    [Senate Hearing 108-916]
    [From the U.S. Government Publishing Office]

                                                          S. Hrg. 108-916

                OVERSIGHT HEARING: LAW ENFORCEMENT AND TERRORISM

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JULY 23, 2003

                                   __________

                              Serial No. J-108-27

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                         ORRIN G. HATCH, Utah, Chairman
    CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
    ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
    SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
    JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
                 Bruce Artim, Chief Counsel and Staff Director
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................    18
    Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    10
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
        prepared statement...........................................   178
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts, prepared statement..............................   188
    Leahy, Patrick J., a U.S. Senator from the State of Vermont......     9
        prepared statement...........................................   192

                                   WITNESSES

    Hutchinson, Asa, Under Secretary for Border and Transportation
      Security, Department of Homeland Security, Washington, D.C.....     6
    Mueller, Robert S., III, Director, Federal Bureau of
      Investigation, Department of Justice, Washington, D.C..........     3

                             QUESTIONS AND ANSWERS

    Responses of Asa Hutchinson to questions submitted by Senators
      Leahy, Grassley, and Durbin....................................    29
    Responses of Robert S. Mueller III to questions submitted by
      Senators Hatch, Grassley, Leahy, and Durbin....................    74

                           SUBMISSIONS FOR THE RECORD

    Hutchinson, Asa, Under Secretary for Border and Transportation
      Security, Department of Homeland Security, Washington, D.C.,
      statement......................................................   180
    Migration Policy Institute, Muzaffar A. Chishti, Doris Meissner,
      Demetrios G. Papademetriou, Jay Peterzell, Michael J. Wishnie,
      and Stephen W. Yale-Loehr, Washington, D.C., report (excerpts).   195
    Mueller, Robert S., III, Director, Federal Bureau of
      Investigation, Department of Justice, Washington, D.C.,
      statement......................................................   216

                OVERSIGHT HEARING: LAW ENFORCEMENT AND TERRORISM

                                  ----------

                            WEDNESDAY, JULY 23, 2003

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 11:45 a.m., in
    room SH-216, Hart Senate Office Building, Hon. Orrin G. Hatch,
    Chairman of the Committee, presiding.
        Present: Senators Hatch, Grassley, Kyl, DeWine, Sessions,
    Craig, Leahy, and Feingold.

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

        Chairman Hatch. I apologize to the two witnesses who are
    appearing before us that we have had to delay their testimony
    this long, and I understand, Mr. Director, you have to be
    through by 1:30.
        Director Mueller. Yes.
        Chairman Hatch. So will do our best to try and move this
    along. We do have a couple of votes at 12 o'clock, so we will
    move along up through then, and we are going to try to keep
    going. Senator Grassley is going to run over and vote, and I
    will stay here as long as I can, and then he will come back to
    keep the Committee going so that we will not waste any time.
        We are trying to examine the recent efforts by the Federal
    Bureau of Investigation and the Department of Homeland Security
    to combat the increasing threat of terrorism. As I have stated
    before, I am committed to conducting the meaningful oversight
    of the FBI and the Department of Homeland Security to ensure
    that as we fight the war against terrorism, we achieve maximum
    security without compromising the freedoms and liberties we
    cherish in this great country.
        As we focus on the FBI's and the Department of Homeland
    Security's recent efforts to prevent and deter future terrorist
    attacks against our country, it is important that we hear from
    these two distinguished witnesses who are here before us today.
    It is indeed an honor to have before the Committee Robert
    Mueller, the FBI Director, and Asa Hutchinson, Under Secretary
    for Border and Transportation Security at the Department of
    Homeland Security. I look forward and we all look forward to
    hearing from both of you on your continuing efforts and
    commitment to winning the war against terrorism.
        Now, the challenges that we face in this war continue to be
    unprecedented. We fight a fanatical enemy, dedicated to the
    destruction--at all costs--of America. When Director Mueller
    took over the FBI days after the 9/11 attacks, he faced
    extraordinary challenges. He assumed responsibility for a law
    enforcement agency that had suffered from antiquated
    information technology and inadequate intelligence systems.
    Following, September 11, Director Mueller acted quickly to
    refocus the FBI, to reallocate its resources, to improve its
    internal information systems, and to transform its central
    mission from reactive crime-fighting to proactive terrorist
    protection and prevention. Congress recognized the enormity of
    this task and provided in the PATRIOT Act a set of new tools
    that has enabled the FBI to complete this transformation.
        It is apparent from news reports and recent independent
    reviews, such as those conducted by the General Accounting
    Office and the National Academy of Public Administration's
    Academy Panel on FBI Reorganization, that the FBI has made
    great progress in its role as the lead terrorist prevention
    agency. By using many of the new tools provided in the PATRIOT
    Act, and by increasing information sharing, the FBI, with the
    assistance of other Federal, State, and local law enforcement
    and intelligence agencies, as well as our international
    partners, has demonstrated a number of successes in capturing
    and prosecuting terrorists. Under Director Mueller's able
    leadership, the FBI has significantly upgraded its information
    technology systems, has revised its FISA application and review
    procedures, and implemented a new infrastructure that will
    maximize the gathering, analysis, and dissemination of critical
    intelligence information among law enforcement and intelligence
    agencies. While must has been accomplished, even more remains
    to be done.
        Equally impressive has been the creation and operation of
    the new Department of Homeland Security, which required the
    consolidation of over 21 separate agencies and the merging of
    nearly 180,000 employees into a single, unified agency. The
    Homeland Security Act placed with Secretary Hutchinson's
    jurisdiction the primary responsibility for securing our
    Nation's borders from terrorists who seek to enter and attack
    our country. In short order, Secretary Hutchinson dedicated
    himself to implementing new systems and policies designed to
    prevent the entry of terrorists and the instruments of
    terrorism, without disrupting the efficient flow of lawful
    traffic and commerce at our borders. Now, I look forward to
    working with you, Secretary Hutchinson, as you implement
    programs to accomplish these goals, such as the new US-VISIT
    program.
        Now, I want to mention one other issue that I expect we
    will address today in follow-up to the Committee's June 25th
    hearing on the Department of Justice's Inspector General's
    report on the treatment of the 9/11 detainees. The June 25th
    hearing was a fair and objective hearing. It is clear that the
    Government faced unprecedented challenges in responding to the
    9/11 attacks. Dedicated public servants worked around the clock
    to investigate the attacks, identify and locate terrorist cells
    within our country, and secure our borders from further
    attacks. But having said that, it is also apparent from the
    IG's report that there are valuable lessons to be learned from
    our response to the 9/11 attacks.
        I look forward to hearing from each of you today about the
    reforms you are implementing and your efforts to protect our
    country from future terrorist attacks.
        We will reserve the time for Senator Leahy, should he
    attend and come, so that he can interrupt at any time and make
    his statement.
        We will turn to you first, Director Mueller, and then to
    Secretary Hutchinson.

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

        Director Mueller. Thank you, and good morning, Mr. Chairman
    and other members of the Committee. I am pleased to be here to
    update you on the issues we discussed during my most recent
    appearance on March 4th, and also to assure you that the FBI
    has been working hard to protect the American people from
    another terrorist attack.
        We have continued to make significant progress in our
    reorganization and in our ongoing efforts to improve our
    collection and use of intelligence, as well as to our
    commitment to demonstrating our respect for constitutional
    liberties in all our investigations and our programs. I want to
    thank you for your continued commitment and interest in
    ensuring the success of the FBI. The men and the women of the
    FBI appreciate that support and demonstrate daily their
    determination to fulfill the great responsibility that you and
    the public have entrusted to them.
        Even in the relatively short period of time since I last
    appeared before this Committee in March, we have continued to
    progress in improving and reorganizing the FBI so that we
    function more efficiently and are able to respond more rapidly
    to world events and changes in technology, both the technology
    available to us as well as the technology that is also
    available to criminals who threaten our economic interests and
    our infrastructure.
        Now, among the most significant challenges has been our
    commitment to use the authorities provided by the PATRIOT Act
    to protect the American people while at the same time
    continuing our commitment to honoring constitutional
    protections, including First Amendment freedoms of speech,
    religion, and assembly.
        Let me just start at the outset and make a few comments, if
    I could, about the PATRIOT Act. Our efforts to combat terrorism
    have been greatly aided by the provisions of that statute, and
    our success in preventing another catastrophic attack on the
    United States homeland would certainly have been much more
    difficult, if not impossible, without several of the provisions
    of that Act. It has already proved extraordinarily beneficial
    in the war on terrorism, and our opportunity to use it will
    only increase.
        First and foremost, the PATRIOT Act has produced greater
    collection and sharing of information within the law
    enforcement and intelligence communities.
        As you know, prior to the Act, the Foreign Intelligence
    Surveillance Act--commonly known as FISA--was interpreted as
    requiring that FISA surveillance was permitted only when the
    primary purpose of that surveillance was to obtain foreign
    intelligence information. But in order to ensure that the
    primary purpose of that surveillance did not shift during the
    investigation, criminal investigators were essentially walled
    off from intelligence investigations. What is called a
    metaphorical wall was erected between intelligence and law
    enforcement out of concern that sharing of information between
    intelligence and criminal investigators would become involved
    in developing evidence for a criminal case.
        Section 218 of the PATRIOT Act displaced the primary
    purpose standard, permitting the use of FISA when a significant
    purpose of the surveillance was to obtain foreign intelligence
    information. In addition, Section 504(a) clarified that
    coordination between intelligence and criminal personnel was
    not grounds for denial of a FISA application. These changes,
    when combined with the 2002 opinion from the FISA Court
    interpreting the new language, effectively dismantled the wall
    between law enforcement and intelligence. The resulting free
    flow of information and coordination between law enforcement
    and intelligence has expanded our ability to utilize all
    appropriate--and I say appropriate--resources to prevent
    terrorism.
        As a result, although the legal standard for obtaining a
    FISA warrant is still probable cause to believe that the target
    is a foreign power or an agent of a foreign power, we now have
    more opportunities to employ FISA as well as the opportunity
    for greater dissemination of the information that flows from
    that form of surveillance.
        I should add that information is flowing more freely in
    both directions. Section 203 of the PATRIOT Act modified the
    rules governing the handling of information obtained through
    the grand jury or from Title III surveillance, so that we may
    now disclose without delay any foreign intelligence information
    obtained from these criminal investigative tools to the
    Director of Central Intelligence and to our friends at Homeland
    Security. In fact, the statute mandates these disclosures.
        In addition, the PATRIOT Act gave Federal judges the
    authority to issue search warrants that are valid nationwide in
    terrorism investigations. In the past, a court could only issue
    a search warrant for premises within the same judicial
    district. But our investigations of terrorist networks often
    span a number of districts, and this change, which is limited
    to terrorism cases, has eliminated unnecessary delays and
    burdens associated with having to present warrants to different
    judges around the country.
        Title III of the Act, known as the International Money
    Laundering Anti-Terrorist Financing Act of 2001, has armed us
    with a number of new weapons in our efforts to identify and
    track the financial structures supporting terrorist groups.
    Past terrorist financing methods have included the use of
    informal systems for transferring funds in a manner that is
    difficult to detect and trace. The effectiveness of such
    methods was significantly undercut and eroded by the provisions
    of the PATRIOT Act.
        Finally, there are other provisions of the Act that have
    considerably aided our efforts to address the terrorist threat
    including: strengthening the existing ban on providing material
    support to terrorists and terrorist organizations; the
    authority to seize terrorist assets; and the power to seize
    money subject to forfeiture in a foreign bank account by
    authorizing the seizure of a foreign bank's funds held in a
    United States correspondent account.
        Mr. Chairman, it is important for the Committee and the
    American people to know that the FBI is using the PATRIOT Act
    authorities in a responsible manner, and we are making every
    effort to effectively balance our obligation to protect
    Americans from terrorism with our obligation to protect their
    civil liberties.
        I want to spend just a moment on what we have done to
    address not only intelligence collection but analysis within
    the Bureau.
        The PATRIOT Act created new opportunities for us to
    strengthen and expand our longstanding intelligence capability
    and to allow the sharing of that intelligence broadly within
    the FBI, but also within our intelligence and law enforcement
    community partners. While intelligence has always been a core
    competency of the FBI and has been organic to the FBI's
    investigative mission, the intelligence cycle of requirements,
    collection, analysis, dissemination, and feedback has not
    always been carried across the FBI. The PATRIOT Act has allowed
    us to ensure that the aggregate intelligence gleaned from our
    cases and our investigations is analyzed for trends and
    connections that might not be visible to us from a review of
    individual cases. And this threat-based look at FBI
    intelligence has allowed us to uncover terrorist networks and
    connections within the United States that otherwise might not
    have been found.
        Similarly, the PATRIOT Act has allowed the FBI and our
    intelligence and law enforcement community partners to exchange
    information that previously was not shared. The wide
    availability of threat information from all sources has been a
    key to our success in using intelligence to drive our
    investigations toward prevention as well as and in addition to
    prosecution.
        To properly manage this expanded intelligence capability,
    in January of this year we elevated intelligence to a program
    status at the FBI, and to that end, I have proposed to Congress
    the creation of an Executive Assistant Director for
    Intelligence position and have selected that individual and
    have undertaken a program to develop and implement concepts of
    operations for key intelligence functions.
        Finally, let me spend a moment talking to you, Mr.
    Chairman, and the Committee on our progress in upgrading our
    information technology capabilities.
        Since the 9/11 tragedy, the FBI has had a number of
    information technology successes. The most significant of those
    has been the upgrade of our data communications infrastructure.
    As part of our Trilogy program, we put in worldwide high-speed
    data communications networks which became operational on March
    28, 2003. This network is a significant increase in our
    capability to share all kinds of data, to include video and
    images, among all of our FBI offices throughout the world. This
    network will be the backbone for the implementation of most of
    our information technology systems for years to come.
        As part of our Trilogy upgrade, Bureau personnel throughout
    the world are having their desktop computers upgraded to state
    of the art. This upgrade is complete for all field locations
    and is currently ongoing at headquarters. Additional upgrades,
    primarily in software, are targeted for completion in November
    and December of this year, and all these upgrades are necessary
    to implement what we call the Virtual Case File, which is
    scheduled to come online in December 2003. This Virtual Case
    File is the result of a re-engineering of workflow processes
    and combines several existing databases into one. Previous
    automation efforts in the FBI basically automated paper
    process, retaining all of the steps in these processes. The
    Virtual Case File development team took a hard look at these
    processes and, with the involvement of agents and support
    personnel from the field, has re-engineered them to obtain
    significant efficiencies from our systems.
        In closing, Mr. Chairman, I would like to thank this
    Committee for its continued leadership and support. The FBI's
    capabilities are improving daily, in large part due to that
    support, and we will continue on this positive path with the
    benefit of your continued interest and leadership.
        I am happy to answer any questions you might have.
        [The prepared statement of Director Mueller appears as a
    submission for the record.]
        Chairman Hatch. Well, thank you, Mr. Director.
        We will turn to Secretary Hutchinson now.

      STATEMENT OF ASA HUTCHINSON, UNDER SECRETARY FOR BORDER AND
       TRANSPORTATION SECURITY, DEPARTMENT OF HOMELAND SECURITY,
                            WASHINGTON, D.C.

        Secretary Hutchinson. Thank you, Chairman Hatch, Senator
    Leahy, distinguished members of the Committee. Thank you for
    inviting me to testify before you today. It is my privilege to
    be here and also to appear with my friend and colleague, Bob
    Mueller, who is doing an outstanding job in bringing innovation
    and leadership to the FBI.
        I wanted to respond to two particular areas today in my
    oral testimony and, of course, will submit my written
    testimony.
        First, I wanted to outline and summarize some of the
    various initiatives that we have implemented at the Department
    of Homeland Security to enhance security at our border ports of
    entry and through our transportation system.
        Secondly, I wanted to make some comments on the IG report
    that is part of the subject of this hearing today.
        If you look at what we have done since the Department was
    created, we have been able to expand the Container Security
    Initiative into phase two, which broadens the information that
    we get in advance of cargo coming to the United States through
    our sea carriers. We have deployed over 300 new Border Patrol
    agents to the Northern border. We have expanded the presence of
    Homeland Security officials in trouble spots on the Southwest
    border. We have worked to increase security through the
    implementation and development of the US-VISIT system that will
    allow us to fulfill the Congressional mandate for knowing
    visitors that come and go from the United States and who
    overstays their visas. We have implemented Operation Liberty
    Shield during the Iraq confrontation. We have implemented
    Operation Cornerstone that enhances our capability in financial
    investigations and coordination with the FBI and their role. We
    have developed Operation Predator, which really combines the
    resources of legacy Customs agents and immigration agents to
    enhance their capability.
        We have increased our communications with the Department of
    State in partnership with them in developing the protocols at
    our consular offices, increasing the interviews with them,
    which enhances our security. Through Customs and Border
    Protection, we have developed rules in advanced cargo
    information in different modes of transportation that enhances
    our capability to assure cargo that comes into the United
    States is free of danger. Finally, we have increased the
    deployment of non-intrusive inspection technology at our ports
    of entry.
        I believe that all of these are consistent with
    Congressional mandates to the Department and particularly in my
    arena of border and transportation security.
        As we increase security, we must also keep clearly in mind
    that we must implement these security measures in ways that
    respect and enhance our civil rights and civil liberties. And
    through communication with the American people and those
    communities impacted by the September 11 detentions, we will
    strive to protect America by taking the steps that will be
    effective in diminishing the security threats that we face
    without sacrificing core American principles.
        That leads me to comment on the Inspector General's report.
    I would note that the Department of Homeland Security took
    responsibility for 21 agencies in March of this year, and we
    did not exist in September of 2001. But, nevertheless, the
    Department of Justice IG report is important to our work, and
    we take the findings and the recommendations very seriously.
        As Under Secretary for Border and Transportation Security,
    I have responsibility for the operations of several agencies,
    including two most applicable to the IG's report: one, the
    Bureau of Customs and Border Protection, the other the Bureau
    of Immigration and Customs Enforcement, or ICE. Within ICE, the
    focus is on our criminal investigations and enforcement at our
    Nation's borders and immigration, customs laws. Customs and
    Border Protection secures our borders and facilitates the
    legitimate movement of cargo. These two organizations perform
    many of the functions of the former INS.
        It is our intention through this streamlining of
    communications between the agencies and the senior leadership
    to address one of the Inspector General's main recommendations.
    I am pleased to report that the integration of the former
    customs and immigration personnel is progressing rapidly, and
    the increased capability makes our Nation safer.
        The IG report examines the immediate actions of the FBI and
    INS and the arrest and detention of 762 individuals. Let me
    comment specifically on some of the recommendations.
        The IG recommends that new steps be taken to ensure that,
    if another emergency such as September 11 happens again, a
    clear and effective process be in a place to guide Homeland
    Security and the Department of Justice through the crisis. We
    completely concur with this recommendation. We agree, for
    example, that there should be clear post-arrest communication
    between the FBI and Homeland Security regarding aliens that
    have a likely association with terrorism, regarding whether an
    alien detainee be labeled as a person of interest to an
    investigation, and regarding when an alien can be removed from
    the list of those that are of interest. We will establish with
    the Justice Department an effective crisis management process.
        I want to assure this Committee and the country that,
    should we ever find ourselves in another national emergency
    involving terrorism, we will have mechanisms in place to work
    cooperatively with the FBI and to ensure that individuals
    detained pursuant to our laws are treated fairly. Although we
    will work cooperatively, it is imperative that the Department
    of Homeland Security independently review the underlying facts
    and make assessments to both the necessity for detention and
    the appropriate detention facility in every case. This will
    also ensure that the Department of Homeland Security can make
    the proper recommendations to the court on bond, detention, and
    removal. This independent assessment is essential because it is
    DHS lawyers who are officers of the court and must have
    confidence in the representations made to the court.
        The IG asserts in its report that many detainees were held
    for a lengthy period of time without having charges filed
    against them. We agree that we need to put in place
    comprehensive instructions to clarify and streamline the
    process for serving charges--what are called ``notices to
    appear'' in the immigration context--on alien detainees.
        The IG concluded that the conditions some alien detainees
    faced were unsatisfactory. In response to that, we have
    implemented specific guidelines to our detention facilities. I
    am pleased to report that last week ICE issued a new detention
    standard that addresses the issue of ICE visitation of aliens
    in detention at Homeland Security-controlled facilities as well
    as facilities controlled by other entities. Finally, the
    standards include specific time frames during which officers
    must respond to certain enumerated detainees' requests. We have
    included an operational order emphasizing the need for our
    employees to follow all applicable policies, procedures, and
    regulations governing detention.
        I also want to assure the Committee that ICE's Detention
    and Removal Office has in place a set of standards that set a
    high standard with regard to immigration detention facilities.
    For the past 2 years, we have trained over 350 agents to serve
    as reviewers of immigration detention facilities. I am going to
    revisit that program to ensure that it is sufficiently strong
    to meet our objectives.
        The IG concluded that the Department needs to ensure that
    immigration officials in the field consistently conduct post-
    order custody reviews for all detainees who remain in custody
    after the typical 90-day removal period. We are making sure
    that we can complete those post-order custody reviews in a
    timely fashion.
        Although we have taken some steps to address the concerns
    identified by the Inspector General, we clearly need to
    accomplish much more. With Director Mueller, we will establish
    mechanisms to appropriately process aliens who may have a
    connection to terrorism in the event of another national
    emergency that involves alien detainees. I would be pleased to
    present further testimony on this issue to the Committee as the
    Committee directs, and I am looking forward to the questions
    that you might pose and answering any questions that the
    Committee deems would be helpful in your oversight work.
        Thank you very much.
        [The prepared statement of Mr. Hutchinson appears as a
    submission for the record.]
        Chairman Hatch. Well, thank you so much.
        We do have two votes going on right now, and I am going to
    try and utilize as much time as we can. Senator Grassley is
    going to come back, but I don't know that he will come back
    between the two votes.
        Does anybody know how much time we have left on the first
    one?
        Okay. Well, let's ask a few questions, and then we will
    probably have to recess until we can get back after the second
    vote.
        Oh, excuse me. The distinguished Ranking Member has an
    opening statement I would love him to give.

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

        Senator Leahy. We have been rapidly changing the rules
    around here. I didn't know whether I would get a chance. But I
    do welcome you both here. All of the employees of the FBI and
    the Department of Homeland Security work very hard to keep us
    safe, and I want to say through you to them that you have
    certainly my deep gratitude and support, as both of you do.
    Sometimes we can be contentious, but I believe that is
    something that we can be unified on.
        I am sorry that the way the discussion has been, you are
    going to have very little time to answer questions because when
    we submit them for the record, it is not always easy to get
    answers. These are the some of the answers that have been
    received by the Department in the last week. On those rare
    occasions that you actually do get a chance to come up here and
    testify before us, people look back and find all the questions
    that have been asked before. These were from a year ago.
    Actually, some of these are from a year or so ago, and so we
    ask you questions, and a year later we get the answers.
        I don't think that helps with oversight. At our last
    Committee hearing back on March 4th, the Chairman said he would
    ask you to testify regarding the FBI's use of its authorities
    under the Foreign Intelligence Surveillance Act, FISA. Five
    months later, we have yet to have that hearing. I would hope
    that we might have a chance to have a real hearing on FISA, a
    time when not just the Director of the FBI, but the Attorney
    General, should have to come and answer questions. Former
    Republican leader Dick Armey and I put in specific sunset
    provisions in the PATRIOT Act so that we would encourage the
    oversight process and the answering of questions. We have not
    had a very good opportunity to do oversight. I hope that those
    who want to see the sunset provisions go away would encourage
    answers to our questions. I would say, however, that, Director
    Mueller, you have always been available when I have called you
    on something, and certainly, Secretary Hutchinson, you have
    been here many times before committees, and I applaud that.
        I am going to put a statement and some material from
    Senator Kennedy in the record and also my full statement in the
    record. I am concerned, and you have touched on this, about the
    reports that Muslim and Arab immigrants being held in civil
    violations of our immigration laws have been subjected to
    abuse. Director, I look forward to coming down--and you and I
    have discussed this before--I want to come down and see the new
    electronic abilities you have. As you know, I expressed this to
    you. Just a few days after you became Director, you had
    September 11th, and I think both you and I, and I know the
    President, were appalled at how very little ability there was
    for the Bureau to use electronic communications and computers.
        I recall saying during that time to one of the very top
    people in the Bureau about doing a Google search on some of the
    people under suspicion before September 11. The response was:
    ``What is a Google search?'' A question that their 8-year-old
    neighbor could have answered. And I know you have made
    information technology one of your priorities, so I will come
    down personally to see the new system. I wonder if perhaps the
    computer problems had been addressed prior to your arrival at
    the FBI, whether things might have been different on September
    11th.
        We passed some FBI reform provisions in the Department of
    Justice authorization act. Some parts were blocked. This was
    the Leahy-Grassley FBI Reform Act of 2001. Senator Grassley and
    I have now reintroduced it, and I would hope that the
    administration would support it.
        I will put my full statement, Mr. Chairman, in the record,
    and I will come back to ask questions, and I will go and vote.
    Senator Grassley has never been shy about asking questions of
    the Department. I come along in the wake of the super tanker
    over here. But you can assume that some of his questions are
    similar to mine.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]

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

        Senator Grassley [presiding]. Senator Hatch and I have
    arranged that I have already voted and he is going to stay over
    there and vote on this one and vote on the second vote, and
    then he will come back and I will go vote on the second vote.
    In the meantime, then, I can ask questions.
        I have a short statement. First of all, I am very glad to
    have an opportunity that the Chairman would make for us to have
    exchange in oversight with each of you. And I really feel good
    about the meeting that we had. It was kind of a private meeting
    last week, Director Mueller. I felt it was very productive, and
    I hope that the tone was right. I felt that the tone was right,
    at least on your part. And if you remember, at that meeting I
    brought up a number of examples of cultural problems within the
    FBI. These cultural problems are important because I think that
    they have some demoralizing impact upon agents, and the extent
    to which that is true, they diminish some trust that the public
    has always had in the FBI.
        Ultimately, these problems, I think, have some impact,
    negative, upon the FBI's effort to carry out the new and
    horrendous responsibilities that you have on the war on terror
    and the prevention of things. It is quite a bit different from
    what the FBI has traditionally done. FBI agents are some of the
    country's most honorable and hard-working Federal law
    enforcement people. These great men and women deserve every
    measure of protection when they try to improve the FBI by
    pointing out problems.
        I appreciate that you address retaliation head-on by
    referring allegations to the Inspector General. However, the
    FBI would be better served if retaliation were stopped in the
    first place. And I don't mean to imply that you wouldn't do
    that. You might not know of every instance. And I think that
    you have to prevent this activity, not just react to it, just
    like the FBI has to prevent terror attacks and not just
    investigate afterwards.
        You have taken some good steps to reform the FBI
    internally, and I have some questions that I will want to ask
    you that probably would not be unfamiliar to you.
        Let me make one comment before I do that. It is a follow-on
    of the statement I just made. And I know the FBI is a very,
    very big organization, and I know that you are one person in
    it. And I know, as I indicated, that you probably can't be on
    top of everything, and you are going to have somebody that is
    not doing exactly what you would like to have done. But I hope
    that some way you can take steps to get people around you that
    really have your attitude filtered down to everybody so that
    you don't have these instances where people are out of step.
        So I would like to give you three examples of cultural
    problems and ask you to address each one and do it after I
    finish. Overall, I also want to have you explain what you might
    be doing along the lines of what I just said about preventing
    instances like these happening.
        Several FBI agents testified to this Committee before your
    confirmation--now, this is before you came here, so this is 2
    years ago. Agents Roberts, Perry, and Kiernan told us about
    problems with retaliation, FBI misconduct, coverups, and the
    double standard in discipline. Agent Roberts has had a
    retaliation complaint pending with the Inspector General since
    before your tenure, and Agents Perry and Kiernan recently were
    forced to join him in alleged retaliation with the Inspector
    General.
        I believe that these are patriotic agents who just want to
    do their job, and I am troubled that your high standards didn't
    sink in with some officials in the FBI who wanted to target
    these individuals. Also, John Roberts' wife, Brenda, has
    alleged that she suffered further harassment. Direct
    retaliation is one thing, but going after someone's family is a
    very low act.
        The second point that I would make would be the FBI's
    highest-ranking Arab agent, Arab-American agent, has filed a
    discrimination lawsuit. This is Agent Basam Yousef. He was our
    first legal attache in Saudi Arabia. He was instrumental in the
    Khobar Towers bombing case, and, unfortunately, this agent
    feels that he has been subject to discrimination and that the
    FBI has missed out on his valuable skills. You have been aware
    of this case personally for some time, so why could you not act
    to fix this situation earlier?
        Then the third and last point would be in regard to a
    letter that I just recently sent you about awarding contracts
    to former officials who were involved in serious misconduct
    during their careers. And I shouldn't say it to imply that you
    awarded it. I mean to imply that they have an FBI contract.
    Because I think giving a contract to these people sends a
    terrible message to agents and the public that there are no
    consequences for wrongdoing. In fact, you might be rewarded for
    it. Charlie Matthews, who helped cover up Ruby Ridge, got a
    contract to travel to Indonesia for an FBI training session.
    The FBI also awarded a contract to a company called MPRI, where
    Joseph Wolfinger and Thomas Coyle worked. That contract is to
    do counterintelligence training. Wolfinger organized a fake
    conference in the Pottsgate scandal, and Coyle was investigated
    for Ruby Ridge and was on the Pottsgate disciplinary board
    despite a major conflict of interest.
        These people, in my judgment, are not models for FBI
    agents, so I am concerned about this, and I entered my letter
    into the Congressional Record yesterday along with a statement.
    I appreciate your hearing about these points of view, and now I
    would ask you to respond.
        Director Mueller. Well, Senator, you asked what we have
    done to tell persons within the organization that I want to
    hear about that which we need to do better, and that persons
    who do provide those differing views should not be retaliated
    against.
        Shortly after I came, I sent an e-mail to everybody that
    explicitly indicated that I would not countenance retaliation.
    I have, whenever there has been an accusation of retaliation,
    referred that to what I consider to be an independent
    investigative body, the Inspector General's office. I have
    awaited the determination of the facts because allegations can
    be made, but it is important that we determine whether there is
    substance to the allegation. I asked the Inspector General to
    do that on a number of occasions. And when I have received the
    report, I on occasion have asked for recommendations, and I
    have acted on those recommendations.
        With regard to getting the message out, I think if you went
    to any office that I have visited, you will hear that part of
    what I say to individuals in the FBI is that the good news
    reaches the top, often the bad news does not. And what I need
    to know is that which is wrong in the FBI because only by
    knowing it will I be able to fix it. That is a message I carry
    wherever I go. And what I want to hear, whether it be by e-mail
    or by message or otherwise, I want to learn what needs to be
    done to fix that which is wrong within the Bureau. Otherwise,
    it festers and it blows up down the road, and we cannot have
    that. So that is the message I carry out.
        With regard to the three particular instances that you
    mentioned, the individuals that testified before, I became
    aware of their allegations recently. I understand they went to
    the Inspector General's office. I know I have had recent
    contact with Mr. Kiernan, who made a very valuable suggestion
    with regard to our statement of values, which I took and I
    adopted. And I look forward to seeing the results of the
    investigation by the Inspector General's office of those
    concerns expressed to the Inspector General's office and will
    take what action is necessary as a result of that
    investigation, if any.
        On the second point with Mr. Basam Yousef, yes, I did hear
    about that, and I directed our EEO investigator to sit down and
    address his concerns and, indeed, to invoke the ADR process,
    alternate dispute resolution process, to get to the bottom of
    his concerns. I just heard last Friday that he had filed suit,
    but we did make efforts to address those concerns in the
    process that we have set up to have an independent body look at
    the concerns expressed and try to deal with them prior to the
    filing of the lawsuit.
        Lastly, I did receive your letter yesterday involving three
    individuals, one who recently retired from the FBI, Charles
    Matthews. Until I received the letter, I had not understood
    your concerns. During the period that he had been the special
    agent in charge in Portland, Oregon, he had done a very good
    job. But I am taking the letter and the concerns you have
    expressed, and I am looking at that contracting process.
        As to the other individuals, Mr. Coyle I don't believe I
    have met. Mr. Wolfinger I think I have met sometime in the
    past, but I have no knowledge of some of the concerns that you
    expressed in that letter, but I will follow up on it.
        Senator Grassley. Okay. I want to say to you that I think
    that those are all very, very good steps, and maybe you get
    tired of my asking to do more and do more. But I would just ask
    one additional thing, and this is not a question. It is a
    statement. If somehow you can send out another message--and
    maybe you can't send out enough messages, and maybe there is
    somebody that is never going to get the message, because every
    organization has somebody that doesn't want to listen. But that
    to all the management below you that there should not be any
    further retaliation. I am going to keep hammering on that, and
    I hope you can do that.
        Director Mueller. And I will tell you, the immediate
    management below me, we have discussions about it and assure
    that we have to send the message, each of us--not just me, each
    of us--out to the field that we want everybody to express their
    views. And we will accept those views even though we may at
    some point disagree, which can happen.
        The only other point, if I may, Senator is to say that one
    talks a great deal about the culture of the FBI, but I know you
    agree that part of the culture and the history of the FBI is
    the FBI agents' commitment to excellence, the FBI agents'
    commitment to hard work, the hours that agents and support
    staff have worked since September 11th are truly extraordinary.
    And, lastly, part of what makes the FBI agent what he or she
    is, as well as the support people, is the commitment to the
    protection of the public of the United States. And that all is
    part of what we can say is part of the FBI culture.
        Thank you, sir.
        Senator Grassley. Thank you, Mr. Mueller.
        Secretary Hutchinson--and it is difficult to have you
    before the Committee without saying, ``Asa, would you answer a
    question?''
        Secretary Hutchinson. That would be fine.
        Senator Grassley. Anyway, you obviously have a very tough
    job and a very new job in a very new Department to do it, and
    it takes an awful lot to get a new agency undergoing, I know.
    And that is, of course, securing and protecting our borders. I
    have done a lot of oversight on border security problems. I
    think I have expressed in a hearing I had before my own
    committee, the Senate Finance Committee, that I am worried
    about it. I think there is at least one area where we can help
    each other, and that is visa revocations and terrorism
    concerns.
        I requested a recent General Accounting Office report that
    found a legal loophole in the visa process. If you get to shore
    here in the United States before the State Department revokes
    your visa on terrorism grounds, you are in a sense home free.
        If that happens, your Department cannot deport a suspected
    terrorist, and obviously that doesn't make the common-sense
    test, as far as I am concerned, because if these people are a
    threat to our security and just because they got a visa to get
    here, if we had known that before they got the visa, they
    wouldn't be here in the first place. It shouldn't be difficult
    for them to leave the country.
        The loophole that I am talking about is in the wording of
    the revocation certificate. There have been two hearings on
    this, but the State Department will not budge. Now, I think
    your Department has authority over visa policy, and the State
    Department is just supposed to carry it out. So I would like to
    have you assure me today, if you are aware of this, that you
    will get the State Department moving and get the loophole
    closed. And if I can help you in that way in any way, I would
    like to be able to do it.
        First of all, I hope you agree with me and, if you agree
    with me, that you would do that.
        Secretary Hutchinson. I agree with you, and you have my
    assurance that we are going to work to fix that problem. You
    have correctly stated the issue. The State Department can
    revoke a visa on information that they have at their
    discretion. The individual is already in the country. There is
    a more difficult process for Department of Homeland Security to
    go through the process to order their removal. But it would be
    helpful to us--and we have talked to the Department of State
    about this--that the revocation include that they no longer
    have authority to stay in this country. That would assist us in
    the removal process.
        We are in communication with the Department of State. You
    are correct that under the Homeland Security Act the visa
    policy is shifting to us. We have not fully implemented that
    transfer. We are getting close to the memorandum of
    understanding with the State Department. But we are ahead of
    the game on this and are looking at it to adopt appropriate
    regulations to remedy this discrepancy.
        Senator Grassley. Can I further ask you in further
    clarification, then what you are telling me is you do agree,
    you are in the process of getting it done, there is no dispute
    over the policy, but it is just a case of working it through
    the bureaucracy? Is that right?
        Secretary Hutchinson. I was expressing my view with you,
    and Secretary Ridge, whom I have had the discussion with about
    this, and the instructions are get it fixed. The Department of
    State has, as you have indicated, appropriate concerns that
    they raise, and we are working through that. So I believe that
    we are going to be very shortly in a position to issue
    regulations on this matter. But that is what we are working on
    now, the regulations and addressing the concerns of the
    Department of State.
        But let me illustrate this further, if I might. If a visa
    is revoked in this country over someone, we take them into
    custody or we start processing them to remove them from this
    country. They can still assert asylum. They can still have
    access to the courts. But it will make it easier if we can
    cover our bases with the revocation that it removes their
    authority to stay in the United States, and that is what we are
    trying to accomplish.
        Senator Grassley. Well, I thank you very much.
        I am going to just recess. I don't think you can go. I
    think you better wait until Senator Hatch says you can go. I
    will go over and vote on the second vote. I have no more
    questions. If I knew I had this much time, I would have had a
    lot more questions for you.
        Secretary Hutchinson. Thank you, Senator.
        Director Mueller. Thank you.
        [Recess 12:34 p.m. to 12:45 p.m.]
        Chairman Hatch. If I could ask some questions now, I will
    start with you. Director Mueller, I will start with you.
        Director Mueller. Yes, sir.
        Chairman Hatch. There have been reports in the press
    concerning the soon-to-be-released Joint Intelligence
    Committee's inquiry into the events of 9/11. Some in the press
    continue to rehash old news events about alleged pre-9/11
    miscues. Now, these criticisms are not new, and they have been
    leveled over and over again, and I understand that you have
    already implemented many of the recommendations made by the
    Joint Intelligence Committee. So I want to commend you,
    Director Mueller, for your commitment, cooperation, and
    willingness to embrace these and other reforms to protect the
    safety of our people here in this country and elsewhere.
        Can you outline the Joint Intelligence Committee's
    recommendations and specifically address what steps you have
    taken or are in the process of taking to implement these
    changes? Now, if you have answered this question already, I
    would be happy to have you just summarize.
        Director Mueller. Well, I have not had an opportunity to
    address the issue, but let me just spend a couple of moments,
    if I might, saying first off that the Joint Intelligence report
    had a number of suggestions, ten specifically that were
    certainly valid and we are in the process of implementing.
        If I can just go through them briefly, the first one was to
    strengthen counterterrorism as a national program and priority
    in the FBI. Since September 11th, we have simplified our
    priorities, and the number one priority is the prevention of an
    additional terrorist attack. We have backed that up by changing
    the way we organize addressing counterterrorism and assuring
    that accountability is in one place and not spread out through
    a variety of our offices and divisions around the country and
    headquarters. It is at headquarters, and the accountability for
    that program resides with the Assistant Director for
    Counterterrorism.
        Supporting that priority, we have shifted resources to
    address counterterrorism. Prior to September 11th, we had about
    1,500, somewhat over, agents and analysts on counterterrorism.
    Hopefully by the time of the conclusion of the 2004 budget we
    will be up to almost 3,000 agents and analysts addressing
    counterterrorism.
        And, lastly, as I am sure, sir, you are aware, our program
    funding goes through particular fund programs, and we try to
    allocate our resources per those programs. But each special
    agent-in-charge understands that there should be no
    counterterrorism lead that goes unaddressed. And to the extent
    in the past that we have found that to be the case, I have
    asked the Inspection Division to take a look at a program and
    to make certain that it is addressing appropriately
    counterterrorism.
        The second recommendation was to establish and sustain
    career tracks for counterterrorism agents and analysts. With
    regard to agents, we are looking at that and hope to implement
    that as part of our re-engineering process. And with regard to
    analysts, we have established an Office of Intelligence. I
    brought over Maureen Baginski from the National Security
    Agency, one of the top career professionals there, to be the
    Executive Assistant Director, and she is in the process of
    changing the analytical structure and assuring career paths to
    the top for not only analysts but intelligence officers.
        The third recommendation was to significantly improve our
    analytical capabilities, particularly in qualifications and
    training. We established a College of Analytical Studies at
    Quantico. The curriculum was put together, and part of the
    teaching is done by our colleagues at the CIA. And we
    anticipate by the end of the year approximately 340 analysts
    will have been through that College of Analytical Studies.
        Also, in order to give the analysts access to information,
    we have put together separate databases with analytical tools
    and afforded it to analysts at the start at headquarters, but
    we hope to get that to the field in the future.
        Number four was to establish a strong reports officer
    cadre. We have established that at headquarters. We have 21 on
    board, headed by a CIA reports officer, with another 7 in
    background. And we expect to expand that capability. In the
    meantime, we put out intelligence information reports,
    intelligence articles, and every week we put out intelligence
    bulletins to State and local law enforcement. We have done a
    number of strategic analyses and a national threat assessment,
    and that is all within that cadre of reports officers and the
    extended use of those reports officers.
        We are currently training our new agents in effective use
    of the analyst and the intelligence analyst role in the Bureau.
    That is number five. The recommendation was to expand and
    sustain recruitment of agents and analysts with foreign
    language skills. We are doing that. And, in particular, when it
    comes to language specialists, we have undertaken a substantial
    program to augment our capabilities there. Whereas prior to
    September 11th we had 70 Arabic speakers, we now have 208; 24
    Farsi, we now have 61; Pashtu, 10, when we had one; and Urdu,
    we have 21, although we still need to augment our capability.
    And so I will use this opportunity: To those that have those
    skills, we still want to see you.
        Number seven is to increase efforts to penetrate terrorist
    organizations operating in the United States, and we have
    dramatically increased our source coverage throughout the
    United States. I cannot really go into detail here, but I can
    tell you that throughout the United States, special agents-in-
    charge and the street agents are increasing the source
    coverage, in part with the help of those communities with whom
    we have reached out to assure that we do have the lines of
    communication and information that will let us know if somebody
    is in the community and wants to do harm to the American
    people.
        The next issue was improving our National security law
    training. Phase one of our program--we have a three-phase
    program--provides for six 4-day national security conferences,
    actually eight of them around the country. We have held six. We
    have two to go, which are attended by agents and national
    security law unit attorneys as well as our US Attorneys. We
    have a distance learning program for counterterrorism and
    counterintelligence agents. And we are going to complete,
    hopefully by this fall, 2 days of face-to-face instruction in
    each field office on national security law.
        Number nine was the maximization of our exchange of
    counterterrorism information between the FBI and CIA, as well
    as Department of Homeland Security; and, lastly, exchange of
    information with State and local law enforcement.
        As I believe you know, we have now 66 joint terrorism task
    forces, actually, one in each of our 56 field offices, with 10
    adjunct joint terrorism task forces around the country. Prior
    to 9/11, we had 912 participants. We now have in excess of
    2,700 participants in our joint terrorism task forces. We have
    a national joint terrorism task force at headquarters with 30
    agencies represented. I have established the Office of Law
    Enforcement Coordination with Louis Quijas heading it up, who
    is the former chief of High Point, North Carolina. We provide
    weekly bulletins and periodic briefings of State and local law
    enforcement, and I will say that our exchange of information
    with our other Federal agencies has been enhanced dramatically
    since September 11th, with the exchange of agents both at
    headquarters within Washington as well as in the field.
        And, lastly, solving our persistent IT problems, the
    recommendation was to solve those problems, and as you pointed
    out in your opening remarks, we are on our way to doing that.
    We have in the last few months put in in excess of 22,000 new
    desktop work stations, new printers, scanners, in excess of
    2,600 switches and routers, 622 local area networks, and our
    wide area networks went online on March 28th. And as I stated
    in my opening remarks, we expect to have the user-friendly,
    Web-based applications for the agents and support employees, to
    go online in December. With that will be the migration of much
    of our data, investigative data, to an up-to-date database
    structure which enables us--not only us but others, but
    particularly us--to use the latest analytical tools to search
    that data.
        So I believe we are on the right track. We have a ways to
    go, but thank you for the opportunity to discuss what we have
    done since September 11th.
        Chairman Hatch. Well, thank you.
        We will turn to Senator Leahy.
        Senator Leahy. You go ahead.
        Chairman Hatch. We will be happy to go to Senator Feingold
    and come back to you, Senator Leahy.

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

        Senator Feingold. Thank you very much, Mr. Chairman, and I
    thank the Ranking Member very much.
        Welcome, Director Mueller and Mr. Hutchinson. I first want
    to thank you, Mr. Director, for the very good meeting we had
    last week to discuss a lot of aspects of the work of the FBI,
    and I want you to know publicly as well that I have tremendous
    respect for the time and dedication and sacrifice by you and
    all the men and women at the FBI and the Department of Homeland
    Security in the fight against terrorism.
        I do appreciate that you and employees have been under
    incredible stress and demand since September 11th, and I hope
    you understand that I raise some concerns in the spirit of
    assuring the American people that their Government is doing all
    it can to protect them and to protect the Constitution.
        Mr. Hutchinson, I want to thank you, good to see you again,
    and also for your comments about the Inspector General's report
    on the September 11th detainees. I think I was the first
    Senator to raise some questions about these detainees. I was
    glad to hear that you are committed to addressing the concerns,
    and I look forward to being informed about how your Department
    will implement the IG's recommendations and take additional
    steps to prevent instances of abuse from occurring again in the
    future.
        Mr. Mueller, these questions are somewhat far afield, but I
    think that is in the nature of the fight again terrorism, so
    let me first ask you a question relating to Indonesia. Director
    Mueller, I would like to ask you about the status of the FBI
    investigation into the murder of American citizens in West
    Papua on August 31, 2002. I am concerned about the integrity of
    the investigation process, specifically whether the FBI has
    been able to conduct interviews without Indonesian military
    minders present and whether the FBI has been provided access to
    all the evidence previously requested as part of the
    investigation. I wonder if you could update us. And how would
    you characterize the cooperation that the FBI has received from
    the Indonesian Government and the Indonesian military since the
    investigation began almost a year ago?
        Director Mueller. Let me answer the question with what I
    know. I have not been briefed on this in several weeks, but I
    know that early on, the investigation was going in fits and
    starts. More recently, we have had a team over in Indonesia
    working with the Indonesians. I know part of the process while
    they were there was obtaining all of the evidence necessary to
    the investigation, and my understanding is that that evidence
    is currently being flown back to our laboratory for analysis.
        I will have to get back to you on the status of the
    interviews. I know a number of interviews had been undertaken.
    Whether they had been undertaken without having persons present
    from the military, I would have to check before I give you an
    answer. But I would be happy to get back to you on that.
        Senator Feingold. I appreciate that, and in light of what
    you said about the evidence, I will submit a question to you in
    writing because I would like to know whether there is any
    indication of tampering with any of the evidence that you have
    been able to obtain. And I assume your response anticipated
    that your analysis will determine that.
        Director Mueller. Yes.
        Senator Feingold. Now let me switch to Yemen. Director
    Mueller, as you know, in October 2000, the USS Cole was
    attacked during a stop in the harbor of Aden, Yemen, resulting
    in the deaths of 17 crew members, including one of my
    constituents, and the wounding of 39 others. Like most
    Americans, I was surprised to learn that on April 11, 2003, ten
    men, including men suspected of involvement in the Cole
    bombing, escaped from a prison in Yemen. One month later, the
    Justice Department unveiled a 51-count indictment against two
    of the escapees, Jamal al-Badawi and Fahd Al-Quso, who were
    indicted on various terrorism offenses.
        Now, Mr. Director, I am troubled that these people were
    able to escape, particularly when there was an active Federal
    investigation underway that resulted in the indictments of two
    of the escapees.
        What steps did the FBI take to get access to the suspects
    in order to question them? What steps did the FBI take to
    assist the Yemeni authorities or to encourage other U.S.
    Government agencies to assist the Yemeni authorities to prevent
    any possible escape by these suspects?
        Director Mueller. Let me answer the first question.
    Actually, I would have to get back to you on whether or not we
    questioned these individuals, and I would have to find out
    specifically whether or not we were ourselves given access to
    the individuals or whether we obtained access through the
    Yemenis. So I can't give you a specific answer on that question
    now.
        I will tell you that we were equally disturbed by the
    escape and that on two occasions I have been to Yemen. On the
    second occasion, it was post the escape, and I talked to
    President Saleh about that. He assured me that he is doing
    everything in his power to re-arrest those who got away.
        I do know that immediately following that escape, he made
    substantial changes in the hierarchy whom he held responsible
    for that escape, and generally the cooperation from the Yemeni
    authorities has been substantial since September 11th.
        Senator Feingold. I appreciate that, and I would appreciate
    any information you can get me, because I have tried every way
    I know to get an answer, and it just strikes me as mystifying
    that when we knew that Al-Qaeda operatives were in jail in
    Yemen, there is just a paucity of information about what we
    were doing to make sure they would stay there. And I can't
    figure out how that happened, so I very much would like to be
    kept informed.
        Let me thank you for responding recently to my written
    questions of June 6, 2002. Several of my questions focused on
    FBI efforts to recruit agents and translators who speak Arabic,
    Farsi, Pashtu, Urdu, and other foreign languages, and you have
    said on a number of occasions that this was a priority for the
    FBI.
        So I was surprised to learn from your written responses,
    which I received just 2 days ago, that not a single special
    agent with proficiency in Arabic, Farsi, Pashtu, or Urdu has
    been hired during the period from October 2001 to at least
    October 2002, and perhaps to date. It is unclear from your
    responses whether the figures on the number of translators and
    special agents hired are current as of some time this year or
    as of October 2002.
        So my first question is just a clarification. Do these
    actual hired numbers correspond to the period October 2001 to
    the present or to some other endpoint?
        Director Mueller. I think they must be to some other
    endpoint, and I would have to get back to you on those figures.
    I have today the figures on the language specialists, which I
    gave in my response to the Chairman's question.
        Senator Feingold. I want to be clear. I am talking here not
    about translators but agents themselves having the capacity.
        Director Mueller. Exactly. I do not have the answer on the
    number of agents. I do know we have had a number of Arab-
    American agents--and it may be small. I think it is a small
    number, but I know because I have recently been at graduations
    in which we have been graduating agents with that capability.
    But I would have to get back to you on the numbers.
        I will tell you that we are doing everything we can to
    recruit in all communities around the United States. And we
    have, I think, since September 11th something like 100,000
    applications to be a special agent in the FBI, and a number of
    those, approximately half, have self-described skills in
    language or computer or otherwise.
        But we are finding that we need to more aggressively
    recruit Arab-American, Muslim American, Sikh American agents to
    assure that we have the numbers we need in the Bureau.
        Senator Feingold. Well, let me just hone this in more with
    regard specifically to the languages I mentioned rather than
    proficiency in foreign languages in general. In written
    responses, you also described the skill sets sought by the FBI
    for new special agents you planned to hire in fiscal year 2002:
    193 of these agents were to have expertise in foreign language,
    but only 3 percent of those 193 were to have expertise in
    Arabic. In other words, the FBI sought to hire no more than six
    special agents who could speak Arabic. No plans to hire agents
    with proficiency in Urdu, Farsi, and Pashtu are even mentioned.
    These low hiring numbers and goals, coupled with the
    allegations in a lawsuit recently filed by the FBI's highest-
    ranking Arab-American special agent that he has been
    systematically excluded from work on terrorism investigations
    because of his ethnicity I think raise very serious concerns
    about the FBI's preparedness and ability to truly meet its
    number one priority: the prevention and disruption of terrorist
    attacks.
        The picture that emerges is the FBI is seeking to hire only
    minimal numbers of language-proficient agents who would be
    actually helpful in investigations of Al-Qaeda and other
    terrorist groups based in the Arab or Muslim world, failing to
    recruit even that minimal number of special agents it has
    identified and then, once hired, keeping them away from
    terrorism cases.
        Am in interpreting your statements and responses correctly?
    And if not, can you explain why the FBI has failed to
    aggressively hire special agents with language proficiency in
    Arabic or other specifically regional languages?
        Director Mueller. I will tell you that I would have to look
    at those answers, so I can't really opine on your
    interpretation of them.
        I will tell you that every special agent-in-charge who is
    responsible for recruiting in our communities understands the
    necessity to go out in the community and have the recruiting
    agents seek speakers of Arabic, Pashtu, Urdu, all of those
    languages. And that has been hammered home with the SACs in
    just about every meeting we have with them.
        I will have to look at the percentages and the like and
    what we had in our answers, but I can assure you that we all
    understand the necessity of having those language capabilities
    within the Bureau. And I will tell you that those agents who do
    have those language capabilities are used--I don't want to say
    ``used,'' but have a special capability to represent us in a
    number of countries, to participate in investigative efforts
    with foreign counterparts, to assist in questioning of
    detainees down at Guantanamo, and everybody in the Bureau
    understands that if we could clone a number of them, we would
    be more than happy to do so.
        So I share your concern about those numbers, and we are
    moving to address that.
        Chairman Hatch. Senator, your time is--
        Senator Feingold. Could I just make one remark and then
    conclude?
        Chairman Hatch. Sure.
        Senator Feingold. I just want to be clear. You and I don't
    agree on every single aspect of all these issues, but this is
    one where we do agree.
        Director Mueller. Absolutely.
        Senator Feingold. My questions are in the spirit of wanting
    to get this done because I think it is critical to protect
    American lives, and I am sure you do as well. So I look forward
    to working cooperatively with you to help try to solve this
    problem.
        I thank the witness and I thank the Chairman.
        Chairman Hatch. Okay. We will go to the Democrat leader,
    and then I will go to the distinguished Senator from Ohio.
        Senator Leahy. I thank both you and Senator DeWine. Mr.
    Chairman, listening to Senator Feingold's questions reminds me
    that Senator Grassley and I wrote to the FBI last week. We
    asked that our staffs be permitted to interview Bassem Youssef,
    the FBI's highest-ranking Arab-American agent. He has alleged
    the Bureau has discriminated against him despite his special
    skills, unique background, fluency in Arabic, and experience in
    counterterrorism.
        I believe Senator Hatch agrees with me on this. He wrote to
    you earlier this week to join Senator Grassley and my request
    to interview Agent Youssef. Is he going to be made available to
    us?
        Director Mueller. I am not familiar with those two letters.
    I would have to look at that. I cannot see that there would
    be--well, let me just say I would have to look at the letters
    and discuss the circumstances with the Department under which
    he could be made available for you to be interviewed.
        I know before he was interviewed at some length by
    Congressman Wolf, so--
        Senator Leahy. Because Senator Grassley, Senator Hatch, and
    myself are making the request, this is not a partisan issue. We
    want to make sure we are carrying out our oversight, and I
    would hope that the three most senior members of this Committee
    might carry some weight.
        The three of us have also requested an interview with Frank
    Perry, Patrick Kiernan, and John Roberts. Will you help us
    arrange their interviews as well?
        Director Mueller. Again, I think we are in discussions with
    the Department. I have not seen those letters, but I believe
    there is some discussion with the Department of the
    circumstances under which they could be made available.
        Senator Leahy. Again, I remind you it is the three most
    senior members of the Committee who have made the request.
        Now, Congress passed by overwhelmingly bipartisan votes the
    Clean Diamonds Trade Act to reduce the flow of rough diamonds
    that we understand have been used to finance terrorist groups,
    including Al-Qaeda, that fuel the bloody civil wars in Africa.
    These activities have serious implications for our National
    security.
        I understand that the administration has until the end of
    this month to issue regulations to implement the Clean Diamonds
    Trade Act and come into compliance with the so-called Kimberly
    process, the international regime established to stop the
    illicit traffic of blood diamonds.
        Now, that deadline is a week away. Do you think it is
    important for us to meet this deadline?
        Director Mueller. Senator, I have to say that I am not
    familiar with that particular subject, and I would have to get
    back to you on that.
        Senator Leahy. Well, I ask this because I would like to
    know what some of the consequences to law enforcement or our
    international efforts might be if we don't stop the flow of
    conflict diamonds. You may have to submit your response in a
    classified version, but I would like very much to hear it. As
    much as I can say in an open hearing, I get concerned when I
    see the amount of money that flows from this illicit diamond
    trade into terrorism activity, to say nothing about some of the
    civil wars it fuels.
        Director Mueller. I will say that we share that concern and
    have had investigations on that particular subject, and not
    just on one terrorist group but on several terrorist groups who
    may have benefited from the trade in conflict diamonds.
        Senator Leahy. Newsweek reported last week that the FBI is
    conducting a wide-ranging investigation into the forged
    documents that purported to show Saddam Hussein's regime was
    trying to buy uranium. The article states that the FBI is
    sending agents overseas to investigate the origins of the
    documents to determine who forged them, whether this was part
    of an orchestrated covert operation to build international
    support for the war.
        Is Newsweek right? Has such an investigation been
    initiated?
        Director Mueller. The only thing I can say, Senator, is
    that we are looking at the source of those documents.
        Senator Leahy. Will we be briefed on that when you are
    done?
        Director Mueller. Well, I believe--
        Senator Leahy. He asked innocently.
        Director Mueller. If we are talking about ``we,'' this
    Committee, or Congress, I would imagine Congress and maybe in
    the context of the Senate Intelligence Committee. I would have
    to see when we are done where we go. I can't prejudge.
        Senator Leahy. Do you have any objections to the proposal
    Senator Grassley and I have made the FBI Reform Act to
    eliminate the so-called 14-day rule where members of the Senior
    Executive Service can be subject to disciplinary suspensions
    for no more than 14 days?
        Director Mueller. On that issue, no.
        Senator Leahy. I also have questions regarding the Katrina
    Leung espionage case. The charges are she kept classified
    national security documents that she obtained from an FBI
    handler, who apparently was a long-time lover. You said that
    you firmly believe it is the duty of Congress to engage in its
    oversight function. Would you agree that the Leung case is one
    that would come under our oversight function?
        Director Mueller. Congress's, yes.
        Senator Leahy. This Committee's?
        Director Mueller. That I would have to ponder upon. We did
    keep the Intelligence Committee apprised of what was happening.
        Senator Leahy. Well, would you ponder upon it and let me
    know whether this is something that we could do in our
    oversight function without jeopardizing a criminal
    investigation?
        Director Mueller. Yes, sir.
        Senator Leahy. Secretary Hutchinson, I have a lot of
    questions which I will submit. As I said before, both of you
    have always been available to talk with me individually when I
    have asked. Please get back on some of these answers. And if
    you have questions about our questions, just pick up the phone
    and call me.
        Thank you, Mr. Chairman, and I thank my good friend from
    Ohio for his courtesy, too.
        Chairman Hatch. Thank you, Senator.
        The Senator from Ohio?
        Senator DeWine. Mr. Secretary, Mr. Director, thank you both
    very much for joining us.
        Director Mueller, I have two questions, and they are
    questions that I have asked you, I think, at least in two other
    hearings, and I will probably be asking you these same
    questions at the next hearing. But I think they are very
    important. I think they are important from a historical point
    of view, and I think history is going to judge us, frankly, by
    these two areas, at least these two areas.
        One is the whole area--and you have already touched upon
    this a little bit, but the issue of the computer, where you are
    with your computer system, the whole technology area. And so my
    first question is: Do you have enough money in this area? Do
    you have enough money in 2003? How are things looking in 2004?
    How are we coming along? That is number one, because I think it
    is important that you continue. And if you are not getting
    enough money from this Congress, we need to know that. That is
    number one.
        Number two is the whole change of the culture and the
    mission of the FBI that, of course, we have talked about, a
    change from reactive, looking at the crime after it has
    occurred, trying to solve the crime; to now a great deal of the
    focus of what you do on terrorism and the prevention of
    terrorism, the shifting of people from one mission to the other
    mission. And what I have asked you before is to detail for
    Congress and for the American people not just what you are
    doing, but the other question is what is not getting done.
    Because I think we have to lay that before the American people,
    lay that before Congress, and we have to constantly analyze,
    every 3 months, every 6 months, what we aren't doing. What is
    the FBI not doing that you have been doing in the past so we
    can make value judgments and so that we understand what
    assistance is not being given to local law enforcement, what
    crimes are not being prosecuted.
        You know, we have seen the statistics. We know the numbers.
    But I think it is helpful if the head of the FBI looks us in
    the eye and tells us what aren't you doing.
        Director Mueller. Let me address the first question with
    regard to the funding of our computer systems. We have pending
    a reallocation of funds to address a shortfall with regard to
    our computer systems, and assuming that reallocation is
    approved by the Appropriations Committees, then I believe we
    are where we need to be in 2003, and then we will see in the
    2004 budget. But in our request in the 2004 budget, I do
    believe we have what is necessary to continue our progress in
    renovating our information technology systems.
        Senator DeWine. But let me stop you there. If the
    reallocation in 2003, the year we are in now, is not approved,
    we will not be where we need to be.
        Director Mueller. That is correct.
        Senator DeWine. Let's just be blunt about it.
        Director Mueller. Yes.
        Senator DeWine. You have to have that reallocation--
        Director Mueller. Yes.
        Senator DeWine. --approved to stay on line of progress that
    we would hope to be making.
        Director Mueller. Yes.
        Senator DeWine. And we all know how far behind we are. We
    all know what sorry state of affairs it was when you came into
    office. And we are not blaming you for that, but we all
    understand that. Everybody on this panel has complained about
    your system. So we want to make sure we understand that. You
    have to have that reallocation.
        Director Mueller. We do. The reprogramming of funds that we
    have proposed, we do need that to continue the progress for
    this year.
        Senator DeWine. All right. And you have your request in for
    2004.
        Director Mueller. We do.
        Senator DeWine. And you are telling me that the request you
    have made is adequate?
        Director Mueller. It is adequate.
        Senator DeWine. And we are not going to look back in 2 or 3
    years and say, well, that was just not enough?
        Director Mueller. I do not believe that to be the case. I
    believe that we have looked at what we need to get the job
    done. We have added $137 million, which was unanticipated. It
    was substantial, but I am confident that that is what we need
    to continue our progress.
        Now, I have learned, I have come to learn that as you build
    information technology systems, you need to integrate them. You
    have to make certain you have an overall architecture. You have
    to put the pieces in place. And it is a continuous process. So
    I cannot tell you that I will not come up in 6 months or a year
    and say we are going to have to reprogram other funds or we
    need an additional infusion of funds to handle a particular
    capacity. But what we have tried to do is request the funds
    that we need and we can identify that need, explain that need
    and explain why it is going to advance our progress to bringing
    the FBI into the 21st century when it comes to providing the
    information technology capacity to the agents.
        Senator DeWine. All right. Now, my second question?
        Director Mueller. Your second question as to what we are
    not doing, I will say that, as I believe I testified last year,
    I redirected a number of agents--I think it was 480--from doing
    drug cases to doing counterterrorism. And I know we had
    discussions, Asa and I had discussions, about backfilling, and
    there has been some backfill from the DEA. I don't think it is
    a total backfill. What we tried to do is make certain that with
    that reassignment, realignment of personnel, that no case fell
    through the cracks, and I believe that is the case. But we are
    not doing as many drug cases as we have done in the past.
        We are more selective in doing a number of other varieties
    of cases, for instance, bank robberies. We will rarely do a
    stand-alone bank robbery or a note-pass bank robbery, where we
    did that before.
        In white-collar crime cases, we are focusing on the larger
    white-collar crime cases; where in the past we have done some
    of the smaller white-collar crime cases, we are not doing them.
        We have had to focus our resources on those priorities that
    we have established, whether it be in the national security
    arena or the criminal arena, and make certain that we put our
    assets towards those resources.
        As I have indicated before, every special agent-in-charge
    has the understanding that there should be no counterterrorism
    lead that goes unaddressed. That has meant that agents that are
    assigned to other programs in particular offices are pulled off
    to do issues relating to counterterrorism in a particular field
    office. But what I would like to be able to do in the future is
    be more flexible and more agile in terms of addressing the
    counterterrorist threat in particular communities when it
    arises, but not position agents there to stay there afterwards
    when the threat has been resolved.
        So what we are trying to do is be a much more flexible and
    agile workforce than we have been in the past.
        Senator DeWine. My time is up. Thank you very much.
        Chairman Hatch. Thank you. We have just enough time for
    Senator Durbin to ask his questions.
        Senator Durbin. Thank you very much, Mr. Chairman, and I
    want to thank the two witnesses for coming before the
    Committee.
        Director Mueller, thank you for being here and thanks for
    the update on your technology upgrades. You were kind enough to
    brief me at the headquarters, and it was time well spent. I was
    glad to be there, and I am glad to hear that things are
    improving.
        And, Secretary Hutchinson, thank you for being here and for
    your service to our country.
        I would like to ask two questions, if I can. I hope I have
    the time to get responses to both. One is more complicated than
    the other.
        I have an amendment pending on the floor on the
    appropriation for the Department of Homeland Security which
    relates to this issue, asking the Department for an update on
    their technology improvements and the intraoperability of the
    computers at DHS with the Department of Justice and other
    agencies.
        What I have found, to my chagrin, is that even though
    progress is being made in a lot of agencies, there is no
    communication, technological communication, between these
    departments in a fashion that would facilitate fighting
    terrorism. And I would like you, if you could, to comment on
    progress that is being made between the FBI, Department of
    Justice, and DHS to share information.
        Secretary Hutchinson. Thank you, Senator. First of all, we
    are making that a high priority to fulfill the mandate to share
    information, and there is a continuous flow of information from
    the FBI to Homeland Security and vice-versa.
        It is important that we develop systems that are more
    compatible. Steve Cooper is our chief information office, and
    he is the architect and the one responsible for moving that
    forward. I believe the first priority is to make sure that the
    22 agencies that came on board less than 4 months ago within
    Homeland Security can bring those systems together, and then
    obviously both with the FBI, Department of Justice, and the
    Department of State, to make those systems compatible.
        The information is flowing, but it can flow better when we
    have more compatible systems.
        Senator Durbin. My question is whether there is
    intraoperability between the computer systems at the Department
    of Homeland Security and the FBI. I would just ask that
    question. Can your computers communicate with their computers
    and the other direction?
        Secretary Hutchinson. Well, we do on watch lists. We have
    that capacity that we have that information.
        Now, there are limitations. Obviously, they have
    information that cannot be shared for counterintelligence
    reasons broadly. Obviously, we can receive that information,
    but, for example, there is some information they might have
    that our inspectors in the field at the points of entry might
    not need.
        Senator Durbin. Oh, understood. Understood. There are
    certain areas where, for a variety of reasons, you wouldn't
    want to. But you are telling me that capacity is being
    developed.
        I know I don't have a lot of time, but I want to move to
    another issue that really concerns me greatly. There was
    substantial progress made yesterday in Iraq, obviously, with
    the killing of Saddam Hussein's two sons. This morning's paper
    reported that one of the reasons why there is an improvement
    there is the gathering of information from the Iraqis is
    starting to be a lot more effective. There is more cooperation.
        I have learned the difference between law enforcement and
    intelligence gathering. You deal with communities in a
    different respect. And I have had--Director Mueller, I think I
    have told you, I have had one of your agents from a faraway
    post call me and say we have got to learn this, we have to
    learn that intelligence gathering is a lot different than just
    flat-out law enforcement.
        You can go in and find technical violations and criminal
    problems to a fare-thee-well. That isn't going to build up
    trust and understanding and communication and dialogue for
    sharing information for intelligence purposes.
        And so several months ago, the Department of Justice
    decided to initiate this interview project profiling the
    visitors to this country from Muslim Middle Eastern nations to
    come in and to be interviewed as to their status.
        Now, I have asked for numbers as to how many were called
    in, and I can't get an exact number, but it appears to be
    somewhere in the 80,000 to 100,000 range of people who were
    called in from a variety of different countries. And it is my
    understanding that some 13,000, because of reporting for the
    interview, were subsequently deported. They were found to be in
    violation of their immigration status.
        I raise that question because, obviously, as a Senator from
    a very diverse State, I have heard from a lot of these
    populations saying this is just flat-out discriminatory. These
    people were cooperating, came in for the interview, were ready
    to help in any way they could, and were found to be in
    technical violation and deported.
        Can I ask both of you if you would comment on this reaction
    from them, in light of our need to gather more intelligence
    from these communities and to work more closely with them,
    whether or not we did something that might have been
    counterproductive? We basically said if you cooperate and come
    forward, be careful, because we are going to fly-speck and find
    out if you are in technical violation, and if you are, you are
    gone.
        If I could ask Director Mueller and Secretary Hutchinson to
    respond to that.
        Director Mueller. We undertook a program in advance of
    hostilities in Iraq of reaching out to Iraqi Americans and
    interviewing them. And the numbers there, I think we
    interviewed close to 10,000 across the country. And I would
    say--I have talked to a number of special agents-in-charge. I
    have talked to members of the Muslim community, the Iraqi
    community, and the fact of the matter is the interviews went
    exceptionally well.
        I am not aware of circumstances where, as a result of an
    interview and our reaching out, someone was deported. I will
    tell you that the vast, vast, vast majority of persons
    interviewed were happy to be interviewed and wanted to provide
    information. The fact of the matter is most of them were
    refugees from the Saddam Hussein regime, and they had
    information and intelligence, and that was helpful to our
    troops overseas. We had in excess of 200 reports that were
    funneled to our troops overseas about the location of bunkers,
    weapons, communications facilities. And so those interviews I
    think went exceptionally well.
        There are going to be individuals who resent that, but the
    vast majority of the interviews, as I have heard from office to
    office to office, enabled us to develop intelligence and to
    develop a relationship that had not previously been there.
        Secretary Hutchinson. I would just second the importance of
    the outreach. Our ICE agents and, as well, our Customs and
    Border Protection have engaged in outreach to communicate to
    those communities that might be impacted by that. Information
    is critically important, explaining why we are doing this.
        You raise the issue of when they are out of compliance,
    what do you do? We want to make sure--obviously, we have an
    obligation if somebody is out of compliance to address it, but
    they are given a notice to appear. They are processed. It is
    not like they are immediately detained in most circumstances.
        And so we try to treat each one fairly and appropriately
    with good information. We have other investigative techniques
    from Operation Tarmac, in which we went into critical
    infrastructure facilities looking at benchmark checks. There
    were questions raised that adversely impacted the Hispanic
    community. So we don't want that adverse impact, but we do have
    an obligation to take care of those that might be in violation
    and pursue those in accordance with the law.
        Senator Durbin. Thanks.
        Mr. Chairman, I will submit my other questions for the
    record. Thank you very much.
        Chairman Hatch. Well, thank you, Senator. I appreciate it.
        I promised I would let you go at 1:30. Let me just close
    with this: I want to state that I want to follow up in writing
    on an important issue that I am personally interested in, and I
    think it is important for the FBI to answer, and that issue is
    the death of Kenneth Trinidu. Now, the circumstances of Mr.
    Trinidu's death continue to raise questions despite numerous
    attempts to find out what happened. I made several inquiries
    about this case myself to Attorney General Reno, and a grand
    jury was convened, but it did not produce an indictment. An
    Inspector General's report was produced. A private lawsuit
    resulted in a finding of suicide. Nonetheless, Mr. Trinidu's
    family continues to raise questions that to me are indeed
    troubling.
        So I look forward to your answers to the written questions
    on this important subject, and I hope that you can get back to
    me on that, if you will.
        Director Mueller. Yes, sir.
        Chairman Hatch. Well, you have been very patient. We
    apologize that it took so long to get you here. We will have
    others submit questions in writing, and if you can answer them
    as quickly as possible, we would be very appreciative.
        So, with that, we will recess until further notice.
        [Whereupon, at 1:32 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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