[Senate Hearing 107-971]
[From the U.S. Government Publishing Office]
S. Hrg. 107-971
REFORMING THE FBI IN THE 21ST CENTURY
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MARCH 21, APRIL 9, AND MAY 8, 2002
__________
Serial No. J-107-69
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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THURSDAY, MARCH 21, 2002
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 22
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 4
prepared statement........................................... 52
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 54
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 18
WITNESSES
Chiaradio, Robert J., Executive Assistant Director for
Administration, Federal Bureau of Investigation, Department of
Justice, Washington, D.C.; accompanied by Bob Dies, Chief
Technology Officer, Federal Bureau of Investigation, and Bill
Hooten, Assistant Director for Records Management, Federal
Bureau of Investigation........................................ 9
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C................................................ 6
SUBMISSIONS FOR THE RECORD
Chiaradio, Robert J., Executive Assistant Director for
Administration, Federal Bureau of Investigation, Department of
Justice, Washington, D.C., prepared statement.................. 28
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C., prepared statement........................... 36
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
statement...................................................... 57
TUESDAY, APRIL 9, 2002
STATEMENTS OF COMMITTEE MEMBERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 64
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 75
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 64
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 66
prepared statement........................................... 105
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 61
prepared statement........................................... 107
WITNESSES
Senser, Kenneth H., Assistant Director, Security Division,
Federal Bureau of Investigation, Department of Justice,
Washington, D.C................................................ 89
Szady, David, Assistant Director, Counterintelligence Division,
Federal Bureau of Investigation, Department of Justice,
Washington, D.C................................................ 86
Watson, Dale, Executive Assistant Director for Counterterrorism/
Counterintelligence, Federal Bureau of Investigation,
Department of Justice, Washington, D.C......................... 91
Webster, William H., Milbank, Tweed, Hadley and McCoy, LLP,
Washington, D.C................................................ 65
QUESTIONS AND ANSWERS
Responses of Kenneth Senser to questions submitted by Senator
Grassley....................................................... 100
SUBMISSIONS FOR THE RECORD
Senser, Kenneth H., Assistant Director, Security Division,
Federal Bureau of Investigation, Department of Justice,
Washington, D.C., prepared statement........................... 113
Szady, David, Assistant Director, Counterintelligence Division,
Federal Bureau of Investigation, Department of Justice,
Washington, D.C., prepared statement........................... 125
Webster, William H., Milbank, Tweed, Hadley and McCoy, LLP,
Washington, D.C., prepared statement and attachment............ 130
WEDNESDAY, MAY 8, 2002
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 241
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 135
prepared statement........................................... 243
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina, prepared statement................................... 265
WITNESSES
Mueller, Hon. Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 139
Thompson, Hon. Larry D., Deputy Attorney General, Department of
Justice, Washington, D.C....................................... 137
QUESTIONS AND ANSWERS
Response of the Department of Justice to a question submitted by
Senator Leahy (December 23, 2002).............................. 172
Responses of the Department of Justice to questions submitted by
Senators Leahy and Feingold (April 11, 2003)................... 175
Responses of the Department of Justice to questions submitted by
Senators Leahy and Feingold (July 10, 2003).................... 206
Responses of the Department of Justice to questions submitted by
Senator Leahy (July 17, 2003).................................. 238
SUBMISSIONS FOR THE RECORD
Mueller, Hon. Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
prepared statement............................................. 248
Thompson, Hon. Larry D., Deputy Attorney General, Department of
Justice, Washington, D.C., prepared statement.................. 258
REFORMING THE FBI IN THE 21ST CENTURY: LESSONS FROM THE OKLAHOMA CITY
BOMBING CASE
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THURSDAY, MARCH 21, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 9:34 a.m., in
room SD-106, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Hatch, Grassley, Specter, and
Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Please, all the witnesses
come up and take a seat. I want to thank the witnesses from the
FBI for their cooperation in agreeing that everybody will sit
at the table.
We have this situation where the Republican Leader,
exercising his rights under the rules, has objected to any
committees being more than 2 hours into the session. But this
is an extremely important issue, one that the American people
and the FBI are quite concerned about, how we deal with the
FBI's readiness to meet the law enforcement challenges of not
only today but of tomorrow, too.
We began oversight hearings last summer, and I think this
is extremely important because the FBI is facing some
unprecedented challenges. Also, under the new legislation we
passed, they have unprecedented powers and we want to make sure
in a democratic society that we balance those. We also want to
make sure that the FBI is able to do all the things necessary
to protect this great Nation.
It is the committee's responsibility to ensure that the FBI
is as great as it can be, and this series of oversight hearings
is a fundamental part of that. We will consider the FBI's
production, and it was actually belated production, as the
important and thorough report by the Inspector General revealed
this week, of the Oklahoma City documents. Also, we will look
at the question of the destruction of some of them.
What is troubling to me in that report, actually more
troubling than the belated production or the destruction, is
the conclusion that senior FBI personnel failed to notify
either the prosecutors on the case or high-ranking Justice
Department officials, including the current FBI Director,
Robert Mueller, who was then serving as the Acting Deputy
Attorney General, about the belated document production
problems until 1 week before the scheduled execution date for
Timothy McVeigh.
I am concerned about that because the trial had been a
textbook trial of how to do things right on both the
prosecution side and the defense side. After the millions of
dollars spent on that trial, to suddenly find a glitch like
this that could have derailed the whole process is very
troubling.
The Inspector General's report revealed that the
destruction of relevant FBI documents was not disclosed to the
court or the prosecutors on the case or the defense until after
Timothy McVeigh's execution. I agree with the conclusion in the
Inspector General's report that the court and defense counsel
should have been informed of the FBI's destruction of
documents, in addition to being given the belated documents,
while McVeigh's stay of execution was being litigated. It is
unlikely that any of the destroyed documents, if produced,
would have changed the outcome of the case, but that does not
excuse the FBI's conduct.
The observations of the presiding judge in the case are
illuminating. He described the FBI as ``an undisciplined
organization or organization that is not adequately controlled
or that can't keep track of its information.'' In denying the
request for a stay of execution, he noted ``It is the function
others to hold the FBI accountable for its conduct here, as
elsewhere.''
The report raises three significant issues for this
committee's review, as we are one of the ones that the court
meant should look into this. First, there are structural and
management problems at the FBI which need fixing. You can't
blame a computer or filing system when senior FBI agents in
charge of the Oklahoma City bombing case are aware of document
production problems almost 5 months before the scheduled
execution.
FBI headquarters officials were aware nearly 3 months
before the scheduled execution, but did not disclose these
problems to the FBI director, to senior Justice Department
officers, or to prosecutors on the case until a week before the
scheduled execution. It is hard to blame those who are in
charge when they don't get the information.
I am afraid it is an example of a ``circle the wagons''
mentality. If you learn about a problem, you can't bury your
head in the sand and hope it goes away. And you can't contain a
problem under the cloak of secrecy; it just aggravates it.
We will look to Director Mueller to consider appropriate
administrative action against the FBI managers who did not
promptly tell FBI headquarters or Justice Department officials.
But the silver lining in the Inspector General's report is the
conduct of two lower-level employees who, in contrast to the
managers, did the right thing.
The FBI financial analyst and the intelligence research
specialist who first discovered the document production problem
in January 2001 informed their superiors in the chain of
command, but did not go around them. As the report notes, ``the
FBI could do well to use this as an opportunity to help remedy
a longstanding FBI problem--the belief among FBI employees that
bringing problems to management's attention only results in
problems for the employee.''
Second, the information management and technology problems
at the FBI substantially contributed to the belated document
production. We are all relieved that the Inspector General
found no intentional misconduct, but the report documents a
number of fundamental flaws in the handling of information by
the FBI that contributed to the failure to produce documents in
the Oklahoma City bombing case: ``antiquated and inefficient
computer systems;'' ``inattention to information management;''
``inadequate quality control systems;'' misfiling, mislaying or
losing documents; failure by field offices to follow correct
procedures. The litany of problems is startling and that is why
I want to hear from the FBI what is going to happen on this.
Mr. Dies, I am glad you are here on that.
I appreciate, and I think most members on this committee
appreciate the efforts of the director to correct the
management and information management problems at the FBI. I
hope he appreciates the fact that congressional involvement can
help achieve that.
In the Emergency Supplemental Appropriations Act passed in
January, Congress, with my support, gave the FBI $745 million,
with more than $417 of that dedicated to computer and
information technology. We are poised to give another $245
million. That would amount to $1 billion infusion of funds into
the FBI, or a 25-percent budget increase since September 11.
Now, we are giving more powers, we are giving more money,
but the quid pro quo is that the problems will be fixed. This
committee cannot authorize more money, will not authorize more
money, nor will the Appropriations Committee appropriate it if
the problems are not being fixed.
Finally, we have to apply the lessons of Oklahoma City to
the challenges facing the FBI in fighting terrorism because
Oklahoma City, the problems there, the problems before
September 11, can be problems today, on March 21. There is
nobody in this room who would ever assume that we have seen our
last domestic terrorism or international terrorism attack
within the shores of the United States. We are sitting in a
building that is just yards away from one of the buildings
probably targeted in the September 11 attacks. So we have to
look at this.
There are parts of the Inspector General's report that are
chilling. They raise the critical question of whether the same
flaws hampered the FBI's sharing of counter-terrorism
information before the September 11 terrorist attacks.
I know there are some in the Congress who don't want us to
look into the question of whether mistakes were made prior to
September 11. I would say that those feelings are not shared by
the heads of the FBI, Director Mueller and others. They have
been very open with me that we will look at the problems of
sharing information.
Right now, it is fair to conclude that the FBI does not
know what it knows. That is the problem. You have got all this
information, but if you can't know what you know, it is not
going to help us. If the information is sitting locked up
somewhere, it is not going to help. If it is material that
hasn't been translated, it is not going to help. If it is
material that hasn't been distributed, it is not going to help.
The Inspector General's report demonstrates the need for
enactment of S. 1974, the Leahy-Grassley FBI Reform Act, to
charter the authority of the FBI's Inspector General to review
allegations of FBI misconduct and to strengthen FBI information
management and technology and to protect FBI whistleblowers.
I will put the rest of my statement in the record. We will
continue these oversight hearings, and I do want to extend my
appreciation for the cooperation I have received from the FBI
in going forward on this. It is a lot different than a few
years ago, what the cooperation would be.
[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 apologize
for being a little late. I had to introduce the Assistant
Secretary of the Treasury.
Chairman Leahy. Wearing that tie?
Senator Hatch. Yes, wearing my modest tie here.
Chairman Leahy. This is how you tell the liberals from the
conservatives on this committee. You will notice my dark tie.
Senator Hatch. The conservatives are so boring.
Mr. Chairman, I would like to start off by stating
unequivocally that I consider the FBI to be one of the finest,
if not the finest, law enforcement agencies in the world. But
those who justifiably we hold in great regard also bear a great
responsibility.
Last spring, we were all disappointed to learn that in the
process of turning over millions of pages of documents to the
defendants who were responsible for blowing up the Murrah
Federal Building in Oklahoma City, the FBI had inadvertently
failed to produce some documents. This is a mistake that never
should have happened in litigation.
Fortunately, with respect to Timothy McVeigh and Terry
Nichols, there was no basis for arguing that any of the
documents that were not produced would have altered in any way
the outcome of their trials. Next time, we may not be so lucky.
I am therefore committed to doing everything necessary to
ensure that these types of mistakes do not ever happen again.
The Department of Justice Inspector General has now
completed a thorough and comprehensive review to determine how
these documents fell through the cracks and how such mistakes
can be eliminated in the future. And before I go on, I would
like to acknowledge Glenn Fine, the DOJ Inspector General, for
the fine work performed by you, Mr. Fine, and your staff. This
report is clear. It is thorough and well-organized, and it
should serve as a model for future investigative reports.
There is much good news in the IG report. First, and most
importantly, there is nothing in the report that does anything
that calls into question the validity of the convictions or the
sentences imposed on Timothy McVeigh or Terry Nichols. While I
recognize that the guilt or innocence of these men was not the
focus of the IG's report, I nevertheless take comfort from the
fact that the IG uncovered no information that would even
suggest that these men were not the perpetrators of the
horrible crimes for which they were justly convicted. We must
not forget that these men were captured, brought to trial and
convicted for blowing up a Federal building and murdering more
than 160 men, women and children through the hard work and
through the dedication of FBI agents and personnel.
Second, I am gratified to learn that the Inspector General
determined that the FBI had not purposefully sought to withhold
these documents from the defense. The Inspector General found
that in the midst of producing more than a million pages of
materials, some 1,033 documents were not turned over, and that
the failure to produce these documents was simply the result of
human error, not misconduct or misfeasance or malfeasance on
the part of the FBI.
Finally, I have been pleased to learn that under the
vigorous direction and leadership of Director Robert Mueller,
the FBI has already begun implementing many of the IG's
suggested reforms. I applaud the IG for your thorough report,
and I urge the FBI to continue its commitment to overhauling
and upgrading its records management systems.
Let me make a final point. When the FBI does its job well,
we rarely hear about it. There is no way to tell how many
terrorist plots against the United States have been averted
simply because of the existence of the FBI's counter-terrorist
capabilities.
When the FBI does make the news, it is overwhelmingly for a
job well done. It may be the perpetrator of a rape who has been
identified and incarcerated because the FBI laboratory has
matched his DNA to evidence found at the crime scene. Or
perhaps a malicious computer virus has been detected by the FBI
and traced back to a cyber criminal operating in a foreign
country.
It is this positive record of effectiveness and efficiency
that makes it so newsworthy when the FBI fails to perform its
duty with the degree of care and professionalism that we have
come to expect. And as a result, many times we make a lot more
fuss about these matters than the matters that very few people
know very much about that are successes.
As a United States Senator, I consider it to be one of my
most solemn responsibilities to ensure that the awesome powers
our law enforcement agencies have are exercised in a
responsible fashion; that is, in a way that inspires confidence
in our citizens and does not unlawfully infringe on our
cherished liberties. I know that my colleagues on both sides of
the aisle also feel the weight of this responsibility.
Oversight hearings such as the one we are holding today are
important and I look forward to the testimony of the witnesses
today. But based on my review of the IG's report, the written
testimony submitted by the witnesses, and my own knowledge of
what Director Mueller has accomplished during his short tenure
as director, I am persuaded that the FBI is taking the
appropriate steps to address the shortcomings in records
management that were revealed by the Oklahoma City bombing
case, and thereby maintain its position as one of the world's
most effective law enforcement agencies.
So, Mr. Chairman, I appreciate your holding these hearings
and I want to thank you for your efforts here today.
Chairman Leahy. Thank you.
Our first witness will be Glenn Fine, who is the Inspector
General of the Department of Justice. He is a graduate of
Harvard Law School, a Rhodes Scholar, and a former Federal
prosecutor. He served as the director of the Special
Investigations and Review Unit, and now has served under two
Attorneys General. I know on this one, he has done extremely
thorough and detailed work.
I know that you put your own Director of Special
Investigations, Suzanne Drouet, in charge of the Oklahoma
documents matters, and I think that shows the importance you
gave to it. We will put the whole report in the record, but I
do want to hear from you, Mr. Fine, and then we will go to each
of the other witnesses.
STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Mr. Fine. Thank you. Mr. Chairman, Senator Hatch, members
of the Committee on the Judiciary, I appreciate the opportunity
to appear before the committee this morning to discuss the
Office of the Inspector General's report on the belated
production of documents in the Oklahoma City bombing case.
The disclosure of these documents just 1 week before the
scheduled execution of Timothy McVeigh raised serious questions
as to whether the FBI had intentionally failed to disclose
documents to the defense before trial, and why the failure to
produce documents had occurred. Because of the importance of
these issues, the OIG expended significant resources to
investigate the circumstances surrounding the belated
disclosures.
The OIG team of attorneys, special agents and auditors was
led by an OIG attorney whom Chairman Leahy just described, who
is a former Federal prosecutor. The team conducted
approximately 200 interviews of FBI and Department employees.
On Tuesday of this week, we issued a 192-page report detailing
our findings.
In sum, our investigation found that widespread failures by
the FBI led to the belated disclosure of more than 1,000
documents in the OKBOMB case. We traced the failures to a
variety of causes, including individual mistakes by FBI
employees, the FBI's cumbersome and complex document handling
procedures, agents' failure to follow FBI policies and
procedures, inconsistent interpretation of policies and
directives, agents' lack of understanding of the unusual
discovery agreement in the case, and the tremendous volume of
material being processed within a short period of time.
The failures were not confined to either the FBI field
offices or the OKBOMB task force. Both share responsibility.
However, we did not find that any FBI employees intentionally
withheld from the defense documents they knew to be
discoverable.
Our report criticizes most severely several senior FBI
managers for how they responded when they became aware of the
belated documents problem. The issue was first discovered in
January 2001 as part of a routine archiving process by two
conscientious analysts in the FBI's Oklahoma City field office.
These two analysts found copies of documents that had not
been turned over to defense attorneys and materials sent by the
offices to Oklahoma City. Yet, the senior managers to whom they
reported the problem failed to adequately manage the document
review process and failed to set any deadlines for completing
the project.
Most troubling, the managers failed to notify FBI
headquarters or the prosecutors in the case until the beginning
of May, 1 week before McVeigh's scheduled execution. We believe
their failure to take timely action to resolve or report the
problem was a significant neglect of their duties and we
recommend that the FBI consider discipline for these failures.
Let me now turn to the question of why the documents were
not produced before trial. We were able to determine a number
of factors that contributed to the belated disclosures.
First, the FBI's system for handling documents is
inordinately complex. Documents are stored in many different
locations. Various data bases are used to track the documents,
and information is placed on different types of forms that are
handled in different ways.
Second, despite instructions to send everything to the task
force, some agents failed to send documents because they deemed
the information as insignificant to the OKBOMB investigation.
Third, some employees incorrectly assumed that other
employees had sent the documents in.
Fourth, it appeared that many field offices did not follow
instructions from the OKBOMB task force to search their files
and ensure that all investigative activity had been properly
documented and sent to the task force.
We found that the task force also shares responsibility for
documents not being disclosed. For example, we found that
documents sent to the task force were lost or placed in the
wrong file drawer.
We carefully examined the allegation that the Government
intentionally withheld documents it knew to be discoverable
from the defense. We questioned FBI employees and former
employees, analyzed circumstantial evidence, and investigated
documents the defense alleged showed that the Government
intentionally withheld exculpatory evidence. We concluded that
the evidence did not support a finding that Government
personnel withheld evidence it knew to be discoverable.
We also examined the actions of the FBI after the belated
documents were publicly disclosed in May 2001. FBI officials at
headquarters incorrectly placed blame on the FBI's computer
system and FBI field offices, when the fault lay both with the
field offices and the task force. In addition, we saw many
untimely and inaccurate responses from the field offices to the
directives in 2001.
The issues encountered in this case shine light on several
of the FBI's longstanding problems: antiquated and inefficient
computer systems, inattention to information management, and
inadequate quality control systems. The FBI has both a paper
and an electronic information system in place, neither of which
is reliable. Although the belated documents issue was presented
as a discovery problem, the FBI's troubled systems are likely
to continue to impede its ability to perform its mission.
In our report, we detail many recommendations to help
address the problems we found. Following are highlights of some
of the recommendations.
First, the FBI needs to foster an attitude throughout the
entire agency that information management is a critical part of
the FBI's mission. It is not the glamorous part of the mission,
but it is an essential part. Unless the FBI as an institution
ensures that sufficient emphasis is placed on managing the mass
of information it collects, problems will persist.
Second, FBI automation systems must be reliable and user-
friendly and they must integrate data bases that are used for
many different functions throughout the FBI.
Third, the FBI must simplify its document handling process.
The FBI's current system requires paper documents to move
through multiple steps and locations, creating many
opportunities for them to go astray. The FBI also should reduce
the mind-boggling variety of forms it uses.
Fourth, the FBI must provide increased training on its
automation systems in document handling. They should be
required core skills for FBI employees, including agents and
supervisors, and refresher training also should be required.
In conclusion, the significance of this case is much
broader than the impact of the problem in the OKBOMB
investigation. The FBI has known about these problems for some
time either because the OIG has discussed them in other reports
or because the FBI has found them through its own reviews. But
until recently, the FBI has made insufficient efforts to
correct these deficiencies.
FBI employees need and deserve better computer systems and
support. As the tragic attacks of September 11 revealed, the
FBI will continue to be faced with cases of the scale and
dimension of OKBOMB, and the lessons learned from it will
continue to be important.
To adequately fulfill its responsibilities in major cases,
as well as in smaller ones, the FBI must significantly improve
its document handling and information technology. This requires
a sustained commitment of resources and effort, but the FBI
must make this commitment if it is to avoid the serious
problems that occurred in the OKBOMB case.
That concludes my statement and I would be pleased to
answer any questions.
[The prepared statement of Mr. Fine appears as a submission
for the record.]
Chairman Leahy. Thank you, Mr. Fine. One of the reasons why
I and many others have been urging the administration to do
what they can to speed up this ability to pull up information
is because, as I said earlier, I worry when the FBI doesn't
know what it knows. They have information that might stop a
terrorist bombing or might stop something from happening, but
if they don't know it is there, it doesn't help.
The rest of the panel will be Mr. Bob Chiaradio, who is the
new Executive Assistant Director for Administration.
I believe you used to head the Tampa office. Is that
correct?
Mr. Chiaradio. Yes, sir.
Chairman Leahy. Bob Dies is the Chief Technology Officer, a
former IBM executive who was very helpful to the committee last
summer. Bill Hooten is the new Assistant Director for Records
Management. He recently came to the FBI from a private sector
position at SAIC.
A vote has started, and we will recess for about five or 6
minutes so that we can go over and vote because I don't want to
interrupt the testimony of any of the three of you. I will come
right back and we will begin the testimony of the remaining
three and then go to questions.
I should note that Mr. Chiaradio will be the one who will
testify, and Mr. Hooten and Mr. Dies will be there to answer
questions, as they have for the committee before.
Thank you.
[The committee stood in recess from 10:01 a.m. to 10:19
a.m.]
Chairman Leahy. Thank you for your patience.
Mr. Chiaradio, would you please go ahead?
STATEMENT OF ROBERT CHIARADIO, EXECUTIVE ASSISTANT DIRECTOR FOR
ADMINISTRATION, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.; ACCOMPANIED BY BOB DIES, CHIEF
TECHNOLOGY OFFICER, FEDERAL BUREAU OF INVESTIGATION, AND BILL
HOOTEN, ASSISTANT DIRECTOR FOR RECORDS MANAGEMENT, FEDERAL
BUREAU OF INVESTIGATION
Mr. Chiaradio. Thank you. Good morning, Chairman Leahy,
members of the committee. We appreciate the opportunity to be
here to discuss the myriad of things we are doing in response
to the issues properly identified by Inspector General Fine. We
also appreciate this committee's longstanding interest in our
ongoing efforts to rebuild our antiquated information
infrastructure.
We commend Inspector General Fine and his staff for a
thorough, objective, and independent examination of these
issues. His report is instructive and his recommendations
constructive. Because his findings go to the very heart of how
we conduct one of our core functions, Director Mueller has had
the report made available to all employees and has made it
recommended reading for all FBI management and supervisory
personnel. Its lessons will be part of our training and its
relevance and importance will live far beyond today.
Last May, then-Director Freeh outlined for Congress the
massive nature of the OKBOMB investigation and the virtual
flood of documents and information created during this course.
He also expressed regret that our shortcomings pertaining to
the records had overshadowed the enormity of the sacrifices and
accomplishments of those agents who successfully investigated
this case.
He candidly admitted that, ``We simply have too little
management attention focused on what has become over time a
monumental task. The seemingly mundane tasks of proper records
creation, maintenance, dissemination and retrieval have not
received the appropriate level of senior management attention.
This episode demonstrated the mundane must be done as well as
the spectacular.'' He then outlined a number of steps that the
Bureau had embarked upon to fix some of these shortcomings.
On Tuesday, Director Mueller stated that ``Sound records
management and document accountability are at the heart of the
FBI's ability to support investigations and prosecutions with
information integrity. There can be no doubt about the
accuracy, completeness, and proper disclosure of the records we
compile during our investigations and used by prosecutors in
the support of prosecutions. The ability to maintain, access,
and retrieve documents is critical to our mission and equally
critical to protect the rights of those charged with crimes. It
is also fundamental to robust information-sharing capacities,
both functions which we are readily enhancing. In short,
records management and integrity are core functions that demand
the same level of attention and accountability as any function
we undertake. It must be a part of the Bureau's culture.''
As Inspector General Fine outlined for you, there are host
of contributing factors. The methods we use to record and
retrieve information are too complex. Our automated case system
was not very effective in identifying information or supporting
the investigation. Our technology was inadequate. We lacked a
true information management system, and what we do have is not
user-friendly. Many of our employees lack the training
necessary to be fully engaged in an automated environment, and
a host of other issues as well.
But what we thought when this issue first surfaced and what
we believe now has been confirmed by Mr. Fine. This is not a
computer glitch. Although a more robust system would have
helped, it is a management and cultural issue which must be
forthrightly confronted.
We can add technology, simplify our procedures, and
dramatically reduce the opportunities for human error. Doing
those things are relatively simple. What we must do and what we
are doing is recognizing information management as the core
function that it is. At all levels, we must lead the Bureau
back to where the function is accepted as second nature. We
must put in place the structures and automation that fully
support this core function, and we must inculcate in every
employee, ourselves included, that this new way of doing
business is the only way acceptable. We must improve our
records management practices, not simply automate what we have
been doing for decades.
We are taking specific actions to address each concern
raised by the Inspector General and a number of significant
steps are well underway to overhaul our Bureau-wide records
management capabilities to increase accountability for
compliance with established record procedures and to put in
place the training and skill sets necessary to bring about full
acceptance of a near-paperless environment.
Borrowing a little from what my boss has said, with the
help of the Congress we have restructured to recognize that the
creation, maintenance, use and dissemination is a core function
that must be fully supported by management as a priority.
We have created a Records Management Division to ensure
executive direction and full-time oversight over all records
policies and functions, consolidating all records operations to
ensure consistency, thoroughness and accountability. A
professional records management expert, Mr. William Hooten,
here with us today, has been hired from the private sector to
run that division. He has been charged with modernizing our
enterprise-wide records systems, developing comprehensive,
enforceable policies and procedures, and to ensure records
integrity. He is also charged with putting in place those
quality control mechanisms that will detect anomalies and
problems early on.
It is critical that we manage information, not just the
systems that support our records. Congress has funded, and we
are implementing, extensive agency-wide training aimed squarely
at reforming our culture to one that exploits and incorporates
technology in our everyday way of doing business.
Director Mueller is personally providing the leadership for
this. We have retrained our employees on proper document
production, management and retrieval, and the importance of
records management as a core function. There will be continuous
training over the course of an employee's career.
Of course, basic to any modern system of records is a
modern information technology system, and modernization of our
information technology, as this committee knows, is one of our
top priorities. We are making sustained progress in this area.
Congress has approved funding for the FBI to upgrade technology
and infrastructure for organizing, accessing, analyzing and
sharing information throughout the FBI and beyond.
We are replacing the now antiquated automated case system
in favor of a multimedia, near-paperless virtual case file,
with significant improvements and capabilities that greatly
reduce the possibility that future documents will be misfiled,
lost, or otherwise fail to be produced. The new system will
dramatically decrease the potential for human error, both
automatically doing many functions now done by manual
intervention and by substantially reducing the number of
opportunities for problems to occur that are inherent in our
current systems.
This new case file document management system, designed
with substantial input from street agents, will be of benefit
in greatly simplifying the records creation and maintenance
processes, being user-friendly, and allowing us to manage leads
much more effectively.
The FBI's computer network is being completely revitalized
to provide a data warehousing, collaborative environment,
instead of application stovepipes. The creation of data
warehouses and ample supporting networks provide easier and
more robust access and sharing of information, and results in
integrated data bases. The need for ad hoc crisis software
applications will be eliminated. Private sector support which
will allow commercial software and professional scanning,
indexing and storage of documents is being used to move us
rapidly out of the paper environment that was so vexing in the
OKBOMB investigation.
All of these systemic changes and many others, including
everything Mr. Fine recommended, are critical components to
what must be a sustained agency-wide effort. These things are
as important to protecting rights as how we execute warrants
and testify in court. The challenge is great, especially the
challenge of changing the culture. We believe we are on the
way.
Finally, although his exhaustive investigation found no
evidence of any intentional effort to withhold information from
defense counsel, the Inspector General's report also criticizes
actions of certain FBI personnel. We are reviewing these
criticisms and will move quickly to take any appropriate
disciplinary action. In the end, there must be accountability.
At this time, I am prepared to present a brief
demonstration on the prototype of the virtual case file that is
currently in development or answer any questions, as the
Chairman would like.
Chairman Leahy. I assume throughout all that you are doing
the appropriate firewalls, depending upon classification and
that sort of thing.
Mr. Chiaradio. Absolutely. Within the branch created by
Director Mueller in my area of responsibility is a new Security
Division. Integral to this new system will be overlays and
internal security, external security and the like.
Chairman Leahy. Go ahead with your demonstration.
Mr. Chiaradio. Mr. Chairman and members, I have circulated
before my testimony this morning four charts which I will refer
to in the presentation as slides.
The first slide is basically a virtual case file. What we
would have is a sign-in screen. The IG found that ACS was so
difficult to use that many agents and supervisors had abandoned
their effort to use it. In fact, they would rather rely on
secretaries and administrative personnel.
Our current system is 1970's and 1980's technology, green
screen emulators with F key functionality. For example, it
takes more than a dozen screen entries just to enter one
document and upload it into the system. The virtual case file
is designed to operate in a browser-based technology, point and
click, user-friendly, things that we are using today in our
everyday lives. The presentation will be more intuitive.
Security will be essential, as the chairman asked, as an
integral component. Access will be password-controlled, roll-
based authorities, possessed of robust features for document
management control, auditing unauthorized access, the things we
found with the Hanssen investigation.
We will have system-wide activity approval logs which will
track documents where they have been throughout the process
from creation into the final system, through what approval
processes they travel.
Chairman Leahy. You will also be able to follow, then, who
was picking these documents up, too?
Mr. Chiaradio. Absolutely. The system will be able to show
us who may have printed a document, who looked at a document,
where the document is. When it is needed for discovery, it will
be in one place. It can't be misfiled. It can only be printed
or burned onto a CD and transmitted to the defense or to the
prosecutors.
We have a case document access review, where the agents
will be responsible to go in on their own on a certain that
will be designed that they go in and they see who footprinted
into their case, who was supposed to be in there and who not,
with the responsibility to elevate those concerns when found.
I will take you to the second slide. Once we would sign
into a case, a case agent would now see----
Chairman Leahy. Incidentally, this kind of thing you are
talking about--I am sure Judge Webster's review people are
probably looking at, too, I would hope.
Mr. Chiaradio. Ken Sensor, the Assistant Director in the
Security Division, has had a series of meetings with Judge
Webster and his committee.
Chairman Leahy. Thank you.
Mr. Chiaradio. On the second page, on the slide, we were
getting to a case file management system. Typically, this would
be the prototype of what an agent would see when they logged in
in the morning. Although the paper obviously doesn't reflect
it, there is a red arrow circling up in the top case. That is
going to be indicative to a case agent or an investigative
employee that something new has happened in their case. A lead
has come in from another office, a serial has been sent to
them, a supervisor has sent instructions. There is not a
chance, again, for human error. We are trying to minimize at
every opportunity where human intervention is necessary, to
have automation and technology assist us.
What we would see here is the ability to track leads, to
control documents, to know when there is a document and
activity has taken place in the case. The virtual case file
will be interactive, intuitive processes, the ability to see
one's case and lead assignments on a screen, rather than in
paper folders or in drawers or in file cabinets, intuitively,
again, to point and click to a file in your area of interest.
We would, for example, in this case click onto the first
case and bring you to slide three, and this would be what was
going on in this particular case. Again, that arrow or that
spinning red notification would show you that what had happened
in that case was a photo spread had come in, which is something
that we don't have in ACS. We don't have the ability to put in
any scanning or multimedia. It is only documents that we may
create in our own environment, nothing external from another
agency, for example, no ability to put a picture in.
During the 9/11 attacks, shortly thereafter, I was the
agent-in-charge in Tampa and headquarters wanted to send us
pictures of the 19 hijackers. They couldn't use our
infrastructure to do that. It had to be put on a CD-ROM and
mailed to me.
Chairman Leahy. Also, I would think that you could do that
in a hurry. Another part that is helpful is so many times it is
frustrating. You hear on the news, whether it is the FBI or the
chief of police in a major city or somebody like that will say
there has been this terrible crime. We have the description and
artist's sketch of such-and-such a person, and whoever is
reporting the news is talking about it and I think the average
American sits there saying, well, put the sketch up so we can
see it.
Also, in those cases where you have got something and the
Bureau determines that it makes some sense to let the press
know this, you can immediately disseminate it to hundreds of
outlets, thousands of outlets, if need be.
Mr. Chiaradio. Absolutely. The virtual case file is one
part of Trilogy, and Trilogy is the big project that the
Congress has funded for us. By this summer, we hope to have
deployed to the field the robust network, the desktops, the
hardware, and the presentation software. This notion of Trilogy
is in a development stage now called joint application design
with the contractors and the users.
An important point to add about the virtual case file with
respect to multimedia capabilities is the chairman's comment is
we don't know what we know. We don't know what we know because
a lot of the information we obtain and we collect in our files
remain in a paper format. They are externally generated. They
sit in file cabinets.
The multimedia capabilities of the virtual case file will
give us the ability to bring that information into a digital
format into data warehouses, to be able to access it, to be
able to work against it with robust search engines and the
like.
The FBI's current document management system requires paper
through multiple procedures and steps. The IG had found that
and it was replete through his report. The quote was that it
was ``mind-boggling,'' the variety of forms. What we are doing
in the virtual case file development is eliminating to a great
extent the forms in our investigative cases. We are getting
down to one form.
We are going to obviate the need to have multiple reporting
and stovepiping of applications by designing on the front end
what we may need as an organization and not have to create
automation to compensate for forms that were designed in the
1930's, the 1940's and the 1950's. We need to not just
automate, but we need to revitalize the way we do our business.
We would have this project, virtual case file, delivered,
certified and accredited for some months. In the interim, under
the direction of Mr. Dies, and also our Information Resources
Division, we are going to do some things to ACS.
We are going to collapse those 15 screens to upload a form
down to 2 or 3. We are going to get our work force trained and
start to get them ingrained in a culture of using this new
technology for our organization anyway--the point-and-click,
the Web-basing. So by the time we turn on our virtual case
file, we will be prepared.
We have a robust training program put in place not only on
the hardware deployment but on the software deployment. We have
about $20 million set aside to do enterprise-wide training to
get our organization prepared.
The last thing I will show on slide four is just an example
of the photo spread, things that we can't do today, have
multimedia, simply just transfer a photo spread of Mohammed
Atta, as I just gave you a graphic anecdotal example of what
happened when I was running the Tampa field office.
ACS will allow full-text retrieval. It would be very time-
consuming before we had this to even get anything out of ACS.
You might not even know what you are looking for. The search
engines that are available today to search my name--you would
have to have all of the letters in almost exactly the right
order to even know if I was in your system.
We are working with the intelligence community, with the
Mormon Church on some of the search engines they use for
genealogy review and research to put a more robust search
engine in there so we can pick out information that may be in
our data bases; foreign names, for example, as a good start.
The most important thing is to get our data bases together.
With this virtual case file and the data warehousing that we
are going to create, we are starting with the five most
critical investigative applications. We have about 42 that have
been created as work-arounds to a bad system.
Some of those investigative warehouses--the need for them
will be obviated by what we are doing with these five new data
base consolidations into one warehouse. The others are going to
be addressed after Trilogy in future appropriations requests
and in future efforts by our Information Resources Division.
I can answer any questions or I could go further. There are
many features that we have in this prototype, but I wanted to
just give you a few examples of how accurate Inspector General
Fine's report was on our shortcomings and how we will use every
possible thing we can as far as technology to minimize the
opportunity for human error. But that is not the final answer.
We need to do more. We need to do more culturally. We need to
do things in our organization to put an emphasis on this, on
the importance of data management.
[The prepared statement of Mr. Chiaradio appears as a
submission for the record.]
Chairman Leahy. You have so many superb men and women in
the Bureau who are well-trained. They go through intensive
training, as you know, and I want them to feel that when they
are there what they are doing is actually being paid attention
to, and if they are involved in cases, they are going to be
heard.
Technology is not the only answer, of course, but if you
have technology that really brings the Bureau together rather
than balkanizing it, that is extremely important. But then you
have to do what Mr. Fine's report points out. You have also got
to go to the basic culture of the Bureau to make sure that as
you break down the walls, you really want everybody in.
If I could, I would like to go back to the Inspector
General. I want to make sure I understand the sequence of
events correctly, and I was reading through the material last
night.
In January, the potential discovery problem is first
brought to the attention of the senior FBI official who was
running an entire FBI field division. From that time until May
7, the FBI conducts a search in most every field office in the
U.S. for documents which were not turned over. Memos were being
sent. Documents were being shipped to Oklahoma City and
analyzed there. Supervisors are flying in from Dallas to review
the materials; they have meetings. So there is a wide-scale
operation going on in the Bureau. As it is proceeding,
documents are being discovered that people in the FBI suspect
may not have been turned over to the defense, even though they
should have been.
Now, I am assuming this is an ongoing process. All of these
documents didn't simultaneously appear the morning of May 6. So
am I right that it essentially happened over a 5-month period
and no one in the FBI even mentioned this potential problem to
either the prosecutors who were working with them on the
McVeigh case or to officials in the Department of Justice?
Mr. Fine. That is correct. No prosecutor, no one in the
Department of Justice knew about this issue until May 7.
Chairman Leahy. What does that say about the atmosphere in
the FBI and how you would deal with these kinds of problems?
Mr. Fine. I think that is not a good atmosphere. When we
talked to the inspector in charge, Mr. Defenbaugh, and asked
him why he didn't expose the potential problem, he had a number
of reasons, including he wanted to research the problem, he
wanted to ensure that he was thorough. But when we asked him
why didn't you tell somebody in the Justice Department, a
prosecutor, that you had a potential problem so that they could
deal with it, one of the answers he gave was I didn't want it
to leak out, I didn't want to cry wolf.
That, to me, discloses not a good relationship that you
could not tell a prosecutor and let the prosecutor provide
guidance on the appropriate way to deal with this potential
issue, even if you think you may find documents later on. We
believe that the Department of Justice and the prosecutor
should have been notified, and should have been notified early.
Chairman Leahy. Well, I would think so because I know then-
Director Freeh, like Director Mueller today, both of them are
people who want the rules followed. Whether they agreed or
disagreed--I am not saying they did disagree, but whether they
agreed or disagreed with the court's ruling on discovery, I
don't think there is any question that former Director Freeh
and current Director Mueller would want those rules carried
out.
There is no question in my mind that Attorney General
Ashcroft, just as his predecessor, Attorney General Reno--if
there was an order for discovery, they would want it carried
out. What worries me is that somebody down the chain puts the
Attorney General and the FBI director and the court and
ultimately the public in a difficult position.
Did any of the people you dealt with in the FBI accept
responsibility for their actions or inactions, as the case may
be?
Mr. Fine. We found actually a notable and distressing lack
of accountability, particularly on this issue. When we were
talking to the people involved, they would say that it was
somebody else's job to notify the prosecutors; it was somebody
else's job to ensure that the review of the documents was done
in an expeditious way.
One person kept saying, well, I was just a consultant to
the problem, or I was in the problem and I was out of the
problem. We believe that many of them should have taken
responsibility and ensured that the process was reviewed
quickly; if there was a problem, in fact, and that the
prosecutors in the Department of Justice and FBI headquarters
be notified. And none of them took the appropriate actions, in
our view.
Chairman Leahy. The reason I ask these questions is not to
beat up on the FBI by any means. In this case, the Timothy
McVeigh case, all the accounts I have read of it--and I have
talked with the prosecutors involved with it. Obviously, when I
was prosecuting cases, I never had anything that horrendous. No
prosecutor has ever had anything that horrendous prior to that
time and we hope that they don't again.
I looked at that case as a textbook of the way a case
should be run. You had a judge who knew what he was doing who
was in control of the case. You had highly qualified defense
attorneys, highly qualified prosecutors, and a case of enormous
importance to the United States. It was handled well, and I am
convinced of the defendant's guilt. There is no question in my
mind from everything that I have read about it that he was
guilty; no question that the law was followed appropriately on
the sentencing phase and death penalty phase. All of that was
done very, very properly.
What I worry about is something like this, where there is a
mistake and somebody saying I don't want to tell anybody, and
it may end up jeopardizing that whole thing. You know as a
former prosecutor in a case like that it would be the most
difficult thing in the world to re-try that case. You could do
it, but it would be twice as hard to re-try a case, usually,
that it is to try it in the first place.
I worry about whether these kinds of mistakes in the
handling of documents and information might be the same kinds
of flaws that hampered the FBI's sharing of counter-terrorism
information internally and with other agencies prior to
September 11.
You state in your report on page 176, ``The tragic attacks
occurring on September 11, 2001, demonstrate that the FBI
continues to be faced with cases of the scale and dimension of
Oklahoma City, and the lessons learned from the Oklahoma City
case continue to be relevant. Though Oklahoma City occurred
over 6 years ago, the FBI's document management process remains
generally unchanged, as does the technology on which it
relies.''
You further point out that the failure to manage
information properly has important implications for the FBI's
ability to share information, both with prosecutors and other
law enforcement agencies, which you state is even more
important in the wake of September 11. I happen to agree with
you. I am very, very worried that these other agencies don't
have it.
Do you think that these problems that you found hampered
the ability of the FBI, our premier investigative arm in this
country, from being able to adequately share counter-terrorism
information prior to September 11?
Mr. Fine. I think the FBI is in the business of gathering,
storing, tracking, analyzing and sharing information. If they
don't have adequate technology and information systems to be
able to do that, I think it does hamper them.
I can't say what happened in the September 11 cases, but
the vulnerabilities that we found in the OKBOMB case, I
believe, have significant impact and effect on its abilities
throughout major cases, as well as in smaller cases. So I do
believe that these issues affect everything the FBI does.
Chairman Leahy. Thank you. Everybody agrees that given the
current state of the FBI's information and computer technology,
in one sense the FBI does not know all that it knows. Does
anybody disagree with that?
[No response.]
Chairman Leahy. Now, I talked to the Attorney General last
November and I told him he was right to focus the Department of
Justice and the FBI on protecting America from further
terrorist attacks. I am glad to see that that focus was
emphasized after September 11, but if you are going to plan
effectively for the future, you have to know what worked or
didn't work in the past.
I have asked the Attorney General to consider an internal
review of the FBI's counter-terrorism performance prior to and
bearing on the attacks of September 11 to see if there are any
lessons that we might learn there. I asked the FBI director
last October to preserve all the FBI's records and information
so that such a review could be conducted, even if we found
areas where mistakes were made. It won't surprise you to know
that Director Mueller said, of course.
Would that kind of review be useful?
Mr. Fine. I think reviews are useful to determine the
lessons learned, the problems that occurred, and how to prevent
it from happening in the future. I hope that this review is
helpful in the information technology field. I believe other
kinds of reviews can have important effects and help in the
future. So I do believe that what we do, what the inspector
generals do, performs a useful function.
Chairman Leahy. Does anybody want to add to that?
[No response.]
Chairman Leahy. I will turn to Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I really have
the greatest respect for the FBI. I have worked with them for
quite a number of years and seen the integrity and dedication
of the agents, their intelligence and ability and training.
The judge said they are not disciplined. I think for the
most part FBI agents are disciplined, but it is not a perfect
situation. Mr. Fine, I think you are touching on the good and
the bad there.
Director Mueller, I believe strongly, has the kind of
experience to understand just this problem. He has been a big-
time prosecutor of criminal cases all his life. He is a career
prosecutor. He admires the FBI agents that he has worked with,
and I have asked him about it. But I also believe he would
understand how to avoid this kind of thing happening in the
future. For that, I am very grateful that we have him at this
time because it is time to confront some of the problems in the
FBI and try to get past those.
Your report, Mr. Fine, seems to touch on that. Your answer
to Senator Leahy's questions were, I think, candid and
noteworthy and important.
Mr. Chairman, I love the FBI and I believe it is the
premier law enforcement agency. You are correct. They are
accountable to this Congress and to the American people, and
this is the best way that the American people will have
confidence in it, to have public hearings and talk about the
problems. We should do that, and I salute you for going forward
with this review.
There are good things, I think, here that maybe a lot of
people didn't notice. It didn't surprise me at all. I think I
understood precisely how this problem with the McVeigh case
happened. It was not intentional, as you found. As a matter of
fact, there would be no real motive in terms of hurting the
defendant for an FBI office in Miami to fail to send in an
insignificant document to the prosecutors in Oklahoma City,
would there, Mr. Fine?
I mean, it was inadvertence and lack of attention to detail
rather than some attempt to compromise the prosecution or hurt
Mr. McVeigh's chances.
Mr. Fine. As I stated, we didn't find any intent on
anybody's part to withhold discoverable documents that they
knew to be discoverable from the defense. It was a wide range
of documents. Many of them were utterly useless and
insignificant. There were documents in virtually every field
office. It was a widespread failure that we found. We did not
find it to be an intentional failure.
Senator Sessions. What happened was in that court, that
judge looked at that prosecutor and issued an order about what
would be disclosed. It was a broad disclosure order that
required documents and any interviews relating to the case, I
assume, to be disclosed.
Mr. Fine. Actually, Senator Sessions, it was an agreement
by the Government and the defense for this broad discovery.
Senator Sessions. But essentially it was backed up by the
order of the court. Is that correct?
Mr. Fine. I believe the court did recognize it and order
it, but it was entered into by the Government. The reason they
did that was to ensure that the defense got the evidence, to
show that there would be fair access to the evidence, and also
to try and avoid discovery disputes.
Senator Sessions. Well, you make a good point because I am
not sure under the strict rules of evidence all these documents
would have been admissible, Mr. Chairman. Mr. Fine makes a good
point. In fact, they probably were not. What happened was the
prosecutor voluntarily agreed to what we refer to as an open
case file. We will give you all documents, all interviews
related to the case.
What was the language they actually used?
Mr. Fine. The language was never written down. This was an
agreement entered into by the prosecution and the defense and
it was never memorialized in writing. But there was as clear
understanding that all FBI 302s--that is, records of
interviews, inserts, 1-A documents, evidence and other things--
had to be turned over to the defense or made available to the
defense.
Senator Sessions. So then a directive went out from the
Oklahoma City investigative team to every FBI office in
America, because this was such a big case and it impacted the
Nation and leads were being run in every office in America, to
send in all your information. Some of them did and some of them
did not, and that is what caused the problem fundamentally?
Mr. Fine. Fundamentally, that is what happened. There were
many directives sent to the field offices saying send in
everything you have on the OKBOMB case, and we found that in
many cases those offices didn't. And in many cases, they did
send it in and it was lost at the task force.
Senator Sessions. Now, on the negative thing here to the
FBI, I have sensed on occasion--and I will ask if you found it
here--do you think some of the people who got those inquiries
and those telexes to send in information said this is not
discoverable stuff, we don't really have to turn this over, I
am not sending it in? Do you think that possibly was in the
back of some people's minds, even though the prosecutors and
the judge and the defense counsel were expecting all documents
to come in?
Mr. Fine. Yes, we found that. We found that some agents
used what they thought was their discretion to say this is
irrelevant, non-pertinent, and it doesn't need to be sent in.
But we found that they should not have done that, that they
were specifically directed to send in everything and let the
task force decide what had to be turned over. So, yes, that did
happen.
Senator Sessions. Sometimes, people get to thinking instead
of following the direction of their bosses, and that can be
dangerous if you don't know all the facts in the case, as
obviously here. So that really compromised the case, I would
suspect, that kind of mentality, inadvertence or whatever.
All the documents--and how many were produced? Was it a
million?
Mr. Fine. There were millions of documents made available
to the defense. There were 27,000, I believe, memoranda of
interviews. I think there were 13,000 pieces of evidence. There
were millions of hotel receipts, motel receipts, rental car
receipts that were being tracked and made available.
Senator Sessions. And many of them, as it turned out, had
absolutely nothing to do with the case.
Mr. Fine. That is what the judge found.
Senator Sessions. I remember when I first began as a
prosecutor we had a great prosecutor in the South District of
Alabama. The FBI knew him and he was renowned. His name was
Ruddy Favre. They have named one of the rooms in the Federal
U.S. Attorney's office now for Ruddy. He died a number of years
ago.
He would tell all young agents this: don't' you worry. If
there is an error in this case, do not cover it up. Come and
tell me as soon as possible and I will take care of you. He
said that because he believed that there was almost a zero
tolerance for any error in the FBI. The young agents were
afraid that if they had made a mistake, if they told it, their
careers could be ruined. They could be adversely disciplined
for some decision in a complex matter that they hadn't had
experience with and it would compound the error.
Do you think there is a culture afoot in the FBI that still
makes agents reluctant or fearful about coming forward at the
earliest possible date if they may have made an error, even an
unintentional error?
Mr. Fine. Yes, I think it exists to come extent. I don't
believe it is all over the FBI, but I think that attitude is
present.
I remember testifying at a hearing before this committee
last year at which Senator Danforth made that very point. He
said the big problem is not the mistake, it is the failure to
disclose the mistake. That is what he thought the FBI should
focus on, ensuring that people who make mistakes feel free and
come forward and disclose those problems. I agree with that.
Senator Sessions. To me, that is a problem we need to get
beyond. You don't want to accept lack of highest possible
standards. You don't want to accept mistakes on a regular
basis, but you also want people to let you know. The official
spokesman for the FBI in the official arena, the courts, is the
United States Attorney.
Do you think that the agents could have been more
forthcoming and could have been more cooperative with the
prosecutors in the case on these subjects?
Mr. Fine. Well, I think in the case itself I don't have a
comment on that. I believe that the FBI--and I want to point
this out: This should not diminish the enormous efforts of the
FBI in investigating OKBOMB and bringing to to a successful
prosecution, including the person that we criticize, Mr.
Defenbaugh.
He was the inspector in charge of that investigation and he
deserves wide credit for the way he handled that investigation.
We criticize strongly how he handled the problem when the
belated disclosures came forward. He did not disclose that
potential problem and we think he should have at an early
stage. I don't think he intended to cover it up completely. I
think eventually he was going to tell about it if all of the
research confirmed there was a problem. We think, though, he
should have disclosed that problem very early on.
Senator Sessions. Well, I think you are correct. I know
Danny Defenbaugh and I know he is a good man. He gave his life
to the FBI and his country, and I believe he was working with
just incredible tirelessness to make this case successful. I am
sure it is a great embarrassment and painful for him to have
this event--after all the things that they did successfully in
the case, have this event come back and cause a problem.
He did delay some reporting it. What was it, a month or 2
months?
Mr. Fine. No. From the end of January, when the problem was
initially disclosed, it went to about March, when it was very,
very clear that they had not been able to find the documents
and that there was a significant number of problem documents.
And he did not disclose it until May 7.
Senator Sessions. May 7, and that was shortly before the
execution date?
Mr. Fine. The execution date was May 16.
Senator Sessions. So they decided to do their own internal
review to make absolutely certain that this had to be
disclosed. When they realized that it had to be, they did so,
but late?
Mr. Fine. Well, the conscientious employees that I
described, the two analysts, when they get the documents, they
disclosed it to their supervisors, including Mr. Defenbaugh,
and they went forward with their review. But even by March, it
was clear that there was a problem with the documents and they
continued their review until every single document had been
analyzed and reviewed in this very time-consuming and laborious
process.
That happened at the end of April, and so they were finally
mailed to Mr. Defenbaugh on May 7 and he disclosed it then. But
in our view, his failure to disclose the potential problem
earlier was a significant neglect of his duties.
Senator Sessions. I would agree. I think there was a delay
there, an unfortunate delay. It was not held too late in the
sense of the case. He did do it before the execution date, but
there was very little time. It should have been done sooner.
Thank you, Mr. Chairman. I have gone over my time.
Chairman Leahy. I gave you extra time. It is an important
point. We all recall that because they had been so late in
reporting this, the Attorney General had to delay what had been
the scheduled execution date in that case to have it reviewed.
I said at the time I thought the Attorney General did the right
thing. I also know in my private conversations with him he was
not happy to have been put in that position. He had no problem
in doing what was the right thing to do, but he was not very
happy that when they started knowing about this early in the
year that nobody had come forward.
Senator Grassley has been at several other meetings, and
this is an area where he has not only enormous expertise but
has been heavily involved. I appreciate him stepping out of his
other hearing and I would yield to him.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Well, I thank you, Mr. Chairman, for
doing that, and I want to thank you on this issue and a lot of
other issues for your cooperation with me, and particularly
your leadership on the bill that we recently announced.
First of all, I want to take the time to commend General
Fine. I don't know you very well, but I want to get well
acquainted with you. I think this report and the work that you
have done on the FBI investigation, the McVeigh documents, et
cetera, have been worked the way that inspector generals ought
to work.
I say that not only from my observation, but I have a
former employee who has been observing inspector generals' work
for a long period of time. He is no longer in my office, but he
made a very positive comment to me about your work, and I kind
of use that as a standard of judging some of the work. So I
think I not only want to commend you for this report, but I
think for doing what inspector generals should do.
The most important, key point there is independence, and if
sometimes you don't feel you have the independence that I think
inspector generals ought to have and I think that the law
allows you, I hope you will let me know.
I think you have proven through this work to be genuine
watchdogs. I think you have hit home the need for the FBI
reform bill that was introduced by the chairman and me, and
this would codify, as you know, the Inspector General's
authority to investigate the FBI.
I would turn to Mr. Chiaradio and the rest of you, and bear
with me if I am asking something that you have answered before,
because I would like to hear it from you again. So maybe we
need to followup with some dialog.
First, it was unclear to me, in the comments of the FBI and
the Department of Justice officials this week, whether the FBI
has really taken responsibility for the main cause of McVeigh
document problems, and that is obviously and quite simply human
error. The problem was more than just a terrible filing system
and old computers.
I don't want to rehash the whole report, but it pointed out
problems and mistakes at the top level at headquarters all the
way down to field agents. So I want to make sure that, first,
you agree with the IG that human errors up and down the FBI
chain were the main cause of this problem.
Mr. Chiaradio. Senator, absolutely. Through my remarks and
through some of the conversations we have had here today, it is
clear that we have a cultural change as much as we have
anything. Technology and technology upgrades will absolutely
assist us in minimizing the opportunity for human error, but as
an organization we need to change. We need to get to the sense
of urgency and the attention to detail, as Director Freeh said,
in the mundane as much as the spectacular.
I can tell you from the 6-months that I have served
directly under the leadership of Director Mueller that he not
only believes that, but I believe he believes it. He has had
two separate meetings now with all of our special agents-in-
change where I have heard his comments to that audience, where
he expects accountability, he expects people to admit their
mistakes, come forward quickly with them and move on and
correct them.
He is inculcating that into the organization to every
person in the organization, and I believe that he is making
that difference. It is a leadership issue, Senator. It starts
with the director and it comes through all of us, and I believe
we are on our way to that.
Senator Grassley. My second question deals with the
National Infrastructure Protection Center. I am going to refer
to it, as I think everybody does, as NIPC. I ask you
particularly because of your being an expert on technology, so
I would like to ask you about the director's plan for the FBI
to swallow up NIPC by putting it in the Criminal Division.
I hope that you know that NIPC is supposed to share
information with the private sector and issue warnings about
threats. The private sector has some concern about NIPC, and
particularly concern about that move. So why does the FBI want
to turn an information analysis and warning center into a
support office for criminal investigation?
Mr. Chiaradio. Senator, I talked to the director about this
issue this morning at our seven o'clock staff meeting in
anticipation of your question. The director has made no
decision with respect to the NIPC. He has authorized me at this
point and at other times to let you know that he values your
opinion. Clearly, he will not make any final decision without
coming to see you.
Senator Grassley. Thank you. I think I have made clear that
I think it is a mistake. I will be glad to listen to that, but
I hope you come around to the point of view that I have.
I understand that you are training new and current agents
in computer and recordkeeping with what is referred to as back
to basics and other things, but I would like to know how these
new policies will be enforced. What I really would like to have
you answer is, first, specifically what kinds of accountability
measures there are for the FBI as a whole and individuals in
the FBI. And, second, how are you going to make sure that the
FBI doesn't have the same human error mistakes that led to the
problems with the McVeigh documents?
Mr. Chiaradio. To answer the first question about what
mechanisms are in place, we have cumbersome manuals of
operation, administrative and investigative. I believe that was
part of the Inspector General's findings that we have too
complex a recordkeeping system.
What we are planning on doing and what the director has
recognized and has organized, too, is a separate records
management division, consolidating our functions, our policies
and practices, where they have been sprinkled through the
organization, bringing in an expert from the outside, and Mr.
Hooten is here with us today, charging him with putting
together a consolidated and more enforceable procedure on how
we maintain, process, and otherwise retrieve and handle our
information management; also, with the technology that we are
hoping to develop and we are developing through Trilogy,
minimize at every possible turn the point of human error or the
intervention of human beings into a process and get technology
to where that can be done.
We cannot completely eliminate the possibility for human
error. We can't run as an organization of just computers. We
are an organization of 28,000 strong, but to every extent we
can possibly minimize the opportunity for error through
technology, we will.
As far as our training, part of that development will be
on-time and just-in-time training with our new systems. We have
set aside upwards of $20 million between our hardware
implementation and rollout and our software implementation and
rollout just for the training of the work force to make sure
that they know what they are supposed to do and how they are
supposed to get it done.
The remedies for failing to do that are administrative, and
they are also performance-related; someone doesn't get a good
report card on their performance. What we are trying to do, as
we are reviewing now the findings of the Inspector General, is
looking at the more serious allegations when it has to do with
the issues that were raised in that report objectively by our
Office of Professional Responsibility and take appropriate
action. The director is prepared to look objectively at what
the Inspector General has found, look at the details behind his
work and take appropriate action on personnel where necessary.
Senator Grassley. My last point would be more of a
statement than a question. I hope that I can ask you to convey
to Director Mueller when you see him that I would expect to see
him take some action against the worst individuals who made the
worst mistakes in this McVeigh paper case which the Inspector
General has investigated so thoroughly.
I am going to assume the best and believe that he will take
such action because he promised so quickly in January to force
FBI officials to repay the Government for attending the
retirement party of one of the retirees on the taxpayer's dime.
So I hope to see some swift action in this case as well.
Everyone at the FBI certainly needs to know that personal
accountability carries consequences.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much. Again, I thank you for
the amount of time you have spent on this, not just now but
over the years, in fact, and I appreciate that.
Especially now that we are down to the last few days of a
session, if you look at the list of committees meeting, every
one of us is sitting in about four different committees, and I
appreciate the senior Senator from Iowa taking the time to come
over here for this.
We will keep the record open for questions from others. I
will put some of my own questions in the record and I think we
can finish up on just a couple I have.
Mr. Hooten, in the IG report, as I read it, one of the
recommendations is that the general counsel review the FBI's
policy regarding the destruction of documents while a case is
pending. I have to imagine that you have warehouses full of
documents, so you have got the management and other questions.
But in the Corporate and Criminal Fraud Accountability Act,
which I introduced to respond to the Enron-Arthur Andersen
debacle--and I am not in any way tying that connection, but
what made me start thinking about these document things is the
Majority Leader and Senators Durbin, Harkin and myself are
trying to close the loopholes on the destruction of documents
by people in the financial services business, for the obvious
reasons in this particular case, but for others. It makes me
think that we want to make darn sure that we, the Government,
are way above any question of reproach in the same area about
document retention.
Does the FBI have a clear policy on the destruction of
documents while a case is pending?
Mr. Hooten. Senator, I think I have been there nine or 10
weeks now, so I am learning to.
Chairman Leahy. Aren't you glad to be here?
Mr. Hooten. I am, sir. I am very honored to be here, quite
frankly.
There are a couple of parts to the answer to this question.
The first one is we do indeed have a lot of things that we need
to destroy that are trash, quite frankly, extra copies of
things, things that relate to things that have been destroyed
50 years ago. We just don't know what we have. I think you said
that correctly. So that is one thing. We do need to get rid of
that because that helps us be more efficient all the way
through.
But the other thing is, with the new systems we will
employ, we will know what we have and we will know when we have
extra copies. We will know the retention period of certain
kinds of documents. We have over 300 different classifications
of records. Each one has a different kind of retention period,
and so some we keep for 10 years, some we keep for 30 years,
and so on. Some we accession to the National Archives at the
end of a certain period, some we keep forever, others we can
destroy at a certain time.
I am finding a variety of ways to manage that now. One of
my roles is to try and get that down into a very simple, very
manageable way by using technology. It is the only way we can
do it. It is just too big a job to be able to really monitor,
be able to destroy the things we legally must destroy at the
times we need to, be able to keep those things we need to keep,
and be able to know what we have got and what we don't have.
Chairman Leahy. But do you agree with me that especially on
pending cases that such a uniform policy is vitally important?
Mr. Hooten. Absolutely, sir.
Chairman Leahy. I would feel that we must have something
that both prosecutors and defense attorneys can say here is the
rule; we know what is there and what it will be and we can go
forward.
Mr. Dies, if I could ask you--having Senator Grassley here
makes me think about this. We have worked together to craft S.
1974, the FBI Reform Act. We want the FBI director, whoever is
the FBI director, to have the most effective law enforcement
and counter-intelligence agency he can.
Long after I am gone or you are gone, or anybody else, or
currently here in the Senate or in the administration or
anything else, we are still going to face terrorism threats. We
are still going to have people that are going to break the law,
and I think that we want to make sure in the 21st century that
we are able to respond as well as we can to keep the highest
standards of our own constitutional history, and so forth.
Do you have a feeling or a position on S. 1974, the Leahy-
Grassley Act?
Mr. Dies. I believe it is under review by the Department of
Justice. A large part of it isn't in my field of expertise. The
part of it that is that relates to information management--
frankly, I thought you had both creative and constructive ideas
in there, and I would hope you are successful in getting these
enacted.
Chairman Leahy. Does anybody else want to add anything? Mr.
Fine?
Mr. Fine. I would like to add that the provision of your
and Senator Grassley's bill that codifies the jurisdiction of
the Office of the Inspector General over the FBI and the DEA is
an important provision and we support that. We believe that it
should be in the law so that people know it will continue and
that another Attorney General, whatever he or she decides,
knows that it is the law that the Inspector General has full
authority throughout the Department of Justice. We support
that.
Mr. Chiaradio. Senator, in the other areas, again, the
Department has not passed a comment on that.
Chairman Leahy. I understand.
Mr. Chiaradio. But we clearly have some things we are
interested in in there that are very constructive, especially
the SES disciplinary process, some things with our police
force, and we are looking forward to seeing how the final Act
comes out.
Chairman Leahy. Well, we will continue to work with you.
Everybody has respect for the FBI and our Department of
Justice. We just want it to work because the threats are lot
different than when the FBI started or anything else. We are
not dealing with bank robber who hops in a 1930 Ford and goes
running down a back road and you hope that maybe you can get
the word to the sheriff in the next county to block him.
We are dealing with money, information and everything else
being transmitted instantaneously around the world. Our threat
is not so much today that we are going to have some army march
against us or an air force fly against us. We are far too
powerful for that. It is not going to happen.
I worry a lot more about a dozen well-committed people, who
could care less what the penalties because they attempt to die
in the attempt anyway, who drive a dirty bomb down Pennsylvania
Avenue or across the Triborough Bridge or into Century City, in
Los Angeles, or anywhere else. That worries me a lot more, and
we want to be able to catch them. And as we have found
tragically enough in the last few years, terrorists can be
home-grown or they can be from abroad.
And during that time, we will still have all the fraud
cases and the major criminal cases, and we just want to make it
work. We have certainly shown no hesitation to give money from
the Congress, and we feel no hesitation to give you new powers.
But with that money and those new powers comes the requirement
for us not only to do our oversight, but for you to use it the
best way you can. The four of you have a great deal of respect
on both sides of the aisle here from the members, and utilize
that and keep us posted.
I appreciate very much your being here, and we stand
adjourned.
[Whereupon, at 11:20 a.m., the committee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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REFORMING THE FBI IN THE 21ST CENTURY: THE LESSONS OF THE HANSSEN
ESPIONAGE CASE
----------
TUESDAY, APRIL 9, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 10 a.m., in room
628, Dirksen Senate Office Building, Hon. Patrick Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Grassley, DeWine, Hatch, Durbin,
and Kyl.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning, Senator Grassley, and I have
been told Senator Hatch will be joining us.
This is just another in a series of hearings, I think each
one, though, of some significance. Since last summer, we have
been holding regular oversight hearings on the future of the
FBI and sort of the idea of how they prepare for the challenges
of the 21st century. Actually, today's hearing is a stark
reminder that some of the challenges facing the FBI are as old
as the republic. We focus on the role of the FBI as a protector
of the highly classified secrets that are really the crown
jewels of our national security.
We are, I think, extremely fortunate that Judge Webster is
here today. He has a great deal of credibility on both sides of
the aisle, credibility that is earned, which is, of course, the
best kind. The report by the commission chaired by him
demonstrates the vulnerability of the FBI in fulfilling its
basic function of protecting our secrets. The American people
depend more than ever on the FBI to protect it against
terrorism, as we should and as the FBI knows we do, and that
vulnerability has to end.
It is this committee's responsibility to ensure the FBI
becomes as great as it can be. This series of FBI oversight
hearings is an important part of the process, as is the
legislation that Senator Grassley and I have introduced to
implement many of the FBI reforms recommended by Judge
Webster's commission.
The treason of former FBI Supervisory Special Agent Robert
Hanssen was a shocking revelation, not only to all Americans,
but also to the thousands of dedicated FBI agents and personnel
who work around the clock and in far-flung places around the
globe to make this country a safer place to live and raise our
families. I know many of those men and women. I know how hard
they work. I know the enormous sacrifices they go through, both
themselves and their families, and I think how badly hurt they
feel by what former Supervisory Special Agent Robert Hanssen
did.
I believe Attorney General Ashcroft was right to ask Judge
Webster and other outside experts to evaluate the FBI's
security programs in light of the Hanssen espionage case. This
report is as thorough as it is chilling. The findings are not
academic. They have important implications for the FBI's
operations in the post-September 11 era.
At least one of the significant deficiencies and security
risks documented in the Webster commission report are the
result of new policies adopted in response to the September 11
attacks. Unfortunately, these new policies were done without
proper consultation with security experts and raise problems of
their own.
The commission's findings and recommendations are crucial
to the FBI's efforts to fight terrorism and protect national
security, as will be the recommendations of the skillful
Justice Department Inspector General, who is investigating
other aspects of the Hanssen matter for report later this year.
The report is another wake-up call to the FBI, but I worry
that when some of these wake-up calls come, the institutional
reflex has been to hit the snooze button and that has to
change. With the oversight series of hearings which we began
last year, we want to help the FBI break the pattern. I blame,
to some extent, the Congress. We have taken basically for
decades a hands-off policy toward the FBI and not done the kind
of oversight that we should do, which is why I began these
oversight hearings within weeks of becoming chairman. Working
with the Attorney General, who feels that we should be doing
it, and the Director of the FBI, who feels the same, and
others, this committee wants to help them ensure that the FBI
learns from past mistakes and becomes all the Nation needs it
to be.
The Webster report exposes within the FBI what the report
calls a pervasive inattention to security, which has been at
best a low priority in recent years. It describes an FBI where
computers so poorly protect sensitive material that the FBI's
own agents refuse to put important information on the FBI's
official system. It paints a picture of the FBI where employees
are not adequately trained in basic document security practices
and where there is little analysis of security breaches.
The Webster commission found not one or two problems, but
serious deficiencies in most security programs it analyzed
within the Bureau, and that when compared with best practices
within the intelligence community, ``FBI security programs fall
far short.'' It is an FBI security system that does not work,
and there are three key findings from that report that we have
to look at.
First, the commission found that Robert Hanssen's
activities merely brought to light broader and more systemic
security problems at the FBI. For instance, Hanssen's ability
to mine the FBI's computer system for national secrets for more
than 20 years--20 years--points to a serious weakness in
information security. Hanssen himself said that any clerk in
the Bureau could have done the same, and yet he was promoted to
sensitive FBI positions where he was entrusted with our most
sensitive national secrets during a time when he was a paid
Soviet spy. That is a problem. His ability to copy highly
sensitive material and take it in and out of the building, and
nobody stopped him, nobody asked, and nobody followed up.
Second, the commission found that the best way to protect
information is not to shut down information flow completely,
either within the FBI or from the FBI to outsiders. Indeed,
that type of reaction is inimical both to a free society and to
effective law enforcement. Instead, the Webster Commission
found the FBI needs to do a better job with what is known as
defense-in-depth security, find out what is truly sensitive and
then protect that.
Finally, and most disturbing, the commission found that the
systemic problems which allowed Robert Hanssen to compromise
national security for so long are not ancient history but still
permeate. Most alarming to me, the commission found that
decisions since September 11 have resulted in substantial
sensitive source material from FISA surveillance being made
generally accessible on the FBI's computers to FBI personnel
and then inadequately protected.
This not only presents a security risk which has to be
corrected ``as soon as possible,'' but it is the kind of breach
that could create some real constitutional problems. We want to
be able to prosecute those who are involved in terrorism or
playing terrorism against us. Judge Webster knows, a former
judge and FBI Director who understands prosecutions as well as
anybody in this room, when you get such a prosecution, you want
it to stick.
I am afraid that some of these mistakes could allow
loopholes to be created where we could not do that and we have
to fix that. We have to fix it. We have to make sure that if we
are going to be prosecuting somebody, we can make it stick. We
have to make sure that we have done enough so that when
somebody has sensitive information, they are willing to give
sensitive material and know that it is going to be kept that
way.
I am one of the ones that helped write the USA PATRIOT Act
that gave the FBI new surveillance power and the Webster report
raises some very serious concerns in my mind.
I get the impression that part of the Hanssen case, there
was a circling of the wagons. Unfortunately, if the enemy is
inside the circle, that does not do you much good and we have
got to get outside that circle and attack the problems. I think
Director Mueller has already taken some steps in the right
direction and I commend him for that.
One common sense proposal in the report stands out,
establish a system under which security lapses at any one
particular agency can lead to improvement throughout the entire
intelligence community and thus have a coherent national
policy. In fact, the commission specifically cites a proposal
for such national security program that I made 16 years ago
when I was Vice Chairman of the Intelligence Committee and
Judge Webster was FBI Director. We made that report after the
horrendous year of the spy, with Walker, Whitworth, Howard,
Pollard, Chin, and other spies detected here. So these are
things that we should be looking at.
We find that most departments and agencies other than the
CIA did not implement the requirements that were adopted after
the Ames case. Not much has been done since Hanssen's arrest
over a year ago. We do not go into the financial background as
they should be. These are things that have to be improved.
Back on the security issue, in 1997, the Justice Department
Inspector General's report on the Aldrich Ames spy case
specifically warned the FBI needed to develop and maintain a
better recordkeeping system for tracking top secret documents,
some of the very things Mr. Hanssen later stole. I wonder if
then FBI agent and Russian spy Hanssen read the IG report, he
knew that he could go on just as he did before, and this would
end up in a filing cabinet somewhere. We cannot do that. That
is why Senator Grassley and I have introduced S. 1974 to change
that.
I have a much longer statement which I will place in the
record, but those are some of my concerns.
[The prepared statement of the Chairman appears as a
submission for the record.]
Chairman Leahy. Senator Grassley, do you wish to say
something?
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I think you said everything that can be
said on the subject. I think we ought to take advantage of this
opportunity to thank Judge Webster for his excellent and
thorough report on these security problems at the FBI. The
results of the commission's review are almost painful and I do
not think we need to belabor the revelations and problems it
found because I think that we are all familiar with them by
now.
I would say that this is all the more disconcerting,
though, because the FBI missed a number of pretty plain signs
over the years that Robert Hanssen was up to no good. Just one
of these instances should have sparked a very thorough
investigation, the hacking software found in his computer. Yet,
even as these instances piled up for more than a decade, no one
could connect the dots. This cost the FBI and our nation
tremendously. Hanssen was able to sell top secret information
that damaged national security and led to the death of several
people.
I hope that the FBI works to adopt the recommendations in
this report, and I know that the FBI reform bill that Senator
Leahy and I have authored will address some of the security
issues at the Bureau. I am happy to see the Webster report
includes some of the bill's provisions, and just one of them
would be the establishment of a cadre of career security
professionals.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Did you wish to say anything?
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, very briefly, I just want to
thank you for holding this hearing, and Judge Webster, it is
good to see you again. We appreciate your service to our
country and your continued service with this very, very good
report.
Mr. Chairman, I am looking forward to Judge Webster's
testimony and the testimony of the other witnesses. I would
just make one comment before we start, and that is that these
recommendations will do no good if they are not implemented,
and these recommendations will do no good if they are not
funded. I think we kid ourselves if we did not realize that
this was going to cost money.
It seems to me that the followup, the logical followup to
Judge Webster and his commission's good work is for the FBI to
very quickly do the cost analysis and to come to the U.S.
Congress, come to the American people and be very, very candid
and say, this is what it is going to cost. You make the
decision as far as public policy, but we need to acknowledge
that this is what the cost is going to be, because if we do not
do that, we are not being honest with ourselves, and quite
candidly, we are never going to be able to implement the
recommendations that the Judge has made.
So I thank the Judge, and Mr. Chairman, thank you.
Chairman Leahy. Thank you very much.
Judge Webster, the floor is yours.
STATEMENT OF HON. WILLIAM H. WEBSTER, MILBANK, TWEED, HADLEY
AND MCCOY, LLP, WASHINGTON, D.C.
Mr. Webster. Thank you very much, Mr. Chairman. Thank you
for the opportunity to testify before the committee on behalf
of the Commission for the Review of FBI Security Programs. I am
going to keep my opening remarks brief because the commission's
true statement is its report, which I have submitted and which
you have.
In March 2001, Attorney General John Ashcroft asked me to
chair the commission at the request of FBI Director Freeh. The
request came in the light of the newly discovered espionage of
FBI Special Agent Robert Hanssen. Over the course of 22 years,
Hanssen gave the Soviet Union and Russia vast quantities of
national security information of incalculable value.
The depth of Hanssen's betrayal is shocking, but equally
shocking is the ease with which he was able to steal classified
material. Usually, Hanssen collected the material during his
normal daily routine, gathering up classified information that
crossed his desk or arose in conversation with colleagues.
The commission concluded that internal security has often
been a low priority at the Bureau, frequently trumped by
operational needs. Security training has been almost
nonexistent and agents usually take on security duties as
collateral responsibilities with every incentive to return to
investigative operations full time.
Although it is impossible to eliminate intelligence efforts
directed against our national security, the commission
attempted to recommend changes in FBI security programs that
will minimize the harm those who betray us can do. The changes
should also shorten the time between the defection of these
individuals and their detection.
Most globally, the commission recommends that FBI security
programs be consolidated in an Office of Security, reporting to
the Director. In addition to changes in Bureau policy, we also
recommend that a system be established whereby security lapses
in a particular intelligence entity lead to improved security
measures throughout the entire intelligence community.
Mr. Chairman, I would like to acknowledge the support
afforded by the Department of Justice and the unstinting
cooperation of FBI Director Mueller and Bureau personnel at all
levels. The commission also noted the many steps the Bureau has
taken to improve security in the light of Hanssen's treason.
Finally, I would like to recognize the dedication of our
professional staff and my colleagues on the commission, the
Honorable Clifford Alexander, the Honorable Griffin Bell, the
Honorable William Cohen, the Honorable Robert Fiske, the
Honorable Thomas Foley, and the Honorable Carla Hills.
At this point, Mr. Chairman, I would like to depart from my
formal statement to add a few words of my own on a personal
note and then I would be happy to respond to your questions.
I am painfully aware that some of Robert Hanssen's
activities took place intermittently when I was Director of the
FBI, and while I worked hard to strengthen its
counterintelligence capabilities to detect and capture the
spies of hostile countries targeted against us, in hindsight, I
took our own internal security procedures for granted and I
share in that institutional responsibility. In fact, I raised
that issue when I was asked to assume this responsibility and
was assured that my perspective from 9 years at the FBI and
four-and-a-half years at CIA would be useful.
So with the authority of the Attorney General, I asked six
distinguished Americans of unquestionable probity to serve with
me as commissioners, and they have joined me in the conclusions
of this report. I wanted this to be an honest report, and I
believe that we have produced one.
This report, Mr. Chairman, is not intended to reflect
adversely on the integrity and dedication of the many thousands
of men and women who have served their country in the FBI.
Indeed, its purpose is to disclose the security vulnerabilities
that could have been far more devastating had not the spirit of
fidelity, bravery, and integrity been alive and well for all
but a minute number of employees who betrayed their trust.
I think we owe it to the men and women of the FBI who serve
today and will serve tomorrow to address these vulnerabilities
in ways that will best protect our country and yet permit the
FBI to function fully and effectively in its many
responsibilities for the protection of us all.
Now, Mr. Chairman, I would be happy to respond to your
questions.
Chairman Leahy. Thank you very much, Judge Webster.
Incidentally, that statement is also typical of your own candor
and the credibility you have established in this town.
Senator Hatch has joined us, and traditionally, I do want
to give him an opportunity to make an opening statement.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
I want to commend you, Judge Webster, for the excellent
work you have done every day you have been in this town in so
many ways and especially for your findings and for your work
here. Again, everybody in this town knows that you are a person
of immense integrity, and so are the others who have worked
with you on this report.
But over the course of the last year, we have become
acutely aware of the damage that FBI Special Agent Robert
Hanssen has done to our national security. Over 22 years,
beginning in 1979 and continuing until his arrest in 2001, we
are told that Hanssen gave the Soviet Union and Russia
substantial amounts of vital information affecting the United
States security.
When Mr. Hanssen's activities were discovered, we all
questioned whether his ability to jeopardize our nation's
security was due to deficiencies in the FBI's internal
security. Commendably, Attorney General John Ashcroft and then-
Director Louis Freeh responded quickly to the crisis by
appointing Judge William Webster to lead a thorough and
independent review of the FBI's internal security programs.
This commission has now completed its task, and it is
apparent from its extensive, well-written report that the
commission was very meticulous in its investigation. The
Webster Commission's comprehensive study will guide the FBI as
it undertakes the critical task of transforming its internal
security programs.
I want to commend you, Judge Webster, the commissioners who
served with you, and your staff for diligent work in compiling
this report. I want to acknowledge in particular George Ellard,
who was Senator Biden's chief counsel on this committee for his
service as general counsel on this commission. Our nation owes
a debt of gratitude to Judge Webster and the members of his
able team for their dedication and for their thorough and
important review.
Reforming a multi-faceted institution like the FBI is no
easy task. As the Webster report points out, an inherent
tension exists between the Bureau's law enforcement function,
which is grounded in shared information, and its intelligence
function, which, by necessity, must be grounded in some degree
of secrecy. Conflicts between operational and security
objectives are common. The recommendations contained in the
Webster report appear to strike a workable balance between
these obviously competing objectives by advocating reforms that
will increase the Bureau's security without jeopardizing its
efficiency in the law enforcement area.
I am pleased to learn that under the leadership of Director
Mueller, and immediately before him Director Freeh, the FBI has
examined its security programs and has already incorporated
many of the security reforms the Webster commission has
recommended. Most significantly, the FBI has established an
independent security division led by an assistant director
whose role is to plan and implement the FBI's security
programs. As the Webster commission suggested, consolidating
the FBI's security functions into a central office will not
only increase the Bureau's focus on security matters, it will
also ensure greater security coordination within the FBI.
In addition, the FBI has improved the security of its
information systems, instituted frequent polygraph examinations
and access reviews, and developed a comprehensive security
education awareness and training program. So we look forward to
the FBI continuing to incorporate all of the reforms
recommended by the Webster commission, as the Bureau has
indicated it will.
I want to take a moment to commend Director Mueller and his
team. Director Mueller has been on the job only 7 months, and
during virtually his entire tenure, he has been coordinating
the FBI's response to the September 11 attacks. I am sure I am
not alone in my admiration for the institutional reforms
Director Mueller has already managed to accomplish under these
trying conditions and circumstances. I believe, as a newly
installed Director, Mr. Mueller should be allowed to implement
his reforms, and as I know he is aware, to be accountable for
the results.
As I have said on countless other occasions, the FBI is one
of the finest law enforcement agencies in the world. We have
learned, however, we cannot let our respect for the FBI as an
institution or for the many hard-working agents who are often
asked to put their lives on the line blind us from the fact
that the FBI has, on occasion, come up short of our
expectations and that, indeed, is a serious matter.
We must keep in mind, however, as the Webster commission
has noted, the FBI is not the only governmental entity that has
been betrayed by one of its trusted employees. The General
Accounting Office has reported that between 1982 and 1999, 80
Federal Government and contractor employees were convicted of
espionage. That is an astounding number. As the Webster
commission observes, with the exception of the Coast Guard,
since the 1930's, every U.S. agency involved in national
security has been penetrated by foreign agents. In this
information-driven age, the FBI and all governmental entities
must learn from their own mistakes and from those of one
another to ensure that our nation's security is not jeopardized
and that it is protected.
I applaud Director Mueller for the significant steps he has
taken in his brief tenure to address the FBI's security
shortcomings. I have the utmost confidence that he will
continue to capitalize on the Webster commission's study to
improve the Bureau's security programs. In the months ahead, I
look forward to hearing more about the FBI's progress, and I am
convinced that under the able leadership of Director Mueller,
the FBI will remain the world's standard in law enforcement.
I want to pay special tribute to our committee chairman for
holding these hearings and for showing the great interest that
he has in these matters. This is important stuff.
Again, Judge Webster, I just want to thank you on behalf of
the American people for all the work you have done through all
these years and for all the help that you have given this
committee through all these years and for all of the great
suggestions that you have made, not just in this report, but in
the past, as well. You have been a real asset here in
Washington and in our country and I just wanted to personally
pay my own personal tribute to you.
Mr. Webster. Thank you very much, Senator.
Senator Hatch. Thank you, Mr. Chairman.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Chairman Leahy. Thank you.
Judge as you know, the Leahy-Grassley FBI Reform Act has a
number of provisions on FBI security. One creates an FBI
security career program. Another authorizes counterintelligence
polygraph screening with, I think, pretty good safeguards
against misuse. The third formalizes improved pay for the FBI
police force that guards its buildings. The fourth requires a
report to Congress on FBI's computer security. And a fifth, and
this is something that Senator Grassley has spent years
emphasizing, provides enhanced whistleblower protection in the
FBI.
Would these provisions be helpful in carrying out the kind
of recommendations you have made in your report?
Mr. Webster. Mr. Chairman, I believe that all of those
suggestions which are incorporated in your bill offer promise
for greater security and greater attention to security and
greater understanding and training of security within the FBI.
If I am not mistaken, I think there is also a passage asking
the Inspector General of the Department to make a
recommendation to you with respect to whether he or someone
reporting to him should function as a special Inspector General
for the FBI. I do not know the answer to that one, but I will
follow that with a great deal of interest.
Chairman Leahy. Thank you. The USA PATRIOT Act gave the FBI
new electronic surveillance powers, some very significant, many
of which will sunset in 4 years. I raise this because obviously
the question of whether they sunset or not is going to depend
upon how they are utilized. I made clear, though, at the time
of the passage that this committee is going to have to do some
very extensive oversight of how these laws are carried out.
Your report actually is one of the very first chances for
an independent body to evaluate the FBI in the post-September
11 situation, and your report talks about the FBI's decision to
place highly sensitive FISA, or the Foreign Intelligence
Surveillance Act, information on the computer system. This is a
system that is generally, as I understand, accessible to all
FBI personnel during the same time as they were telling
Congress they want to be entrusted with more powers under FISA
because the information would be kept so close held and so
specific that we could allow an expansion in FISA, this very
extraordinary type of wiretap and search authority, something
that we have allowed only under very limited carve-out.
The FBI asked for more of it, saying this would be kept
very, very closely. And yet, we find that they have put a lot
of that on the computer system that just about everybody in the
FBI could get hold of.
You gave them a poor grade in handling that. First, you say
that the FBI's action under September 11 presented a security
risk to FISA information, which should be corrected as much as
possible. And second, even though it was not the focus of your
commission, which you said had a couple of circuit judges on
it, former Attorney General, former U.S. Attorney, independent
counsel. You are a former U.S. Attorney, circuit judge, FBI
Director, and CIA Director. You criticize the FBI's handling of
FISA material because it raises potential issues of
constitutional law and, therefore, could hinder the Bureau's
ability to construct cases that could be prosecuted.
I have a lot of prosecutors that tell me, and I happen to
agree with them, that we want to get these terrorists. We want
to prosecute them. We want to convict them. But we do not want,
because the procedures run foul, to see the case get thrown
out.
So what has been the reaction of the rest of the
intelligence community to the FBI posting of FISA information
in this kind of a data base?
Mr. Webster. Mr. Chairman, I cannot really speak for the
reactions of the other members of the community other than my
understanding that those who were interviewed expressed some
concern and dismay with what happened.
I am going to speculate now, which is always a dangerous
thing, but I think in the period immediately following
September 11, with the desire to try to come to grips as soon
as possible with what was behind all of this and the people who
are responsible and what other plans there might be, there was
an effort to get information out, including FISA information,
without the people with the best of motives having fully
consulted the security people for the possible consequences of
putting that material into the automated case system where it
was available to everyone.
The FISA statute has been extraordinarily useful on behalf
of the national security and intelligence community and for
prosecutions, when appropriate. I have to confess that it was
passed just about the time I arrived in Washington and Attorney
General Bell wanted me to come up and talk to you in support of
it and I was not sure that this statute was necessary. I
thought there was an implied authority in the President to
protect our national security by ordering electronic
surveillance of those who are suspected of espionage or of
acting in a hostile way to the United States.
I have since been convinced it was a great statute. It is
serving a very useful purpose. But it needs to be protected.
That information contains affidavits, the whole process of
getting an authority to conduct a national security warrant,
especially after the Keith opinion required warrants in the
case of domestic security cases in 1972. The ``t''s have got to
be crossed and there has to be great care and a lot of very
sensitive information is contained in the material that goes
into the Justice Department, as you said, and is presented to
this special court for authorization. But then to find it
suddenly turned loose and put in the huge file where it is
available to other people represents some serious potential
problems.
I think that my own conclusion is that had we had a
security division in place, had we brought them to the table on
this issue and listened to their advice, we would have done it
differently.
Chairman Leahy. In fact, that is really my point. If you
had the security division, they could say, look, we want to do
this. We want to get this information out as quickly as
possible. What are our parameters? How do we do it? That is the
important part to me, because everybody wanted to get any other
terrorist who might be in this country, or potentially in this
country. We had a devastating attack. We wanted to protect
ourselves against it. We wanted to get the people responsible.
Obviously, some were dead, but we wanted to get anybody else
involved with that. We knew that there had to be more. Just
instinctively, you knew that we faced more attacks and that
there were more people available, so you wanted to do that, but
you want to do it in such a way to protect your assets and you
protect your ability to get a conviction.
If we were in a closed session, there are cases--I am sure
you can think of some, and we would probably be thinking of
some of the same ones--where FISA has been extraordinarily
helpful to us, but in getting the information, if that is made
public, it would be very obvious just where it was we got that
information and that door would close so fast.
Mr. Webster. That is right.
Chairman Leahy. We would take forever to replace it. For
example, suppose Robert Hanssen had been able to access FISA
information right from the computer on his desk. I think it
would be pretty obvious to everybody there would be an enormous
amount of damage he could have done.
So I think the idea of having--and I agree with you--the
idea of having a security division or procedure where you could
just go and say, look, we have got a lot of information here,
what can we use, what can we make accessible, and what--do we
have to follow certain procedures in who is going to have
access, I agree with you.
Mr. Webster. Mr. Chairman, implied in what you have been
saying and what I think I have been trying to say is that
sometimes, people who make these authorizations do not really
understand what putting something into the ACS system means and
that is where security comes in.
Chairman Leahy. And I do not question the motives.
Everybody wanted to get--we all had the same motives. I think
the Nation is probably as united as any time I have seen it in
public life. It was united to find who did this and to get
them. But for those who are going to be prosecuted, they want
cases that can stand up. For those who are going to have to
continue to mine sources that we had for the coming years to
protect us, they did not want those sources to go away. That is
what we have to be protective of.
Your report recommends the FBI submit an initial report and
a report annually for 3 years on how they plan to address and
fix the security programs. The House and the Senate Judiciary
Committees have primary oversight jurisdiction over the FBI in
general and over criminal espionage cases, such as the Hanssen
case in particular. Should we be getting that report that you
speak of, for the FBI submitting an initial report and a report
annually for 3 years on how they plan to address and fix these
security programs? Are the House and Senate Judiciary
Committees the appropriate places to receive that report?
Mr. Webster. I think so. We may have said to the
intelligence community and intelligence committees, and I think
that is a matter between this committee, which has worked so
long with the FBI, to work it out.
Chairman Leahy. They should have it, too, but----
Mr. Webster. We think it is important that the Congress be
in the loop here, and Senator DeWine said something we may come
back to, but understanding what is needed and the costs can be
very important as the use of electronic filing and electronic
techniques becomes more the order of the day and we are seeing
less documents and more things put in a computer system that
perhaps in the past has addressed security after the fact. You
should be part of the process of making sure that the money is
available, that the FBI is not starving for modern technology,
which is, as you know, changing every two or 3 years. If they
are changing every 10 years, it is not going to work.
Chairman Leahy. I have young agents telling me that they
are looking at equipment that was antiquated when they were in
grade school or high school----
Mr. Webster. That is right.
The Chairman [continuing]. Being used there, and they just
almost have to go back and learn how to use it, and if it is
that antiquated, it does them no good.
My last question is this. You talk about that the FBI does
not have a viable program for reporting security incidents to
headquarters. Now, on paper, they are supposed to report these,
but we found some very chilling stories from whistleblowers
that people are afraid to report security lapses because they
are afraid it is going to hurt their career. I know one
employee reported a security violation and ended up basically
getting hounded out of the job for it. We have to have better
whistleblower protection, do we not?
Mr. Webster. I think so. I think the whistleblower
protection that you provided for will be very useful in
answering that problem.
Chairman Leahy. Thank you.
Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman.
Judge Webster, we are all too aware of the circumstances,
or should I say the numerous and significant security breaches
that have occurred in almost every government agency. You have
recommended in your report and again here today the creation of
a system that will enable officials in one intelligence agency
to learn from the mistakes of the others and the successes of
the others, as well.
I share your view that such a system is critical and long
overdue, but would you elaborate a little bit on such a system,
on how such a system will operate and who would participate in
such a system and how would their findings be communicated to
the relevant and appropriate agencies?
Mr. Webster. Senator Hatch, we were purposely general in
our recommendations there. We see a very clear need to share
experiences so that there can be a top, a standard level of
quality, and whether that is through the Director of Central
Intelligence or some other vehicle, we did not attempt to
decide in our recommendations.
I am reminded that shortly after I undertook this
responsibility, representatives of the Central Intelligence
Agency came down to tell me about a number of the things that
they were doing because I knew that among other things we would
have to confront is whether or not the FBI needed to have a
vetting procedure which, from time to time, would check on the
people who were in sensitive positions to be sure that they
were still everything that we expect of special agents of the
FBI. The CIA had a long ongoing polygraph vetting program. The
FBI did not. It did not have any when I was there. Director
Freeh put in place a process for polygraphing prospective new
entrants to the FBI, but there was no vetting process.
So I wanted to know more about it, and when they came down
to talk to me, I thought it was interesting that they said,
``We do not want you to make the same mistakes we made,'' and
they had reference, I am sure, and then they said so, to the
300-odd agents that were put on hold, because ghost special
officers with their careers on hold because of problems in the
polygraph examinations that they took. They recommended that we
have a more discreet, refined kind of vetting process that the
agents could be comfortable about, that would know was
necessary, but they were acknowledging they have made mistakes
and here are some of them.
I think, in answer to your question, there has to be a
forum where those issues at the security level can be
acknowledged and this is what we did about it, or another
agency can say, here is what we recommend that you do because
we had the same experience. It is as simple as that.
Senator Hatch. Thank you. As I stated, I am most encouraged
by the steps that the FBI has already taken to implement some
of----
Mr. Webster. Yes, they have.
Senator Hatch [continuing]. Some of the reforms recommended
in your commission's report, and I am pleased to learn that the
FBI intends to institute all of the commission's
recommendations or suggested reforms. Recognizing that the
implementation process will require both resources and time,
are there any particular areas of improvement that the FBI
should accord top priority?
Mr. Webster. I suppose each of us would have probably a
different priority list. My first priority is to see that
security division come together and be effective, and I would
hope that they would have direct access to the Director. At
this stage, I believe that they have access to an executive
assistant director. In order to signal the importance of the
division, I think they should have access to the Director, and
out of that security division can come a number of other
programs.
I put training at a high level because there really is not
much training in security outside of the National Security
Division, and I think that is a process that is easy to build
into the ongoing training programs.
Looking at specifics, the information systems that are in
the FBI, which are in the process of overhaul, are very
important to the future of these programs and the future of the
FBI's ability to function well. I would hope that some of the
problems we have identified--and incidentally, this report
refers to some 22 appendices which are still classified and
they go into great depth about some of the technical problems.
Some really are over my head, but I understand the problem. I
would hope that in the information security area, continued
attention be given to building in and responding to these
security issues.
I am concerned that Robert Hanssen was able to make copies
of about half of what he was able to deliver to the Russians
and the Soviets without anybody noticing or caring about it and
he was able to walk out the door with them. He was also able to
walk out the door with individual documents. But I believe that
it is a smaller point but very important that copies of
classified information are just as classified as the original
documents and the procedures have to be worked out to limit the
ability of people to wander over to a copy machine and make
several copies and not be accountable for them. So there is a
certain level of accountability there.
Financial disclosure should be implemented in the FBI. They
are not burdensome. We have all done this. I think you all have
done them. I know I did them as a government officer and they
provide a vehicle for looking for anything that would suggest
that someone is engaging in activities or receiving
compensation from some unknown source. Those are part of the
vetting process.
The polygraph is important. The FBI's program is more
ambitious and aggressive than the one we suggested, but we
suggested what we thought was a minimum which could be easily
accommodated to a changing culture and a changing realization
that polygraphs are not that intrusive. I took one when I was
Director of the FBI and I took another one as Director of
Central Intelligence and I understand why they are necessary. I
understand their restrictions. But I think that is important to
build it in.
I also believe that we should not act on just a polygraph
alone. We should act on the polygraph plus--plus other evidence
of aberrational behavior, that we should not take people
offline and subject their careers to perils because of some
blip in the polygraph process.
I suppose that if I had my druthers, I would be trying to
see what more could be done to enhance the reliability and
capability of the polygraph. I do not see much evidence that a
lot of money has been spent to improve something that has been
around for 20 to 30 years. Since it does have problem areas, I
would say let us try to address them, but not give up an
important tool.
The vetting process is a means not only of detecting
activity but of deterring people from the temptation to sell
out their country when they know that the chances of their
being detected more than simply on entry into the agency are
there.
So those are some of the things. I know I have neglected
other things. Document security, personnel security,
information security, and structural solidarity are key to it.
But I have always felt that when we have a problem, as we did
in the Keith case, which resulted in the 98 agents who had been
engaged in ``black bag'' jobs under what they thought were
lawful procedures back in the 1970's, came from not properly
informing the agents themselves and educating them. Neither the
Department nor the FBI told them about the Supreme Court
decision other than to close all the following case due to a
Supreme Court decision.
Since that time, it seems to me training is important. If
you tell special agents what the problem is and what is
expected of them, they are the most responsive people on earth
in doing their duty as they understand their duty. They need to
understand and be trained in the importance of security.
Senator Hatch. Thank you so much. I appreciate your
service.
Chairman Leahy. Thank you.
Senator Durbin of Illinois, and then we will go to Senator
Grassley.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman, and
thank you very much for joining us today, Judge Webster.
I think one of the things that struck me as I got into this
issue was the whole question of computer technology at the FBI.
I will have to say that as a result of an oversight hearing,
what was it, the first in 10 years or more with this committee
that Chairman Leahy sponsored, I was really just amazed at how
bad it is--how bad it was.
We brought up Mr. Dies, who was in the process of trying to
update the computer technology at the FBI, and his report to us
was really startling in terms of the inadequacy of the computer
resources at the agency, and he identified for us some obvious
things which, as a person in the private sector, he was stunned
to find, and that is that there is no e-mail at the FBI--at
least, there was not as of a few months ago, no access to the
Internet. The whole security aspect of this thing was obviously
open to compromise, as Hanssen proved over and over again.
Now, I know that there is an effort underway, Trilogy, to
make a dramatic change in this, and it is my understanding that
some offices have already started to update the equipment and
such. But as you got into this, what was your findings in terms
of the adequacy of computer resources in addition to the
security aspect? For us to criticize the INS for sending out a
visa to someone who was a terrorist on September 11 is one
thing, but for the FBI to be unable to communicate even within
its own agency, let alone to the INS and other agencies, about
dangerous individuals raises an even larger question. What did
you find?
Mr. Webster. As I said before, Senator, a good part of the
appendices deal with the shortcomings and we have identified
those on a classified basis, so if I speak in general terms to
you, I would say that, primarily, the computer automation of
data programs have been under-financed for years. There is so
much evolution in the computer world today that it is strange
to me to think that when companies are getting new equipment
and new procedures every two or 3 years, that the FBI would go
for 10 years trying to get along, limp along in an area where
data was coming in at them from all directions and from other
agencies sharing information with them and they did not have a
proper place to take care of it.
The Trilogy program was an effort to kind of pull
themselves out of the swamp and to deal with what they had, to
add to what they already had, and to look for what they needed
in the future, but I am not satisfied that that is going to be
enough. I think there needs to be a Congressional partnership
here in making sure that they have the funds and that those
funds are spent wisely and well. Put security right in there at
the beginning of the architecture.
Senator Durbin. Let me just make this a matter of record. I
agree with you, and after September 11, I kind of picked this
as my favorite project. Let us try to update the computer
technology at the FBI. I contacted Director Mueller as well as
the Attorney General's office, the Vice President, and Chairman
Leahy spoke directly to the President about this. We were
prepared to create some waiver situations so that they could
obtain updated technology there and not be hamstrung by our
procurement process. We were stopped by the OMB. The OMB says,
no, no, we do not want to see that happen. There are ways to do
this. There are ways to accomplish it.
Now, this was 6 months ago, and I said at the time, all
right, prove it. Come in with the technology. Do it on a timely
basis. Bring this kind of information technology and the
security associated with it that might stop people like Hanssen
in the future.
Well, I have not heard back, but I will tell you a number
of us are very frustrated that what we thought was a good faith
effort to give to the FBI the tools and weapons they need was
thwarted by another Federal agency of this administration. We
cannot expect to win the war on terrorism fighting with
muskets, and when we do not have computer technology at the FBI
up to the job of worldwide and global terrorism so that it can
be a proactive force and security in place so that we can stop
the likes of a Hanssen in the future, then, frankly, we are
going to diminish our capability to protect America.
Mr. Webster. I could not agree with you more, Senator. One
of the areas that has been near and dear to my heart, in
response to Senator Hatch's question, I guess I did not really
mention it, but in the computer world, it would seem to me that
we need more trip wires and that they have the ability to do
that, trip wires that would identify someone who is off the
reservation.
We used to have, back in my primordial days, we used to
have librarians who would recognize the fact that someone was
asking for a file, who was asking for something outside their
range of business and would report it. We need electronic
librarians and ones that not necessarily just go to the case
agent. They have that capability. A case agent can look and
say, ``Who has been looking in my case file?'' But it would go
to a part of the security apparatus who could quietly take
steps to find out, was there something going on here?
Senator Durbin. Did that not happen in the Hanssen case,
where he, in fact, compromised the password of one of his
superiors and gave as his excuse that he was setting up some
new technology and the superior did not even report it, really
did not----
Mr. Webster. Something like that. There were a lot of
capabilities that Hanssen had identified that he could do.
Really, he was not a hacker because he did not need to hack. He
had access to the crown jewels and there was no vetting process
to see whether or not that was--but these electronic trip
wires, it seems to me, appropriately place watching guard over
the more sensitive files, would be useful and important. They
cost money, but I think that they are important.
Senator Durbin. Well, when you consider Hanssen's damage to
America, it is certainly worth the investment to put these in
place. Do you feel, had they been in place, that we might have
detected his activity at an earlier point?
Mr. Webster. I think that is true to a degree.
Unfortunately, I call him my 500-year flood. He was positioned
unlike most every other special agent. That was his job. He was
in an area where he had almost unlimited access. Therefore, in
his case, I think the likelihood of detecting it sooner would
have been through a vetting process.
Senator Durbin. Let me ask you this. Do you feel the
culture at the FBI can change?
Mr. Webster. Oh, yes, I do.
Senator Durbin. Do you think the mentality, that J. Edgar
Hoover-Elliott Ness mentality of the past, the fortress
mentality, do not look inside, this is our kingdom, do you
think it is open now to change along the lines that we have
been discussing?
Mr. Webster. I certainly do. I think we have all been
chastened by this experience. It is a matter of training. It is
a matter of understanding. And then, OK, that is it, let us
make it work. That has been my experience throughout my 9
years.
Senator Durbin. I think the same of the new Director and I
hope he can achieve that.
Thank you, Mr. Chairman, and thank you, Judge Webster.
Chairman Leahy. Thank you. I might note, Judge Webster,
Senator Durbin has strongly pushed for a long time for not only
increased funding, but better computers. He has done it with
the Vice President. He has done it with the President. He has
done it with Director Mueller and Attorney General Ashcroft.
And, of course, he is right. Bob Dies, who has come here and
testified, has emphasized that, the necessity to improve it.
The way of just checking it, a lot of places have a thing
that if you use a pass key to go into a room, it logs in that
it was you and the time and everything else. It is relatively
easy to do the same. We do it on our computers and everything
else, who went in there, and then have the people with
appropriate security constantly checking who went where when.
The vast majority of people are very honest within the FBI.
They would not be there if they were not honest and dedicated.
But it is like having the two warehouses full of goods. One has
got locks on it and an alarm system and one has unlocked doors.
The crime is the same to break into either one of them and
steal things, but you know which one is going to get broken
into.
Senator Grassley, again, a person who has spent an enormous
amount of time on this subject, and I appreciate your taking
the time from your other committees to be here today.
Senator Grassley. Thank you very much.
Once again, we thank you for your report, and I think your
report makes very clear that we are never going to be able to
eliminate all espionage attempts against the United States but
that we ought to have as a goal, quite obviously, to make it
more difficult to spy and easier to catch the spies.
Now, Hanssen was a spy at the FBI for 20 years. Aldrich
Ames was one for many years at the CIA. During these periods of
time, directors came and went at both of these agencies. You
even had your tenure during this time. Yet, it took so long to
detect them.
Based on your expertise and your background in intelligence
matters, is there anything outside of your report that we can
do to detect these spies earlier? I ask that question in the
chance that not every idea you considered is in your written
report.
Mr. Webster. Senator, one thing I would say on the side,
because it is not technically an issue of security, which was
our charge here, I think it is ironic that almost every spy
that we have found, both at CIA and at the FBI, has been found
with the aid of recruited sources of our own in other hostile
intelligence agencies who have given us a lead that we have a
problem. The numbers that were listed by the chairman, not only
the names that were listed by the chairman, almost all of them,
I think perhaps all of them were found because we had an
aggressive program of human intelligence recruiting assets on
the other side.
We do not want to neglect that just by trying to lock up
our equipment. We have got to continue that capability and
build on it. You will not always get very much information. In
Pilton's case, or Howard's, we called him ``Bob,'' but we went
from a series of things with little bits and pieces to find out
who that person was. Pilton was 9 years later that we got the
information, but Howard earlier, and so on. So I would say, let
us not neglect our human intelligence development in the
interest of security.
Vetting, to me, and by that I mean periodic assessments.
The background investigations must be taken seriously. I have
had the sense over the years that sometimes because of the high
level of trust that existed between special agents, they were
more perfunctory than they were real. I go back to what
President Reagan used to say, ``Trust, but verify.'' If you do
not, you are going to have long periods of time.
Hanssen never took a polygraph. He was never really
subjected to a serious background investigation or a financial
disclosure. Somewhat the same in the case of Ames, and they
were so backlogged over there that I think there were anomalies
that were not detected in the course of his examinations.
So we have to do things in the more sensitive areas of the
FBI to be sure that the people on board are still on board and
the kind of people we thought they were.
Historically, sadly to say, as I look back on the record of
espionage in the United States, treason, these were volunteers.
I had a conversation with a KGB general and a man who was his
former residente in Moscow after the end of the cold war and
wanted to know what did we think about their capabilities
against us, and I said, well, your trade craft was excellent,
but you should not take a lot of credit for recruiting because
in almost every case that I know of, the American was the one
who picked up the phone and made the contact or wrote a letter
or took the initiative.
We have to know when someone is of that frame of mind
before he has had an opportunity to do damage, or at least to
catch him as soon as he tries it. We can watch, and we do watch
with our matrix systems very closely hostile intelligence
service activities in the United States to see if they make
contact, but that will not work in every case. We have to have
a vetting process to which officers and agents willingly
submit, and so it must not be demeaning. It must be a logical
way of protecting ourselves, just as drug testing is the order
of the day for people who deal in drugs, and that is not
intrusive, in my opinion, as long as it is kept that way.
People understand its necessity.
That leads me to one of perhaps my biggest question marks
in our report that I think has to be thought through, and that
is this. Not everything in the FBI--in fact, the majority of
what is done in the FBI does not involve sensitive national
security issues. If we were to impose the same level of
security on the entire operation of the FBI, we would be in
danger of slowing this locomotive down to an unacceptable
level.
And so there has to be a way of looking at classified
information that relates to our national security that is
different than classified information that is maybe called
``secret'' but is purely law enforcement in nature, has nothing
to do with our national security issues. And we have to have a
way of building a circle around those who deal in our most
sensitive things and they have to be willing, for the trust
that is given to them, to accept some additional intrusion on
their private life.
But to do that routinely for everyone in the FBI, I think
represents a cost and impediment. I wish I had a quick and easy
formula for this, but I think it is there. I think it can be
drawn and I think that the computer systems and the access and
the need-to-know issues can be focused primarily upon those who
have the access to this kind of information we have been
talking about this morning.
Senator Grassley. Let me followup on the last point you
made. Your report revealed that after the Paris attack last
year, senior FBI officials lifted restrictions on access to
information in the Bureau's computer systems. Some of this
information was FISA-related, which obviously is highly
sensitive. I am sympathetic to the need to share information,
especially during times like this, but my primary concern here
is that some of this information might betray the sources or
methods used to obtain it. In your opinion, how much is at risk
if FISA information is shared?
Mr. Webster. Senator, I think there is substantial risk of
damage here. The affidavits that are offered in support of FISA
applications for electronic surveillance can disclose the names
of the sources of that information, many of whom are valued
assets of this country and whose identity, if disclosed, could
result in personal damage or death to them and loss of
important sources of information to us.
I just do not think security was sufficiently at the table
when that decision was made. There was a rush to get
information out and I think that perhaps people who made the
judgment did not fully understand the ACS system and what that
meant in terms of easy access and availability of information,
and this information was allowed to float up into it. I am sure
that in the future, the first question will be what can we put
out for everyone that will not damage our national security or
our important sources and our important methods.
Senator Grassley. My last question is maybe a little too
cynical, but do you think government agencies are destined to
only fix internal security after a spy is found?
Mr. Webster. That seems to be the wake-up call,
historically. This is a unique opportunity, I think, to build
security into the automated systems, to build it into training,
to make sure that the work is valued and respected, and we have
not talked enough--I think one of the Senators this morning,
members of the committee, talked about providing a career path
in security for the FBI. I think that is necessary, but I would
also say that security goes out into a lot of field offices
where they may not be able to support a large security presence
but there has got to be an effort made to have that work
valued.
If people see it as an impediment to their career or are
asked to do it on a collateral duty basis or for a time-being
basis, they are apt to think, if they do not value the work and
appreciate its importance, they will think that I am being
shunted off to something and it is going to affect my career
and I do not want to do it.
So we need people who, just as in the Justice Department,
who provide outstanding services in security. We need to have
people in the FBI who see that as their career and also are
able to train and make aware other special agents of the
importance of their work. It needs to be respected, and I think
that the words ``pervasive inattention'' is a fairly accurate
assessment of what it has been up to now, and I include myself
in that category. It needs more attention and that is through
training and awareness and respect for the career possibilities
that good security work can produce.
Senator Grassley. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Senator DeWine?
Senator DeWine. Chairman, thank you.
Judge your commission report, I think, raises an
interesting question, and that is can a law enforcement
culture, which is really grounded in the sharing of
information, coexist with an intelligence culture, which we all
know is really grounded in secrecy, not sharing anything and
compartmentalizing everything.
The British do not seem to think so. They, of course, have
Scotland Yard domestic law enforcement, but they have split the
internal and the external security between M5 and M6. Do you
think we should consider doing that with the FBI, in other
words, splitting the law enforcement and the intelligence
functions of the FBI?
Mr. Webster. Well, I think it is always fair to consider
it, but my own pretty well developed judgment on it is that
that would not be a good idea, and if I may explain. We have
field offices all over this country. Most of them are dedicated
to primary law enforcement. But from time to time, as in New
Mexico, for example, for Edward Lee Howard and others, you are
going to find national security issues.
I think it is important that the National Intelligence
Division be sufficiently staffed to be able to deal with
problems throughout the country. If you started building a
whole separate organization, I suspect that we would be starved
somewhere along the line, in unable to fund it or the
administration would not support that kind of funding.
Canada tried it. It has not done well in Canada. When it
was part of the RCMP, I think there was far much more ability
to find things, track things all throughout Canada, and I would
go slow on that.
But you came very close to what I was talking about
earlier. I would find a way of building a wall around the
information and the data that is collected for national
security purposes so that that information was subject to the
highest level of security and that you did not attempt to
impose that on the entire FBI, where we had a very substantial
risk of people who say, this is nonsense. This is slowing us
down. We do not need this.
We need security throughout the Bureau, but if we can find
a way to flag the kind of information that we are concerned
about, the kind that Robert Hanssen was delivering to the
Russians, inside the Bureau, I think that is the answer.
Senator DeWine. I think that is an excellent answer.
Basically, you are saying we need some way internally to flag
it, to wall it off so that it does not create problems on both
sides of the wall.
Mr. Webster. Exactly.
Senator DeWine. I would like for you to put your hat back
on as former Director of CIA. As I understand it, the DCI has
the authority over the rules and regulations regarding
classified information, whether that information is being held
within the CIA or the FBI. What has been your experience as far
as how often or how well the DCI actually utilizes that
authority and is there a way to improve that?
Mr. Webster. My impression is that they are using that
authority more effectively today than I did when I was Director
of the CIA. There is a tendency--we have all gone through
periods--I had five-and-a-half years in the Navy in World War
II and the Korean War and had responsibility for taking care of
classified information aboard ship. After a while, it tends to
be burdensome, particularly if you are busy. It is important
that those rules be understood by people who can then interpret
them to the people within whose agencies they work and that
they be as clear as possible and that they not be so
technically difficult that the special agent on the street
cannot understand them and, correspondingly, will not try to
understand them.
Senator DeWine. But you believe that the DCI is utilizing
that authority more today than historically?
Mr. Webster. That is my impression, because we are in a
kind of war right now and I think it is important that that be
done.
Senator DeWine. Just post-September 11, though?
Mr. Webster. Well, I think it was going on before that. The
outreach to the community has been stronger. There have been,
as you know, the counterintelligence function that I started in
1988 is headed by a representative of the FBI so that the FBI
has its role in this process, as well. But the agency has
always had a big security effort and the DCI orders, I believe
they are called, or DCI rules are coming out more regularly now
than I remember them.
Senator DeWine. Judge, I want to conclude by getting back
to something I said in my opening statement, and that is that
the next step, I believe, is for the Bureau to do a cost
analysis of your report. When you were doing your report, how
much did you factor in cost and were you cognizant of that? You
had a lot of experts there. I know you did not do a dollar-for-
dollar cost analysis or item-by-item cost analysis, but that
had to be somewhere in the back of your mind.
Mr. Webster. It was, and most of the appendices--not most,
but a substantial number of the appendices have to do with not
only the capability but what is involved in maintaining them. I
do not know that we have any specific costs. We have some clear
statements from people we interviewed and our own conclusions
that the FBI has been woefully starved in this area.
There has not been a real voice for change. The FBI is one
of the most thrifty organizations I have encountered in
American government. They try to get along with what they have,
but they need a lot more than they have been given and they
have not really made their case loud enough for people to
understand how badly they have needed it. It has been a kind of
``get the truck working again,'' as I think we say in the
report.
Senator DeWine. I think your report makes that case loud
and clear and your testimony does, as well.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I would like to put
my statement in the record, if I could.
I would just ask one question of Judge Webster so that we
can move on to the next panel. I have been watching on
television and I have read your statement and part of the
report.
Turning from the Hanssen case to another that has concerned
me, the Wen Ho Lee case, that is a situation in which virtually
every governmental agency involved--in fact, I think I can say
every governmental agency involved--made significant mistakes.
The cumulative effect of which was to prevent an adequate
investigation and prosecution, in my view, and the FBI was a
part of that.
One of the concerns with respect to that case was at least
as far a I am concerned, the disconnect between the field
office and main FBI headquarters. The inability to share
information back and forth because of something, I do not know
whether it is directives, it is tradition, or what, and I would
like your comments on the recommendations with respect to
integrating better the information at the national headquarters
with information in the field offices and working together as a
team on investigations. Rather than the situation which seems
to me to have pertained, which is the local field offices doing
their thing, in many cases, unconnected to the national office,
and both of them know something about something but neither
knows what the other knows or knows that they know it, and,
therefore, investigations are compromised. Could you comment on
that, please?
Mr. Webster. Senator Kyl, I agree with that observation. I
served on the National Commission on Science and Security from
the Energy Department following the Wen Ho Lee case and we saw
enormous examples of differences in culture and attitudes and
between scientists and law enforcement officers and others
trying to come to grips with what was important in that case.
I have a better example, I think, of what you are talking
about in some of the post-9/11 period, when people in New York
were reluctant to put their information into the ACS system
because they knew that then it was available to anybody.
Whatever the motivation, besides good security, that might have
been there, teamwork, the term you use, is vitally important if
these things are going to succeed, and sometimes getting the
information to headquarters will make sure that headquarters
recognizes something that is bigger than or more involved than
the local field office has seen. But the field office has got
to trust the system at headquarters in order to make sure it
does not hold things back for whatever reason.
Senator Kyl. Could you amplify with respect to your
commission report what you recommend in that regard to bridge
this gap, to overcome this problem?
Mr. Webster. Well, it was a rather complicated thing that I
do not think we have in the FBI because they had to deal with
the scientists' desire to know and share and the security
effort to protect our national resources. There, they came to a
kind of risk assessment. How much risk is there? That has some
value in the law enforcement in the sense that if you rate the
risk unreasonably high for everything, people will stop paying
attention to it and that is sometimes a problem, as well, when
people say that is nonsense.
In fact, some journalists suspect in the military that
things get classified just to cover mistakes. I do not think
that is really the case in many cases, but there have been
enough situations to warrant that kind of feeling about it.
There has to be a rational approach to how people share
secret, top secret, information and how they make sure that
people who have an interest in it get a chance to see it and
draw that judgment. Some of the problems with the FBI, there
are a number of cases which have attracted criticism that have
involved one person knowing but not telling or not sharing and,
consequently, something not getting done.
Another example over at CIA--I do not mean to criticize
them, but the whole issue of the bombing of the Chinese
embassy, if you recall, in Central Europe. Some people knew
that that was a Chinese embassy and not something else, but the
people making the maps and the targeting did not know.
The dilemma that needs to be addressed, and it can be
addressed, is how do we keep from giving it to more people than
need to know but be sure that people who have a rational need
to know do, in fact, get it.
Senator Kyl. Well, is the answer not to necessarily have
headquarters put out a bulletin to all district offices or
field offices saying, ``look, we have a problem in this
regard,'' but rather to insist on knowing what is bubbling up
from down below? Going back to the Wen Ho Lee case, again, the
national headquarters had certain things it was trying to look
for. The local office, the field office in Albuquerque was
doing certain things and they were not talking to each other
and part of the problem with that whole investigation was that
lack of connection.
Are there recommendations and are there changes being made
to address that problem, and if so, what are they? Do you know?
Mr. Webster. Well, I think that the appendices, which are
classified, do contain that level of recommendation. We think
that in terms of security as distinguished from investigations,
we have addressed it in the recommendation for formation of a
security division. The National Security Division has a
responsibility for making sure that on national security
issues, local field offices are appraised of what is going on
and expected to return information in kind for analytical
purposes.
On pure law enforcement, I would hope that there are not
too many cases where headquarters does not know about
significant developments. I do not think we want to run law
enforcement from headquarters, but we have to have, as you say,
that interchange of information. The big problem is this
enormous amount of information flowing into the automated case
system without any real control over what happens to it, who
sees it, its reliability, and so forth.
Senator Kyl. I want to thank you. Thank you, Mr. Chairman,
for holding the hearing and the attention you have given to
this, as well as Senator Grassley, and Judge Webster, again,
for your continued great public service. We appreciate it very,
very much and look forward to visiting with you more on this.
Mr. Webster. Thank you, Senator.
Chairman Leahy. Thank you, Senator Kyl. Before we started,
I told Judge Webster that every time he tries to retire from
public service, we do not let him. We keep bringing him back.
In fact, the day before your report was made public, the
FBI had also issued a report about what they have done to
improve security. Were you able to compare what they have done
and what you have recommended?
Mr. Webster. I was. I think, in general, they have moved on
and listed the things they have already accomplished.
Throughout our investigation, we shared what we were learning
and where we were going and no attempt to hold back. This was a
serious thing that the FBI needed to get moving on. We wanted
to have a report that was in depth. We looked at all the facts
and here they are, and in some cases, I anticipated there would
be no surprises and there were not.
They have moved even more aggressively on the polygraph
route. They have indicated in some of their materials things
that are not accomplished but planned, things that are coming
forward. I think a substantial number of those are contained in
our report and I am glad to see there is very little air
between us on what needs to be done. The important thing is
that the Bureau move on it.
Chairman Leahy. And I think that is important. I realize
you were not asked to go through the FBI's counterintelligence
investigation, for example, in the Hanssen case, but just
taking what is in the press, I mean, you talk about places
where there were warning signs that should have come up. After
Hanssen began spying for the Russians, his wife's brother
raised concerns about his sudden affluence. Another FBI agent
told the security office that he thought Hanssen's wife was
getting money from her family.
As brought up by several here, Hanssen hacked into his
boss's computer and then claimed he was just testing the
system. I do not have anything classified on my computer.
Several of us have to handle classified material all the time,
and if we do, we go to the special committee room where that
is. But if I found somebody hacked into my computer in my
office, they would have one heck of an explanation they would
have to do.
He was caught using a password break-in program. He was
suspended for a week because of a physical encounter with an
FBI employee. He took a stripper girlfriend with him on an
inspection trip to the FBI office in Hong Kong. He was known to
persistently seek information beyond his normal need to know.
He had official knowledge of the Felix Block espionage
investigation before Block was somehow tipped off. An internal
FBI study recommended looking for Russian penetration inside
the FBI, but that was dismissed. Both the FBI and CIA focused
their investigation on the CIA rather than on FBI personnel
with similar access.
There are a lot of clanging bells. It is easy in retrospect
to go back and say, oh, my gosh, look at this thread. It is
like reading the mystery novel and in the last paragraph,
somebody sits up and says, but do you not remember that, and
that pulls it all together. But, unfortunately, it is not just
a novel you put down and you pay $25 for it. It is something
that we are ultimately going to pay hundreds of millions of
dollars for.
I do not mean that as a question, Judge, but I think it is
very wise what you have done, and in the electronic age, where
you do not have a file that is locked up in a cabinet
somewhere, you have a file that is suddenly on every single
laptop in the Bureau if not handled correctly, I think it is
very important.
I appreciate very much your responses on the issues of
FISA, which I think is a major one of concern to prosecutors
and others, and I think you have given very good warning to the
things that should be done. We all want to catch a terrorist,
but we also want to make sure that we can catch them next year,
too, and not just now, and that we can stop them in the future.
Senator Hatch, unless you have something further, or
anybody else on the committee----
Senator Hatch. I think we have kept the Judge long enough.
Chairman Leahy. I am glad this committee does not have to
do the normal billing from Milbank, Tweed, and I say that
somewhat facetiously, Judge, but just again, the country
benefits by your willingness to take on these kinds of
activities and I thank you very much.
Mr. Webster. Thank you, Mr. Chairman. If I may say, I am
very grateful to the commission members and to our staff. They
did a wonderful job. All of us felt it was a privilege and an
honor to be helpful and we hope we have been.
Chairman Leahy. Thank you.
[The prepared statement of Mr. Webster appears as a
submission for the record.]
Chairman Leahy. We will take a 2-minute recess while they
reset the table.
[Recess.]
Chairman Leahy. Thank you very much. First, I will put the
Webster Commission report in the record. It will be included as
part of our record, something I should have done before.
In this panel, Mr. Szady and Mr. Senser will be testifying.
Mr. Watson will be here. We are going to go to 5-minute rounds.
I would note Senator Kyl raised a totally appropriate
question. I believe that Mr. Szady is going to testify that he
is centralizing all the espionage cases in one section, which
should help address the problems that Senator Kyl raised,
appropriately raised, about the Wen Ho Lee case.
Mr. Szady, you are on, and I appreciate you also being
here. You have heard all of Judge Webster's testimony.
Certainly, if there is something you want to add to that, feel
free.
I would also note that, following our normal procedure, you
all will see the transcripts of your testimony. If there are
items you feel you should have added or want to elaborate on,
we will make provisions so you can do that. This is to be
helpful not only to the Senate Judiciary Committee, but also
hopefully to help the whole Senate.
Mr. Szady, go ahead, sir.
STATEMENT OF DAVID SZADY, ASSISTANT DIRECTOR,
COUNTERINTELLIGENCE DIVISION, FEDERAL BUREAU OF INVESTIGATION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Szady. Mr. Chairman, if I could, on a personal note, I
doubt if many people in here know where Winooski, Vermont, is,
but it is a pleasure to testify before a fellow Michaelman.
Chairman Leahy. What year, Mr. Szady?
Mr. Szady. Nineteen-sixty-six.
Chairman Leahy. You are just a few----
Mr. Szady. Just a few years after you.
Chairman Leahy. You are a youngster. Thank you.
Mr. Szady. Mr. Chairman and other members of the committee,
I would like to express my appreciation to you for inviting me
to share my thoughts and provide with you an update on changes
we are making to the counterintelligence program at the Federal
Bureau of Investigation.
I am pleased to be appearing jointly today with Kenneth
Senser, Assistant Director of the FBI's recently established
Security Division. By necessity, the cooperation between our
two divisions is complementary and seamless. Our Director is
committed to protecting the full range of U.S. national
security interests and has made counterintelligence, along with
counterterrorism, and prevention his highest priorities.
Because the world has changed so dramatically, the FBI is
making significant changes to its counterintelligence program.
Our end goal is to more effectively and efficiently detect,
prevent, and disrupt hostile foreign intelligence activity
directed against the United States and its interests. The FBI
appreciates your support as we continue to implement these
changes across our organizations.
First, I would like to provide a very brief assessment of
the characteristics of foreign intelligence threats of the 21st
century, for they provide a basis for understanding our new
national, centrally managed counterintelligence strategy.
The United States faces an intelligence threat that is far
more complex than it has ever been. The threat is increasingly
asymmetrical as it seeks to exploit the areas where there is a
perception of weakness within U.S. national security approach
and organization. Traditional notions of counterintelligence
that focus on hostile foreign intelligence services targeting
classified national defense information simply do not reflect
the realities of today's more complex international structure.
Foreign targeting of the elements of national power,
including our vibrant national economic and commercial
interests, continues to evolve. While traditional adversaries
were limited to centrally controlled national intelligence
services, today's adversaries include not only these
traditional services, but also non-traditional and non-state
actors who operate from decentralized organizations. Moreover,
the techniques and methodologies used to target classified and
sensitive and commercially valuable proprietary information
march forward with the advance of technology.
This new environment and the uncertain future that
accompanies it present the FBI with new challenges. The FBI's
role as the leader of the nation's counterintelligence efforts
requires that we understand all dimensions of the intelligence
threats facing the Nation and match them with new, innovative
investigative and operational strategies. The FBI must
continually assess and measure its performance against ever-
evolving threats found in these new and different environments.
The constant parade of new technologies, the
vulnerabilities created by them, the extraordinary value of
commercial information, and the globalization of everything are
but a few examples. The FBI must focus its resources on those
actors that constitute the most significant intelligence
threats facing the nation, wherever that might come from, and
in all of these new arenas.
In response to the increasingly complex intelligence threat
environment, the FBI is taking measures that reorient its
counterintelligence strategy, prioritize intelligence threats,
and make the requisite organization and managerial changes to
ensure U.S. national security interests are protected. The
following initiatives are underway.
We recognize that in order to mitigate the intelligence
threats our country is now facing, we must continually redesign
our counterintelligence program. Historically, when the threat
lines were more clearly drawn, counterintelligence at the FBI
was largely decentralized, with field divisions setting local
priorities and assigning resources accordingly.
To effectively recognize and counter the extremely diverse
intelligence threats now evolving, a new more centralized and
nationally directed, focused, and prioritized program is more
effective. By centralizing our program, we will ensure the
ability of the FBI to be more proactive and predictive in
protecting the critical national assets of the country.
Centralization cements accountability regarding
counterintelligence program direction, control, and leadership.
Moreover, a centralized counterintelligence program facilitates
the FBI's cooperative and collaborative interaction with other
members of the United States intelligence community. The
counterintelligence environment must be transparent.
Our national strategy will be totally integrated with the
Office of the National Counterintelligence Executive to ensure
that our efforts are focused on policy-driven priorities and
that we are positioned to protect identified critical national
assets. Our efforts will also be seamless with the CIA to
ensure that our counterintelligence efforts extend worldwide.
As part of this nationally directed strategy, I have
undertaken a comprehensive strategic planning effort that is
providing the FBI with the framework in which to prioritize and
address intelligence threats. This framework is based on
community-wide analysis and direction and recognizes that there
can never be unlimited resources, so we must be focused on the
greatest threats. This will better position the FBI for the
future by changing our performance expectations, management
practices and processes, and work force.
The central elements of this initiative are development of
clear strategic objectives and operational priorities in
support of those objectives; a highly trained and specialized
counterintelligence work force with a management team that
reinforces counterintelligence as a specialized priority career
within the FBI; a much stronger operational component within
the Counterintelligence Division, to include a stronger program
management; an ongoing system of accountability that clearly
defines responsibility for all elements of counterintelligence;
an enhanced communication strategy that is more effectively
communicating counterintelligence policy, plans, and
priorities; and greatly enhanced analytical support that relies
more extensively on a highly specialized discipline is
necessary.
Accepting responsibility to prevent and disrupt foreign
intelligence threats and espionage from threatening U.S.
national security requires the Counterintelligence Division to
adopt a more proactive posture. One organizational change that
I have made consistent with this goal is the establishment of a
Counterespionage Section within the Counterintelligence
Division from existing base resources. This new section is
responsible for managing all of our major espionage
investigations. The section evaluates and prioritizes all
existing espionage cases.
In order to meet the challenges ahead of us, I am ensuring
that the most important resources the Counterintelligence
Division has, its human resources, have the appropriate tools
available to effectively implement our mission. While the FBI
has historically provided counterintelligence training to new
special agents, we now need a systematic approach to a
comprehensive counterintelligence training regimen applicable
throughout the agent's career. We are studying this training
program and will implement it shortly. Agents and analysts
assigned to work counterintelligence should have a systematic
and integrated training program.
Analysis, as I said, is another area of my focus.
Counterintelligence analysis is central to our program, to
ongoing investigations and operations. I think today's
challenges require much greater reliance on and bringing in
much greater numbers of outside subject matter experts, also,
to bolster our efforts in understanding.
Information management and intelligence sharing are also
two areas that we are improving, in concert with the directives
established by Director Mueller regarding these subjects. The
technology being put in place at the FBI will vastly increase
our capability to maximize the value of what we know, and even
more basic, to know what we know. These new technologies will
be the thread that ties the community together.
In summary, counterintelligence and counterterrorism are
the FBI's leading priorities. If we are to successfully
mitigate the asymmetrical intelligence threats facing us today
and in the future, a new approach, new ways of thinking, and
better technology are required. We are in the process of
redesigning the counterintelligence program at the FBI. It will
be much more centralized to ensure the program is nationally
directed, prioritized, and that appropriate management and
accountability measures are in place. The Counterintelligence
Division will continue to work closely with the Security
Division to ensure that our activities are complementary and
that the FBI is able to comprehensively address any internal
threats.
Through our ongoing comprehensive strategic planning
process, we are ensuring that our counterintelligence
priorities, performance, expectation, and management practices
are designed in a manner that is responsive to ensuring our
national objectives. We are working to not only ensure that
counterintelligence personnel have the best possible tools to
conduct their work, but also to enhance the training and
experience among counterintelligence personnel and to bolster
counterintelligence as a specialized and vital career within
the FBI. Thank you.
[The prepared statement of Mr. Szady appears as a
submission for the record.]
Chairman Leahy. Mr. Senser?
STATEMENT OF KENNETH H. SENSER, ASSISTANT DIRECTOR, SECURITY
DIVISION, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Mr. Senser. Good morning, Chairman Leahy, Senator DeWine.
Hopefully, I will not be forced to tell you what I was doing in
1966.
I spoke to you initially in July----
Chairman Leahy. You piqued my curiosity, but no, you will
not be forced to tell.
Mr. Senser. Thank you. I spoke to you initially in July of
last year to discuss our assessment of the FBI's security
program and the need to transform this program into an
operation capable of addressing the diverse and formidable
threats facing the Bureau. I am very pleased to be back in
front of you today to give you our update on the progress in
that matter, but also to commend Judge Webster for the
extraordinarily thorough and helpful product that he and his
commission provided.
As I discussed in my testimony last year and as highlighted
in Judge Webster's report, the security program at the FBI is
in need of critical reform. Suffice it to say that every
element of the security program requires improvement in some
form or another. On a positive note, we have made substantial
progress in the last year, but make no mistake that an
incredible amount of work is still required. Very smart people
are going to need to take time to carefully formulate and
implement these reforms.
I also testified during my July testimony that prior to
Hanssen's arrest, the FBI identified seven areas that required
critical and immediate focus. Thanks to Judge Webster, we have
received recommendations that provide us with specific and
sound guidance in each of these critical focus areas.
Within my statement for the record, we identify in some
detail the specific accomplishments we have made, as well as
those initiatives we plan on making. I have described these in
somewhat of a generic format in order to avoid giving our
adversaries a more detailed plan of our countermeasures, but I
am prepared to provide the committee with a more substantive
briefing in a closed session.
Immediately after Hanssen's arrest, the FBI initiated some
interim security enhancements that we had discussed in July,
specifically, the limited expansion of the polygraph program,
the use of more extensive auditing in our automated case
support system of those persons accessing the most sensitive
FBI files, the establishment of an enhanced reinvestigation
analysis capability, and some more generic enhancements
designed to facilitate a change in the Bureau's culture
relative to security, and also to elevate the role of security
at the FBI.
Since July, we have made a number of other noteworthy
changes, to include, for example, in December of 2001,
establishment of the Security Division, for the first time in
the history of the FBI, having somebody responsible as the
Director of Security operating at an assistant director level
and with access to Director Mueller in order to bring forward
issues of concern.
We have also initiated the comprehensive review of security
policy and have begun to build a foundation for a comprehensive
security education, awareness, and training program. We have
taken significant steps in building a robust information
assurance program, hopefully to address many of the issues
cited by Judge Webster in his report. And we have also improved
the vetting that is done to establish trustworthiness, both
initially and on a continuing basis for our employees. Finally,
we have taken steps to more tightly control the information
that is present in hard copy documents at the FBI.
In summary, we intend to deliver not just a series of
manuals and policies, but to effect a dramatic adjustment in
the security culture at the FBI. Continuing security education,
widespread security awareness, and making security an accepted
and normal part of everyday business is our challenge.
As I have already mentioned, this is a long-term effort. We
will continue to carefully examine those recommendations
supplied by Judge Webster and his commission and will carefully
study the classified appendices that he referenced. In
addition, we will also review the Department of Justice Hanssen
study that we expect later this year in an attempt to evaluate
their recommendations and ultimately build a stronger action
plan.
Mr. Chairman, Senator DeWine, I appreciate this committee's
support and the support of your colleagues that you have
provided to the FBI so that we are able to faithfully discharge
our duty and do what we can to protect the interests of this
great nation. Thank you.
Chairman Leahy. Thank you very much.
[The prepared statement of Mr. Senser appears as a
submission for the record.]
Chairman Leahy. I have had, actually, indirectly some
discussion of this, but I will go directly and I will ask this
of Mr. Watson. After September 11, we realized there is a lot
of material, odd documents and even some electronic
surveillances that had not been translated. I had asked both
Attorney General Ashcroft and Director Mueller to go back and
review things that were available to us and to them prior to
September 11, not to destroy anything that just because it may
have been sent may have been overlooked. But the Director even
went on TV, issued a plea for translators. Some of these
languages, you find in kind of a small community here in this
country, a fairly close-knit community often, who speak the
language. Some may even have ties to foreign governments. So if
you are in a crunch, you have got to hire them on the one hand.
On the other hand, you have an obvious security concern. Judge
Webster mentioned this in his report, on page 58.
What is the FBI now doing to check and do security and
monitoring to make sure that we do not, in our need to get
these translators, we do not get somebody that could create a
bigger problem than the solution they might give us?
STATEMENT OF DALE WATSON, EXECUTIVE ASSISTANT DIRECTOR FOR
COUNTERTERRORISM/COUNTERINTELLIGENCE, FEDERAL BUREAU OF
INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Watson. Senator, that question, I guess the answer lies
into the system that we have in place to make sure, one, the
need to get the information translated, as you well pointed
out, as well as the security balance, and there is a definite
security procedure that individuals go through in order to be
hired as a translator. There are some conditions where we can
pick up contract employees that are not going to be permanent
FBI employees but still have the security risk. There is always
a balance there of being able to get the information that we
have collected translated and weigh out those considerations
with individuals that are going to translate that material.
Since 9/11, we have made some progress in that area and
that is definitely a priority, not only with us, I know with
all the other intelligence communities and we are working
closely with the security folks to make sure that we do not
bring someone in that translates it and steals it at the same
time.
Chairman Leahy. The Webster report talked about the self-
policing that can be done on these things. FBI employers or
contractors, if they learn of a violation, just come forward
and report it. But then you get some concerns where that is
seen as whistleblowing and it actually gets discouraged. Do you
feel there is more they can be doing to encourage people, if
they think that there is a security violation, to come forward
and report it?
Mr. Watson. Yes, sir, and we have--which the Director is
fully aware of and fully supports, that employees, if they
detect inappropriate activity, security violations or unethical
activity, that they have an obligation to report that, and
there is a mechanism set up to report that. I know you and
Senator Grassley are concerned about that, is that being done,
but I can say that with my experience in the Bureau and I think
with Mr. Szady's, I mean, I am not sure of any instance where
anybody would look the other way on a security violation or a
matter of ethics or a criminal violation that should not be
reported.
Chairman Leahy. We may want to followup on that privately--
--
Mr. Watson. OK, sir.
Chairman Leahy [continuing]. But let me ask Mr. Senser, you
referred to the commission's report as a road map for the FBI,
but you also say some of the identified vulnerabilities are
more critical than others. Is the FBI going to accept
everything that is in the report or what is going to happen?
Mr. Senser. When I mentioned that some of these
vulnerabilities were more critical than others, I was referring
to a prioritization that has taken place in the sense of trying
to address those gaps that could pose the most damage
immediately, for example, the gaps in our information system
security, where large elements of the population may have
access to very sensitive information, and certainly
establishment of this robust information assurance program is
at the top of our list as one of the initiatives that we are
trying to move forward very quickly.
In addition, from a prioritization standpoint, the
education and awareness of our employees, as Judge Webster
mentioned, making sure that people understand at the beginning
what the proper way is to handle materials and how sensitive
they are. I also believe that in most cases, people want to do
the right thing and if they know what that right thing is and
understand it, then they will be more apt to comply.
Then in addition to that, this security violation process
and making sure, again, from education and awareness, that
people understand where to go with their concerns and that
there is a mechanism for centrally addressing them, tracking
them, and taking action on them.
Chairman Leahy. Mr. Watson, I am not going to ask Mr.
Senser this because he cannot give himself a promotion, but
Judge Webster and the commission would like to give him one.
They would like to recommend elevating the position of the
Security Director to a status that reports directly to the FBI
Director. Is that a recommendation being considered by you?
Mr. Watson. Yes, sir, and I think that has been proposed as
the Security Division, and I would like to say that one of the
things in the commission report was making security a priority.
I can tell you from the operational side that we view that as a
critical piece, in view of the Hanssen matter, and we fully
support that and as a full partner and taking considerations in
for security as well as what we are trying to do operationally.
Chairman Leahy. I am going to give you a couple of
questions for the record, but I want to make sure that both
Senator Grassley and Senator DeWine have a chance to ask
questions. I have some other questions for all of you.
One area, and you have heard us talk about it a great deal
here, is the question of material that may be FISA-related
material. I cannot underscore how much attention I want given
to this. We gave the FBI some very expanded powers, but
assuming that with those, that there are some very, very strict
ways of keeping track of the information. FISA has been a very
helpful tool in going after terrorists, but I cannot think of
anything that would more quickly destroy the ability to use
FISA than to have the information spread all over and into
places where, on the one hand, our own constitutional
safeguards should not go, but then second, from our own
intelligence security places it should not go because so many
times it is going to be sources and methods. Without going into
specific cases, if we were back in a secure room, you and I
could come up with some of the exact same ones, you cannot let
these go out.
So I will have a specific question on it, but please, if
you are doing any debriefing back at the home office, you can
tell them that I am very concerned, and I know several others
are, on this FISA issue. We want to help. We want FISA to work.
But, boy, the rules have got to be followed.
Mr. Watson. Senator, we are committed to following the
rules and we understand the sensitivity of FISA information and
how to protect that and that is a vital piece of our
investigative efforts, and we thank you for the PATRIOT Act and
what you allowed to do. Just let me reassure you that we are
not wholesalingly throwing out FISA information.
Chairman Leahy. I understand. I just want to make sure that
we do not do it in such a way that it, in effect, is sitting
there in the box where people can take it, I mean the
electronic box, and----
Mr. Watson. We understand.
Chairman Leahy. No, I am not suggesting you are, but you
and I could both look very quickly at some of this FISA
material and know, just looking at it, it should not go any
further. But if it is out the door, there are others who might
not look at it that closely.
Mr. Watson. That is understood.
Chairman Leahy. Senator Grassley?
Senator Grassley. I thank you very much. Mr. Senser, the
first couple of questions I am going to ask you deal with the
timing of your changes which just came out, and then I want to
ask you about some of the things that you are planning to do
that are not done yet. This is from your remarks.
The question that is most on my mind is why it took until
just last week for the FBI to announce so many reforms and
changes for better security. The announcement, Wednesday of
last week, was timed 1 day before the release of the Webster
report.
I have two issues. First, can you or anybody else here from
the FBI answer why the Bureau did not learn from the mistakes
of other agencies with spies, and why could the FBI not have
years ago put in security measures across the board like other
agencies did, like expanded polygraphs, looking at employee
finances, and better document security. In fact, in regard to
employee finances, I believe that Mr. Hanssen himself said if
they had been put in place, that would have caught him. So that
is my first question.
Mr. Senser. I think your question is a very good one
relative to why the Bureau did not adopt the recommendations
that were made as part of the Ames case or Pitts or the other
prior espionage cases, and obviously not being an FBI employee,
I cannot specifically answer that question.
I can tell you that I have gone back and listed those
recommendations that came out in those previous cases and
mapped the initiatives that we are planning and have
accomplished against those recommendations to ensure, in fact,
that we are going to take those into consideration. In fact, I
have had a matrix put together, not just of the former
espionage recommendations, but of all recommendations that have
come out, both on internal studies and external studies of
which we are aware, in order to ensure that no recommendation
has gone unreviewed.
In terms of the timing of the enhancements, as I mentioned,
shortly after Hanssen's arrest, former Director Freeh initiated
a number of interim security improvements, and essentially, we
have not stopped since then. This has been a continuing process
of making changes as we can, things that were within our
purview, and steps to improve the security posture. As Judge
Webster mentioned, we have worked very closely with the
commission and his team in order to ensure that we were going
in the right direction and that the things we were
contemplating and proposing were not off track. So we have been
working very carefully to try to keep this on a parallel track,
not just waiting until the commission issued their report, but
trying to move ahead with reforms and enhancements as the
commission did its work.
Senator Grassley. Then could I ask the purpose of the press
conference last week, if all this was going on parallel to the
report? I guess I asked the question. What was the purpose of
the press conference, then?
Mr. Senser. The purpose was to simply make a positive
statement as to the steps the Bureau was taking relative to
security.
Senator Grassley. I guess I see it as kind of a preemptive
strike, but let me go on to the next point, and this is in
regard to the number of security measures that are under the
planned part of your prepared remarks from last week, called
``Transforming the FBI's Security Program.'' Could you tell me
how many of these planned security changes were planned before
the FBI received the Webster report?
Mr. Senser. I would say--I would like to say all of them. I
would say 99 percent of them. As I say, this is--I like to
think of this as a joint effort between the commission and
myself. Obviously, they did not share with me the nature of
their recommendations per se, but we have had a very close
relationship over the 13 months of their work and bounced lots
of ideas off each other in terms of where we were headed.
Many of these initiatives that we have proposed are
included in our fiscal year 2003 budget submission in order to
try to obtain the funding and the resource levels needed to
actually effect these changes. So most of this has been on the
record for some time.
Senator Grassley. The Webster report paints a scary picture
of the FBI where almost anyone can access almost any kind of
information on the computer system, where insiders can get
right out of a building with top secret papers, and where no
one could connect the dots on Robert Hanssen's spying. I
realize that many of the security reforms will take some time
to take effect and really make a difference and others are
still on the drawing board, but when we see this, we fear that
the Bureau's security measures are not yet in place to catch a
spy. We learned from the Hanssen case. Now, that is not saying
that there is a spy in the FBI because I do not know that there
is, but there is real concern about a gap until security is up
to speed.
How certain are you about the FBI's internal security right
now? Would a spy be detected, do you think, with the things
that have taken place?
Mr. Senser. I think we are still at substantial risk
relative to what we have to do, and again, this is going to be
a period of time that we are going to have to build expertise
and put the infrastructure in place to really support the kind
of effort that is needed to successfully bring the matter under
control. I would say certainly that with a lot of the things we
have done, such as the expansion of the polygraph program, that
there is a greater possibility that if there were somebody
operating inside the FBI today, that there is a better chance
of detecting them than there was a year ago. But certainly, I
cannot say with certainty that that person would be detected.
Senator Grassley. Mr. Chairman, I think what I am going to
do is submit two questions for Mr. Senser for answer in
writing.
Chairman Leahy. Thank you. In fact, I will keep the record
open for at least 24 hours so that member Senators who have
conflicts today can submit questions.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Mr. Senser, the Webster Commission report characterizes the
Bureau's existing computer system, and I quote, as ``an old car
broken down in a ditch.'' Congress allocated $379 million in
November 2000 for the FBI's Trilogy initiative, but the
commission says this sum will merely get the old car out of the
ditch, not provide the Bureau with state-of-the-art information
systems. How much more funding do you think is needed to
provide the FBI with the state-of-the-art information systems?
Mr. Senser. Well, I think there are----
Senator DeWine. Short-term and long-term?
Mr. Senser. Right. I think there are two issues there. One
is the issue of this state-of-the-art information system, which
I would have to defer to Bob Dies relative to business needs
from an information technology standpoint.
The second part of that question, though, deals with this
robust information assurance program. The FBI received as part
of our counterterrorism supplemental roughly $56.7 million to
begin the process of building an information assurance program.
We are currently working with the appropriations staff to
deliver a--well, actually, we have delivered, but we are
working with them on the spending plan for that money so that
it can be released and that we can move forward on that.
That is the initial investment in information assurance,
but it is going to take outyear investment, as well, both from
the standpoint of maintaining the improvements we have made as
well as adding some additional improvements, and there are
moneys in the fiscal year 2003 intelligence request for some
capabilities that will assist us greatly in building the kind
of program that could have potentially detected a Hanssen, the
kinds of things such as auditing, real time intrusion detection
capabilities, and so on.
So, again, we have a very ambitious plan on the drawing
board and it is going to take support into the out years to
make that happen.
Senator DeWine. It seems to me that the burden is on the
FBI to tell this Congress and to tell the American people what
it is going to take, and that is obviously a continuing burden,
once we are beyond the publicity of the report and today's
headlines, because these systems obviously are not built
overnight. They are not maintained overnight. They are not
improved overnight. So I just assume that the FBI is going to
continue to do that.
Let me ask you this. Is there anything in this report of
substance that the FBI disagrees with?
Mr. Senser. No. I mean, the fact is, as I said, that we are
very appreciative of the work of Judge Webster and the
commission and while certainly there are semantic differences,
perhaps, in some areas----
Senator DeWine. Right.
Mr. Senser [continuing]. But the substance of the report is
solid and we are working hard to address these issues.
Senator DeWine. Have you done a total cost analysis? You
talked a little bit about, or a great deal about the cost, but
have you done a total--has the FBI sat down and said, OK, this
is what this is going to cost? You have not had much time to do
that, but----
Mr. Senser. Yes.
Senator DeWine [continuing]. As far as the report is
concerned.
Mr. Senser. Right. As I mentioned, we prioritized our
approach to this knowing that time was of the essence. Once we
identified--in fact, we had identified those seven critical
focus areas I mentioned prior to Hanssen's arrest, but
subsequent to his arrest, we built a prioritized approach that
outlined 15 categories of enhancements that we felt were
critical to pursue. Because of the, again, the fact that there
was not much time, we staged those enhancements to get to the
most critical, or get the most critical into our fiscal year
2003 budget request, and as Director Mueller had testified in
front of the Appropriations Committee, that 2003 request for
security totals around $78,065,000.
In terms of the big picture, however, we recognize that
many of the things that we are going to have to explore, we are
not going to know the full extent until we really get some
people on board with the expertise that can look at it. Again,
the Webster report will help us considerably there, but there
are areas in the physical and technical security realm as well
as the police protection side that we are going to be building
into our 2004 request and beyond.
Senator DeWine. One last question, Mr. Chairman. Mr.
Senser, my understanding is the FBI has not, as of this date,
complied with Executive Order 12968. This is the order that
requires Federal employees and contractors to complete
financial disclosure forms. Is that correct?
Mr. Senser. That is correct.
Senator DeWine. Are there plans to adopt this disclosure
and monitoring program, as the commission's report recommends?
Mr. Senser. Absolutely. In fact----
Senator DeWine. Do we have a time table on that?
Mr. Senser. Well, one of the things that Director Mueller
did shortly after coming in was, as part of his internal
reorganization of the FBI, looked at internal resources that
could come to the security program and identified a number of
positions that ultimately were sent to security. Of those,
there is a number of positions, five, in fact, that we have
identified to form the basis of this financial disclosure
program. We are advertising now for people that have the kinds
of skills in financial analysis that will allow us to develop
the foundation.
We have also spoken with other intelligence community
members as well as the Department of Defense and their
personnel security research people that have a fairly solid
foundation in financial disclosure programs. So there is very
definitely a plan.
We are also working with the policy coordination committee
structure as part of the NSC and one of their subgroups who is
dedicated to actually establishing financial disclosure
programs within the executive branch, because, in fact, there
are a number of agencies, as well, that have never adopted this
requirement and we are going to be a part of the effort.
Senator DeWine. Do you have a time table?
Mr. Senser. I would like to have something in place within
the next 6 months in terms of----
Senator DeWine. In place, meaning that I have to fill out
the information, the process is there, you know what to do with
it, et cetera?
Mr. Senser. In terms of having the foundation in place, the
infrastructure, the guidance, and being able to go out to our
people and educate them and say, here is the basis of our
program. This is why it is important. This is what we would
like you to do.
One of the lessons learned from previous implementations
was that the financial disclosure program was not always well
accepted and we are going to try to, again, build on that in
order to ensure that the people understand the reasons behind
this, what we are going to do with the information, how we are
going to safeguard it, and that all those protections are in
place before we begin.
Senator DeWine. So I guess I take it from your answer--I am
not trying to be argumentative here, but I take it from your
answer that it is really not going to be up and running in 6
months. I mean, you are going to be moving down the road, but--
--
Mr. Senser. The plan is to begin implementation in 6
months. Whether we have a fully capable program or not, I would
say no.
Senator DeWine. Well, we look forward to working with you
on this and all the other recommendations. It is obviously
going to be an ongoing problem and it does come back to money.
It comes back to implementation and how well you all do in your
management, of course, but it also comes back to the money. I
think the more information that you can supply this Congress,
the better off the country is going to be on that. Thank you
very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I want to wrap this up, but the question that occurs for
me, and for Mr. Szady, when the FBI agent Earl Pitts was caught
and convicted in 1997, he had been spying for Russia, he was
debriefed. He was asked about some other spies and he stated he
did not know for certain, but he did mention Robert Hanssen,
who had hacked into an FBI computer, and the report that we
have seen says the FBI did not followup on that information.
Why not?
Mr. Szady. You sort of summarized all the abberations a
little while ago with Hanssen. This was one of them. When he
was interviewed, he did say--he did not say that Hanssen was a
spy or anything along those lines, but he did allude to the
fact that Hanssen had hacked into a superior's computer. The
reason it was not followed up on is because everybody was fully
aware of that. We knew it had happened. It had happened in the
past. We thought the explanation at that time was viable and we
were willing to let it go at that. At the same time----
Chairman Leahy. It did not ring a bell, why was Pitts aware
of this? I mean----
Mr. Szady. Well, there were----
Chairman Leahy. And Pitts is a Russian spy, and the fact
that he is sort of volunteering that, I mean, did everybody in
the building know that Hanssen----
Mr. Szady. Yes, pretty much. That is right, Senator.
Chairman Leahy. They did a study afterward, a damage
assessment that recommended, and I will speak generally, but it
recommended looking for another Russian penetration in the FBI.
That was rejected. Following Hanssen's arrest, a former FBI
assistant director is quoted in the press as saying the study
was right, but for the wrong reasons. The FBI and Justice
Department have kept this classified, so without going into any
classified details, are you satisfied that the FBI was right to
reject this recommendation, particularly--well, were they
right?
Mr. Szady. Well, the investigation to find Hanssen--what we
have to remember is there were investigations ongoing since the
1980's. We knew we were hemorrhaging. Even after Ames, we
realized that there was somebody else. I think it was mentioned
here earlier that the focus went on the CIA, but all our
analytical efforts and everything at that time pointed in that
direction.
We at no time, though, eliminated the FBI, which seems to
be a story that is out there. We kept going back to the FBI as
a possible source for this hemorrhaging. The issue was that our
analytical effort, our reporting that we were getting from
around the world indicated that it was more likely in the CIA,
so we put our resources into that particular arena.
But at no time do we ever think there is no vulnerability
for having a spy within our midst, if you will. This is an
ongoing problem and always will be. Espionage is a crime. So
our focus with a new espionage section is to say you just
cannot rest on your laurels and you cannot say there is not a
spy in any particular government agency. And hopefully, we can
be preventive and proactive in the future.
Chairman Leahy. And before everybody goes back, somebody is
looking with suspicion at everybody around and feel they have
got to report the person who ordered borscht at lunch and not a
good American hot dog.
Mr. Szady. Right.
Chairman Leahy. The vast, vast, vast majority, I mean,
almost everybody who has worked for the FBI and the CIA are
there because, one, they are patriotic, two, they are
competent, and three, they are dedicated or they would find
something else to do. There are enough difficulties with the
job in the first place. I think the American public has to
understand that, too. It is not as though we suddenly have an
FBI and a CIA riddled with spies or embezzlers or anything
else. We do not. We have some extraordinarily good men and
women there. You know them and I know them.
I think, though, that like in everything else, it is like
the wonderful person who helps take up the collection every
week at church. You still want to make sure that there are
checks and balances in there, because unfortunately, sometimes
there is somebody, for whatever reason, who goes bad. It is
rarely ever ideological reasons, but if it is for the reasons
of money or blackmail or something like that, sometimes with
the right steps they can be more easily found.
We will keep the record open. I want to thank all three of
you. I know you have spent an enormous amount of time on this.
I know you have spent a great deal of time with my staff and
Senator Hatch's staff and others in preparing for this hearing.
I do very, very much appreciate it. Thank you.
[Whereupon, at 12:24 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
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[Additional material is being retained in the Committee
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REFORMING THE FBI IN THE 21ST CENTURY: REORGANIZING AND REFOCUSING THE
MISSION
----------
WEDNESDAY, MAY 8, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 2:05 p.m., in
room SD-106, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Feingold, Schumer,
Durbin, Edwards, Hatch, Grassley, DeWine, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. This hearing marks the continuation of the
Judiciary Committee's series of FBI oversight hearings that
began last summer. We have considered the report of former
Senator John Danforth on the Waco confrontation, the Webster
Commission report on FBI security in the wake of the Hanssen
espionage case, and the Justice Department Inspector General's
report on the disclosure of FBI documents in the Oklahoma City
bombing case.
We have heard the important perspectives of FBI agents and
senior officials about what they believe the FBI must do to
address morale and accountability problems and to improve the
Bureau's security counterespionage programs, computer systems,
and information management practices. The members of this
committee have paid close attention and on April 25 we voted
unanimously to report to the full Senate for consideration the
FBI Reform Act of 2002, S. 1974.
The risk of catastrophic terrorism, as we know so vividly
from 9/11, from the anthrax attacks, and from the threat of a
dirty bomb, all of these things have made amply clear that
nothing is more critical to the safety of the American people
than a well-organized and skillfully managed FBI that uses its
vast powers and resources effectively, while adhering always to
our Constitution and laws.
The FBI has two key and overlapping missions: protecting
our national security by rooting out spies and terrorists, and
protecting our public safety by investigating criminal
activity. This hearing looks at how the FBI can reorganize and
refocus its efforts to perform both missions with the resources
made available by the President and the Congress.
You can't plan for the future unless you know what might
have gone wrong in the past. That is why I wrote to the
Attorney General on October 25, 2001, requesting that relevant
material be preserved. On November 8, 2001, I recommended
asking Judge Webster's commission to review the FBI's pre-9/11
performance.
While the Attorney General did not commission outside
review, this committee has an obligation to understand what
happened. Both Attorney General Ashcroft and Director Mueller
have assured me that if there is material that turns up as they
review that had been overlooked prior to September 11, it will
be preserved.
When Judge Webster came before us to describe the
deficiencies in FBI security that allowed Robert Hanssen to spy
for the Russians undetected for more than 20 years, he
described the institutional vulnerabilities of the FBI as
``shocking'' and ``devastating''--this from a man who is a
former Federal judge, a former FBI Director, and former CIA
Director.
When the Justice Department Inspector General told us that
widespread failures by the FBI led to the belated disclosure of
documents in the Oklahoma City bombing case, the FBI's current
Executive Assistant Director for Administration testified that
the Director had made the IG's report ``recommended reading for
all FBI management and supervisory personnel.'' I commend
Director Mueller for doing that.
In each case, though, before we looked at it, the response
was to minimize responsibility. The American public was told
Hanssen was ``too smart to get caught.'' The American people
were told that computers, not people, caused the delay in the
production of documents in the Oklahoma City case.
But the Webster Commission and the IG report made clear
that the FBI's security flaws enabled Hanssen's spying, and
that bad judgment as well as computers contributed to the
production delays in the Oklahoma City case. In both cases,
even more than that, a major participating cause was the basic
nature of the FBI itself.
We are still in the same position regarding the 9/11
attacks as we were before the Webster Commission and the IG
reports. We are told that the conspirators were too clever to
have been caught. We are being told the hijackers avoided
detection because of meticulous planning and everything else.
We hear that nothing short of a member of the inner circle
turning himself in would have provided sufficient foresight to
prevent the attacks.
Now, these explanations may be actually right, but the
American public has a right to ask if they are. There may be
more to the 9/11 story than the skill of the enemy, just as
there was more to the story of Hanssen than his intellect and
more to the story of the Oklahoma City documents than
computers.
Press reports say that the FBI failed to pursue pre-9/11
leads effectively, including warnings about two hijackers, and
just last week a memorandum of concerns of the FBI's Phoenix
office about the possibility of terrorists at U.S. flight
schools months before the 9/11 attacks.
The FBI provided the committee a single paragraph from the
Phoenix memorandum that recommends that the FBI set up contacts
at flight schools and other Government agencies to monitor
certain foreign individuals. I hope the Director will help us
get to the bottom of this incident because this is the type of
thing I was asking about.
Were there things that the Department of Justice and the
FBI overlooked prior to September 11, not to make scapegoats
out of people, but to protect us from the next September 11,
because the only way you learn is if there was a mistake and if
the mistake is admitted and made public and we find out what
went wrong and we don't make the same mistake again.
This committee certainly shouldn't be hearing about some of
these mistakes coming to light only when we read it in the
paper. I am getting somewhat concerned when some of these major
things I find, while highly secret, I suppose, I read about on
the front page of the New York Times and then I get a briefing
subsequently.
As I said before, if that is the way it should be, then
each day mark a copy of the New York Times top secret and
deliver it to me and I will get the information faster, I will
get it in more detail and, of course, I get that wonderful
crossword puzzle.
We will want to look at the idea of deemphasizing things at
the FBI. Are there too many carjackings, too much domestic
violence, too many simple drug possessions, too many driveby
shootings? Part of that is our fault; we have Federalized far
too many things as it is.
I know the Director is confronting hard decisions about how
to refocus the FBI's mission and reorganize the Bureau. We may
ask tough questions about those decisions, but if history
teaches us anything, it is that asking the tough questions is
in the best interests of the American people.
Frankly, Director Mueller, if we didn't have a lot of
confidence in you, we wouldn't be spending the time to have
these hearings.
I will put the remainder of my statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Leahy. Mr. Thompson, please feel free to go ahead.
STATEMENT OF HON. LARRY D. THOMPSON, DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Thompson. Chairman Leahy, members of the committee,
thank you for inviting me to appear today to review our
progress in strengthening the Federal Bureau of Investigation.
This task is among our preeminent and most urgent missions at
the Department of Justice because of the FBI's central role in
preventing and disrupting terrorist attacks against our
homeland.
The Department's success in this effort is critical to
restoring the full confidence of the American people in the FBI
and to enable the FBI to fulfill its counterterrorism mission
and its many other important missions with distinction.
On June 20 of this year, the Attorney General directed the
Justice Department's Strategic Management Council to conduct a
comprehensive review of the FBI and to make recommendations for
reforms. The Strategic Management Council is a group that I
chair, composed of senior Justice Department officials,
including the FBI Director and heads of other major Justice
Department agencies.
The Attorney General gave three specific directives to us
in performing this review. First, he directed that a private
consulting firm be hired to conduct a management study of the
FBI, with particular attention to the issues of information
technology, personnel management, crisis management, and
performance appraisal.
Second, the Attorney General directed that a wide array of
views be solicited from individuals and organizations within
and outside the Justice Department, including Congress.
Third, the Attorney General directed that we take into
account three other reviews then underway regarding the FBI--
the Webster Commission's review of the FBI's internal security
practices in the wake of the Hanssen espionage matter, the
Inspector General's investigation of that same matter, and the
IG's study of the FBI's document-handling procedures in the
Oklahoma City bombing case.
As directed, the Department retained a management
consulting firm last July to conduct this review. The
consultants conducted an extensive analysis of the Bureau,
including interviews with a wide variety of FBI personnel and a
thorough examination of the FBI's information technology
infrastructure. The consultants then submitted a report for
consideration by the Department's Strategic Management Council.
To fulfill the Attorney General's directive to solicit a
wide range of informed opinion, my staff and I conducted
informal interviews with a broad cross-section of individuals,
including, among others, former Attorneys General and Deputy
Attorneys General, former FBI Directors and Deputy Directors,
Members of Congress and their staffs, leaders of organizations
representing State and local law enforcement authorities, heads
of other Federal law enforcement agencies, and current senior
Justice Department officials, including a number of United
States Attorneys.
Mr. Chairman, in addition, we have carefully examined the
Inspector General's final report concerning the belated
production of documents in the Oklahoma City bombing case, as
well as the report of the Commission for the Review of FBI
Security Programs, chaired by Judge Webster. We anticipate
receiving the Inspector General's report concerning the Hanssen
case in the next few months, but we have already received
preliminary comments from the IG's office regarding FBI
internal security practices.
Now, although we began work on this project immediately
following the Attorney General's directive in July of 2001, the
terrorist attacks of September 11 changed both our timing and
our perspective. Those attacks brought into immediate focus the
need to intensify our counterterrorism efforts and accord an
even higher priority at the FBI to the counterterrorism
mission.
Moreover, the attacks caused us to shift our focus from
investigating crimes with an eye toward prosecution to
detecting, preventing, and disrupting terrorist plans. We are
now in the process of developing specific recommendations for
the Attorney General, Mr. Chairman. That process is still
underway. However, we have not yet formalized our
recommendations to the Attorney General.
While Director Mueller already has initiated improvements
at the Bureau in a broad range of areas, I would particularly
like to commend him for the measures that the FBI has
instituted to strengthen its counterterrorism capabilities.
The FBI's Joint Terrorism Task Forces have been expanded to
47 field offices, and by August of this year will be operating
in all 56 field offices. The JTTFs have effectively merged the
resources of a constellation of Federal, State, and local law
enforcement agencies through cooperative information-sharing.
Making use of the PATRIOT Act's provision expanding
information-sharing, the FBI now communicates more efficiently
and successfully in disseminating critical, time-sensitive
information about the threat of terrorist attacks to State and
local law enforcement, as well as other Federal agencies.
For example, the FBI's NCIC data base, accessible by over
650,000 State and local law enforcement officers throughout the
country, has been expanded to include the names and identifying
information of subjects of domestic and foreign terrorism
investigations. The FBI is expediting security clearances for
appropriate State and local law enforcement officials.
The FBI has also established a new Office of Law
Enforcement Coordination to institutionalize information-
sharing and coordination with State and local officials. The
FBI also has recently established a College of Analytical
Studies and an Office of Intelligence, and has committed to
hiring more than 100 intelligence analysts to enhance its
ability to gather, analyze, and share national security
information. In addition, Mr. Chairman, the FBI has already
begun to take steps to enhance its internal security procedures
and modernize its information technology infrastructure. Once
we have completed our review, we will forward our
recommendations to the Attorney General.
We look forward to continuing to work together with this
committee to sustain the FBI's as our bulwark in the defense of
our freedom. This will be a detailed and demanding task
requiring a dedication to persevere long beyond September's
flush of fury and grief. We at the Department of Justice are
committed to this effort, not only to begin it, but to follow
through and achieve our goal and the goal of Director Mueller
to restore the FBI to its proper place as the preeminent law
enforcement agency. Accomplishing this objective is clearly in
our national interest.
That concludes my prepared comments and opening statement.
[The prepared statement of Mr. Thompson appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
I think before we start questions, Director Mueller, why
don't you 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, Mr. Chairman. If I could, I want to
take a moment just to thank, because I have the opportunity to
do so, those who participated in the investigation of the pipe
bomber, Helder, who was arrested yesterday, particularly State
and local law enforcement, who did just a terrific job together
with ATF and other agencies in identifying the person who was
responsible and tracking that individual down. I want to thank
our colleagues in State and local law enforcement for the
cooperative effort we had in resolving that situation.
Mr. Chairman, the FBI faces daunting challenges from an
increasingly volatile world situation. Terrorists at home and
abroad threaten U.S. interests at unprecedented levels. Foreign
intelligence services continue to target U.S. secrets and
technology, often for their own country's economic advantage.
Cyberspace is threatened by increasingly malicious criminal
activities. Organized crime of all types operates without
regard to geographic borders. And, most obvious, the tragic
events of September 11 have changed the American landscape
forever.
Responding to these challenges requires a redesigned and
refocused FBI--imperatives reinforced by the recent findings of
Inspector General Fine and Judge Webster. We must refocus our
mission and our priorities, and new technologies must be put in
place to support new and different operational practices. We
must improve how we hire, manage, and train our work force,
collaborate with others, and manage, analyze, share, and
protect our information. All will be necessary if we are to
successfully evolve post-9/11. Most would have been necessary
even absent 9/11.
I believe that we all recognize that given the scope and
pace of needed change that the FBI is in a period of
transformation. This transition is not only organizational and
technological, but also cultural. I am more impatient than
most, but we must do these things right, not simply fast.
Refashioning a large organization takes not only a reformer's
zeal, but also a craftsman's patience. The task of transforming
the Bureau is a national priority and worth the large
expenditure of effort by all of us involved.
Nevertheless, despite the large scope of the challenge, I
believe we are making progress on all fronts. I very much
appreciate your recent comments, Mr. Chairman, when you said
that ``The men and women of the FBI are performing the task
with great professionalism at home and abroad. Americans have
felt safer as a result of the full mobilization of the FBI's
dedicated Special Agents, its expert support personnel, and its
exceptional technical capabilities,'' because, as you have
indicated, Mr. Chairman, it is our people who are our greatest
asset.
Change has many dimensions. We are not only structurally
different, but we are fundamentally changing our approach in a
number of areas, most notably counterterrorism,
counterintelligence, and technology.
As the committee knows, many of these initiatives are works
in progress, with final decisions still to come. Currently, I
am working closely with Deputy Attorney General Thompson, the
Attorney General's Strategic Management Council, and our own
executives on all of these issues, and I anticipate being in a
position to discuss them in depth with you in the coming weeks.
I am also meeting with our Special Agents-In-Charge for the
third time next week to consult with them as we continue to
work through the complex issues inherent in remaking the FBI.
Central to any successful structural change at the FBI is
new technology. As this committee knows from prior hearings,
our information infrastructure is far behind current technology
and it cannot support the robust analytical capacity we need.
Fortunately, Congress has provided us substantial funding
and we are deploying new hardware and networks on an
accelerated schedule. Having to so dramatically replace the
entire infrastructure rather than make incremental
improvements, as is common in the private sector, makes the
replacement process more difficult. I am continuing to bring in
extremely talented individuals to assist in this endeavor, and
will keep Congress regularly advised about both the progress we
make and the difficulties we encounter.
Just as we change our technology, we must reshape and
retrain our work force. Operating within a culture that most
jobs were best done by agents, former Director Freeh began
changing that nation and we are accelerating this approach. We
are hiring subject matter experts in areas like IT, foreign
languages, internal security, area studies, engineering,
records, and the like.
There has also been much in the media about coordination
with State and municipal authorities, what is commonly referred
to as information-sharing. After a series of meetings with our
law enforcement colleagues and State homeland security
directors, it became clear that our history of solid personal
relationships alone was not addressing the basic information
needs of our counterparts. They have our attention and we are
doing much better. Adding 650,000 officers to our efforts is
the only way to make this truly a national effort, not just a
Federal effort.
To move forward on this broad range of issues, we took a
significant step in the process of change with a major
reorganization of the FBI. The first phase established four new
Executive Assistant Directors who report directly to me and
oversee key areas of our work: counterterrorism and
counterintelligence, criminal investigations, law enforcement
services, and administration.
This structure should reduce the span of control of the
former Deputy Director position, which was a management concern
raised here on Capitol Hill and in internal and external
reviews of the Bureau. These changes also have increased
accountability and strengthened executive-level management of
day-to-day operations, and permitted a greater focus on
strategic management issues.
This reorganization addressed a number of significant
issues, many of them raised before this committee in previous
hearings. We created a stand-alone Security Division, headed by
an experienced professional from the CIA. We included in the
reorganization a Records Management Division, lead by an
experienced records expert who also has appeared before this
committee.
We also have established an Office of Law Enforcement
Coordination that will not only improve relationships and
information-sharing with State and local police professionals
and others, but will also help the FBI tap into the strengths
and the capabilities of our partners. We are hiring High Point,
North Carolina, Police Chief Louis Quijas, an experienced
executive, to head this new office.
At the same time, the ongoing reorganization responds
directly to the events of September 11 by putting a
coordinating analytic umbrella over counterterrorism and
counterintelligence. The new structure creates the Office of
Intelligence, which will focus on building a strategic analysis
capability and improving our capacity to gather, analyze, and
share critical national security information, an initiative
supported by our new College of Analytical Studies at Quantico.
The continuing reorganization also creates a new Cyber
Division dedicated to preventing and responding to high-tech
and computer crimes which terrorists around the world are
increasingly exploiting to attack America and its allies. Our
old approach was fractured and not well-coordinated. This new
Cyber Division will move elements of the Criminal Investigative
Division and the National Infrastructure Protection Center into
one coordinated entity. This change will bring together various
cyber initiatives and programs so that we are better focused,
organized, and coordinated in working with our public and
private sector partners.
We are now in the second phase of our reorganization. As
part of this phase, we are developing a comprehensive strategy
to permanently shift resources to supplement the substantial
new resources Congress has already provided in the fight
against terrorism and in support of our prevention effort.
Given the gravity of the current terrorist threat to the
United States, the FBI must make the hard decisions to focus
its available energies and resources on preventing additional
terrorist attacks and protecting our Nation's security.
At the same time, I want to assure you and others in
Congress that we will continue to pursue and combat
international and national organized criminal groups and
enterprises, civil rights violations, major white-collar crime,
and serious violent crime, consistent with the available
resources and the capabilities of, and in consultation with,
our Federal, State, and municipal partners.
We believe the changes to date and those that will be
proposed in the near future are vital to ensuring that the FBI
effectively satisfies its national security, prevention, and
criminal investigative missions. They represent important steps
in the difficult process of change.
What emerged from the events of 9/11 leaves no doubt about
the need or urgency for change. As you pointed out, Mr.
Chairman, in your opening remarks, our investigation of 9/11
paints a sobering portrait of the 19 hijackers and makes clear
that they carried out their attacks with meticulous planning,
extraordinary secrecy, and extensive knowledge of how America
works.
While here, the hijackers did all they could to stay below
our radar. They contacted no known terrorist sympathizers, they
committed no crimes, they blended into the woodwork. In short,
the terrorists managed to exploit loopholes and vulnerabilities
in our systems to stay out of sight and to not let anyone know
what they were up to, beyond, as you pointed out, a very closed
circle.
The patience, skill, and exploitative approach used by the
hijackers means that our preventive efforts must be massive,
globally collaborative, and supported by ample technology and
analytical capability. It means that the information possessed
by every agency, both here and abroad, both Federal and local,
must go into the multiagency prevention mix and be acted upon.
And it does mean, Mr. Chairman, that we need to look at the
lessons of the past and learn from those lessons of the past
and make certain that we do not repeat them, and to the extent
that there are organizational or institutional weaknesses or
failures, remedy those institutional weaknesses or failures.
Now, in response to 9/11, and with an eye toward preventing
future attacks, we have strengthened ties with the Central
Intelligence Agency. We have placed key staff in each other's
command centers. We are members of the Foreign Terrorist
Tracking Task Force, and as I believe the Deputy Attorney
General pointed out, we have expanded the number of Joint
Terrorism Task Forces around the country, which include both
Federal as well as State and municipal officials.
Perhaps as important, within the FBI we have centralized
accountability within the counterterrorism program under a new
assistant director. Among the new programmatic tools at his
disposal will be the Financial Review Group to focus on
disrupting the flow of financial resources to terrorists, the
Telephone Applications Group, and new data-mining capabilities.
We are also establishing flying squads so we have the
flexibility to send agents wherever they are needed when a
particular threat or crisis arises.
But foremost among the lessons I think we have learned in
retrospect is the need for a substantially greater and more
centralized analytic capability, resident at headquarters, but
available anywhere in the world, available to anyone, anyplace
in the world who is combatting terrorism.
We need a capacity with ample resources, better technology
and better training, one that is better intertwined with other
agencies, domestic and foreign, Federal and local, and all the
information that they may possess.
We are designing our new counterterrorism program and
technology, standing up an Office of Intelligence, changing our
training at Quantico, and hiring subject matter expertise with
that exact premise in mind. The capacity must be in place to
permit every piece of information from every source to be
rapidly evaluated from an analytical perspective.
It is also important, as we search for ways to improve our
Nation's capacity to prevent terrorism, for America to look at
these attacks in context. The terrorists took advantage of
America's strengths and used them against us. They took
advantage of the freedoms we accord to our citizens and guests,
particularly freedom of movement and freedom of privacy. As
long as we continue to treasure our freedoms, we always will
run some risk of future attacks.
In addition, the terrorists also took advantage of the
openness of our society. Fifty million people, Americans and
guests, entered and left America during the month of August
2001, the month preceding the September 11 attack. The vastness
of this number highlights the dynamic openness of our society.
It is also the source of our economic strength and vitality.
But this openness brings with it vulnerabilities, as 9/11
so terrifyingly showed. America will continue to be free and
open, and we at the FBI believe that our job is to protect
those freedoms, not reduce them in the cause of security.
However, these attacks highlight the need for a different FBI,
a more focused FBI, a more technologically adept FBI, an FBI
that is more reliant on outside expertise and better equipped
to process and use the vast quantities of information available
to us.
As I finish, Mr. Chairman, let me just say that I and the
27,000 men and women of the Bureau were as devastated as
anybody by the attacks of September 11 and remain deeply
affected. But with this has come the conviction to do
everything within our power to reduce the risks that Americans
run in the exercise of their freedoms.
It is to this goal that all of the reorganization, reform,
technology, and new personnel are committed. But ultimately,
standing behind all the capabilities that we have now and that
we are working to build is a cadre of FBI professionals, men
and women who exemplify courage, integrity, respect for the
law, and respect for others. We are extremely proud of how they
have performed over the past 8 months. As, Mr. Chairman, you
have indicated, they have worked long days and nights,
sacrificing time with their families to get the job done. It is
an honor to appear before this committee representing those
27,000 individuals.
Thank you for according me the time, Mr. Chairman, for my
statement.
[The prepared statement of Mr. Mueller appears as a
submission for the record.]
Chairman Leahy. Thank you, Director, and I agree with you;
it is an honor to represent them. We have some very fine men
and women there. I know many of them, nowhere near as many as
you do, but we should be very proud that they are there.
You were on the job less than a week before the 9/11
attacks. You handled that crisis as though you were born to the
job, even though that is not the job you wanted to have, none
of us wanted to have, anything happening that terrible. I have
talked to you a number of times since that day. This is your
first formal appearance before the committee and I just wanted
to use the opportunity to commend you for the way you have
taken charge at the FBI. I also want to commend Attorney
General Ashcroft for the support he has given you, and Deputy
Attorney General Thompson.
I want to commend the FBI for the swift arrest of the young
man who has now been charged with placing pipe bombs in
mailboxes across the Midwest.
I appreciate what you said about State and local government
and other Federal agencies who work with you. Not only is it a
fact, but I know they are going to appreciate you commending
them for that.
I know that a lot of postal workers and Americans were
vastly relieved when they checked the mail this morning, which
made me think of another investigation near and dear to my
heart, the anthrax investigation. As I said earlier to you, it
is like the Mark Twain character. Now that I have received one
of the anthrax letters, and the Mark Twain character being
ridden out of town on a rail, if it wasn't for the honor, I
would just as soon walk.
I think it is important for the American people, and the
Postal Service employees in particular, to know that the FBI is
expending enormous resources on finding the murderer who sent
the anthrax letters. And that person is a murderer; numerous
people have died.
On November 9, the FBI made public a profile of the
suspect. Since then, you have engaged the help of the
scientific community. You have collected Ames strain samples
from almost 20 sources. You have done hundreds, actually
thousands of interviews. You have done genome sequencing,
carbon dating, reverse engineering.
Following all the interviews and the tests, have you
changed the profile of the suspect that the FBI came out with
last November?
Mr. Mueller. Well, Mr. Chairman, the profile that we came
out with then was based on certain information that we had at
that time. The results of additional interviews, the results of
the tests that we have done to date--many of them are
preliminary--have not warranted at this time a revision of that
profile.
I should say that as the investigation does on--I am
occasionally asked where is the investigation, where are we in
the investigation? I want to assure you and the public that it
is not in any way stalled. Everyday, we receive new leads with
regard to potential individuals, and we have an ongoing, very
thorough laboratory investigation undertaken.
Unfortunately, the letter that had most of the anthrax was
what has become known as the ``Leahy letter,'' but that has
enabled us to conduct tests that, prior to receipt of that
letter or finding that letter, we were unable to perform. Those
tests are ongoing and are very helpful to the course of the
investigation.
I mention the profile because FBI Assistant Director Dwight
Adams, the new head of the FBI Lab, has been very helpful to me
and my staff. He has explained a lot of the complex tests on
the anthrax sample. The FBI has had to rely on scientists
familiar with anthrax and bio-weapons research. It is not
something that normally--well, to my knowledge, has never come
before the Bureau before.
But that may be the same community from which the anthrax
murderer comes. He works in a lab, has a scientific background,
is comfortable working with extremely hazardous materials, and
so on. Some scientists have stated publicly that the
perpetrator may be one of their own.
Are we going to have to reach a point where the FBI can
develop more of this expertise on its own? And I don't mean
that as a criticism, because nobody has ever seen this sort of
thing come up before.
Mr. Mueller. We are in the process of developing our
expertise. I will tell you we have changed the recruiting
profile, for instance, to include scientists and others with
scientific as well as computer backgrounds, for exactly this
reason. We are developing our expertise in the laboratory as we
go along.
However, with something like this where we come to find
that there are various scientists with various views, we have
found the best way to obtain the best qualified laboratories
and individuals is to pull together a group of individuals
highly respected in their fields and attain names from them,
and then discuss with particular laboratories and particular
scientists the tests that they would perform.
One thinks at the outset of an investigation like this you
can go to one scientist and that particular scientist will have
all the skills necessary to tell you what you need in order to
conduct the investigation. But what we find is you need
different skills in different scientists, different areas of
expertise to look at the DNA, the genetic makeup, the chemical
makeup, and the like. Accordingly, when we are faced with a
situation such as this in the future, I think the model that we
have developed here is probably the model we will follow in the
future.
Chairman Leahy. Last week, a wire service reported that 2
months before the September 11 attacks, the Phoenix Office of
the FBI recommended contacting flight schools nationwide where
Middle Easterners might be studying. The FBI has provided the
committee a single declassified paragraph from the otherwise
classified Phoenix report that recommends the FBI set up
contacts with flight schools and other government agencies to
monitor certain foreign individuals coming into this country to
attend these schools. The paragraph specifically references
certain suspicions about how these flight schools were being
used.
Can you tell us what the suspicions were and whether any
actions were taken in response to the Phoenix report?
Mr. Mueller. Mr. Chairman, the Phoenix electronic
communication contains suggestions from the agent as to steps
that should be taken, or he suggested taking to look at other
flight schools. It was based on an investigation that this
agent and others in Phoenix had conducted and were conducting,
and to date is not over.
In the course of that investigation, the agent determined
that there were individuals who were looking at flight schools,
as well as other airline academies, for a variety of positions;
yes, pilots, but also perhaps as roles in security or elsewhere
in an airport.
He made a recommendation that we initiate a program to look
at flight schools. That was received at headquarters. It was
not acted on by September 11. I should say in passing that even
if we had followed those suggestions at that time, it would
not, given what we know since September 11, have enabled us to
prevent the attacks of September 11.
But in the same breath I should say that what we learned
from instances such as that is much about the weaknesses of our
approach to counterterrorism prior to September 11, and let me
spend a moment, if I could, to describe what I perceive to be
some of those weaknesses.
First, we in the FBI have been a reactive organization,
generally, as opposed to a proactive organization. That comes
because we perceive ourselves as being law enforcement. We
start from the presumption of we gather evidence and then when
we have enough evidence, we arrest people and prosecute them.
In the future, we have to be more proactive. We cannot wait
until we have evidence of a crime having been committed, but
have to take what evidence we have and make predictive
observations to avoid the next attack.
Second, one of the lessons learned is that we are a
dispersed organization. Our headquarters in the past has been a
coordinating entity, with our SACs and the agents in the field
doing all of the investigation. In the future, we have to
particularly centralize intelligence-gathering, intelligence
analysis, and intelligence dissemination from headquarters,
which brings me to the third thing.
Prior to September 11, we did not focus as we should on our
analytical capability, understanding that we have to take every
piece that may be provided to us and put it in a larger
framework, in a larger puzzle.
We have changed dramatically to address some of these
shortcomings. We have beefed up headquarters, with the
understanding that the Counterterrorism Division and the
Assistant Director must not just coordinate, but direct and
manage investigations in the future, so that when something
like this occurs, when there is a suggestion made, we would
then pursue it, and pursue it aggressively. We have beefed up
our analytical capability, which includes individuals,
analysts, and have sought even more analysts. Part of beefing
up our analytical capability quite obviously is the technology
which we also have sought. So we have used instances like this
in order to try to reshape and redefine how we address
counterterrorism.
Chairman Leahy. I will come back to this, and I have some
questions for General Thompson, too, but I will yield to
Senator DeWine, going on the usual early bird rule.
Senator DeWine. Thank you, Mr. Chairman. I do have to go to
the Intelligence Committee. I appreciate it very much.
Thank you for joining us. We appreciate it very much. We
appreciate the work that both of you are doing.
Mr. Director, you and your team are really redefining the
role of the FBI. I don't know of any FBI reorganization in my
lifetime that that has shifted the FBI's focus to such an
extent.
I think as you lead this change that your natural
inclination for candor will work to your advantage because you
are faced with setting priorities every single day. You have
had to already make some horribly difficult and tough choices.
I think, though, that it is very important for you to
continue, to involve the American people in that debate and
that setting of priorities. As you shift thousands of agents to
this new war effort and as the posture of the FBI changes,
maybe forever, there are going to be things that simply will
not get done. I think it is important for this Congress to know
what is not getting done and for the American people to know
what is not getting done.
My information would indicate that your work on white-
collar crime, for example, is not getting done to the extent
that it previouly was being done. My information would indicate
to me that, in the area of anti-drug efforts, you are not able
to do what has been done in the past.
When you are dealing with the anti-drug problem, the
American people may say, well, local law enforcement can do
that. They do that every day. We know that. But what is
important for the American people to understand, and what I
would like you to comment on, is the unintended consequence of
shifting resources away from the long-term work that your
Department does on drug cases--you are the ones who do the
long-term work with informants and work these cases for months
and months, and sometimes for years. That work leads you and
other law enforcement agencies to identify other violent
criminals. So you are not going to be able to get to those
violent criminals because you are not doing the drug work.
I would just like you to comment on that. I don't have any
problem with where you are going with priorities, but I think
we all need to know what the consequences of these decisions
are. I would just like for you to comment and if you disagree
with the premise, please say so, as I know you will.
Mr. Mueller. Starting off with your noting that we have not
been doing particularly since September 11 all that we had been
doing in white-collar crime and narcotics prior to September
11, that absolutely is true because the investigation after
September 11 required almost half of our agent population.
I mean, we had approximately 6,000 agents working on the
investigation in the weeks and immediate months following
September 11. We also put together a substantial task force
operating out of Washington, D.C., to address the anthrax
threats. That quite clearly has meant that agents who would be
doing other things would not be able to work on, say, white-
collar or other types of programs.
I will tell you that since September 11, as we have run
through in excess of 300,000 leads, the numbers assigned to
counterterrorism have dropped rather dramatically and we are
currently down to around 4,000, maybe 3,500 to 4,000 that are
still working terrorism matters.
What I have been engaged in for several months is looking
at a three-stage process and reassigning resources, it seems to
me, that we need to determine exactly what number of resources
we need to address counterterrorism around the Nation. I have
sought the input and received the input from the special
agents-in-charge of the various divisions so that I know what
in their minds they think they need to discharge the
counterterrorism responsibilities. It goes without saying,
however, that to the extent that we have any lead in
counterterrorism that should be followed up, every SAC should
make that the first priority regardless of what we do down the
road.
The first part of the process or the equation was to
determine how many additional agents we need to do
counterterrorism. Once that is done, I have to look at each of
the programs, with the help of the SACs, to determine from
whence those agents come.
The last part of that process is if we are going to take
agents from one of those programs, who is going to pick up the
slack, who is going to fill the void that is left by our moving
to another program, which requires conversations and
consultation not only with State and local law enforcement but
our other Federal partners, as well as Congress.
I am at the latter stages of that process, so I would
expect in the next couple of weeks, two to 3 weeks, to be back
up here talking with various Members of Congress to give you an
indication as to where I think these additional resources
should come from. But I see it as a three-tiered process, I
guess I should say.
The other thing I should point out is I am somewhat
reluctant to make wholesale shifts between offices, for
instance, because I have experienced in the past, where there
is a crisis or a challenge, we may have thrown agents at that
challenge and once the challenge is met those agents stay where
they are.
I am reminded of the savings and loan scandal, where we had
agents back in the early 1990's that went to Dallas and other
places. Many of those agents are still there, although the need
is not there. Consequently, I want to make certain that when we
reassign agents to different programs, to counterterrorism, we
do know who is going to be picking up the slack and they will
have worthwhile tasks to perform, and that we ought to be
flexible down on the road in adjusting.
That is, in broad view, my philosophy as we go through this
process.
Senator DeWine. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Grassley had to go back to another hearing. He did
want me to make these three sentences for him. He wanted to
thank you, Director Mueller, and the FBI for the way you
handled the investigation of the pipe bomb cases. Senator
Grassley said the bombs injured a number of people in his home
State of Iowa, and he is grateful and pleased that the FBI
could wrap this up and get a suspect in custody. Senator
Grassley said further that he appreciated the call you made to
him yesterday, letting him know what was going on.
The Senator from California.
Senator Feinstein. Thanks very much, Mr. Leahy.
Good afternoon, Mr. Mueller, Mr. Thompson. I think you
know, Mr. Mueller, I have a very great respect for you. You are
straightforward and direct and there aren't any artifices, and
I for one really appreciate that.
I think you know that yesterday I sent you a letter asking
some questions about this electronic communication known as the
Phoenix memorandum, and I would like to ask you some questions
about it. As I member of Intelligence, I have read a copy of
the original electronic communication and I must tell you that
it strikes me as something that does not require a great deal
of analysis. It is what it is, it is very straightforward.
In the reports that I read in Intelligence, it is much more
consequential than many of them that I read on almost a daily
basis now, much fuller, much more descriptive. So I would like
to ask just a few questions from my letter, but before I do,
Mr. Chairman, I would like to ask that this letter, dated May 7
to Mr. Mueller, be placed in the record, if I might.
Chairman Leahy. Without objection.
Senator Feinstein. Let me begin with the first question on
it. Who, by name and title, within the FBI was provided this
electronic communication? Was the EC or its contents brought to
the attention of the Director of the FBI? If so, when. If not,
who was the highest ranking FBI official made aware of the EC
or its contents?
Mr. Mueller. Senator, let me just say I received a copy of
your letter this morning and I glanced through it. To the
extent that I can answer the questions, quite obviously I will.
Senator Feinstein. I understand that.
Mr. Mueller. But there is a lot that you request in terms
of information that I am not on top of.
Senator Feinstein. I understand, I understand.
Mr. Mueller. I am not certain as to the highest-level
individual who received it. I do not believe at this juncture
that it went so high as the Director of the FBI, but I am not
certain how high it went in the hierarchy. I think that was the
thrust of that first question.
Senator Feinstein. Right. Now, the reason I am asking the
questions that I am is not to be critical, because it is very
easy to be a Monday morning quarterback, but to say when
something like this comes through let's look at the process
that governs it because clearly a lot of things could have
happened with that. In my judgment, it is something that
perhaps should have gone right to the Director of the FBI, and
perhaps he should have even sent it to the President.
Let me ask another question. It is my understanding that
the standard method by which the FBI disseminates intelligence
is by way of a letterhead memorandum, often called an LHM. Was
an LHM drafted based on the information contained in the EC,
and if not, why not?
Mr. Mueller. Let me again caution my remarks by saying I am
not certain. I have not seen all the paperwork with regard to
that EC. I quite obviously have seen the EC. In terms of
whether there was a letterhead memorandum, I am not aware of a
letterhead memorandum that had been prepared, but I am not
certain that the premise that intelligence information is only
distributed by letterhead memorandum is accurate also.
I have seen that intelligence information quite often is
distributed by way of EC. So I am not certain that there was a
letterhead memorandum, but I am not certain that that makes
some difference.
Senator Feinstein. All right.
Mr. Mueller. Could I respond to one thing in terms of the
procedures?
Senator Feinstein. Absolutely.
Mr. Mueller. I think it important--I know you have seen the
full letter--to understand that the individuals who were
mentioned in that letter, and there were a number, were, and
perhaps some may continue to be under investigation. So I just
wanted to point that out as we continue this dialog.
Senator Feinstein. I am not going to state what was in that
at all.
Let me ask you this question: Was the EC or information in
the EC provided to FBI personnel assigned to the Director of
Central Intelligence's Counterterrorism Center?
Mr. Mueller. Before September 11, I do not believe so, but
I am not certain on that. But I do not believe so.
Senator Feinstein. I think that this is a very worthwhile
exercise to go through this because I suspect that nothing
happened with it. Now, having said that, the question then
becomes, well, what should have happened to this and how many
other things perhaps are falling between the cracks.
Particularly after Mr. Moussaoui was arrested, which
happened a month after this, it should have been a real signal
that something was going on. Then, about the same time as the
Phoenix memo, United States intelligence--I guess the CIA--
issued a warning that there was a heightened risk of a
terrorist attack on Americans, possibly on U.S. soil.
So there were two things out there that should have alerted
something in the system to these. At the very least, run them
through State's data base, see where the visas came from, see
how many visas are out and where they are to people in similar
circumstances.
I think if it did drop between the cracks, I think there is
a serious problem because if one thing drops, others probably
have as well. That is why I think this is an instructive
exercise. I mean, if I had seen that, I would have sent it
right to the President. I feel that strongly about this kind of
thing.
I think the more I read in open-source information about
the FBI at this period, particularly books on terrorism in this
country, one of them by Stephen Emerson, for whom I have a
great deal of respect, the FBI was very much constrained in
what it did and in how it acted. I found some of the things in
the book really surprising.
I just wonder if you have any comment. Have you looked at
that memo as to where it went at all and what happened with it?
Mr. Mueller. Yes.
Senator Feinstein. Can you tell us anything about how it
was treated?
Mr. Mueller. Well, it was my understanding again--and we
are providing every document, as you well know, to the
Intelligence Committee on that. My understanding is that it was
in the section, it was looked at in the section. I believe the
agent was aggressive, was good, and the suggestion was a good
one.
It was a monumental undertaking. There are more than 2,000
aviation academies in the United States. The latest figure I
think I heard is something like 20,000 students attending them,
and it was perceived that this would be a monumental
undertaking, without any specificity as to particular persons.
The individuals who were being investigated by that agent in
Phoenix were not the individuals that were involved in the
September 11 attack.
All that put aside for a second, though, it is a very
worthwhile process and a process we are undertaking to change
what we do in response to that instance and others where
perhaps we did not have the analytical capability, we did not
have the people who were looking at the broader picture to put
the pieces in place. That is how we have to change.
We are, as I said a few moments ago, and have been, a law
enforcement agency and we have been more reactive than
proactive. We have not built up the intelligence capacity or
capability as we should. One of the things we are doing is
putting in an Intelligence Office, and I have requested from
George Tenant an individual from CIA to head it up. That
provides two things to us. One, it provides us a person who is
experienced in intelligence-gathering, analysis, and then
dissemination. It also links us better than we have been in the
past with the CIA.
So do I wish that we had more aggressively followed up on
that suggestion at the time? Yes. Are we taking steps to
address what the failings or weaknesses were prior to September
11? Absolutely.
Senator Feinstein. Thank you. My time has expired. Thank
you.
Chairman Leahy. Senator Edwards?
Senator Edwards. Thank you, Mr. Chairman.
Mr. Director, I join my colleagues. We all have enormous
respect for you and appreciate very much the job you are doing.
I also want to ask you about the Phoenix memo, recognizing,
of course, that you weren't there at the time. First of all, I
think that the American people are entitled to know why it
appears at least that red flags were ignored before September
11, and I think the FBI has a lot of explaining to do. I think
our responsibility is to sort of get to the bottom of this and
find out what happened. Let me just followup on some of Senator
Feinstein's questions.
As I understand it, the memo, to the best of you knowledge,
never went as high as the FBI Director. Is that correct?
Mr. Mueller. I have not asked Louis Freeh whether he saw
it. I do not believe it went to the Director, no.
Senator Edwards. And it also didn't go to the CIA Director.
Is that correct?
Mr. Mueller. I do not believe it did.
Senator Edwards. Now, when the Moussaoui investigation
began a month or so later, after July--I think it began in
August of 2001--did that arrest in August lead to any renewed
response to the Phoenix memo?
Mr. Mueller. I am not certain whether at headquarters
somebody said this is the same type of thing. I am not certain
what the agent did in Arizona. To the extent that you are
asking whether there was any additional effort made on flight
schools as a result of putting Moussaoui together with the
Phoenix EC, I do not believe that to be the case.
I believe we looked at the Moussaoui case as a red flag. I
mean, one of the red flags you talk about was Moussaoui, and we
go out and at the response of the Pan Am flight academy--and
they had found him to be somewhat difficult and different, and
called up the FBI--we go out and interview Moussaoui and we
have no basis to arrest Moussaoui. He has committed no crime.
He is a student who is a little bit odd in the course of
what he is trying to do, and the only way that we can address
Mr. Moussaoui is to find that he has overstayed his welcome in
the United States, is out of status, and we have INS arrest
him. So red flags went up.
The agent in Minneapolis did a terrific job in pushing as
hard as he could to do everything we possibly could with
Moussaoui. But did we discern from that that there was a plot
that would have led us to September 11? No, I rather doubt it.
But should we have done more in terms of the Phoenix EC? Yes.
Senator Edwards. Well, I think one of our responsibilities
is to determine what you could have figured out based upon
followup that didn't happen, as it turns out.
But if I understand it correctly, you got the memo in July
from Phoenix making specific recommendations. About a month
later, the Moussaoui investigation and arrest occurred, roughly
a month later, relating to a similar topic, obviously. The
Director of the FBI, to the best of your knowledge, didn't know
about the Phoenix memo. The Director of the CIA did not know
about it. Is that all accurate?
Mr. Mueller. I think that is accurate.
Senator Edwards. OK.
Mr. Mueller. I will tell you I think that is accurate
because I have not followed the trace of----
Senator Edwards. If that turns out not to be true, would
you let us know that, please?
Mr. Mueller. Sure.
Senator Edwards. I also am a member of the Intelligence
Committee and I have seen the memorandum, and I also believe
that it at least appears to have been an enormous red flag.
Let me ask you about three things that were reported in the
newspaper about the memo and get you to respond to them, if I
can. First, and this is from the New York, it says ``Phoenix
believes that the FBI should accumulate a listing of civil
aviation universities and colleges from around the country,''
and I am quoting from the newspaper now.
Did the FBI do that?
Mr. Mueller. Not to my knowledge, until after September 11.
It did, after September 11, but not before September 11.
Senator Edwards. Not before September 11.
Second, ``FBI field offices with these types of schools in
their areas should establish the appropriate liaison.'' Did the
FBI do that before September 11?
Mr. Mueller. After September 11, not before.
Senator Edwards. But not before?
Mr. Mueller. Not to my knowledge.
Senator Edwards. Third, ``FBI headquarters should discuss
this matter with other elements of the U.S. intelligence
community and task the community for any information that
supports Phoenix's suspicions.'' Did the FBI do that?
Mr. Mueller. That, I am not certain about, at what level. I
am not certain about that.
Senator Edwards. You indicated earlier that the Director of
the CIA didn't know about it. But you think there is a
possibility something else occurred?
Mr. Mueller. It is a possibility, but I would only say a
possibility that somebody down the chain had conversations with
persons at the CIA. I just don't know whether that happened or
not.
Senator Edwards. The FBI has said in a statement, and you
have indicated something similar to this today, that none of
the people identified by Phoenix are connected to the 9/11
attacks. That is, I assume, accurate and a fairly narrow
statement.
Did any of those people have any connections to Osama Bin
Laden or any terrorist groups?
Mr. Mueller. The persons who were being investigated by the
agent in Phoenix?
Senator Edwards. Correct, that is the question.
Mr. Mueller. I am not certain without going back and
looking and checking. There were a number of individuals that
were listed in that EC and I am not certain. I cannot recall.
Senator Edwards. Whether they are connected to Bin Laden or
whether they are connected to any terrorist group, you don't
remember either one?
Mr. Mueller. Well, I know that we believed that one or more
were connected with terrorist groups.
Senator Edwards. But you are not sure whether it was Bin
Laden?
Mr. Mueller. I am not certain whether it was specifically
Al-Qaeda or Bin Laden.
Senator Edwards. Are those people still at large?
Mr. Mueller. I hate to get into it in open forum. Let me
just put it that way. I would be happy to answer that----
Senator Edwards. That is fine. I accept that.
Well, Mr. Director, thank you for being here. We appreciate
your answers to these questions. I hope you can understand why
we are concerned about this, obviously with the magnitude of
what happened and the information that was apparently available
both in July and then in August, before the attacks.
I do believe we have a responsibility to get to the bottom
of this, and we appreciate your help with it. I know you also
want to get to the bottom of it.
Mr. Mueller. We share every interest in seeing what
happened, what lessons are to be learned, so we do not repeat
those lessons. We are making every effort to cooperate and
fully disclose anything and everything to the Joint Committee.
Senator Edwards. Thank you, Mr. Director.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. I believe you came in first. Senator Durbin
is next, I want you to know.
Senator Feingold. Thank you, Mr. Chairman, for your
leadership and for holding a hearing on this important subject.
Deputy Attorney General and Director Mueller, thank you for
joining us today. I sincerely want to thank you for your long
hours and hard work, particularly since September 11. It is
important that you are here to discuss with us how the
administration plans to reorganize the FBI to use its resources
and skills most effectively to attend to the greatest criminal
and national security threats to our Nation.
Before I get to my questions, and since the Deputy Attorney
General is with us today, I would like to take this opportunity
to reiterate here on the record that I hope he, the Attorney
General, and President Bush are still committed to ending
racial profiling.
It has been more than a year since President Bush pledged
to end racial profiling, and it is almost 1 year since
Representative Conyers and I introduced legislation, the End
Racial Profiling Act.
Mr. Thompson, we have talked about this before and you have
made some very powerful statements on it. I would request from
the Department an update on the status of its deliberations on
our bill and whether it remains committed to a ban on racial
profiling. This is more of a request than a question, but if
you would like to respond briefly, I would like you to do that
at this time.
Mr. Thompson. Senator Feingold, I can assure you that the
Department, and specifically the Attorney General and myself,
remain committed to doing everything we possibly can to
eliminate racial profiling, to eliminate race being used as a
basis for law enforcement actions. You and I have discussed
that in the past.
We are working hard to bring to fruition our studies with
respect to racial profiling at the Federal level. Since 9/11,
our efforts have required some updating and we are in the
process of getting that completed, but we are not standing
still with respect to this important topic. The Department is
committed and is actively taking a leadership role with respect
to racial profiling at the operational law enforcement level,
with respect to providing training to Federal agencies, with
respect to data collection, the use of race as a factor in law
enforcement actions.
So we hope to complete our studies in as timely a manner as
possible, and we will get to the conclusion of this, I can
assure you.
Senator Feingold. Do you still support a ban on racial
profiling?
Mr. Thompson. Yes, sir.
Senator Feingold. Well, good. I don't see any reason why we
can't work together to get a bill to the President's desk.
Mr. Thompson. We look forward to working with you.
Senator Feingold. Very good.
I would also like to tell you about another matter.
Director Mueller, I understand that, a part of the FBI's
renewed focused on antiterrorism is the creation and
maintenance of a so-called watch list of potential terrorists,
and I want to tell you about an incident in Wisconsin a few
weeks ago.
A group of close to 40 peace activists were planning to
travel to Washington, D.C., to participate in workshops and
demonstrations. I understand that as the members of the group
were checking in at the Milwaukee Airport, at least one person
and possibly more apparently triggered a possible match on the
watch list. And because at least 20 members of the group had
bought their tickets together and the possible match was
triggered by someone in that group of 20, all 20 travelers were
detained for questioning.
It turns out that none of the members were determined to be
security threats and all were ultimately cleared to fly.
Unfortunately, these passengers were scheduled to be on the
last flight to Washington for that day, and because it took so
long to clear the passengers, some of these passengers missed
their flight and had to wait until the next morning to travel
here.
Now, of course, we all recognize that we need increased
security measures at our Nation's airports and all passengers
are understandably enduring some inconvenience and longer wait
times before boarding their flights. Nonetheless, I think the
incident does raise some concerns.
How, if you could tell me, could these Wisconsin residents
trigger the watch list? Can you assure this committee and the
American people that the FBI has not and will not include on
the watch list persons who exercise their lawful rights of free
speech and freedom of association to express their views that
may be at odds with the policies of the U.S. Government?
Mr. Mueller. Well, as to the last statement, absolutely I
can assure you, Senator, and the American public that we would
never put a person on the watch list solely because they sought
to express their First Amendment rights and their views.
With regard to that incident, I am not familiar with the
details as to why one or more of those individuals was on the
``no fly'' list. There are a number of participants and
contributors to that. I will tell you from the perspective of
the FBI, prior to September 11 we had no mechanism for alerting
State and local law enforcement that there were individuals in
the country for whom we had no paper, we have no arrent
warrant, they have no crime triggering an arrest piece of
paper. Nonetheless, we believe they are an individual or
individuals that we need to talk to because we have gotten
intelligence from the CIA or elsewhere that they may be
associated with terrorism.
We needed some mechanism to alert State and locals. We have
used NCIC to do so, understanding that it is critically
important that we have State and locals identify a person has
been stopped, not necessarily detained, but get us the
information that the person has been stopped at a particular
place.
We are very careful, once we have interviewed a person we
need to interview because we have information that they may be
associated with a terrorist or have information relating to a
terrorist, that the name be removed from the watch list. It is
important for us to have some mechanism to try to find
individuals within the United States who may be committing
terrorist acts.
On the other hand, we understand the responsibility of
making certain that once a person is interviewed, they are
removed from the watch list, and that we have various
gradations on the watch list depending on the threat and
depending on whether there is any paper outstanding on the
individual.
Senator Feingold. I think following that a little bit in
terms of these lists, do they contain only the names of the
suspected terrorists? If so, how does the FBI define who is a
terrorist for purposes of determining whether somebody should
be placed on the list? Just give me a sense of what the factors
are to determine if somebody should be on the list.
Mr. Mueller. Well, I am going to tell you that prior to
September 11 there were two individuals, and the CIA gave us
the names of these two individuals and said that they had been
at a meeting in Kuala Lumpur with known terrorists and we
needed to find them. They actually happened to be two of the
hijackers, as it turns out. They came through immigration, they
say, staying at Marriott in New York City. Well, that does us
no good. We have no mechanism to try to identify those persons.
Senator Feingold. So it is as narrow as being at the
January 2000 meeting in Kuala Lumpur?
Mr. Mueller. With terrorists, yes, with terrorists.
Senator Feingold. What would be the other category?
Mr. Mueller. You can have associates of terrorists, in the
wake of September 11, for instance.
Senator Feingold. How do you define ``associates of
terrorists?''
Mr. Mueller. Well, in the wake of September 11, we go to
the flight schools and say, OK, this individual was a hijacker.
Who were the friends? Were there any companions that he hung
around with? If there were, we want to identify them. We want
to know whether that individual is in the United States
contemplating a terrorist act.
The only way we can identify that person is that person is
stopped, but we put in identifying--there are differences in
names, but where we have it--and I would say in 99 out of 100
circumstances we put in dates of birth, information that we
gather from the passports as they come into the United States
so that there is some specificity.
Senator Feingold. I appreciate that. Let me just ask, does
the FBI have a procedure for helping airline security quickly
determine if someone whose name comes up on a list is actually
the person that the FBI intends for security to stop?
I understand in this instance, at least one analysis of
this instance was that it was just that somebody's name was
similar to somebody else's name.
Mr. Mueller. Well, we have a 24-hour watch that is the
recipient of telephone calls, but it may not be the FBI. Other
agencies also have persons that they put, for a variety of
reasons, on the watch list, not just the FBI.
Senator Feingold. I guess my time is up. I will come back
on another round.
Chairman Leahy. Thank you.
Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman.
General Thompson and Director Mueller, thank you for
joining us. I want to return to this Phoenix memo. I am very
troubled by this and I think that it is likely to become a
major concern for Americans because in my committees on Capitol
Hill we have been assured and reassured that the tragedy of
September 11 was unanticipated. It came as a startling surprise
to those who followed terrorist activities, and it was
understandable because our theory about hijacking for the
longest time had been be submissive, be cooperative, and
everything will work out. We came to learn on September 11 that
we were just plain wrong.
Let me go back to this Phoenix memo, if I can, and I
believe a question was asked earlier, did the FBI agent in
Phoenix in communicating this memo link any of his concerns
with Osama Bin Laden?
Mr. Mueller. I am not certain of that. I would have to go
back and read that memorandum.
Senator Durbin. If such a linkage were made, would you
agree that the Office of Counterterrorism should have paid
special attention to that memorandum?
Mr. Mueller. I think the Counterterrorism Section should
have--it did pay some special attention to that memorandum.
There were specifics in there that required further
investigation, at least one other office. That other office was
alerted. I would agree that it should have disclosed that
memorandum or discussed that memorandum with the CIA.
Senator Durbin. But that was done, to your knowledge?
Mr. Mueller. I do not know whether that was done at a lower
level.
Senator Durbin. Director Mueller, will you be releasing
this memorandum?
Mr. Mueller. It is still a classified memorandum. There are
aspects of the memorandum that, in my view, still should remain
classified because it is an ongoing investigation. The
memorandum in full has been disclosed to the Intelligence
Committee. In terms of releasing the memorandum, publicizing
it, no, I would not support that.
Senator Durbin. Would you release a redacted form of this
memorandum?
Mr. Mueller. We have released, I believe, and sought
declassification of that which I think we can. In other words,
there is a paragraph of it that I know has been released. I am
not certain whether there are any other areas of it that can.
We would have to look at that and get back to you.
Senator Durbin. But the FBI, the Department of Justice, or
some other agency, to your knowledge, actually contacted the
press for this May 4 story that was reported in several
newspapers about the memorandum?
Mr. Mueller. Contact and trigger the----
Senator Durbin. Yes.
Mr. Mueller. No, not to my knowledge. No. I want to say no.
It came as some surprise.
Senator Durbin. Do you believe as you testify today that
the FBI ignored a clear warning about the pending events of
September 11 by not responding properly to this memorandum?
Mr. Mueller. Yes, I would disagree with that statement. I
think the recommendations of the agent are something that we
should have more aggressively pursued. I do not believe that it
gave the sign post to that which would happen on September 11.
Of the warnings that we had, the stopping of Moussaoui, the
arrest of Moussaoui, brought the Bureau, and particularly the
agent in Minneapolis, to the belief that this individual is the
type of individual that could and might be the type of
individual to take a plane and hijack it. In fact, if I am not
mistaken, in one of the notes, the agent in Minneapolis
mentioned the possibility of Moussaoui being that type of
person that could fly something into the World Trade Center.
Senator Durbin. Press reports focus on Embry Riddell
University in Prescott, Arizona, as the concern of this Phoenix
agent. Certainly, Moussaoui was involved in another aviation
school, if I am not mistaken.
Mr. Mueller. In which one?
Senator Durbin. Moussaoui was involved in training at
another school.
Mr. Mueller. Yes, that is correct.
Senator Durbin. So the FBI felt within a few weeks that
taking action against Moussaoui at another school was
appropriate. Was that memo taken into consideration, do you
believe, in that decision?
Mr. Mueller. I am sorry. Which decision would that be?
Senator Durbin. The decision to pursue Moussaoui, to arrest
him.
Mr. Mueller. I don't believe the Arizona EC was factored--I
am not certain, but I do not believe the Arizona EC factored
into the decision to arrest Moussaoui. It was the agent who
went out to Pan Am aviation school who determined that this
person presented a threat, had no basis to arrest this person,
but saw that he was out of status and asked the INS to arrest
him.
Senator Durbin. I want to reiterate that I know that this
happened before you were in your position of leadership, but I
think it reflects on what we are discussing today, the process
at the FBI and how it has been pursued. I believe the Phoenix
memo is going to come to be one of the most important documents
in our national debate about whether we did enough to protect
America from the attacks of September 11.
It strikes me that a memo coming from an agent of the FBI
to the counterterrorism office in Washington which identifies
concerns about terrorists and their linkage to other terrorist
organizations involved in aviation training, and calls on the
agency to move quickly to respond at several different levels
with limited impact, limited effect, from what we hear today,
is going to be a source of further investigation and concern.
I urge you, if it is possible, to release this memo, even
in redacted form, so that there is no element of concern that
we are not being frank and candid with the American people
about what happened. I hope that you will consider that.
Mr. Mueller. I will.
Senator Durbin. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. I would note that this committee made that
request about a week ago of the FBI. We are still waiting and
hope at the very least we can make it available to members.
Director, in addition to the Phoenix memo, the press
reported that Filipino authorities alerted the FBI as early as
1995 that at least one of the Middle Eastern pilots who trained
at American flight schools had proposed hijacking a commercial
jet and crashing it into Federal buildings. A month before 9/
11, the FBI arrested Zacarias Moussaoui as a result of his
suspicious behavior at a flight school.
Was the information in the Phoenix report or the
information provided by the Filipino authorities in 1995
considered by the FBI when it was determining whether to seek a
FISA search authority on Moussaoui?
Mr. Mueller. I am not certain about that, Mr. Chairman.
Chairman Leahy. Do you suppose we can get an answer on that
for the record?
Mr. Mueller. Sure.
Chairman Leahy. We can discuss whether we could get FISA or
not, but I would think that if the press reports are accurate
about the information provided by the Filipino authorities,
that is something that should have been considered.
Mr. Thompson, I noticed that twice in your testimony you
referred to an expensive and extensive study done by what you
call a private consulting firm and a management consulting
firm. Actually, the unnamed firm is Arthur Andersen, the same
Arthur Andersen that is prosecuted by the Department of Justice
in a Texas courtroom today.
While the Attorney General has recused himself from that,
and appropriately so, you have not, and also appropriately so.
So I am going to ask you a few questions.
I was concerned about Arthur Andersen in early January and
asked about the role Arthur Andersen played in the Department's
review of the FBI. The Department's response in February stated
that only the audit practice was under investigation, not the
consulting practice used for the FBI review.
Shortly after Arthur Andersen had completed its work on the
FBI, on December 14 OMB asked the General Services
Administration to determine whether to allow Arthur Andersen to
continue doing business with the Government. In the end, both
Arthur Andersen's consulting and auditing practices were
suspended from further Government work based upon its
unsatisfactory record of integrity and business ethics.
What reliance, if any, are you placing on the Arthur
Andersen report as you move forward with FBI reorganization?
Mr. Thompson. Mr. Chairman, let me just briefly explain to
you the background by which Arthur Andersen was selected to
participate in our review, if that would be helpful.
Chairman Leahy. They were selected prior to the Enron
debacle.
Mr. Thompson. That is correct.
Chairman Leahy. I understand that, but what reliance are we
having on their report today?
Mr. Thompson. We are relying on certain aspects of the
Andersen report. The Attorney General also asked us to review a
number of other reports and to undertake a number of other
steps in coming to conclusions, and taking into consideration,
before we made our recommendations to him.
For example, Mr. Chairman, he asked us to consider the
report of the Webster Commission. He asked us to consider the
two IG reports, the one that dealt with the Oklahoma City
bombing documents and the one that dealt with the internal
security problems of the FBI in the wake of the Hanssen matter.
As you know, he also asked us to conduct interviews of
individuals both within the Department of Justice and outside
of the Department of Justice, including Members of Congress.
So the Andersen report, which was completed before the
issues of the Enron investigation arose--the Andersen report,
along with the other documents and studies and our interviews,
will all be considered in our recommendations to the Attorney
General.
Chairman Leahy. So the Andersen report will be one of the
things you rely on?
Mr. Thompson. Yes, sir.
Chairman Leahy. The FBI Reform Act codifies the Attorney
General's decision last year to authorize the Justice
Department Inspector General to investigate cases of FBI
misconduct. The FBI Office of Professional Responsibility would
still have an extremely important role. The Office of
Professional Responsibility, OPR, would continue to investigate
FBI misconduct allegations, especially those the IG chose not
to handle.
But they also make crucial recommendations, Director, to
you on disciplinary sanctions, and so OPR leadership is
important because of the message it sends throughout the FBI.
Last year, several FBI officials who had sterling records of
ethical integrity described these problems at a committee
oversight hearing, and their courage and devotion to the
Bureau's interests were extraordinary. I got letters, calls, e-
mails, and so on, from agents all over the country praising
them.
What are your views on the need for OPR leadership to send
the right ethical signals throughout the Bureau?
Mr. Mueller. It is critically important that we have an
OPR, what in a police department would be an internal affairs
unit, that is perceived as being fair, is fair, and therefore
perceived as being fair, expeditious. That is one of the things
that I am looking at.
I believe that in looking at the workload, we have taken
too long to resolve certain cases. We are looking at the
possibility of delegating some of the smaller issues to the
SACs to free up OPR to work on cases more quickly and get the
resolutions resolved as quickly as possible.
We have tried to eliminate any discrepancies between the
handling of cases, whether it be an agent or somebody in the
SES, and we are still working at that. But it is critically
important that OPR be, and be perceived as, fair and
expeditious.
Chairman Leahy. Thank you. I have other questions, but
Senator Schumer is here.
Senator Sessions, did you want to ask questions?
Senator Sessions. Yes.
Chairman Leahy. Go ahead.
Senator Sessions. Mr. Chairman, I appreciate the
opportunity to ask a few questions.
It is great to see two fine citizens before us, Larry
Thompson and Bob Mueller. No government could have finer public
servants than they, or have the experience and background and
do the job that they do. I know, as Deputy Attorney General,
Mr. Thompson has to deal with a lot of frustrating issues,
trying to get people to agree and work together. But he has the
skills to do that, and proved that as United States Attorney in
Atlanta, and I had the opportunity to work with him. My
admiration for Mr. Mueller is unbounded as a career
professional prosecutor of the highest order.
Mr. Thompson, you remember, I am sure, when President
Reagan appointed William French Smith as Attorney General, and
the Associate Attorney General was Rudy Giuliani and he
established law enforcement coordinating committees. That was a
direction to the United States Attorneys and all Federal
agencies to work with local agencies, to have meetings and a
formal committee to identify the law enforcement priorities in
that district and to focus on those priorities. In other words,
use the Federal resources within the area to the highest
priorities of the area, somewhat diminishing the idea that
everything should be decided in Washington.
I thought that was a great success. I think you thought so,
too, so I will ask if you are troubled by the priorities
appearing to be awfully tough from the top of the FBI down.
Mr. Thompson. Senator Sessions, I do agree that the LECCs
remain an important law enforcement tool to help the Federal
law enforcement agencies and to help focus our Federal
resources and lash them up, if you will, with our State and
local colleagues and to focus on the particular crime problems
in individual districts.
One of the things that the Attorney General has done and
the Director has done with respect to our important efforts
against terrorism is to again try to use various mechanisms to
focus our Federal resources with our State and local
colleagues.
For example, in each judicial district there has been
established antiterrorism task forces, which are coordinating
mechanisms with respect to the U.S. Attorneys to work with
their State and local colleagues to identify particular issues
as it relates to terrorist incidents and how to respond to
terrorist incidents.
The Director has expanded the FBI's Joint Terrorism Task
Forces, which again are investigative bodies but which do take
into consideration the use of various State and local resources
in this important effort. So I think this kind of approach to
Federal law enforcement is important and effective.
Senator Sessions. Well, I suppose that we would not dispute
that terrorism is the No. 1 priority for the Federal Government
at this time, so I don't mean to diminish that. But it may not
be the No. 1 priority in a given district, or there may be
varied leads, investigations, or activities that need to be
undertaken in a given Federal FBI SAC area.
Mr. Mueller, are we sure that we will still be able to give
appropriate credit to agents who do important bank robbery
cases or important bank fraud cases, or contribute to important
drug cases? Are we creating a circumstance in which the FBI is
basically saying these are our priorities, you are expected to
work these and virtually only these, and the end result would
be to pull back from cooperation with local law enforcement in
developing the priorities of the district?
Mr. Mueller. I don't think we can respond in that way. To
the extent that an SAC in a particular division has a
counterterrorism responsibility--and one of the reasons that we
need to give additional resources to the counterterrorism
program is you have to develop sources, you have to develop
contacts, you have to develop intelligence. And that is often a
thankless job in the sense that it does not result in a
prosecution that is something you can grasp and take credit
for.
So we have to emphasize the counterterrorism program in
each of our offices, but I do not want agents sitting on their
hands with nothing to do. So what I have asked each of the SACs
to do is determine the extent of the workload for agents on the
counterterrorism program in their particular division, and then
I want to get them that resource, and it may come from other
programs.
But with regard to where that SAC takes the manpower from,
the SAC should have some say in that because what is good for
one SAC in Los Angeles may not be good for the person in
Birmingham. The threat in a particular division should be
evaluated, and the SAC should have perhaps more flexibility
than the SAC has had in the past in devoting those criminal
resources to the threat in a particular division once the
priority of counterterrorism, counterintelligence, is
discharged.
Senator Sessions. With regard to setting priorities, which
I would indicate to mean if there is a conflict in time, the
highest priorities would be served first, I am comfortable with
that. I just do not think we should create a circumstance in
which we don't have time to do identity theft matters. That is
a matter of importance to this committee right now. I believe
we are not sufficiently investigating bankruptcy fraud. I think
there is a lot of it. It is a Federal court. No one else should
do it but the FBI, in my view, and they haven't committed
enough there.
So there are some things that I think need to be done. I
don't want to see a message go out that so overwhelms the
agents that they believe the only thing they can do to gain
favor or earn merit is a terrorist or homeland defense-type
issue.
Thank you, Mr. Chairman.
Chairman Leahy. Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman.
First, let me thank each of you for your service to our
country.
My colleagues have discussed a lot of questions regarding
FBI organization, reorganization, efforts after 9/11, and
anthrax. I have some followup questions that I would like to
put in writing, but I would like to address to Mr. Thompson----
Chairman Leahy. We will leave the record open for questions
in writing from all Senators.
Senator Schumer. Thanks, Mr. Chairman.
Now, I would like to ask Mr. Thompson--I just want to take
a moment to address with you the extraordinary action taken by
the Department yesterday. The Justice Department used footnotes
in two Supreme Court briefs to announce a massive change of
course in our Nation's gun control policy. For the first time
in 60 years, the Federal Government is saying that the right to
bear arms is an individual right.
First, this decision wasn't made after discussion, debate,
or any open dialog whatsoever. It wasn't made in consultation
with Congress or the States, and it wasn't put forward with the
kind of detail and analysis that such a significant policy
change would usually come with. Instead, it was done
undercover, buried in footnotes.
Now, the broad principle that there is an individual right
to bear arms is shared by many Americans, including myself, but
there are limits on those rights. We limit freedom of speech,
the First Amendment, when we say you can't falsely shout
``fire'' in a crowded movie theater. At the same time, we
should be able to put restrictions on who can own guns, and
how, when and where they may be possessed.
At his confirmation hearing, Attorney General Ashcroft
swore to enforce and defend all existing Federal gun laws. In
answer to questions from me, he said, ``I understand that being
Attorney General means enforcing the laws as they are written,
not enforcing my personal preferences.''
Then he also said, ``I believe that there are
constitutional inhibitions on the rights of citizens to bear
certain kinds of arms, and some of those I would think good
judgment, some of those I would think bad judgment.'' These are
his words. ``But as Attorney General, it is not my judgment to
make that kind of call. My responsibility is to uphold the acts
of the legislative branch of this Government in that arena, and
I would do so and continue to do in regard to the cases that
now exist and further enactments of Congress.''
Well, Mr. Thompson, it just would appear on its face that
the Attorney General is doing a 180-degree about-face from what
he told us not too long, without any consultation, any notice,
any discussion. It is no way to do business and I am sort of
shocked by it.
The Department of Justice is saying that the right to bear
arms is subject to ``reasonable restrictions,'' but the devil,
as always, is in the details. So I have a series of questions
for you about what constitutes a reasonable restriction.
First, is the Federal ban on assault weapons a reasonable
restriction? Is the Federal ban on felons owning firearms a
reasonable restriction? Has the Justice Department considered
how State laws would be impacted?
For example, New York has a strict licensing and
registration law. Does the Attorney General's Justice
Department believe that the law is unconstitutional? Is
Maryland's 7-day waiting period unconstitutional? How about
California's ban on Saturday night specials?
The District of Columbia, a city that was not only the
Nation's Capital but once it was the Nation's murder capital,
has the strictest gun laws in the country. Unless you are law
enforcement, you pretty much can't have a gun in D.C. Federal
prosecutors enforce D.C.'s gun law. It seems almost by
definition, without discussion, that what the Justice
Department said in a footnote would overturn that D.C. law.
So I would ask you the answers to these questions. What is
the Justice Department's actual view, given that in these two
footnotes they reverse 60 years of Government policy, something
not reversed by any previous administration, Democrat or
Republican? What is the view on these questions?
Mr. Thompson. Senator, the footnote that you refer to, as I
understand it, was contained in a pleading that was filed by
the United States, by the Solicitor General's office, in
opposition to a cert petition in which an individual was
convicted of a gun crime. That was in the Fifth Circuit. The
case was Emerson.
Following the Emerson decision, the Attorney General sent a
memo out to all United States Attorneys in which he committed
and set forth his and the Department's view that we are going
to aggressively continue to vigorously and aggressively
prosecute and enforce the gun laws, and we are going to
vigorously defend the gun laws against constitutional attack.
He also set forth in that memorandum the position which the
court in Emerson recognized in its decision, the Fifth Circuit,
that the Second Amendment is an individual right.
The footnote was appropriate, in my judgment, as sort of a
duty of candor to the Supreme Court to let the Supreme Court
know what the Attorney General had communicated pursuant to the
Department of Justice----
Senator Schumer. So it was a reversal of policy, a dramatic
reversal of policy. I mean, there was a 1939 case whose name
slips my mind--he will write it down and give it to me--that
said, no, the right to bear arms was related directly to the
ability of States to raise a militia.
Mr. Thompson. I understand that.
Senator Schumer. There has been a great deal of discussion
about that over the last 62 years about whether that is right
or wrong.
Do you disagree that the footnote wasn't a real change in
the policy of the United States Government?
Mr. Thompson. No, sir. I believe the footnote was
appropriate in the context of this litigation, in which the
Fifth Circuit embraced in its decision the Second Amendment
individual right to bear arms, and in the context of a duty of
candor to the Supreme Court in opposition to this petition.
But to answer your concern, Senator, the Attorney General
and the Department are both committed to vigorously enforcing
the guns laws and are committed to enforcing those laws against
constitutional attack.
Senator Schumer. Sir, with all due respect, we don't know
what you think the gun laws are. You say you will enforce the
law. That is what the Attorney General said at his hearing.
If I might, Mr. Chairman, could I go on a little bit here?
Chairman Leahy. Yes.
Senator Schumer. Yet, they have done what every newspaper
today called a dramatic reversal.
Let me ask you this specific question. Would this footnote
that there is an individual right to bear arms now mean that
there will be a change in policy in regard to the District of
Columbia's approach which says unless you are law enforcement,
you don't have a right to bear arms?
Mr. Thompson. I don't know. I don't want to get too far
into discussing the implications of this case because it is
pending litigation.
Senator Schumer. No, that is not this case. I am asking how
you would interpret the new law, the new way the Justice
Department reads the Second Amendment in regard to D.C.'s law,
not in regard to the Emerson case, which is a pretty narrow
case.
Mr. Thompson. I can only interpret, Senator, how the
Justice Department will enforce Federal laws.
Senator Schumer. This is Federal.
Mr. Thompson. Well, D.C. is a different situation. You are
talking about the D.C.
Senator Schumer. It is enforcement. It is under the
Attorney General's direct supervision.
Mr. Thompson. If you are talking about enforcing the gun
laws, then as I said before, the Department is going to
vigorously enforce the gun laws. In fact, we have an
initiative, Project Safe Neighborhoods, in which we are
vigorously enforcing crimes committed with guns.
Senator Schumer. I understand you are doing certain other
things. I would like to get an answer to my specific question,
which is will the Justice Department continue to enforce the
District of Columbia's gun law which says you can't have a gun
unless you are law enforcement? That is basically what it says.
Mr. Thompson. As I understand your question, the District
of Columbia, while it is controlled by the Congress, is not the
type of situation in which I am prepared to answer a question
with respect to criminal enforcement. That is what the Attorney
General addressed in his memo to all the United States
Attorneys.
I don't believe it would have any impact on the District of
Columbia. As I understand it, it is a D.C. City Council
ordinance.
Senator Schumer. But enforced federally, and if you are
making a constitutional ruling here or a constitutional
assumption that the right to bear arms rests with the
individual, it would seem to contradict D.C.'s law.
Mr. Thompson. I mentioned to you the Attorney General's
memorandum to all the U.S. Attorneys, and as I understand his
memorandum, I do not think that the footnote nor his memorandum
would change the way we would view the D.C. law that was passed
by the D.C. Council.
Senator Schumer. The same with New York City's laws, which
are not as strong as D.C.'s, but strong, that talk about
licensing and registration, fairly strict licensing and
registration where you need some rationale to have a gun?
Mr. Thompson. Yes, sir.
Senator Schumer. And there are no plans afoot to then have
another footnote 3 months from now saying that the D.C. law is
wrong? Let me ask you one other question. Answer that one and
then----
Chairman Leahy. The Senator's time has expired.
Senator Sessions. Well, Mr. Chairman, I would like to clean
up after he is through.
Chairman Leahy. I am going to give the Senator from Alabama
the same amount of time as the Senator from New York. As he
knows, I always try to balance that out.
We will have time for another round, but Senator Feingold
has been waiting for his round. Then it will be my turn next. I
will go to the Senator from Alabama and he will be given the
same amount of time. I always try to be fair.
Senator Sessions. You always do.
Chairman Leahy. Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman, very much.
For both of you, the Justice Department has consistently
refused to provide any information at all on individuals that
are being held as material witnesses. The administration has
even refused to reveal the number of individuals being held as
material witnesses or which courts have issued warrants.
At the same time, I am afraid there are disturbing reports
that the authority to detain material witnesses is being abused
to lock up individuals who cannot be jailed on other grounds.
Press reports have identified more than 20 individuals who may
have been jailed on this ground. Again, all of these people are
Arabs or Muslims, and some apparently were never even
questioned by a grand jury or court before being released. The
Washington Post reported earlier this week that one individual
was jailed as a material witness after coming forward
voluntarily to provide information to the FBI about the
hijackers.
A Federal district court in New York last week ruled that
the Justice Department used the material witness authority
improperly to lock up an innocent individual for almost 3
months in connection not with a criminal trial, but with a
grand jury proceeding.
A fundamental constitutional value of this country is that
individuals may not be locked up unless they have been accused
of or convicted of a crime. A very narrow exception, of course,
is provided in the material witness statute, but only under
very specific circumstances, and only until the witness'
testimony can be preserved for trial.
Given the total secrecy surrounding the Department's use of
material witness warrants, and given the news reports that have
come out so far on the Federal court's ruling, how can the
American public be reassured that the Government is not simply
jailing Arabs and Muslims arbitrarily?
Mr. Thompson?
Mr. Thompson. Senator, as a Federal prosecutor and as U.S.
Attorney, I in my office routinely used material witness
warrants to secure the appearance of a witness before a grand
jury. The Department has routinely used these warrants in that
way. That is the way, for example, Terry Nichols was detained
in connection with the Oklahoma City bombing investigation.
The decision of the judge in the Southern District of New
York, to my knowledge, is the first time that the material
witness statute was held to be not applicable to a grand jury
proceeding. This is an appropriate law enforcement technique in
connection with certain kinds of investigations, especially in
connection with terrorism investigations, whether they are
international terrorist investigations or domestic terrorism
investigations, like the Oklahoma City bombing case.
So you have a decision by one judge that, to my knowledge,
is counter to how this statute has been interpreted. I would
respond to your question by saying that there is nothing
inappropriate by the way this statute and this law enforcement
technique is being used in these investigations.
Senator Feingold. Mr. Mueller, do you want to respond to
that?
Mr. Mueller. Only to say that whenever one has to get a
material witness warrant, one gets the material witness warrant
from a judge and you have to make a showing before the judge in
order to get the material witness warrant. You have to make a
showing to the judge that there is testimony that you want to
obtain before the grand jury, and once that testimony has been
obtained then ordinarily the person is discharged.
I am not aware of an instance where there is an individual
who has been detained for whom we did not want to have
information given to the grand jury about certain activities
related to terrorism, not just something out of the sky, but
related to terrorism. So I think you can assure the American
public that this process is monitored by the judiciary and it
is engaged in for the purpose of obtaining testimony from
individuals who otherwise would not be forthcoming, individuals
who do not want to cooperate, but for which we need the use of
the grand jury so that they are compelled to testify under
oath.
Senator Feingold. Well, I appreciate that answer. I am
concerned that there would be abuses in this area, but I
certainly will want to follow that up.
Let me ask you another question that is more on the sort of
pragmatic side of this. I mentioned earlier the story in the
Washington Post on Sunday about an Egyptian immigrant who
voluntarily came forward to help the FBI after the September 11
attacks.
Eyad Alrababa went to the FBI because he had some contact
with two of the hijackers and thought he could be helpful to
the investigation. Instead, he was rewarded with 7 months in
Federal custody, almost entirely in solitary confinement, on a
material witness warrant, followed by his conviction for a
fraud matter unrelated to the 9/11 attacks. Eyad, who is
engaged to a U.S.-born citizen, now faces deportation once he
is released from prison.
Now, in this case and the case involving a Jordanian
student, don't you think such use of the material witness
statute might discourage people from within the Arab and Muslim
community from coming forward with information to help us
combat terrorism?
Mr. Thompson?
Mr. Thompson. What was the name of the individual again?
Senator Feingold. Eyad Alrababa.
Mr. Thompson. I am not familiar with that particular case.
But as Director Mueller said, if the material witness warrant
was presented to a court with sufficient facts and sufficient
predicate activities and necessity pled, then I think the
American public could be assured that that was a proper use of
the warrant.
I don't think it would necessarily be counterproductive or
some kind of negative implication to otherwise law-abiding
citizens, whether they be of Arab American background or any
other background, from cooperating with law enforcement
authorities, Senator.
Senator Feingold. Mr. Mueller?
Mr. Mueller. I did read the article, and I understand the
individual and I think his girlfriend were awfully voluble with
the press in terms of their side of the story. I venture to say
there is another side of the story in terms of information that
was sought by the prosecutors and the investigators. Again, it
was a judge supervising this process, and the one item that you
did note is that the individual pled guilty to certain offenses
at the end of the day.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
As I said, I will skip my time and go to the Senator from
Alabama.
Senator Sessions. Well, Mr. Chairman, thank you for your
courtesy.
With regard to the material witnesses, they can have
lawyers, they can write to the newspaper. They are not held so
they can't communicate with the outside world. Is that correct?
Mr. Thompson. That is correct, Senator.
Senator Sessions. All the Department is saying, as I
understand it, is they are not going to voluntarily list the
names of everybody that is being held, for reasons that the
individual may not want their name being out. Maybe their
family would be subject to reprisal if they knew that they may
be talking to the Government or are being held by the
Government. There are a lot of reasons someone might not want
their name put in the paper, but they could do so if they
wished. Is that not correct?
Mr. Thompson. That is correct, Senator. There are
legitimate privacy and security concerns with respect to that
kind of information being made public.
Senator Sessions. I just don't see that we have a problem
there. Of course, a judge has to approve the material witness
warrant.
Also, under the habeas corpus rule, Mr. Mueller, a
defendant can ask to be brought before the judge and require
the Government to justify why they continue to hold them. That
is the Great Writ that we have in this country. It does apply
to these cases, does it not?
Mr. Mueller. It does, but I have not seen a circumstance
where if a material witness, apart from habeas corpus, but a
material witness held by a judge where, through the lawyer,
there was some reasonable necessity for being brought before
the judge, the judge would decline to take that opportunity to
find out what the concern was.
Senator Sessions. Well, I just think it would cast the
wrong impression to suggest that they are held in secrecy, they
can't talk to a lawyer, they can't communicate with their
family, they can't write a letter out of the prison. Those
things are not true. If they want to write the New York Times
to say they are being held, they can write them.
With regard to the matter of gun control, this question of
whether or not the Second Amendment is a matter of individual
rights is a matter, I think, that is important. I think it is a
matter of individual rights.
Isn't it true, Mr. Thompson, that Professor Laurence Tribe,
the liberal professor, in his constitutional law book, who has
studied this issue in depth, has written that it is, in fact, a
matter of individual rights?
Mr. Thompson. That is my understanding, Senator.
Senator Sessions. To say that in a footnote does not mean
anything other than that you are candid with the court about
what the position of the Department of Justice is with regard
to that issue.
Frankly, with regard to the District of Columbia, if their
law is so broad that it says only police officers can possess
firearms, I hope you will not make a concrete position to
suggest you would never question the validity of some of those
laws. It may be that on careful review that some of them may
not withstand constitutional muster.
We know, of course, that most of the gun control laws have
been upheld repeatedly, and I assume the Department is not
opposing any of the general laws that we use to enforce against
gun violations.
Mr. Thompson. I understand that point, Senator, and I would
just point out in further response that I think people here,
and perhaps even the media, are forgetting that the briefs in
question, the briefs that Senator Schumer referred to here--the
brief that was filed by the Department of Justice actually
defended existing gun laws. It took the position of defending
existing gun laws and a conviction. As I said in my response to
Senator Schumer, the Attorney General and the Department are
committed to a vigorous enforcement of our existing gun laws.
Senator Sessions. In fact, do you believe that this
Department is enhancing the number of convictions and
prosecutions under the existing Federal gun laws?
Mr. Thompson. I would hope so.
Senator Sessions. The United States Attorney in Alabama
told me he was substantially increasing the number of
prosecutions in his district for gun violations. I have
criticized the former Department of Justice under President
Clinton for allowing those prosecutions to plummet by as much
as 40 percent. While they wanted to pass laws that bound
innocent people, at the same time they were allowing the
prosecutions of criminals with guns to go down.
The question of possessing a firearm during commission of a
crime, possession after conviction of a felony, filing false
documents to obtain a firearm--all the traditional bread-and-
butter statutes that we have in law--are not jeopardized by
this footnote about individual rights, are they?
Mr. Thompson. No, sir.
Senator Sessions. Not even close to it?
Mr. Thompson. No, sir.
Senator Sessions. This Department not only defends those as
being legal and constitutional, but is stepping up prosecution
of those cases, are you not?
Mr. Thompson. That is correct, and in connection especially
with our Project Safe Neighborhoods.
Senator Sessions. Well, I just think that we need to be
more rational here about how we approach this. We have a group
that says airplane pilots can't even have a gun in the cockpit
in case somebody breaks in and tries to take over the airplane.
If they are trained properly, I am amazed that people would
object to that.
I think the chairman is concerned, as I am, that a law
officer who might cross a jurisdictional line could be arrested
because he is carrying a gun that he carries every day of his
life in his work.
So I just think it is important for us to know that this is
not an action in this footnote that would in any way undermine
the commitment of this Department of Justice to not only
continue enforcement, but to enhance the enforcement of gun
laws. Would you agree with that?
Mr. Thompson. That is correct, Senator. I would agree.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Leahy. Just think how easy it would be if all
States had Vermont's gun laws. Just so you understand what that
means, we have very limited ones. Anyone can carry a loaded
concealed weapon in Vermont. There is no permit required. We
would even allow you to.
Senator Sessions. Even a United States Senator from
Alabama?
Chairman Leahy. From Alabama.
There are two specific things. During deer season, you are
limited to the number of rounds you can have in your semi-
automatic assault weapon to give the deer a chance. This is
true. I mean, this is actually what the law is. Signs go up on
the outskirts of Montpelier, our State capital, which notify
that during deer season, if you are hunting inside the city of
Montpelier, like on the State House lawn, you can only use
buckshot. I do not want to start a sudden sweep to Vermont, but
that is the law.
This does create a problem, however, and that is during
deer season so many out-of-state tourists stop to photograph
those signs, usually with the State Capitol prominently in the
background, that we have had a number of fender-benders, but
the law will probably stay the same.
As I read the opinion we discussed, incidentally, the
judge's opinion just recently discussed, the person in New York
was held, one, in solitary. Two, he was shipped across the
country. And, third, his own lawyer couldn't find him for some
time. That makes it a little bit more difficult to file habeas
corpus. Most people wouldn't know how to file habeas corpus.
Their lawyer might, but the lawyer has got to find them first.
Gentlemen, we are about to have a vote on the floor on a
matter not too far down the coastal highway with Vermont, a
matter that we have some interest in, the farm bill. So I will
submit the rest of my questions for the record.
I do want to say I appreciate very much your being here.
General Thompson, you have had to take on extra duties and I
appreciate the way you have taken them on.
Director Mueller, I just want to state for the record that
I have called you on a number of very difficult issues, some
where I have had questions and members of this committee have
had questions, and your candor is most appreciated. I think the
kind of candor and directness you have shown is going to serve
the Bureau well. There are many who want that.
You have a national treasure in the men and women who work
there, and the training they undergo and the standards they
have to uphold. We want to make sure that that doesn't get
submerged in bureaucracy, but is encouraged to do the best for
this country in a very dangerous time. So I appreciate that.
We will stand adjourned.
[Whereupon, at 4:11 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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