[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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WASHINGTON : 2003
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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
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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
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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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