial profiling. Now, if you are under 
that boss, with this climate of fear and whatever, you might 
actually be unwilling to challenge that. So I think it can 
actually work both ways, and I definitely think it results in 
less than aggressive law enforcement when we have had some 
high-visibility mistakes.
    In my paper, I drew a distinction between those mistakes 
that are really kind of deliberate or made for selfish reasons, 
and I think our people need to be held fully accountable for 
those types of mistakes, whereas the good-faith type mistakes--
I get involved in civil suits all the time and we are humans; 
FBI agents are humans. We make mistakes all the time.
    In Minnesota, once we made a mistake and had the wrong guy 
arrested for a bank robbery because he was a complete look-
alike of the real bank robber. And, you know, that type of 
thing--you know, that agent really did nothing wrong. Everyone 
would make that mistake.
    So I think we have to distinguish between the types of 
mistakes and be careful about pursuing the ones that really are 
good-faith ones because I think we will have some repercussions 
for that.
    Senator Feinstein. Thanks. My time is up. Thank you very 
much. Thanks, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Feinstein.
    Senator Grassley?
    Senator Grassley. I want to follow up on what Senator 
Feinstein just was talking about. I have been concerned for a 
long time about what I call the FBI's culture of arrogance. In 
your letter, you mention a culture of fear, especially fear of 
taking action and the problem of careerism.
    Could you talk about how this hurts investigations in the 
field, what the causes are, and what you think might fix these 
problems?
    Ms. Rowley. Of course, I don't think this happened 
overnight. It is one of those things that starts to happen and 
eventually you get at a point where it is not good. And I think 
careerism--when I looked up the definition, I really said 
unbelievable how appropriate that is. I think that the FBI does 
have a problem with that.
    If I remember right, it means promoting one's career over 
integrity. So when people make decisions and it is basically so 
that I can get to the next level, either it is not rock the 
boat or do what a boss says without question. Either way that 
works, if you are making the decision to try to get to the next 
level, but you are not making that decision for the real right 
reasons, that is a problem.
    I think that in the FBI we have had some serious 
disincentives to getting into management. We have also had--
some of our promotional system, I think, could be adjusted. 
There are some standards that we have gone to, kind of a real 
low level of ``legally defensible.'' It has become over the 
years kind of a volunteer system, because a lot of good, good 
people that have good backgrounds prefer not to transfer all 
those times. There are a lot of other reasons, so I think that 
careerism is a problem.
    I think the pecking order which I alluded to earlier is 
sometimes a problem and we have to be willing to, I guess, as 
Director Mueller has done a little bit in this case with me--
when I made my critical remarks, I was quite worried because I 
know in the FBI you don't venture close to criticizing a 
superior without really running some risks.
    But in this case, actually I was pleasantly surprised that, 
you know, I have been promised repeatedly no retaliation, and I 
want to hopefully hope that that kind of atmosphere now starts 
to kind of take over and that people make decisions--some of 
these huge decisions are just huge. You don't even know when 
you are doing it, but they are huge and you have got to make 
them for the right reasons, not because I don't want to rock 
the boat, not because I don't want to bring up a problem to my 
supervisor, et cetera.
    Senator Grassley. I think it would be helpful to hear about 
Headquarters FBI from the perspective of your working in the 
field. Your letter to the Director about the Moussaoui case 
talked about supervisors actually hindering that case.
    Now, I know that you can't talk about that case because of 
a trial, and I appreciate that and expect you not to. But it 
would be useful for you talk about how Headquarters gets 
involved in cases from the field and what you and other agents 
think of Headquarters involvement and whether the people there 
are helpful or a hinderance.
    Ms. Rowley. Well, I mentioned in my letter, because I am a 
legal counsel in the office, I interact a lot with our Office 
of General Counsel and for the most part the people in the 
Office of General Counsel that I interact with on a daily basis 
are very helpful. I think they mostly see their mission as 
assisting people, giving advice, that type of thing. Our 
laboratory, I think, is something like that as well, because 
their mission is to do that test so they can get it back to the 
field.
    Other entities are less helpful at Headquarters because 
they do not see their mission as assisting in the 
investigation. When we get these seven to nine approval 
management levels in place at Headquarters, many of those 
people see their job as kind of a gatekeeper function and kind 
of a power thing or whatever.
    Again, I think we have to stress to the people--if we can 
limit the number of management levels, all the better, but the 
people, if they realize that their function is to assist with 
intelligence in the future, hopefully this will happen if we 
have more analysts that they see their function as assisting 
that investigation. I think then it is helpful. So it is kind 
of a mixed bag is, I think, what I am saying. It is kind of a 
mixed bag and some entities are helpful; others maybe aren't 
quite what they should be.
    Senator Grassley. Well, could you kind of summarize that by 
saying--or let me summarize it and see if this might fit it. 
Headquarters ought to be helping people at the grass roots and 
not be a hinderance.
    Ms. Rowley. Yes, I think that is true, and the worst is--I 
forgot to even mention the worst is micromanaging, and there 
have been instances in the past where a higher level in the FBI 
has almost decided to tell an office how to do something. And I 
can name a few cases where these just became disastrous, so 
micromanaging from a higher level is really the epitome of what 
would be the worst.
    Senator Grassley. I don't think you have to name those 
cases; we have looked into those an awful lot here in the last 
decade.
    Your letter highlighted some of the problems within the 
bureaucracy at FBI Headquarters, with many layers of approval 
in order to get a search warrant. What are your recommendations 
for streamlining this bureaucracy so that field agents can 
effectively pursue investigations?
    Ms. Rowley. Well, I mentioned before that the bureaucracy 
is a huge problem and I really have to think longer about how 
that would be remedied. I can mention one other thing about 
streamlining being able to go around roadblocks that might 
arise, and I have mentioned internally in the FBI if we are 
pursuing a FISA or intelligence methods.
    It should also be recognized that we can pursue terrorism 
on a criminal level and we can then go across the street to a 
U.S. Attorney's office, and I think a similar mechanism perhaps 
needs to be considered also for U.S. Attorneys' offices. It is 
not terribly different when you go and say, here is why I think 
I have probable cause, to an Assistant U.S. Attorney.
    In my write-up, in thinking about this, I thought it is 
kind of analogous to a person who gets diagnosed with cancer or 
with a serious illness. Of course, they always try to get a 
second opinion, and it is accepted in the medical profession. 
But in the legal profession, for some reason, it is not that 
well accepted that if you get an answer from an Assistant U.S. 
Attorney that you possibly have a way to have it reviewed again 
or have it reviewed by an expert in the field.
    I think that we should maybe consider that for the 
Department of Justice to have--I don't really ``super squad,'' 
but maybe a cadre of prosecutors that have experience with 
terrorism; that in the event we were trying to pursue it 
criminally, we might be able to have a way around a roadblock 
that way.
    Senator Grassley. Is my time up?
    Chairman Leahy. Go ahead.
    Senator Grassley. My last question is that we heard quite a 
bit about how the solutions to problems with the FBI seem to be 
more computers, more money. It is not the first time that we 
have heard that supposed solution to problems at the FBI, or 
for that matter a lot of other Government agencies.
    How much do you believe more money and more computers will 
solve the problems with the FBI, or are there other more 
important changes that need to be made at the FBI?
    Ms. Rowley. I think upgrading our computer system would be 
nice. The capability to do these kind of searches and pull up 
related information would be nice. I have in my statement today 
actually suggested a number of things that really don't require 
a lot of money.
    Upgrading our manual to give clear, concise guidance to 
agents working intelligence is not going to require huge sums 
of money. The idea of--I have to look at some of the things. 
The law, if we can possibly toward the end--some of the legal 
changes I have mentioned could be problems; the development of 
maybe a Department of Justice cadre of professional expertise.
    I have a few ideas that it seems that they really don't 
cost a lot of money and I think that they should be considered, 
in addition, you know, perhaps to upgrading the computers. The 
hiring of new agents always, of course, entails money and 
funding, and I am not really in a position to comment whether 
we are adequately staffed. I think that the new measures to 
hire additional translators is very good.
    Senator Grassley. Thank you. Thank you very much.
    Chairman Leahy. Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman.
    Agent Rowley, thank you for being here and thank you for 
your service to our country.
    Your memo to Director Mueller said, quote, ``I do find it 
odd that no inquiry whatsoever was launched of the relevant 
FBIHQ personnel and their actions, and despite the FBI's 
knowledge of all the items mentioned herein,'' basically 
talking about the events of September 11, and the refusal to 
pursue a warrant in the Moussaoui case. Your memo goes on: 
``The SSA and his unit chief and others involved in 
Headquarters personnel were allowed to stay in their positions, 
and what is worse, occupy critical positions in the FBI's SIOC 
Command Center post-September 11.''
    Then you go on to say, ``I am relatively certain that if it 
appeared that a lowly field office agent had committed such 
errors of judgment, the FBI's OPR would have been notified to 
investigate the agent and would have at least quickly 
reassigned them.''
    Now, I know you are not going to comment on that, but in 
your testimony today you did talk about the management of 
intelligence, which I think is more or less what you were 
getting at in that particular statement in your letter to the 
Director. That perhaps there had been a mismanagement of 
information analysis and processing.
    In your recommendations, number five, in your testimony you 
say that management of information should be improved, but 
specifically you say ``centralized information is required. 
However, it must be properly analyzed, evaluated, and 
disseminated in a timely fashion to the field.'' You also say, 
``Recently, State and local officials, as well as the media, 
have frequently received more information than the FBI field 
divisions.''
    So how do you think we address that in the reorganization 
that has been proposed so far by the FBI? I know you are 
talking about reducing the layers, but what is it specifically 
that needs to be done to better process information at FBI 
Headquarters?
    Ms. Rowley. Well, we have already discussed the computer. 
That would probably help somewhat again for an analyst to have 
the ability to go on the computer and then be able to put in 
``flight,'' ``airline,'' or whatever it is and draw some 
intelligence together. So I think that probably would help.
    We need professional analysis of the intelligence we 
already have. I think Director Mueller is talking about an 
intelligence--I am not sure of the title, but it is something 
with intelligence, and the way I have perceived that is that 
basically this is a group of people who put together reports or 
conduct, at request--if you have an issue or a question that 
they can produce that intelligence that might add on to an 
affidavit or whatever.
    It may well entail requesting field offices to conduct 
certain investigations, to be in a kind of a proactive mode; 
that if they get two offices sending in something that looks 
like, oh, my gosh, we ought to look into this, that we have a 
group who is in charge of analyzing and looking at these things 
so that we don't have two things coming in three weeks apart 
and not even being able to put it together.
    Senator Cantwell. Today, is that the specific 
responsibility of one, or several people?
    Ms. Rowley. Well, I think at the present time it is not 
done very well. I really don't, and I think that, you know, 
creating--Director Mueller is starting to do that. I think that 
we don't have it now, and I think that this group hopefully 
would be there, function as an assisting thing to the offices 
that develop something or when they make a request.
    Senator Cantwell. But when I look on this new org chart of 
an Office of Intelligence, it doesn't strike me as the flat 
organization that you seem to be describing as a solution. You 
are talking about information that is easily processed and 
driven back to the field. No surprise, that is where most of 
the corporate world in America is moving towards a flat 
organizational structure, because information flow is so 
critical. It seems to me that you are describing a similar 
need, that I am not sure is addressed in the current 
reorganizational plan.
    Ms. Rowley. I haven't seen that chart. That is the first 
time when you held it up, and when I made my first comments 
today and I mentioned that many of Director Mueller's ideas 
seem to be consistent with what my initial letter was, there is 
one kind of--I see maybe a slight difference, and that is I 
really think we should scrutinize--when you held it up, it just 
hit me--we really need to scrutinize all these proposals for 
this problem that creeps in of having these various levels.
    I think that the flat-lining--and if there is a way to 
reduce these levels somehow, we have to look at each thing and 
say why create more? It is not going to be an answer, and if I 
have one little slight difference, that was the impetus for my 
first letter. Really, it was.
    Senator Cantwell. Well, I happen to agree with you that we 
are talking about an increase in information flow here, while 
the thing that seems to be missing is the processing of that 
information and the quick distribution of that information. And 
we are only going to get more, given the type of attacks that 
we are monitoring.
    Not to catch you off guard, but I am curious. Tonight, the 
President is going to be making an address about somewhat of a 
reorganization of Homeland Security--we don't know all of what 
he is going to say yet, but, his press secretary said that the 
new department may be responsible for border security, 
intelligence, and other functions at several Federal agencies 
that it now supervises. It wouldn't replace the FBI or CIA, but 
it might be one of the biggest restructurings that we have had.
    What advice would you give the President about this?
    Ms. Rowley. I really can't presume to give advice on such a 
high level. I will say one thing. In the past when we have had 
different agencies where there was some overlap in their 
jurisdiction--the things that come to mind are FBI-DEA, because 
we share drugs; sometimes, FBI and ATF where there were 
bombings that we kind of both got involved in.
    If you have two different entities and there is an overlap 
and it is not clear who does what, we can have some friction 
starting up and we can have some problems. So that is the only 
thing that comes to mind, is that it has to be kind of clearly 
demarked so that the agencies don't develop this friction and 
we are not at cross-ends with each other.
    So if there is a new agency starting, which it sounds like, 
that is the only advice I can think of.
    Senator Cantwell. Well, I read in your statement that you 
didn't expect your memo to create such a furor, but thank you 
for stepping into the spotlight and giving this issue the 
needed attention.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very, very much, Senator.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Agent Rowley, we thank you very much for coming forward. It 
is obvious that it was very difficult to write the letter which 
you did, and it is filled with passion. You were really very 
concerned, a word you used repeatedly, and your purpose was of 
the highest and there were obvious risks which you undertook in 
coming forward.
    I am confident at this point that the FBI and the 
Department of Justice will honor the commitments which they 
have made, and if they don't, I know that this Committee is 
prepared to make sure that they do.
    I think you performed a great service for the FBI because 
after Director Mueller's first response, which was unresponsive 
to your memo, he did come forward and articulate an 
acknowledgement of the problems and then moved to correct them, 
which is indispensable.
    We have said repeatedly that we are not interested in 
finding fault. We are interested in seeing to it that if there 
is a recurrence and you have all of these indicators that you 
put them together and you read a road map which is there on an 
analytical basis.
    I understand your limitations as to what you can testify to 
about a case. I spent a dozen years as an assistant DA and as a 
district attorney, and have some appreciation for what 
prosecution requires and what the limitations are.
    But in trying to understand the mentality of the FBI, which 
I think there is general agreement has to be changed, I was 
intrigued by your characterization that the ``United States 
Attorney's Office, (for a lot of reasons including just to play 
it safe), in regularly requiring much more than probable cause 
before approving affidavits, (maybe, if quantified, 75 percent-
80 percent probability and sometimes even higher) ...''
    Can you give some insights as to why so that we might 
approach the issue as to how we change that attitude?
    Ms. Rowley. Well, in some ways maybe that could be 
misinterpreted. I think actually there are cases--``playing it 
safe'' has kind of a negative connotation, but playing it 
careful or being careful or meticulous doesn't. And I think 
there actually are cases--I think many times in white-collar 
cases, for instance, when you really want to be extremely 
careful, public corruption cases, these types of things, where 
you really want to be careful about proceeding--that it might 
well be appropriate to maybe require something more than 51 
percent.
    Senator Specter. Well, I can see if it is a prosecution, 
perhaps, but if it is an investigation, it is very different. I 
think the FBI has to change the approach to case preparation to 
investigation.
    But even on the quantum of proof, referring to Illinois v. 
Gates, which I mentioned to Director Mueller this morning, a 
1983 Supreme Court decision, opinion by then-Justice Rehnquist, 
he points out, going back to Locke v. United States, in 1813, 
referring to the term ``probable cause,'' ``It imports 
circumstances which warrant suspicion. More recently, we said 
the quantum of proof appropriate in ordinary judicial 
proceedings are inapplicable. Finally, two standards''--and 
then he refers to ``preponderance of the evidence, useful in 
criminal trials, has no place in the magistrate's decision.''
    So Justice Rehnquist is pretty explicitly saying that it is 
not a preponderance of the evidence; it is not ``more likely 
than not.'' He quotes Marshall; pretty good authorities, Chief 
Justice Marshall and Chief Justice Rehnquist, talking about 
suspicion. So one of the things that we are going to be looking 
forward to--and I have discussed with the Chairman the issue of 
pursuing this trial through the Foreign Intelligence 
Surveillance Act to find out.
    Let me go to another point which you raised in your 
exhaustive letter, and that referred to the issue as to 
Zacarias Moussaoui. And I am not asking you about evidence now. 
We are still on the Foreign Intelligence Surveillance Act 
issue, where you pointed out, quote, ``For example, at one 
point the supervisory agent at FBI Headquarters posited that 
the French information could be worthless because it only 
identified Zacarias Moussaoui by name and he, the Special Agent 
at Headquarters, didn't know how many people by that name 
existed in France.''
    Now, it is extraordinary. Zacarias Moussaoui is not exactly 
a name like John Smith. After you tracked it down, going to the 
Paris telephone book, you noted here that the Special 
Supervisory Agent a FBI Headquarters, quote, ``continued to 
find new reasons to stall.''
    Here, we are looking at what we have to do to have a 
sensible response from FBI Headquarters on an application under 
the Foreign Intelligence Surveillance Act. Can you give us any 
insight from your experience, which has been considerably 
painful, as to what we might do?
    Ms. Rowley. In my statement, I talk about roadblocks, and 
basically in my statement I am addressing criminal cases. When 
you first talked about probable cause--and we all know there is 
no perfect test for it--what I think has happened is over the 
years we have adopted certain mindsets from judicial rulings or 
from what might be the prevailing mindset in a U.S. Attorney's 
office.
    I think what we do see are elevated standards in some 
cases, and one of my recommendations is that we have a sanity 
check, a second opinion, somebody else that we can maybe try to 
reason with. I really think it should be outside a particular 
U.S. Attorney's office because what can happen is that, you 
know, people are all kind of--the careerism or whatever can be 
a problem there, too.
    In the FISA process, Director Mueller has proposed the same 
type of thing internally in the FBI, and I think his idea will 
definitely have results. Okay, if you don't approve it and now 
it has to go up, with our kind of attitude of having to take it 
up, how many times--the pendulum actually might swing the other 
way too far. So I think that in the FISA process, the proposal 
that we have now that it will be reviewed at a higher level if 
it is not handled--I think that is already there.
    Senator Specter. Well, my concluding comment would be that 
the review is not really adequate unless you have a standard 
which meets the legal requirement but doesn't impose a burden 
which is impossible. We changed the Foreign Intelligence 
Surveillance Act in the PATRIOT legislation to add the word 
``significant.'' A significant purpose of the surveillance is 
to obtain foreign intelligence information.
    After we investigated Wen Ho Lee, the Subcommittee which I 
chaired, we came forward with a recommendation that when a 
high-level officer at the FBI like the Director took the issue 
to the Attorney General, the Attorney General had to give the 
reasons coming back, because Attorney General Reno personally 
turned down the FISA warrant in the Wen Ho Lee case.
    But this Committee is going to get to the bottom of it. We 
are going to find out what is going on. So far, we have only 
glimmers of information, like Agent Resnick was reassigned from 
a FISA unit, apparently removed by the special court, where the 
Chief Judge, Royce Lambert, reportedly excluded him. The 
question is did that make that unit gunshy? The question is did 
racial profiling make them gunshy?
    In this kind of a situation, unlike ordinary cases where 
courts write opinions and we can tell what happened, I have 
discussed with some of my colleagues the possibility of 
consulting with Chief Judge Royce Lambert about what went on 
because we have got to figure out what is fair on civil rights, 
not overreact, but not look for 75 to 80 percent, or even 51 
percent. You go with Chief Justice Marshall on suspicion; it 
has to be quantified in accordance with the facts of the case.
    But I think that your 13-page memorandum has started us off 
on a road which could produce a lot of fruitful results when we 
really get down to brass tacks and do it right with an 
appropriate legal standard.
    Ms. Rowley. The language change that has already occurred 
that you mentioned has been very beneficial. That was a big 
stumbling block, and that change already has produced some 
results. As I talked to Senator Hatch, I think that maybe there 
could be some tinkering with the aspect of having to prove, 
especially with terrorist groups, that this person is an agent 
of the foreign power, and kind of use that analogy that we can 
use other types of information rather than something that--I 
use the example of a membership list, but, you know, a 
photograph, a telephone call, the same types of things that we 
might be able to use in a Mafia case to put a RICO case 
together as an enterprise, that we can use that in a terrorism 
case to show that they are affiliated with or have connections 
to. I think that would be a good idea.
    Senator Specter. But not imposing a standard which is so 
high as to be unrealistic, simply to protect somebody for later 
blame for having made a mistake. If you don't do anything, no 
mistakes.
    Senator Hatch [presiding.] Senator Schumer is next.
    Senator Schumer. Thank you, and I want to thank you again, 
Agent Rowley, as everyone else has, for your stepping forward 
and doing the Nation a service. I read your memo. It showed you 
how long we have to go. There is a mindset there that has to be 
sort of cracked, and your memo does it both in a forthright but 
also a nice and respectful way.
    I have a few questions. First, I don't know if you happened 
to hear my conversation with Director Mueller on the computer 
system.
    Ms. Rowley. I heard some of it. I don't know if I heard the 
exact whole thing.
    Senator Schumer. Well, the bottom line is that the FBI's 
computer system is amazingly backward. I have done a little 
more research on it, or I want to elaborate a little more. You 
can sometimes do a search by term, but you can never combine 
two terms. So you can use ``aviation'' and get a huge amount of 
stuff, and you can use ``school'' and get a huge amount of 
stuff, but you can't do ``aviation'' and ``school.''
    Ms. Rowley. That is correct. Actually, I kind of mentioned 
that earlier. That is absolutely right.
    Senator Schumer. That just amazes me because as I said to 
the Director, you can do that on my daughter's computer--she is 
in 7th grade--that we bought her this fall for, I think it was 
$1,400. I know that we have each year increased the amount of 
money.
    Tell me first, because I asked the Director this, what led 
to the FBI being so backward in such a fundamental tool, in 
your opinion? I mean, this is not just typical; this is 
dramatically and deeply atypical worse, negatively atypical.
    Ms. Rowley. Backward in computers. You have given me a 
question I--of course, I have thought about some of these 
questions, I guess, in my dreams or sleeping or whatever, but 
that is one I haven't thought about.
    Senator Schumer. But just, you know, your knowledge of the 
bureaucracy. Assuming that most small businesses, and even most 
junior high school students have better computers than the FBI, 
why would the mindset of the FBI be such that--as of today, 
this is; by the way, this isn't just as of a year ago. Director 
Mueller said it would take two years, at a minimum, to bring 
the system up to snuff.
    One of the things that troubles me is why wasn't there 
somebody--and you don't need to get a Ph.D. in computer science 
to know how deep this problem is.
    Ms. Rowley. You know, one of the only things that comes to 
mind--and I have 21-and-a-half years in, so I am going back to 
when I was a brand new agent and I worked with--kind of like 
the people now who would have been some 20-some years ago.
    When the computers first started coming on the scene, there 
were many of the old-time agents, who couldn't type. We had 
secretaries and stenos who actually wrote the interviews. You 
just dictated it and it got written. I do know there were a 
number of people at higher levels back in the 1980s who were 
kind of opposed to computers and they hated them, and the 
typing and everything.
    Senator Schumer. Do they still have carbon paper over there 
at the FBI?
    Ms. Rowley. No. Actually, when I started I think they still 
had it. We had a lot of forms that were still on carbon paper 
that had to be hand-typed. So I don't quite know why we have 
never--I am real lucky that I took personal typing in high 
school because that helped so much when you can actually do 
your own--especially when you are going to write a letter that 
you don't have anyone else that can see, I am so glad that I 
can type all right. Actually, now I should say that with our 
new agents, this is no longer an issue.
    Senator Schumer. But this is a function--you know, you can 
have a bunch of agents out there in the field who don't know 
how to type, but somebody at the Headquarters should have said 
years ago that we--it is such an obvious tool in crime-
fighting.
    Ms. Rowley. Of course, that is recognized now, and I don't 
know exactly how this all developed, but it goes back some 
time, as you have noted.
    Senator Schumer. Yes, okay. Let me ask you this. I know the 
others have been watching this. We can watch these things on 
television from our offices; they broadcast them. I know a lot 
of people have asked you about the culture, but let me ask you 
what would you do if the Director came to you and said, how do 
you change the culture?
    I mean, this is a big, deep, proud organization that is now 
reeling, you know. I am sure it is, and there are, as been 
said, many fine people and they have done a good job on a whole 
lot of things. But it has been obvious to some of us that over 
the last several years, not just in this area but in several 
areas, it has sort of lost its edge.
    How do you change it? What would you recommend, from your 
perspective as an agent in Minneapolis?
    Ms. Rowley. Well, I think there are probably several things 
that could be done to improve the culture and the FBI 
leadership and the problem of careerism. Our Director Mueller 
has--I keep saying Director Mueller has said this, and 
whatever, and in many cases this is true. He has mentioned time 
over that we need to pick our best leaders; we need to pick 
those best people out there.
    In my statement, I mention the fact that I have seen in the 
past few years just the opposite happening. I have seen a 
number of great FBI agents with great background experience 
actually stepping down from their positions of leadership. It 
has actually gone the opposite direction, and for a lot of 
reasons. So somehow that has to be reversed. We have to give 
better incentives to getting into management. We have to reduce 
the disincentives.
    Paperwork--no one has asked me about paperwork. I think 
that is a real problem. I think people----
    Senator Schumer. I asked you about the inverse, computers.
    Ms. Rowley. Yes. I think that, you know, we need to be 
judicious about that. I go back to the ``don't rock the boat, 
don't ask a question'' problem. If I say why are we doing this, 
does this really have any value, does it serve a purpose, it is 
either one of two things. It is just like a complaint that we 
can all complain about it, but nothing can ever change. It just 
kind of falls on deaf ears and no one really examines it.
    Or it might actually be seen--if you are criticizing some 
particular program write-up or some particular inspection 
thing, it actually might be seen as a challenge to somebody 
higher up and they may get mad or whatever. So I think to some 
extent, if we are going to really scrutinize what is necessary 
and how we can become more effective, we definitely need to 
encourage people to say exactly, is there a purpose to what 
this is? And if there is, fine, we will continue doing it. Can 
it be done quicker? Can it be done in a more minimal fashion?
    Senator Schumer. Those questions are not asked enough. It 
is a real bureaucracy, is what you are saying.
    Ms. Rowley. The day before I came here, I had to fill out 
our ethics audit, and that meant that I had to name all the 
people in my office. Essentially, I had to re-type around 60-
some names. I am a good typist, but it still took me like an 
hour-and-a-half, and I was busy as all get-out, you know, three 
days ago trying to do this and everything.
    But yet I had to take about an hour-and-a-half to re-type, 
and actually these names are in a file and all you have to do 
is open up this file. And yet, if I would have complained and 
said why I am doing--I actually did complain, but I still ended 
up re-typing those. That is just one little example.
    Senator Schumer. Right, okay. We have a vote. There are 
only about two minutes left. Oh, Patrick is back. I was going 
to call a brief recess, but I may come back and ask you a few 
more questions. But I am just going to vote, and I thank you, 
and if I can't make it, I thank you double.
    Chairman Leahy. We should you bring you with us while we 
vote, Agent Rowley. We could probably continue the questioning; 
just grab the stenographer, who is superb here, who has done 
this forever, and follow us over.
    You can turn the red light off. I don't think I am taking 
anybody's time.
    One thing--and I was going to ask it earlier, but I didn't 
want to infringe on the time of the others--you said in your 
letter that there is a perception among rank-and-file agents 
that there is a double standard when it comes to discipline in 
the FBI. I remember hearing that way back in my days when I was 
a young prosecutor in Vermont working with the FBI then.
    What do you mean by this double standard, and if we could 
wave a magic wand, what would we do to get rid of it?
    Ms. Rowley. Maybe I can think of how we can get rid of it. 
Of course, we have in the FBI already in the last year or two 
when this problem has surfaced--it has been surfaced by others 
at various times and there are examples, I think, that have 
occurred in the past few years where higher-level management 
did the same misconduct or made mistakes and it was lightly 
dealt with or not dealt with at all, whereas a lower-level 
agent would be disciplined, and this has surfaced before.
    Now, in the last year or two, even prior to the Director, 
there have been attempts just by policy to make sure that this 
doesn't happen. I think that there already is in place with the 
SES system--they have made some changes to that, so trying to 
remedy the problem.
    I am not sure. I know that the OIG in some cases now has 
been given some additional powers to look at things. It might 
require somebody just outside our agency because if you are in 
the chain of command, it is going to be very difficult to 
ignore someone at a higher level. I think it is kind of just 
inherent, maybe, some double standard. There have been 
attempts, though, in the past year to try to remedy this.
    Chairman Leahy. Thank you, Mr. Rowley. I am advised that 
some of the other Senators on the Republican side are coming 
back after the vote. We will stand in recess for a couple of 
minutes until they come back to give you a chance to stretch 
your legs and even talk to your husband, if you would like.
    Thank you. We will stand in recess for a couple of minutes.
    [The Committee stood in recess from 5:03 p.m. to 5:08 p.m.]
    Chairman Leahy. Ms. Rowley, Senator DeWine is here.
    Senator DeWine, why don't we go to you?
    Senator DeWine. Mr. Chairman, thank you very much.
    Agent Rowley, thank you very much for being with us today. 
Thank you for your letter and your testimony. I most 
particularly thank you for your over 20 years of service to our 
country and to the FBI. I know that you are one of thousands of 
dedicated FBI agents, and we just appreciate your work.
    I talked this morning a little bit to the Director and I 
said that your letter and your testimony, but for the facts of 
this particular case, probably could have been written by many 
agents. I sense a great deal of frustration with agents, those 
who have devoted their life to the FBI, in regard to the 
bureaucracy that you have outlined in your letter. So I thank 
you for coming forward with specific recommendations.
    Let me talk a little bit about those recommendations, but 
also try to get a better understanding of how your office 
works. For example, how many FISA cases would you have in a 
year, or possible FISA cases?
    Ms. Rowley. I am not quite sure, really. I am not even 
quite sure I can answer that from a national security 
standpoint, other than to say our office would probably be one 
of the offices that would have far less than other offices in 
the country. So relatively few is maybe the best I can say.
    Senator DeWine. You are the legal counsel?
    Ms. Rowley. Yes, I am legal counsel in our office. Some 
offices have more than one, but an office such as ours, with 
about 115 agents or so, we just have myself.
    Now, there is a similar thing, of course, in regular 
criminal cases for Title III intercepts, wiretaps, and even in 
those cases they can be different types of crimes. We also in 
those cases would not conduct nearly the number that other 
offices, with the Mafia and bigger drug cartels or whatever, 
but we do have a few of those a year.
    Senator DeWine. Without getting into the specifics or the 
numbers or anything, do you think that that in any way impacted 
how this matter was handled?
    Ms. Rowley. The fact that our office actually----
    Senator DeWine. I am not suggesting it does. I just don't 
know.
    Ms. Rowley. I don't want to comment specifically about this 
case, but I don't think really our agents in Minneapolis--we 
have some top-caliber agents. Some of our agents have come from 
other intelligence--they have other intelligence backgrounds 
and I really don't think it would have made a difference. We 
really have top-notch people.
    Senator DeWine. Let me ask you, looking at this particular 
case, has it been your experience that you have had other 
problems, not directly related to this case or not using this 
case even as an example?
    In your very lengthy letter, you talk about the 
bureaucracy, you talk about the frustration. Obviously, that 
letter just didn't come up from this particular one case. I 
mean, you have had other problems.
    Ms. Rowley. Correct, correct, and not only----
    Senator DeWine. Excuse me. Would it be fair to say this is 
not unusual? The circumstances are unusual, the national 
security matter is unusual, the horrible tragedy is unusual but 
typical, in a sense?
    Ms. Rowley. Yes, and also as you mentioned at the start, 
this could be the complaint of any large number of agents 
around the country. From the responses I have received from 
field agents in other divisions, up until now--and, hopefully, 
you know, cross our fingers that it is going to start 
improving--this has been the experience in many other types of 
cases. The bureaucracy has been a problem. Hitting roadblocks 
internally, and again externally, it can be--in criminal cases, 
as well, is a problem. And I think we need to think maybe 
somewhat creative ways of trying to remediate this.
    If I can, I don't want to take up all your time, but I 
didn't give a tremendous answer to Senator Schumer earlier when 
he asked----
    Senator DeWine. We will take that from his time, even 
though he is gone. The Chairman is not laughing, so----
    Ms. Rowley. It ties in a little bit with your question, so 
we will give you 30 percent and him 50.
    Senator DeWine. All right, but I do have a couple more I 
would like to get in.
    Ms. Rowley. You know, when we were talking about the 
probable cause and why this has kind of come into this issue, 
it is kind of complex where the mindsets start to change. And I 
know Director Mueller today mentioned something which struck me 
as a little odd or a little--actually, I kind of bristled a 
little bit at it.
    He said, well, maybe--someone suggested maybe we should 
give our agents training in probable cause. Well, first of all, 
that would fall to me, and I am here to say that the agents who 
have 20 years in the FBI who have done search warrants and 
Title IIIs and any number of things, really, really are quite 
familiar with the standard of probable cause. I don't think 
that that would really serve any purpose to give some kind of 
esoteric training.
    Senator DeWine. Okay, all right.
    Ms. Rowley. But there are some improvements, you know, to 
the writing where the people on the scene should be given some 
credit for their observations because those are first-hand 
observations, and in writing an affidavit that should really be 
of primary importance. And there shouldn't be any rewriting of 
an affidavit further up the chain unless it is grammatical or 
really not of any substance.
    Senator DeWine. One of the recommendations you made I would 
like to read to you and then I would like for you to comment 
on. Number nine, development of confidential sources and 
assets: ``Just recently, in the wake of the Whitey Bulger 
scandal, the guidelines for the development of confidential 
sources and assets have been extremely restrictive and 
burdensome. While some of the measures undertaken to monitor 
the informant process were necessary, they have now gone too 
far, and if not reviewed or trimmed may result in reduced 
ability on the part of the FBI to obtain intelligence.''
    Do you want to explain that a little bit?
    Ms. Rowley. I am not the person in my office who is the 
informant coordinator, but we have all, of course, in the wake 
of these new guidelines and informants, been given new, 
additional paperwork that needs to be completed, additional 
items that need to be conducted before opening sources, before 
certain sources can do certain things. I think it should maybe 
be reexamined.
    I have to tell you where I am coming from because back in 
the 1990s, we actually had an FBI agent who murdered his 
informant, and to me it is kind of like other scandals. It 
seems like we should have done something back then, and nothing 
occurred after that incident.
    We did not have a policy in the FBI in the 1990s that 
prohibited social or sexual relationships with informants. I 
find that just unbelievable because most law enforcement 
agencies had such a policy. I think if we would have had a 
strong policy, if we would have had some accountability and 
some good oversight, perhaps all of these additional things 
that later transpired wouldn't have occurred.
    Whenever these things happen, it is just inevitable that 
sometimes it goes a little too far and we might have some 
additional paper that is----
    Senator DeWine. Let me ask you one last question. In your 
letter, you mentioned the problem that agents have with the 
perception that sometimes they try for a Title III warrant and 
then if that fails, go for a FISA warrant, which requires 
different proof but an easier standard.
    Let me ask this: Do you think that happens a lot?
    Ms. Rowley. No, I don't.
    Senator DeWine. Are these suspicions reasonable?
    Ms. Rowley. No, I don't think it actually happens. In real 
life, I have never seen where you try for something to do it 
criminally and if you fail, you pursue the intelligence method. 
I have never seen that.
    But do I think that there is a perception out there 
sometimes? I do think that there is a perception that this 
smell test or whatever exists. I don't think it is correct, but 
I think it does exist.
    Senator DeWine. Thank you very much. We appreciate your 
testimony.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    Agent Rowley, I had to leave to vote just as Senator 
Schumer was beginning to ask you a question that I wanted to 
ask you and it related to your answer to Senator Grassley's 
question about the computers. I just want maybe a quick 
response.
    You had testified in response to Senator Grassley that it 
would be nice to have the new computers. I am not sure you 
wanted to leave us with the impression to mean nice as ``nice'' 
but not really necessary, and I just wondered if that was the 
impression you wanted to leave us with. If so, fine. I just 
wanted to give you a chance to respond.
    Ms. Rowley. Well, the ability to conduct research of our 
records, as I described, where you are putting words--just like 
you would on Lexis-Nexis, for instance, where you are putting 
connectors and stuff, I guess ``nice'' is not the word.
    When it comes to intelligence and you really have these 
critical snippets out there, it would be more than nice. I 
think it is necessary. It may not in other cases be all that 
critical, but in intelligence I think it is.
    Senator Kyl. Thank you very much. I assume that most of us 
would agree with that.
    You had what I thought was a very interesting 
recommendation in your statement and you haven't had an 
opportunity to discuss it yet. It is the public safety 
exception, the Quarles case, and I wonder if you would describe 
a little bit why you think that would be important, and 
particularly in the context of terrorism that we are concerned 
about here.
    Ms. Rowley. Thank you for giving me that opportunity. It is 
a little issue that has come up before. Actually, in criminal 
cases, we have had kidnappings, we have had cases where 
someone's life can be right on the line, and there is a case 
that makes this really constitutional to--I shouldn't say 
ignore Miranda, but disregard it, for public safety reasons.
    The only problem with that case is it deals with a loaded 
gun in a grocery store, and when you start mentioning applying 
it to other cases such as in a terrorism case when we might 
want to interview someone, there may well be--I always think of 
the bomb and someone ready to push it down.
    Obviously, Miranda is a safeguard, and it is a good 
safeguard in many cases, but it is like everything else. There 
may well be a time when it should be overridden, and that would 
be to save a life. As it stands now, there is a case about 
that, so it is constitutional and I think that it would not be 
overturned if a statute codifying it was enacted.
    The only problem with the case is, like anything else, it 
is just case law. In order to give timely advice to someone, 
you have got to run to a computer and pull it up, and I think 
that many people have kind of forgotten that case and many 
courts have actually limited it to its facts. So I think that 
we have cases that come up from time to time and----
    Senator Kyl. Do you think that we should at least try to 
write some kind of a narrow public safety exception? I mean, 
that was your recommendation.
    Ms. Rowley. I do. After September 11, I called some 
staffers about this because I think it is an important issue, 
and I think it definitely has the potential to repeat itself. 
You know, I know people will get alarmed if we say we are going 
to violate Miranda, but I don't think it is something that 
comes up all the time, but there are these cases. The one I 
referred to is the most dramatic one.
    There is a baby in a duffel bag in a forest that has been 
kidnapped that morning, and that is the type of thing, of 
course, that doesn't arise too often. But when it does, our 
agents really need to feel somewhat safe that they can proceed.
    Right now, after the Dickerson case, there are commentators 
that are speculating that civil liability exists for the agent. 
So, in addition to having the statement suppressed, which in a 
case like this really--if it is saving a life, we would--it 
goes back to prevention versus prosecution. We wouldn't care 
about the prosecution, we wouldn't care about the statement 
being suppressed. We would want to save the life.
    Senator Kyl. They might even get sued.
    Ms. Rowley. Right. Now, the agent might even get sued, 
possibly.
    Senator Kyl. Do you have to pay for your own liability 
insurance or umbrella coverage or anything of that sort?
    Ms. Rowley. It is my recollection that we get $50 
reimbursed from the Department of Justice for our liability 
insurance. I think that is right. I am not sure. We get a 
portion of it. I think it is $50.
    Senator Kyl. But a liability insurance policy that would 
protect agents working in the course of their employment would 
cost a lot more than $50.
    Ms. Rowley. A couple hundred, is it? I think it is around a 
couple hundred a year, and that kind of civil liability 
protection--you go back to your chilling factors. Agents don't 
even want to be sued. It is like, you know, any other person. 
The suit itself is a real chilling factor of somebody 
aggressively trying to save a life.
    Senator Kyl. I have been an advocate of trying to have the 
Government pay for the insurance for people who are working in 
the line of their duty.
    You testified earlier to something I thought was very 
important and it maybe didn't quite receive the degree of 
attention that I think is warranted, and it had to do with the 
new guidelines.
    From your experience as an agent on the line--and you said 
you had also gone back and reviewed more historic documents in 
the course of your employment--you view these new guidelines as 
very helpful to doing your job and you indicated that you 
didn't think the American people had to be fearful that they 
would be abused by the agents. You used the specific example of 
being able to go into meeting and if there were a discussion of 
threats of terror, then that would be very useful. And if there 
weren't, then that was the end of it, is kind of the way you 
put it.
    Do you want to amplify on that at all, because I think this 
is a very important point for people to understand?
    Ms. Rowley. I think that when a certain guideline might be 
somewhat relaxed in this case--and, of course, Director Mueller 
has explained that surfing the Net is something any kid can do. 
Going into any meeting is anything local law enforcement or 
anyone can do.
    I think the real crux of it is in how it is done. We also 
have the ability to collect information. So just by undertaking 
to keep your ears open and walk into that meeting, and then if 
something does transpire you can act on it, that doesn't mean 
we go overboard and start recording things and mishandle that 
ability.
    It really goes into the capability to use it, but 
judiciously, because I think it increases only the potential 
for--it does perhaps increase the potential of going further 
than we have before. I think we can have our cake and eat it, 
too, is what I am saying here.
    Senator Kyl. With good training?
    Ms. Rowley. I think, with training, we can do these items 
and we still can avoid interfering with people's rights.
    Senator Kyl. I appreciate it very much. Thank you.
    Chairman Leahy. Senator Sessions, the most patient man in 
Washington.
    Senator Sessions. Thank you, Mr. Chairman, and I think this 
has been a good hearing.
    Chairman Leahy. I do, too.
    Senator Sessions. We have had a good, high level of 
discussion, witnesses talking about important matters.
    Agent Rowley, thank you for what you have done. I know it 
is an unusual thing, but it was an unusual circumstance. Before 
Director Mueller was confirmed, he and I talked. At his 
confirmation hearing, we talked and I asked him questions and 
they focused on the very things you raised in your memorandum.
    I raised questions concerning matters such as defensiveness 
on the part of the FBI, unwillingness to admit mistakes, some 
arrogance, too much bureaucratic blocking, particularly in 
Washington, that undermined the effectiveness of investigations 
in the field. I asked those questions based on my experience of 
12 years as United States Attorney and 2 as an assistant United 
States Attorney.
    I believe that is consistent with the overwhelming view of 
Federal prosecutors throughout the system, and I believe, as 
you have noted, it is consistent with the views of the agents 
in the field. So to that extent, your letter and the public 
hearing that has come about here, I believe, will strengthen 
his hand in being able to make the kinds of cultural changes 
that need to be made.
    I love the FBI. I know you do, and so we want to see it 
reach its highest and best potential, not hurt it in any way. I 
think, in my own personal view, that we hurt the IRS. I think 
that it has been damaged by some of the things that were done. 
We don't need to damage the FBI; we need to strengthen it and 
help it reach its fullest potential.
    But just back to this problem we were facing, it seems to 
me there is always a good excuse that the computer system 
wasn't up to date. If you had been the point person to monitor 
the intelligence of the United States, wouldn't you create a 
system in which important documents from the field would come 
to your desk personally within hours of the time they were sent 
forward?
    Isn't it unwise or inadvisable, as apparently occurred with 
regard to the Arizona memorandum, that some clerk sent it off 
to a different section and it never even got to the supervisor 
there? Isn't that a poor way to run a shop?
    Ms. Rowley. Well, as a general matter--I am not speaking to 
any particular case, but as a general matter, of course, it is 
obvious that we want the important items that need to be acted 
on to really get to the right place, and if we do have a focal 
point at a central location, it is very clear that they have to 
get that information.
    There is a problem when there is a lot of intelligence 
being gathered and the ability to distinguish the wheat from 
the chaff, and that isn't easy when you first get this 
information. So that is, I think, one of the reasons for having 
an intelligence analysis where we can really attempt to get 
these important things that need to be acted on, as 
distinguished between something that is not so important.
    Senator Sessions. Yes. Well, I think Director Mueller's new 
organization will do that, and I don't think there is anybody 
there that is not going to be reading important documents from 
the field. I think those documents could have been recognized 
as being important before September 11, and I don't think we 
can say with certainty, as you pointed out, that they could not 
have helped us avoid September 11. Probably not, but possibly.
    Ms. Rowley. Can I say one more thing, because I just 
thought of something?
    Senator Sessions. Yes.
    Ms. Rowley. You know, one way of recognizing importance 
really--and this can't be overestimated--is the person who is 
experiencing first-hand the event. Okay, I am just going to 
speak generally, but if it is a flight instructor, or whatever 
it is, and this thing is real--that is not a good example, but 
I am just saying that somebody who is experiencing it first-
hand many times is in the best position. It is not the person 
five levels up. What often happens is it gets lost in the 
translation.
    Senator Sessions. Absolutely, I agree.
    Ms. Rowley. The person here who sees it, feels it, eats it, 
really knows it is important. Someone further up the chain--
and, again, the message by that time has maybe been diminished, 
or whatever--doesn't recognize the importance.
    Senator Sessions. Let me ask you this: It is odd to me that 
the investigative agency, the agency designed to protect public 
safety--and I have seen instances where this occurred in the 
Department of Justice and not just the FBI--they shouldn't be 
negative about things that might impact public safety. They 
should be positive and help the people in the field succeed. 
Rather than putting down and throwing up roadblocks, they ought 
to be helping them, recognizing that you are onto something 
important, and maybe helping you legally or through 
intelligence searches around the country and the world, helping 
you to succeed.
    If the Department of Justice does not advocate and take it 
to court before a judge who has the final responsibility, who 
is going to advocate it?
    Ms. Rowley. Well, I had forgotten to mention a footnote in 
my letter about the judges. I think our system actually was 
originally designed to let a judge--it goes to Senator 
Schumer's question, too. All these perceptions of where 
probable cause may lie--our system really was designed to let a 
judge make those determinations, not other levels before you 
even get to a judge.
    When in doubt, and especially when public safety is on the 
line, I think we need to let judges look at these things and 
then make their determination. In fact, I have heard from a 
prosecutor who--you know, many prosecutors might be antithetic 
to, you know, even the second opinion idea. They may say, well, 
I don't want anybody second-guessing me. But I have actually 
heard from a prosecutor about that point, about going--you 
know, when in doubt, take it to a judge.
    Senator Sessions. When lives are at stake.
    Ms. Rowley. Especially.
    Senator Sessions. This was not a minor matter. This was a 
matter that dealt with potential loss of life, and I think you 
should advocate.
    Now, you have expressed an opinion in your letter that 
there was clearly probable cause at some point before September 
11. How confident are you of that?
    Ms. Rowley. I am not going to get into that because, of 
course, these issues are before the other Committee and I am 
just not going to comment at this time about it.
    Senator Sessions. Well, you say in your letter that 
probable cause existed, in your opinion.
    Ms. Rowley. That is correct. I actually did not----
    Senator Sessions. Do you still stand by that, or was it a 
close call?
    Ms. Rowley. That letter--actually, the fact that everyone 
here is aware of that--I didn't really know that would happen 
because I gave it to the Joint Intelligence Committee and I 
think I have to be very circumspect at this point because there 
are ongoing proceedings.
    Chairman Leahy. I might say, Senator Sessions, we have made 
it very clear that Agent Rowley has been extraordinarily 
forthcoming, as has Director Mueller and his office. We did 
agree that we would be careful limiting it to issues that 
involve an ongoing case.
    Senator Sessions. I see.
    Chairman Leahy. I would point out that some of the matters 
you are raising have been raised in Intelligence and we can 
provide you on a classified basis some of the material you are 
talking about. I would be happy to arrange that.
    Senator Sessions. I fully understand that, but I tend to be 
like Senator Specter. Sometimes, I think there are too many 
people in the system putting too many burdens that go beyond 
what the law requires and therefore making it difficult for 
public safety to be protected.
    Thank you.
    Chairman Leahy. Thank you.
    I want to thank all Senators, both Republicans and 
Democrats, who have been at this hearing. From the time we 
started this morning, it has been about an eight-hour hearing. 
Ms. Rowley probably thinks it was even longer because she was 
watching the early hearing before.
    Agent Rowley, I have a feeling that you would much rather 
be in your office doing the things that you, from everything we 
have been told, do very, very well. But I appreciate your being 
here. I appreciate Director Mueller and Inspector General Fine 
for the amount of time they took. We have people like Mr. 
Collingwood who has sat through all of this patiently.
    These hearings, as both Senator Hatch and I have made very 
clear, are not ``gotcha'' hearings. These are hearings that we 
want to help. As I said earlier, terrorists don't ask whether 
you are Republicans or Democrats, or where you are from, or 
anything else. They just strike at Americans, and all of us 
have a duty to protect Americans.
    We also have a duty to protect those things that have saved 
our own liberty. As I said earlier, Attorneys General come and 
go, Senators come and go, Directors come and go; we all do. The 
Constitution stays constant and we can protect ourselves within 
that framework. You are sworn to do that, and you have worked a 
long career upholding that oath and I admire you for it.
    [The prepared statement of Ms. Rowley appears as a 
submission for the record.]
    Chairman Leahy. So I thank all of my colleagues. This is 
one of many hearings we have had.
    Senator Thurmond has a statement for the record and we will 
include it at this point.
    [The prepared statement of Senator Thurmond appears as a 
submission for the record.]
    Chairman Leahy. We will stand gratefully in recess.
    [Whereupon, at 5:35 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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