[Senate Hearing 109-706]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 109-706
                             FBI OVERSIGHT



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                              MAY 2, 2006


                          Serial No. J-109-72


         Printed for the use of the Committee on the Judiciary

31-268                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   269
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     2
    prepared statement...........................................   274
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    12
    prepared statement...........................................   275
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Calbom, Linda M., Director, Financial Management and Assurance, 
  U.S. Government Accountability Office, Washington, D.C.........    39
Fine, Glenn A., Inspector General, U.S. Department of Justice, 
  Washington D.C.................................................    37
Gannon, John C., Vice President for Global Analysis, BAE Systems 
  Information Technology, and Former Staff Director, Homeland 
  Security Committee, U.S. House of Representatives, McLean, 
  Virginia.......................................................    40
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, U.S. Department of Justice, Washington, D.C.....     4

                         QUESTIONS AND ANSWERS

Responses of Linda M. Calbom to questions submitted by Senator 
  Specter........................................................    48
Responses of Glenn A. Fine to questions submitted by Senators 
  Specter, Grassley, and Schumer.................................    53
Responses of John C. Gannon to questions submitted by Senator 
  Specter........................................................    60
Responses of Robert S. Mueller to questions submitted by Senators 
  Specter, Leahy, Grassley, Kennedy, Kyl, DeWine, Feingold, 
  Schumer, Durbin, and Feinstein.................................    65

                       SUBMISSIONS FOR THE RECORD

Calbom, Linda M., Director, Financial Management and Assurance, 
  U.S. Government Accountability Office, Washington, D.C., 
  prepared statement and attachments.............................   212
Department of Justice, Federal Bureau of Investigation, memoranda   230
Fine, Glenn A., Inspector General, U.S. Department of Justice, 
  Washington D.C., prepared statement............................   234
Gannon, John C., Vice President for Global Analysis, BAE Systems 
  Information Technology, and Former Staff Director, Homeland 
  Security Committee, U.S. House of Representatives, McLean, 
  Virginia, prepared statement...................................   254
Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, U.S. Department of Justice, Washington, D.C.....   279
New York Times, April 19, 2006, editorial........................   285
Plan Dealer, Cleveland, Ohio, April 29, 2006, editorial..........   287
Seattle Post-Intelligencer, March 21, 2006, article..............   288
U.S. News & World Report, April 17, 2006, article................   290
Washington Post, April 19, 2006, article.........................   292

                             FBI OVERSIGHT


                          TUESDAY, MAY 2, 2006

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:32 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Grassley, Kyl, DeWine, Sessions, 
Cornyn, Leahy, Kennedy, Feinstein, Feingold, Schumer, and 

                     STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
Judiciary Committee will now proceed with the oversight hearing 
on the Federal Bureau of Investigation, and we welcome the 
distinguished Director, Robert Mueller.
    The FBI, with its great tradition for law enforcement and 
investigative techniques, has enormous responsibilities in an 
era where we are fighting terrorism, and it has great 
responsibilities in the protection of civil liberties as well; 
a delicate balance which the United States has been so adept at 
maintaining. The FBI is being very seriously challenged this 
year and the years intervening since 9/11/2001 and will be 
challenged into the future.
    The Federal Bureau of Investigation has responded with very 
significant technological changes, and we will be taking a look 
at those today. We have been in touch with the Director on an 
informal basis to review what he has done with the so-called 
Virtual Case File, which had a cost in the range of $170 
million, and what is being done now with the very extensive 
$305 million contract to Lockheed Martin.
    A GAO report in February of this year has raised some very 
serious questions as to the adequacy of the FBI's control over 
the Trilogy project; GAO reported that there were payments of 
unallowable and questionable contractor costs and missing 
assets. We will be looking into the very important issue of 
information sharing, which was a major problem with the 
agencies prior to 9/11 and one which we have tried to correct 
with the creation of a new Directorate, which is a subject of 
ongoing concern.
    A March 2006 GAO report found that there are still very 
substantial issues relating to information sharing. We will be 
asking the Director about that.
    In the war on terror, there are still grave difficulties. 
The FBI statistics disclose a translation program as taking 14 
months to secure contract linguists. A 2005 March report by the 
Department of Justice Inspector General found that there were 
more than 8,000 hours of counterterrorism audio that had not 
been reviewed. The 2005 Office of the Inspector General report 
raised questions about whether there was adequate coverage on 
the identities of people who constituted threats.
    We are also going to be inquiring today on the recent FBI 
action looking to obtain some of the files of the late 
columnist Jack Anderson. A question as to why now. If those 
files were important, why not have sought their return during 
Jack Anderson's life, and would if be more appropriate to have 
a judicial action in replevin, for example, as opposed to, as 
reports have it--and we want to find out from the Director--
having two agents appear in the home of the custodian of those 
    Another issue of very substantial concern is what is 
happening with the investigation of journalists. This Committee 
is about to report out a bill on reporter's privilege triggered 
by the 85 days of incarceration of Judith Miller. No doubt 
national security interests are of enormous concern, and there 
is an issue as to whether that kind of a contempt citation is 
appropriate where the focus has shifted from national security, 
shifted from the disclosure of the identity of a CIA agent, to 
whether people are telling the truth before a grand jury. That 
is a serious matter as well, but not one which rises to the 
same level as national security.
    There has been recent speculation as to whether two 
criminal statutes relating to the disclosure of classified 
information may be used to prosecute reporters. A very 
extensive story appeared in the Sunday Times, which referred 
back to the Pentagon Papers case. The issue has been lurking 
for a long time on the concurring opinions of Justice White and 
Justice Potter Stewart, where Justice White says, ``I would 
have no difficulty in sustaining convictions under these 
statutes on facts that would not justify the intervention of 
equity and the imposition of prior restraint.'' The Pentagon 
Papers case involved the effort to restrain the Times from 
publishing, and the White-Stewart opinions state pretty flat 
out that there is authority under those statutes to prosecute a 
newspaper, to inferentially prosecute reporters. And if that is 
so, that is something which requires some oversight and some 
analysis by this Committee, going back to the formulation of 
those statutes and to what Congressional intent was at that 
time, and depending upon the administration's interpretation of 
the statutes, whether there needs to be some further action by 
the Congress on modification or clarification of those 
    Senator Leahy will be along shortly, Mr. Director. In his 
absence, Senator Kennedy, would you care to make an opening 

                     STATE OF MASSACHUSETTS

    Senator Kennedy. Just a brief one, if I could. Mr. 
Chairman, we want to welcome Mr. Mueller, and thank you.
    No challenge that we face is more important than dealing 
effectively with the terrorist threat facing the Nation and 
reform of the FBI as an essential part of meeting that 
challenge. We all agree on the need for strong powers for law 
enforcement and intelligence offices to investigate terrorism 
and prevent future attacks and improve information sharing 
between Federal, State, and local enforcement. And in the wake 
of the tragic events of September 11th, Congress, the 
administration, and the country face the urgent need to do 
everything possible to strengthen our National security and our 
counterterrorist efforts.
    On 9/11, we were united in our commitment to protect our 
country, to respond aggressively to terrorism and destroy al 
Qaeda. This was not an issue of party or partisan politics. We 
all worked together.
    Unfortunately, however, we are now at an impasse where the 
administration refuses to work with Congress, and it is putting 
our national security and the public trust at risk. There is a 
way to fight terrorism within the framework of our 
Constitution. As Supreme Court Justice Robert Jackson wrote in 
1941, ``The Constitution is not a suicide pact.''
    Thirty years ago, when the cold war threatened our 
security, a Republican administration and a Democratic Congress 
worked together to pass the Foreign Intelligence Surveillance 
Act, giving broad authority to the Government in cases 
involving national security. Then, as now, the debate was 
driven by reports of watchlists, sweeping surveillance 
programs. Then, as now, the American people had questions about 
the proper scope of the President's authority.
    Today, the politics of fear seems to be driving our 
National security policy, and at the same time, there are 
fundamental questions about whether we are getting it right. 
And there are new concerns that we may not be any safer now 
than we were 4 years ago. So I hope that you can address some 
of the concerns about the job the FBI is doing to get its house 
in order and to help us meet the national terror threat.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Kennedy.
    Director Mueller comes to the Office of the Director of the 
FBI with an outstanding record. He was an Assistant Attorney 
General in the Criminal Division of the Department of Justice. 
He was the United States Attorney for the Northern District of 
California, San Francisco, and also the United States Attorney 
for the District of Massachusetts, and after holding those 
lofty positions, came back to the criminal courts of 
Washington, D.C., to try cases--perhaps the highest calling, 
certainly higher than that of a Senator, and maybe even higher 
than that of a Director of the FBI.
    It is our practice on these oversight hearings, Director 
Mueller, to ask you to be sworn in, so if you would stand. Do 
you swear that the testimony you will give before the Judiciary 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Director Mueller. I do.
    Chairman Specter. We will turn off the time clock for 
Director Mueller. We will keep it on for the Senators on the 5-
minute rounds, but take the time you need, Mr. Director, to 
make your opening statement.


    Director Mueller. Thank you, Mr. Chairman, and thank you, 
members of the Committee, for having me here today. I am 
pleased to appear before you to thank you, first of all, for 
your continued work with the Bureau. I appreciate your efforts 
to ensure our success as we pursue the shared goal of making 
America safer, as well as preserving our civil liberties.
    As this Committee knows, much of the last year has been 
devoted to a national discussion about the tools that should be 
afforded to the men and women engaged in the fight against 
terrorism, both at home and abroad. And I do want to thank this 
Committee and the Chairman for your work in producing what I 
consider to be a balanced law reauthorizing the USA PATRIOT 
Act. Through your efforts, our agents will retain the tools 
necessary to wage an effective fight against terrorism, within 
a framework that ensures important safeguards for civil 
liberties and enhanced judicial and Congressional oversight.
    Mr. Chairman, when I last appeared before the Committee, 
just 1 month after the President had approved the 
recommendations of what is commonly known as the WMD 
Commission, we talked about a recommendation regarding the 
establishment of an intelligence service within the FBI. I am 
pleased to report that the FBI's National Security Branch has 
been established to ensure the integration of the FBI's primary 
national security programs under the leadership of a single 
Executive Assistant Director and to implement policies and 
initiatives designed to enhance the capability of the entire 
FBI to support its national security mission.
    And although still relatively new, the National Security 
Branch is making significant progress in integrating the 
missions, the capabilities, and the resources of the 
Counterterrorism, Counterintelligence Divisions, as well as the 
Directorate of Intelligence. The FBI is currently working with 
the Department of Justice and the administration to ensure that 
the National Security Branch meets the directives set forth by 
the President and is responsive to the Office of the Director 
of National Intelligence.
    While I am optimistic about the National Security Branch, I 
am also aware that some harbor doubts about the FBI's ability 
to transform itself into a leading intelligence agency. Such 
critics often cite the mistaken believe that the intelligence 
mission and the law enforcement mission are inherently 
incompatible. They also contend that the FBI is reluctant to 
share information with its partner agencies.
    I believe it is important to note that both the 9/11 
Commission and the WMD Commission found that the intelligence 
and law enforcement functions should not be separated. They 
understood that intelligence developed in criminal 
investigations could be relevant to ongoing intelligence 
matters. And, in addition, many of the skills necessary to a 
successful criminal investigation are mirrored in the 
intelligence arena. The need to cultivate confidential 
informants and build rapport with cooperating witnesses, the 
ability to follow complex money trails, the ability to decipher 
the coded language of gang members or drug dealers, and the 
know-how to extract meaning from a collection of seemingly 
unrelated clues are all skills that can be and are being 
applied to intelligence matters.
    With regard to information sharing, we have doubled the 
number of intelligence analysts in every field, and in every 
field office we have established a Field Intelligence Group, or 
FIGs, as we call them--agents and analysts working together 
with one shared mission: to leverage intelligence to protect 
our Nation. From January 2004 through January 2006, 
intelligence analyst staffing increased on the Field 
Intelligence Groups by 61 percent, from 617 to 995. This 
increase in analysts has helped to fuel our sharing of 
intelligence products. Since September 11th, we have 
disseminated more than 20,000 intelligence reports, 
assessments, and bulletins to our partners.
    While our National security efforts remain our top 
priority, we continue to fulfill our crime-fighting 
responsibilities as well. Public corruption and protecting 
civil rights are the top criminal priorities for the FBI. Over 
the last 2 years, our public corruption investigations have led 
to the conviction of over 1,000 Government employees involved 
in corrupt activities, to include 177 Federal officials, 158 
State officials, 360 local officials, and more than 365 police 
    Among our civil rights initiatives are our Human 
Trafficking Task Forces as well as an ongoing review of 
unsolved or inadequately addressed hate crimes that occurred 
prior to 1970.
    We also continue to focus on violent crime and 
transnational and national criminal organizations. Operating 
primarily through our Safe Streets Task Forces and more 
recently our MS-13 National Gang Task Force, we are working to 
identify the prolific and violent gangs in the United States. 
And together with ATF and other Federal and State and local 
agencies, we are investigating, disrupting, and dismantling 
these criminal enterprises through prosecution under the 
appropriate laws.
    White-collar crime, particularly corporate fraud, is also 
an FBI priority. We currently have 15 corporate fraud 
investigations in which investors in each of these 
investigations have lost at least a billion dollars. And, in 
fact, in two of those investigations, they represent $80 
billion crimes, and each of those two investigations of those 
15. And given the impact of these crimes on corporate America 
and on investors, we will continue to pursue these cases, as we 
have done with Enron, Qwest, WorldCom, HealthSouth, just to 
name a few.
    And while I am confident in our intelligence and law 
enforcement capabilities, our technology must keep pace. As 
this Committee knows, in March of this year we announced the 
award of the contract for development of the Sentinel program, 
and that contract was awarded to Lockheed Martin. Under the 
terms of the $305 million contract, Lockheed Martin and its 
industry partners will use proven commercial, off-the-shelf 
technologies to produce an integrated system that supports 
processing, storage and management of the FBI's current paper-
based record system. The program also includes incremental 
development and delivery of Sentinel capabilities, including 
$73 million for operations and maintenance activities.
    And now that the contract has been awarded, we are moving 
forward with phase one of the development process. Each of the 
four phases will introduce new stand-alone capabilities and 
will be user-focused. And as each phase is implemented, 
existing information will be transferred to new systems and 
older legacy systems will be retired.
    I do want to emphasize at the outset that the Sentinel 
program is not a reincarnation of the Virtual Case File 
program. Not only will Sentinel provide greater capabilities, 
it will be deployed on an incremental basis over 4 years. And 
to prevent any missteps, each phase of the Sentinel contracting 
process is being closely scrutinized by a team of FBI technical 
experts, the GAO, the Office of Management and Budget, and the 
Department of Justice's Chief Information Office, not to 
mention the Department of Justice's Inspector General. I know 
that you are to hear from several of these individuals later 
today. Furthermore, at the urging of Congress, we have also 
engaged outside experts to help us review and assess the 
implementation of Sentinel.
    And without minimizing the disappointments we have had in 
the past, I do believe it important to underscore the 
improvements that have already been achieved in our efforts to 
modernize the FBI's information technology.
    Today, when an FBI agent sits down at her desk and logs on 
to a computer, he or she is connected at the ``secret'' level 
to a fast, secure system that allows her to send e-mails, 
photographs, and documents to any other agent or analyst in the 
Bureau--across the country and around the world.
    For ``top secret'' communications, we have deployed the Top 
Secret/Sensitive Compartmented Information Operation Network, 
or SCION. And nearly 4,000 personnel have been trained on the 
SCION network as well as on associated intelligence community 
systems. The SCION system is the backbone for the FBI personnel 
to coordinate, collaborate, disseminate, and conduct research 
on analysis in conjunction with the rest of the intelligence 
    Other technology initiatives, such as the Investigative 
Data Warehouse, have surpassed our expectations. The IDW is a 
centralized repository for relevant counterterrorism and 
investigative data that allows users to query the information 
using advanced software tools. IDW now contains over 560 
million FBI and other agency documents from various previously 
stovepiped systems. Nearly 12,000 users, including task force 
members from other Federal, State, and local agencies, can 
access IDW through the FBI's classified network from any FBI 
terminal throughout the world.
    And we have worked hard to build a solid foundation for the 
successful implementation of major information technology 
investments, and these are just a few examples of our 
    Now, while technology is essential to our mission, it is 
the men and women of the FBI who remain our most important 
asset. It is their talent, their creativity, and their 
commitment to the public good that are the true keys to our 
success and have been the keys to our success for the 98 years 
of our existence. Accordingly, we continue to reshape our human 
resources program to recruit, hire, train, and retain quality 
individuals for our expanding human capital needs.
    In my prepared testimony, I discuss additional steps we 
have taken to enhance our human resources, to include the 
hiring in October of 2005 of a Chief Human Resources Officer 
with over 20 years' experience in the private sector.
    Before I close, Mr. Chairman, I would like to take this 
opportunity to advise the Committee of a recent report that 
probably will be discussed by the Inspector General today, but 
it is a report that highlights the fact that FBI agents are 
committed to protecting the Nation and are equally committed to 
the rule of law. As this Committee may recall, shortly after 
the Republican and Democratic National Conventions in the 
summer of 2004, media reports stated that the FBI had 
questioned political demonstrators across the country in 
advance of the conventions, leading civil liberties groups to 
allege that the FBI was attempting to chill protesters from 
exercising their First Amendment rights. At the request of 
Congress, the DOJ Inspector General conducted an investigation 
and last week released its final report on the matter. The OIG 
did not substantiate the allegations and concluded that all 
interviews conducted by the FBI of potential convention 
protesters were conducted for legitimate law enforcement 
purposes and were conducted consistent with Attorney General 
    I am pleased but not at all surprised by the Inspector 
General's findings. The men and women of the FBI understand and 
appreciate the power entrusted to them and are vigilant in 
their efforts to protect the country while respecting civil 
    Mr. Chairman, this year will mark the 5-year anniversary of 
September 11th. The FBI has changed dramatically since the 
terrorist attacks of that day, and we will continue to evolve 
to meet the emerging threats to our country. I'd like to invite 
the members of the Committee to the FBI, either our 
headquarters or our field offices, to observe this 
transformation yourselves. You can spend time with the Joint 
Terrorism Task Forces and the Field Intelligence Groups and see 
the enhanced technological capabilities available in the field.
    I and we are proud of the progress we have made, and I am 
certainly proud of the dedicated men and women of the FBI who 
have made our transformation possible.
    Thank you for your support of the FBI, Mr. Chairman, and I 
am happy to answer any questions you might have.
    [The prepared statement of Director Mueller appears as a 
submission for the record.]
    Chairman Specter. Thank you, Director Mueller.
    We will now proceed to the 5-minute rounds of questioning 
by members.
    Director Mueller, on the issue of information sharing, the 
GAO report in March of this year raises questions about the 
adequacy of the information sharing. We recollect the hearings 
which this Committee had back in June of 2002 where we heard 
from Agent Coleen Rowley and we heard from you about the 
failure to process the information from the Minneapolis Field 
Office about Zacarias Moussaoui. And we also had testimony 
about the difficulties not only within the FBI of understanding 
the information which you had, but also on the information 
sharing. And we now have legislated a new level of bureaucracy 
with the Director of National Intelligence John Negroponte.
    Is the GAO report accurate that there are still problems on 
information sharing? And to what extent has the new Office of 
Director of National Intelligence helped, if at all?
    Director Mueller. There is still work to be done in 
information sharing, but let me point out where we have made 
substantial strides.
    Firstly, the PATRIOT Act has broken down the walls between 
intelligence and law enforcement exchanges of information. That 
was a substantial problem before September 11th and was 
identified as such by the 9/11 Commission, WMD Commission, the 
joint Congressional inquiry. And so both within the FBI, where 
we now can initiate investigations--it could be an intelligence 
investigation that may lead to a criminal violation, or it can 
be an intelligence investigation that continues on for a period 
of time. But that wall is down within the FBI. Between the FBI, 
the CIA, NSA, and other entities in the intelligence community, 
there is now a free exchange of information.
    Most specifically, the National Counterterrorism Center is 
the hub of intelligence related to counterterrorism. It has 
access to the information in the data bases of each of the 
various contributing agencies, and while we collect information 
according to different protocols--in the case of the FBI, 
according to the Constitution, the applicable statutes, and the 
Attorney General's guidelines--nonetheless, that information 
that is produced is shared at the National Counterterrorism 
Center where analyses that cut across all of the information 
are done. That is a tremendous advance in terms of giving us--
    Chairman Specter. Director Mueller, let me followup with 
you on that on an informal basis because of the limitation of 
the 5-minute rounds of questions, and also on an informal basis 
on the work which the Bureau is doing on technology acquisition 
and the recent $305 million contract with Lockheed Martin. And 
let me go to the question of the prosecution of newspapers or 
newspaper reporters under 18 U.S.C. 798 and 50 U.S.C. 421.
    Is it your interpretation of these statutes that Congress 
intended them to apply to the dissemination of classified 
information by reporters or by newspapers?
    Director Mueller. Mr. Chairman, I was alerted just before I 
came in that you may ask this question with regard to the 
applicability of the statutes. I have not had an opportunity to 
look at the statutes to determine their applicability. It's 
been several years since I have looked at them, so I don't feel 
I'd be in a position to render an opinion on that.
    Chairman Specter. Well, fair enough. It has come into very 
sharp focus as a result of a very extensive New York Times 
article the day before yesterday, so it is true that we have 
alerted you only recently. I asked that you be alerted 
yesterday. But if you would take a look, we can talk about that 
    Let me move to the Jack Anderson situation.
    Director Mueller. Yes, sir.
    Chairman Specter. And the reports that FBI agents have 
sought the return of materials which Jack Anderson had during 
his lifetime. If the Bureau wants those back, why not earlier? 
And why now at all?
    Director Mueller. Well, my understanding--and I'd have to 
check this--is that we recently came into possession of 
information indicating that there may be classified national 
security documents within Mr. Anderson's collection, and the 
concern was--and our understanding is that collection may well 
be made available to the public. And so the concern was that 
there may be documents in there that relate to the national 
security, may be classified, and the disclosure of those 
documents may harm the national security.
    I think the agents were doing their job in making the 
inquiry as to whether or not such documents were found or could 
be found there, and were looking for ways so that we can 
determine whether or not there are such documents there, and if 
there are such documents, whether disclosure would adversely 
affect the national security.
    Chairman Specter. The red light went on in the middle of 
your answer, after your answer started, and I am going to 
observe the time limits meticulously because we have a great 
many Senators here, and we are going to have a vote at 11 
o'clock, so I will come back to that later in the hearing.
    Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    The warrantless surveillance issue, 1976, President Ford, 
Attorney General Levi, welcomed the Judiciary Committee to the 
Justice Department on four different times; in 1978, we passed 
the FISA law. Only one member of the U.S. Senate voted in 
opposition. Collaboration has been successful in the past. We 
have heard the testimony now from members of the administration 
that it is not applicable to the current kinds of situations 
that we are facing on national security.
    Now we have a situation where we are putting employees at 
the National Security Agency at risk. We have criminal and 
civil cases that are challenging the legality of the 
administration's program and the warrantless wiretapping. AT&T 
is back in court. Just this last month the Justice Department 
has filed its own brief in the AT&T case. Last month three 
judges on a panel, U.S. Court of Appeals for the Fourth 
Circuit, sent back a criminal case, saying the evidence 
obtained during the NSA's warrantless surveillance, questioning 
whether it was used validly.
    How concerned should we be about the current situation 
where we are seeing the repeated challenges? We have had the 
American Bar Association say that the actions of the President 
of the United States have exceeded his authority. We have had 
the Congressional Research Service say the President exceeded 
his authority. At other times when this was an issue, we 
achieved a bipartisan agreement, working together with the 
administration, that was consistent with the national security 
and the Nation benefited. Why are we not back into that 
situation today?
    Director Mueller. I don't believe I can speak to where the 
Congress is in discussing what if any legislation should be 
passed to address what you have discussed. I can tell you that 
I believe there have been several instances around the country, 
in cases that are being prosecuted. in which this issue has 
arisen, but I do not believe any of them has presented an 
    Senator Kennedy. Where it has arisen, whether the evidence 
that has been obtained has been obtained legally, that issue.
    Director Mueller. And my understanding is defense counsel 
have raised this in several prosecutions, and judges who are--
before whom those prosecutions are pending have looked at the 
issue and determined that the issue is not relevant in those 
    Senator Kennedy. I think that this is obviously going to 
continue to be an issue. I think it can be avoided rather 
simply rather than to have it left out there.
    Let me move quickly. In terms of the recruitment by the 
FBI, in terms of Arab and the Muslim community--I asked you 
about this in 2003, about the recruitment efforts in Arab-
American, Muslim communities. The FBI recruited in the Super 
Bowl. Can you tell us what the results have been in terms of 
the recruitment within the Arab and Muslim community in terms 
of the FBI?
    Director Mueller. Senator, since we last discussed this, 
we've made substantial efforts to enhance our recruiting. They 
have been successful, but not as successful as I would like. We 
continue to encourage members from diverse communities within 
the United States to join the FBI. I can get you the figures. I 
don't have the figures off the top of my head.
    Senator Kennedy. OK. Just to followup in this area. Many of 
us are interested in the challenges on hate crimes. We know 
anecdotally that these groups, the Muslim and Arab community, 
have been particularly targeted in the wake of 9/11. The FBI 
keeps statistics and figures only on anti-Hispanic and other 
ethnicities, so that it is very difficult from your information 
that you make generally available to determine how significant 
this is. Anecdotally, other groups report a rather dramatic 
increase and spike in this. I would like to be able to sort of 
work with you to see if there is a way of detecting it. The FBI 
does provide a range of different kinds of opportunities for 
local law enforcement in the situations of hate crimes to be 
able to go ahead and prosecute, and I would like to see if we 
cannot get a greater focus on it.
    Director Mueller. I do believe we keep statistics. We keep 
statistics of hate crimes against Muslim-Americans, Sikh-
Americans, Arab-Americans, and we can get you those. I can 
assure you when you look at those statistics, we take every one 
of these hate crimes investigations exceptionally seriously, 
and any number of them have been prosecuted at the Federal 
level as well as the State and local level.
    Senator Kennedy. Just finally--my time is up--on the use of 
confidential informants, you know well the challenge that we 
had in Boston, and we have the Inspector General's report, and 
a situation in New York, and the prosecutions of agents down 
there. What assurance can you give to the American people that 
the agents are conforming with the Attorney General guidelines 
on confidential informants? Now, given the history, we had 
heard that those are just a few bad apples when we had the 
Boston situation, a few bad apples in terms of New York, now 
the district attorney's, up there, vigorous prosecution. What 
can you tell us that you are going to do to make sure that we 
have conformance by the agents with the standards established 
by the Agency and the Attorney General?
    Director Mueller. Given the circumstance in New York, the 
protocols relating to our handling of informants changed 
dramatically. We also have had other occurrences, out on the 
West Coast, the Leung case. We have--and since that case, we 
have continued to modify our vetting of our confidential 
informants, have in place appropriate protocols, do a great 
deal of education. The training at Quantico hammers on those 
instances in the past where protocols were not followed.
    So we've taken a number of steps to assure that we don't 
repeat those mistakes of the past. We understand the 
sensitivity to using sources and informants. And I believe--we 
put in a series of steps that are being taken to assure the 
appropriate oversight of those programs, and I believe that the 
IG's report indicates and acknowledges a number of the steps 
that we have taken in that regard.
    Senator Kennedy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kennedy.
    Under the early bird rule, Senator Grassley.
    Senator Grassley. Director Mueller, I am going to go 
through three questions, and I would ask you to take note so I 
can go through all three, and then you can answer them. They 
deal with the indictment of the FBI agent in New York, the 
Inspector General's recent report on the allegations made by 
Joe Webber about the FBI's lack of coordination with ICE, and 
last, something about Jack Anderson beyond what the Chairman 
has already brought up.
    In March a grand jury accused former agent Lin DeVecchio of 
taking bribes and giving secret information to his mafia 
informant, which led to the murders of four people, similar to 
the awful Boston scandal a few years ago. Do you think this is 
going to cause the same sort of damage to the FBI's reputation 
as those scandals did? Do you approve of the support that this 
former agent is receiving, because we have current and former 
FBI personnel publicly raising money for him, giving the 
impression that the FBI might be circling the wagons to defend 
the organization and defend one of it own charged with murder?
    Second, I did ask you about the Houston terrorism financing 
case last year. The head of the ICE office said that the FBI 
was dragging its feet on wiretap application. You agreed that 
problems at the FBI had caused the delay, and then the 
Inspector General investigated. So just last week the IG 
completed his report, but the FBI classified it secret. The FBI 
should not abuse its classification authority to hide its 
mistakes from public scrutiny. And I would like to get a 
commitment from you today that you would work with the 
Inspector General's Office and me to put together a version of 
this report that can be released to the public.
    And then third, according to Jack Anderson's son, and as 
closely as yesterday, my staff had an opportunity to discuss 
with him some of these issues. Some FBI agents recently tried 
to get the right to take copies of his files by tricking his 
79-year-old mother into signing a consent form that she did not 
understand. They did this by returning to speak to Mrs. 
Anderson alone after her son, who is also her attorney, made it 
clear that any permission to take documents would have to be 
discussed with the entire family. If that is true, do you think 
that that is an appropriate investigate technique?
    That is the end of my three questions.
    Director Mueller. Let me start with the first one, with the 
indictment of DeVecchio in New York. That is, quite obviously, 
not good for him, certainly not good for the FBI. The persons 
who have shown support for him are either former agents or not 
agents on duty. Certainly, there was no institutional support 
when that person is facing such substantial charges in New 
    Second, with regard to the incident down in Houston, or the 
case down in Houston, we did have a discussion on that. I 
indicated I would welcome the Inspector General's investigation 
into that, and my understanding is that portions of it are 
classified, but there are two point I would make in response to 
your issue there. And that is, that the report did issue a 
finding that the FBI did not intentionally delay processing a 
criminal wiretap application in order to derail an ICE 
investigation. That was the bottom--that was the finding. I 
think it's the finding that we discussed when we originally 
discussed this, that there was a miscommunication and there was 
delay. And also my understanding is that in a footnote, the IG 
states the following: the IG found no indications that the FBI 
over-classified this report to prevent its dissemination.
    So my belief is that there is not over-classification. I 
can tell you from our perspective there is no intent to over-
classify the report to prevent its dissemination. That's on the 
second issue that you raised.
    With regard to that, we're very happy to work with you and 
the IG to find--to try to find a way to produce some summary 
that is not classified.
    Last, with regard to Anderson, I'm not familiar with the 
circumstances of the interviews there. I do understand at some 
point there was discussion about perhaps family ties, but I 
would have to go back and find out more facts about that 
interview that you advert to, Senator.
    Chairman Specter. Thank you very much, Senator Grassley.
    Senator Grassley. The only thing I would say, if the facts 
are like I said, that there was an understanding with her 
lawyer, also her son, that this would be a family matter, then 
should the FBI go back to a 79-year-old woman and confront her 
by herself?
    Director Mueller. Senator, I would have to look at the 
facts of the case.
    Chairman Specter. Thank you, Senator Grassley.
    Senator Leahy, in the capacity as Ranking Member, you are 
recognized for an opening statement, and beyond that, your turn 
for a round of questions.

                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman, and thank you for 
your usual courtesy in such matters. I appreciate you convening 
today's hearing. I was at a matter with the Commandant of the 
Marine Corps, and I knew that--
    Director Mueller. Priorities.
    Senator Leahy. --Director Mueller would forgive me for 
being a little bit late. I think these oversight hearings are 
extremely important, as I said right after 9/11. In fact, after 
the oversight hearings that I conducted at that time, we acted 
in the Congress very quickly to give the Bureau new tools to 
combat terrorism. We funded information technology. We pushed 
to correct institutional and management flaws that prevented 
the FBI field agents from operating at their full potential. I 
am concerned four and a half years later that the Bureau is not 
as strong as many of us would like to see.
    Director Mueller, you and your leadership team, the hard-
working men and women of the FBI deserve, and they have, the 
constant appreciation of all of us as Americans for the things 
you do, the sacrifices you make, working tirelessly for 
decades, especially since 9/11, under great pressure. But the 
constructive oversight I think is helpful.
    You have made great strides in enhancing intelligence 
gathering capabilities, but I am very disappointed when I find 
out the FBI has been using those capabilities to conduct 
domestic surveillance on law-abiding American citizens simply 
because they oppose the Government's war policy in Iraq. The 
Seattle Post-Intelligencer reported that Federal Government 
antiterrorism agencies, including the FBI, conducted 
surveillance on long-time Quaker peace activist Glen Milner 
during the 2003 Seafair Festival. A Freedom of Information Act 
lawsuit has revealed FBI communications about the surveillance 
of several other domestic peace groups. I think we have all 
learned Quakers are going to protest wars. It does not make 
them un-American. It does not make them unpatriotic. In 
addition Inspector General Fine detailed more than 100 possible 
surveillance violations reported by the FBI to the Intelligence 
Oversight Board in the past 2 years.
    Senator Grassley talked about Jack Anderson's files. This 
really bothers me. I did not agree with everything Mr. Anderson 
wrote. I felt zings from him as everybody else did. But, you 
know, frankly, there is a concern that the FBI may be going 
into his files because of some of the things he discovered 
about J. Edgar Hoover's personal life. I have to tell you, if 
that turns out--well, don't shake your head--if that turns out 
to be the reason, for one thing, I cannot see any reason going 
into his files anyway. I mean it is sort of like all of these 
things that get classified that have been in the archives for 
years and years, and suddenly they are classified, or things 
that are on Government websites, and then when it turns out 
they screwed up, the documents are suddenly classified. I worry 
about that.
    Last month the GAO issued a report finding that despite 
more than 4 years of legislation, executive orders and 
Presidential directives, this administration has yet to 
comprehensively improve the sharing of counterterrorism 
information among dozens of Federal agencies, including the 
FBI. I know you have several initiatives under way to promote 
better information-sharing, but I look at the terrorist watch 
list that is produced and disseminated by the FBI's Terrorist 
Screening Center that has been plagued by too many entries and 
inaccurate information. We see what happened. I mean Senator 
Kennedy has just left here, but on one of these terrorist watch 
lists, he has had 10 times he could not get on the airplane he 
has been used to traveling on for 40 years.
    I suggested to him that some of these Irish terrorists look 
alike, but he suggests that may not be it. We had a 1-year-old, 
less than a year old, whose parents had to get a passport to 
prove that they were not the terrorists on the list.
    We learned that Sentinel is going to cost the American 
taxpayers $425 million to complete. It may not be done until 
2009, and rumor is that the true cost of Sentinel is being 
hidden by cutting other programs to cover the cost.
    So these are concerns that I have. I am concerned that some 
of the FBI's mid-level and senior-level counterterrorism 
experts do not have counterterrorism backgrounds. We have given 
a huge amount of money, and the American taxpayers have given a 
huge amount of money to the FBI. I worry that it is not being 
used effectively.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    I will go ahead and begin my questioning. You can go ahead 
and set the clock on that.
    Chairman Specter. We will set the clock at 5 minutes, 
Senator Leahy, for your round of questioning.
    Senator Leahy. Thank you, Mr. Chairman.
    Director, you cited the Inspector General's report and the 
FBI's investigative activities concerning the potential 
protestors at both the 2004 Democratic and Republican National 
Conventions. The report was reassuring as far as it went. But 
it was limited to allegations arising out of the political 
conventions, and did not address other incidents where the FBI 
has been alleged to have improperly targeted Americans based on 
their exercise of the First Amendment rights. I mentioned the 
Seafair Festival in Seattle. There is evidence that you have 
been monitoring other peace groups across the Nation, including 
the Raging Grannies, scary group if there ever were, a group of 
elderly peace advocates who sing at events; and the Thomas 
Merton Center for Peace and Justice, a Catholic peace 
organization in Pittsburgh. These are groups with no history of 
    One FBI memo, released pursuant to FOIA request, reads as 
follows: ``The Thomas Merton Center''--that is the Catholic 
peace organization I mentioned--``is a left-wing organization 
advocating, among many political causes, pacifism. TMC holds 
daily leaflet distribution activities in downtown Pittsburgh 
and is currently focused on its opposition to the potential war 
with Iraq.'' This is the memo. The memo is dated a few months 
before the invasion in Iraq. It goes on to say that TMC's 
executive director stated to a local reporter that ``there are 
more than a few Muslims and people of Middle Eastern descent 
among the regulars attending meetings at the Merton Center's 
East Library Headquarters.'' And then they say the FBI 
``photographed TMC leaflet distributors,'' and ``these 
photographs are being reviewed by IT Pittsburgh specialists.'' 
The memo concludes ``one female leaflet distributor, who 
appeared to be of Middle Eastern descent, inquired if the agent 
was an FBI agent. No other TMC participants appeared to be of 
Middle Eastern descent.''
    What possible business does the FBI have spying on law-
abiding American citizens simply because they may oppose the 
war in Iraq? I have said to others, you know, you could save a 
lot of money and time, turn on C-SPAN. I oppose the war in 
Iraq, and I say so on the Senate floor all the time. Maybe I 
should get my FBI report. But go ahead and tell me what 
possible reasons?
    Director Mueller. Well, Senator, let me start by saying 
that the IG report--again, there were rumors and there were 
allegations. The IG report put to bed those rumors and 
allegations relating to surveillance at the convention. In 
every instance that we have--
    Senator Leahy. I am not--
    Director Mueller. In every instance we have, Senator--
    Senator Leahy. On Thomas Merton.
    Director Mueller. On that particular case, sir, it was as 
an outgrowth of an investigation. We were attempting to 
identify an individual. The agents were not concerned about the 
political dissent. They were attempting to identify an 
individual who happened to be, we believed, in attendance at 
that rally. I'd be happy to have the IG look into that and any 
other of the assertions or allegations that you made in terms 
of our investigating persons who are exercising their First 
Amendment rights.
    To my knowledge, we have not surveilled the Quakers. To my 
knowledge, I have not heard about that group you talk about of 
the Grannies, and I am very happy to have the IG investigate 
those assertions, rumors and allegations that may have been 
spread in the newspapers, to assure that that is not the case.
    And I am concerned that raising to this level without a 
shred of evidence that there is any support for those rumors, 
that the public have the perception that the FBI is conducting 
this type of surveillance.
    Senator Leahy. Well, on the Thomas Merton one, the synopsis 
on the FBI's report is: ``To report results of investigation of 
Pittsburgh anti-war activity.'' You say not a shred of 
evidence. Director, this is kind of clear, and if you are 
talking about--
    Director Mueller. I would be happy to have--
    Senator Leahy [continuing]. Anti-war activists, I mean we 
have a group that meets out in Montpelier once a week. Now, 
they have been surveilled. Good Lord. There are some people in 
this country who do not approve of the war. It does not mean 
they are not patriotic.
    Director Mueller. Well, Senator, if you can give me the 
facts supporting the proposition that the FBI surveilled that 
group, I would certainly look into it, and I will ask the IG to 
look into the--
    Senator Leahy. I am reading it from the Federal Bureau of 
Investigation's report ``to report results of investigation of 
Pittsburgh anti-war activity.''
    Director Mueller. I gave you the background of that report, 
Senator, and I would be happy to have the IG followup on that.
    Senator Leahy. I am sending somebody down with a copy of it 
right now. Let us Xerox that and then just give it to him.
    Mr. Chairman, my time is up but I will have a number of 
other questions. I do want to go back to Sentinel, and when I 
do, Director, I want to ask if other programs in the FBI have 
been cut back or money taken from them to pay for the Sentinel 
    Chairman Specter. Thank you, Senator Leahy.
    Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Director, I would like to discuss the FISA backlog issue. 
As you will remember, we have discussed this before. In fact, I 
have been raising this concern with you and with the Attorney 
General and others for several years. When I asked you about it 
at a Judiciary Committee oversight hearing in 2004, this was 
what you said, and I quote, ``We still have some concerns and 
we are addressing it with the Department of Justice, but there 
is still frustration out there in the field in certain areas, 
where, because we have had to prioritize, we cannot get to 
certain requests for FISA as fast as perhaps we might have in 
the past.'' End of quote.
    Mr. Director, the reason I keep pushing to get this problem 
fixed is that FISA, of course, is one of the most important 
tools we have in the fight against terrorism. We need to use it 
as much as appropriate, and when we use it, it needs to be 
quick and efficient.
    Now, I understand that the use of FISA was up substantially 
from 2004 to 2005. I have been told that the FISA backlog has 
now been significantly reduced, but not yet eliminated. This is 
still a problem in a number of ways and it has a major impact 
on the FBI because I am told that officers have to have their 
FISA renewal packages submitted to the FBI 45 days before the 
FISA warrant expires, because it takes that long for the 
renewal package to work its way through the FBI, the Department 
of Justice, and the FISA Court.
    I understand that last year there were over 2,000 FISA 
applications, and that there are currently close to 100 lawyers 
who work on these issues at the Justice Department. This sounds 
as though it should be more than sufficient to handle the FISA 
caseload in a speedy and efficient manner.
    Let me ask you a series of questions, and if you could 
respond to them.
    First, why do these backlogs and delays persist?
    Second, do you believe we need more attorneys being 
involved in this? Do you think we need more FISA judges? Do you 
believe we need changes in the internal review process at the 
FBI or at the Justice Department?
    Further, how does the Bureau of Department of Justice now 
actually define a backlog? Has there been a change in the 
definition of what a backlog is? After how many days is a case 
considered to be part of the backlog? How and when did you 
arrive at the figure, and are you looking at ways to reduce it 
even further?
    Director Mueller. Quite a number of questions, Senator, so 
let me, if I could, address generally the progress that has 
been made in trying to stay up to date on the FISAs.
    We still have to prioritize, although, as you pointed out, 
the backlog has dropped. The delays are attributable to--can be 
attributable to a number of factors. It may be the necessity 
for adding additional facts, in which it goes back to the field 
for those facts.
    But to the bottom line in terms of whether the process 
would be augmented by additional attorneys, a look at the work 
flow or additional judges, yes, I do believe that additional 
resources would assist in terms of attorneys. We continuously 
are looking at improving the work flow, particularly with the 
technology so that documents can be sent back and forth through 
a dedicated network as opposed to being sent back and forth, 
which will be a substantial improvement. I do not at this 
juncture--I am probably not the one to respond to the question 
as to whether we need additional FISA judges, and I will say 
that the additional FISA judges that we did--well, the FISA 
Court as a whole is working exceptionally hard, as you can tell 
from the number of applications that they reviewed. I, as well 
as anybody who reviews these applications, would welcome some 
mechanism to reduce the amount of paperwork that goes in each 
application. Each application is approximately a half inch 
thick in terms of paper, and compiling all that paper and 
putting it in a package for the Court is a substantial process. 
All of us would benefit from having a procedure that was 
somewhat expedited.
    My expectation is that with the establishment of the 
National Security Division at the Department of Justice, that 
in addition to the deputy's office, which is looking at this, 
we will have another actor over there that is looking at these 
    Senator DeWine. Definition of backlog is the same 
definition? Are we comparing apples to apples?
    Director Mueller. I would have to go and look at the 
definition, but I have no reason to believe that we're not 
comparing apples to applies. Certainly, nobody is trying to 
change the--I have not seen--and I get a breakdown every 
month--I have not seen a change in the reporting in any event, 
much less to make it appear that the backlog was reduced.
    Senator DeWine. Well, my time is up, but the summary would 
be more attorneys would be helpful; somebody else can make the 
decision about judges; reduced paperwork would be helpful; 
expedited process would be helpful.
    Director Mueller. Yes.
    Senator DeWine. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Welcome, Mr. Mueller. I wanted to ask you three questions. 
I will try to be brief, and if your answers could as well, I 
can get through the questions.
    In 5 years you have had six different heads of 
Counterterrorism, and six different executive assistant 
directors overseeing Counterterrorism. Last week, Gary Bald, 
the new head of the National Security Branch, announced that he 
too is leaving. What is the reason for this high turnover? What 
are you doing about it? And do you ask people when they join 
that they be required at least to stay for a period of time?
    Director Mueller. Putting it in perspective, there are a 
number of factors that have contributed to the turnover. The 
first is, you take somebody like Gary Bald, who I'll use as an 
example. He has 30 years of service to the FBI and to the 
country. He has kids in college. He has worked in 
counterterrorism for at least the last four or 5 years, whether 
the head of the Counterterrorism Division, and then head of the 
National Security Branch. He had a tremendous opportunity for 
both him and his family that would be very difficult for him to 
continue. So the opportunities outside, particularly since 
September 11th, where everyone wants a security director, and 
the obvious fact that many of these corporations can pay far 
more than the Federal Government is a factor. The fact that a 
person has spent 30 years in the FBI in a career and still can 
have a second career, and has to make an earlier decision, is a 
factor. And the last factor is that we work 24 hours a day, 7 
days a week, and it's a lot of pressure on persons in those 
    Senator Feinstein. Let me stop you for a moment. How long 
had he been in the job?
    Director Mueller. How long had he been in the job? As the 
head of National Security Branch, probably 6 months.
    Senator Feinstein. Doesn't he consider that before he takes 
that job?
    Director Mueller. He does--
    Senator Feinstein. I mean these are critical jobs at a 
critical time, and it would seem to me that somebody would not 
take a job for 6 months and then accept something else that 
came along. It would also seem to me that in terms of 
management practices, this ought to be advised against, 
counseled against, and if somebody cannot give you a commitment 
of time, why hire him?
    Director Mueller. I understand what you're saying, and it 
is an issue we're wrestling with. I will tell you that since 
September 11th we have developed, I think, a very strong bench, 
particularly in counterterrorism. We have a number of people 
who have been working in counterterrorism before September 11th 
who are coming along, and a strong bench of those who have 
worked in counterterrorism solely on that issue since September 
    Senator Feinstein. All I am saying is you have had six 
different heads, and I think that is a problem.
    Director Mueller. I understand that.
    Senator Feinstein. Now, today the Washington Post indicates 
that you have filed 9,200 national security letters and 2,072 
FISA Court warrants. I was interested in Senator DeWine's 
questions. I have written a letter to the Attorney General 
asking him process questions, and he has not responded. We have 
asked a second time. He still has not responded. I am a member 
of that Subcommittee looking at the National Security 
Administration's electronic surveillance program. How much time 
does the FBI need to get a FISA warrant? What is the average 
time? You have clearly gotten 2,072 of them, if the press is 
correct. What is the average time it takes to process a FISA 
    Director Mueller. I would have to provide you those 
figures, and it would require going back and looking through 
records to provide you those figures, and the difference would 
be between an emergency FISA application and a non-emergency 
FISA application, quite obviously.
    Senator Feinstein. Can you also tell us how many of these 
2,072 were emergency?
    Director Mueller. I cannot off the top of my head. I can 
provide you those figures.
    Senator Feinstein. If you would, I certainly appreciate 
    Director Mueller. Yes.
    Senator Feinstein. Let me ask the third question then. In 
his written statement, Inspector General Fine notes that there 
is shared responsibility for port security between the FBI and 
the Coast Guard, but that confusion exists over each agency's 
authority, affecting the ability to establish a clear and 
effective command structure. General Fine states that the 
response to a maritime incident could be ``confused and 
potentially disastrous.'' That is a quote from the report.
    These are strong words, and this is clearly unacceptable. 
What is the FBI doing to address this concern and the other 18 
recommendations of the IG?
    Director Mueller. We're addressing each of the 
recommendations of the IG, I can assure you. And with regard to 
the responsibilities, there is a preliminary agreement that we 
had with the Coast Guard in terms of our responsibilities being 
in the investigation arena, as opposed to the interdiction 
arena that generally would be the Coast Guard. Now, we are 
working with DHS and the Coast Guard and discussing how we can 
be more precise in the allocation of responsibilities.
    Senator Feinstein. I might say that if I were the Director 
and saw this response from a very good IG, and his comment is 
the response to a maritime incident could be ``confused and 
potentially disastrous,'' those are very strong words.
    Director Mueller. They are strong words. I will tell you 
that we've had a number of incidents--
    Senator Feinstein. It seems to me it ought to be beyond ``I 
am going to look into the situation.''
    Director Mueller. Well, we have had a number of incidents 
over the years in which we have worked very closely with the 
Coast Guard. I have every confidence--I understand the words 
that Mr. Fine used. I understand they're strong, and I 
understand his concern. And we are addressing that concern in 
terms of developing a new MOU as opposed to the draft MOU that 
we have been working on for a number of years. But I'm also 
comfortable and confident, based on our working with the Coast 
Guard in the past on any number of incidents, that depending on 
the incident, the appropriate personnel will be brought to 
bear. And so I don't want the impression left that I'm not 
concerned about it. I am concerned about the IG's finding. I am 
concerned that we reach a more formalized understanding 
quickly, but I am also comfortable and confident that our 
relationships with the Coast Guard and the way we handle these 
incidents together, based on our history, would indicate that 
such an incident, as it came along, we would allocate the 
appropriate responsibilities and move forward.
    Now, I understand what Mr. Fine has said, and we are moving 
to address that.
    Senator Feinstein. Thank you. I am over my time.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Welcome, Director Mueller. I have two questions for you. 
The first had to do with the Brandon Mayfield case. And as you 
know, Mr. Mayfield was a lawyer in Portland, Oregon, who was 
arrested for allegedly, or was under suspicion of participating 
in the Madrid bombing. First of all, I want to tell you, as 
someone who supported the PATRIOT Act and its reauthorization, 
I am glad to see that the Inspector General found that the 
Government did not misuse any provisions of the Act, but I am 
troubled by some of the reported actions of the FBI in this 
    Some of the missteps found by the Inspector General were 
that the material affidavit and report of the arrest of 
Mayfield contained several inaccuracies, including an 
``unfounded inference'' regarding fake travel documents. The 
FBI Lab's arrogance caused it to disregard questions raised by 
other professionals, and once the mistake was made public, the 
FBI made several statements as to the cause of the 
misidentification, which turned out not to be true.
    I know the Office of Professional Responsibility is in 
charge of the investigation, and I do not know where the 
investigation stands, but I certainly hope that strong actions 
will be taken if these are indeed the facts, to make sure that 
these sorts of things do not happen in the future.
    Would you like to comment on that?
    Director Mueller. Yes. The report is absolutely accurate in 
terms of we made a mistake, that our examiners--I'm not certain 
I'd use the exact same word, ``arrogance,'' but certainly self-
assurance, where they shouldn't have been self assured, 
particularly when the authorities in Madrid had questioned it. 
There should have been a reevaluation of it, a much closer 
review of it than was done at that time. It was unique in that 
there was significant similarities between the prints, but 
that's no excuse. We should have done a better job. We made a 
mistake on those prints.
    And I can tell you we have taken steps. Where the IG has 
indicated actions need be taken, we have taken each of those 
actions. Indeed, before the IG report, we had brought in a 
panel of experts ourselves to look at our processes to assure 
that to the extent that we could change those protocols to make 
certain that this didn't happen again, we did. So we want to 
make certain it does not happen again.
    Senator Cornyn. With regard to the IG's statement that the 
FBI made several statements as to the cause of the 
misidentification that were not true, can you tell us any more 
about that?
    Director Mueller. I'd have to go back and look at the 
specifics of that. That did not hit me as the most important 
aspect of what the IG told us in that report.
    Senator Cornyn. I want to followup on a question Senator 
Kennedy asked you about noncompliance with the Attorney 
General's guidelines with regard to the use of confidential 
informants. He mentioned that. But I was struck to see that the 
report of the Inspector General found that there were one on 
more guidelines violations in 87 percent of the confidential 
informant files that were examined, including 49 percent 
noncompliance with FBI agents giving proper instructions to 
    As you know, there are serious and high-profile problems 
that were mentioned in Boston, there were some in Forth Worth, 
with regard to the misuse of informants, and also in a another 
law enforcement agency, ICE. I have been seeking information 
about an ICE informant, who has been involved in multiple 
murders while under ICE's control. Can you tell us what you are 
doing at the FBI to improve compliance with the Attorney 
General's guidelines?
    Director Mueller. Yes. In the wake of the IG's report, we 
have gone out--an education program, an assurance from top-down 
that documentation, appropriate documentation is done in the 
files to assure that the files reflect the work that has been 
done by the Agency in handling the informants. I believe the 
Inspector General is familiar with the change of protocols in 
the wake of the Leung case out in Los Angeles, so it is a 
combination of changing the protocols, training of agents so 
they better understand what is required in terms of handling 
informants, and last, assuring that particularly in our 
inspections and the like, we make certain that we cover those 
    Senator Cornyn. Thank you very much.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Director Mueller, as you reference in your testimony, the 
PATRIOT Act Conference Report requires the Inspector General of 
the Justice Department to complete a comprehensive audit of the 
FBI's use of national security letters and Section 215 business 
record orders. And I understand that that audit is under way. 
Is that right?
    Director Mueller. I believe that is correct. And I will 
turn to Mr. Fine, yes.
    Senator Feingold. I note that the Inspector General 
indicated that it is.
    In the President's signing statement, he suggested that he 
may not share the results of this audit with Congress, in 
direct violation of the Conference Report requirements. Will 
you commit to me today that you will fight within the 
administration to allow these audits to be shared with 
Congress, in a classified setting, if necessary, so that we can 
fulfill our oversight responsibilities?
    Director Mueller. Needless to say, I'm bound by the 
administration, but I see no reason why the report could not be 
shared in some context with Congress.
    Senator Feingold. So you would fight for that, given the 
clarity of the law.
    Director Mueller. All I can say, that I can see no reason 
why it would not be shared with Congress. I note that that 
Congress has been--there was a report that came from the 
Attorney General on the number of national security letters 
that have been issued in the last year. So my expectation is 
that they'll be disclosed to Congress. I see no reason why they 
should not.
    Now, whether I go out there and fight for it is another 
issue. I will tell you that I see no objection to providing it 
to Congress.
    Senator Feingold. I have a lot of regard for you, and I 
think you should fight for it. I mean, this is the law, and I 
would hope you would commit to fighting within the 
administration to comply with the law in this case by making 
this information available. But, I do not take your answer as 
being a refusal in that regard, and I look forward to your 
active role, if it becomes necessary.
    Director Mueller. Yes, sir.
    Senator Feingold. Unfortunately, the President's signing 
statement on the PATRIOT Act is hardly the first time that he 
has shown a disrespect for the rule of law. The Boston Globe 
reported on Sunday that the President has used signing 
statements to reserve the right to break the law more than 750 
times, and as we all know too well, he secretly authorized 
Government officials to violate the FISA law for more than four 
years, and continues to do so.
    Mr. Director, the President's action raised some difficult 
questions for those of us in Congress. Take the PATRIOT Act. We 
completed our work on reauthorizing the PATRIOT Act in March. 
How can we know whether the Government will comply with the new 
laws that we passed? I am not placing the blame on you, 
obviously, or your agents, who work to protect this country 
every day, but how can we have any assurance that you or your 
agents have not received a secret directive from above 
requiring you to violate laws that we all think apply today?
    Director Mueller. Senator, I am not familiar with the 
particular signing statements that you discuss, but I can 
assure you with regard to the FBI, that our actions will be 
taken according to appropriate legal authorities.
    Senator Feingold. I appreciate that, and all I can say is 
that if somebody had told me back in November when we were 
debating the PATRIOT Act that I would feel it necessary to ask 
the FBI Director for assurances that he and his agents were not 
being directed by the President or the Justice Department to 
violate the PATRIOT Act as Congress wrote it, I would not have 
believed it, and yet, here we are. But I appreciate, obviously, 
your answer.
    Mr. Director, on Friday afternoon, the Justice Department 
released information about the use of national security letters 
and orders under Section 215 of the PATRIOT Act, and that 
report states that in 2005, the Government made, and the FISA 
Court approved, 155 applications for Section 215 orders to 
obtain business records and other tangible things. The report 
also states that in 2005, 9,254 national security letters were 
issued related to U.S. citizens or lawful permanent residents. 
I would like to just ask a few quick questions about those 
    First of all, the report does not cover NSLs concerning 
individuals who are not U.S. persons; is that correct?
    Director Mueller. I'm not certain on that.
    Senator Feingold. It seems to me that your staff agrees.
    Director Mueller. My staff indicates that you're correct.
    Senator Feingold. Thank you, Mr. Director. And it does not 
include NSLs issued to obtain phone and Internet subscriber 
information; is that not correct?
    Director Mueller. That is also correct.
    Senator Feingold. So the report does not cover the sum 
total of all NSLs, obviously.
    Director Mueller. Correct.
    Senator Feingold. But despite those facts, the number of 
NSLs in this report is far, far larger than the number of 
Section 215 orders. Why is there such a disparity between the 
use of Section 215 orders and the use of national security 
    Director Mueller. I'd have to get back to you on that. I 
haven't given that much thought. Senator, I have to get back to 
you with an answer on that.
    Senator Feingold. I look forward to that, because I fear 
that the reason might be that under Section 215 they have to go 
before a judge, and they do not with NSLs.
    Director Mueller. That is true.
    Senator Feingold. And if that is not the reason, I look 
forward to whatever light you can shed on this in the future.
    Director Mueller. That's true, you do use--the number of 
NSLs that you mentioned was in excess of 9,000, but it is on 
3,500 persons. In other words, one person could have had a 
number of NSLs, seeking different pieces of information on that 
particular person.
    Senator Feingold. I understand that, but it is still a 
great disparity, and it may point to the need for even greater 
protections with regard to the NSLs.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Feingold.
    Senator Sessions.
    Senator Sessions. Director Mueller, I appreciate your 
service and the long professional history and background you 
bring to the position that you hold.
    When Director Ridge left, not long after he left, he said, 
if I had one bit of advice to give to my successor at DHS, 
Department of Homeland Security, it would be that we have a 
biometric identifier for those who come in and out of the 
country, and it be the fingerprint.
    You and I have talked about that before. Based on your 
experience in law enforcement, the base use of fingerprints 
throughout our system, would you agree that as we move forward 
to create a more workable entry-exit system into our country 
that we do need a biometric identifier, and the fingerprint 
would be the best idea there?
    Director Mueller. I believe that the fingerprint should be 
the foundation biometric, but I know a number of people, 
including at DHS, are exploring the addition of other 
biometrics that would even give you more certitude in terms of 
individuals, but, absolutely, the fingerprint should be the 
foundation biometric that we use.
    Senator Sessions. That is good. I think it should be the 
basis because if you come up with a new system, the people that 
have been arrested in the United States for crimes that have 
had their fingerprints made a part of the record, they would 
not be picked up by a new system, would they?
    Director Mueller. That's correct, they would not. But 
additionally, as you, a former prosecutor, know as well as I 
do, that fingerprints are left at scenes of crime. It can be in 
a cave in Afghanistan. They can be left in a safe house in 
Iraq. And when those latent prints are fed into the fingerprint 
system, matches are possible that you would not have with any 
other biometric system, which is an additional reason why, in 
my mind, the fingerprint should be the foundational biometric.
    Senator Sessions. And FBI manages the fingerprint system 
    Director Mueller. We do, yes.
    Senator Sessions. There is no capacity problem that you 
know of that could not be solved that deals with the additional 
fingerprints that might need to go in the system?
    Director Mueller. No. We have on the drawing boards and are 
seeking money from Congress for the next iteration of that 
fingerprint system.
    Senator Sessions. The Inspector General completed a sixth 
review that examines efforts to integrate the Federal law 
enforcement and immigration agencies' automatic fingerprint 
data bases. It has not been done yet, and we have been working 
on that for quite some time, to allow law enforcement and 
immigration officers to more easily identify criminals, known 
or suspected terrorists entering the United States. The review 
is continuing to assess the FBI and DOJ actions since December 
of 2004 to achieve full interoperability of FBI and DHS, 
Department of Homeland Security, fingerprint systems. Do you 
think that is important? How far away are we from making that 
    Director Mueller. It is important. The Inspector General 
has looked at this over a number of years. I give a lot of 
credit to Mike Chertoff for understanding that we needed to be 
on the same page, and I think since 2004 we've made substantial 
strides in resolving that issue.
    Senator Sessions. Let me tell you what I think the problem 
is. The American people are being asked to accept a new and 
generous immigration system. They are also being told that we 
are going to create a system of entry and exist, both at our 
airports, our ports and our borders, that will actually work. 
It seems to me that the American people have a right to be 
concerned that on matters like this that has taken so long, the 
entry-exit systems that still are not in place yet, many of 
which are not part of your bailiwick, not part of your 
responsibility, but I think we have a right to ask and expect 
that by the time we create any new immigration system, that 
this would be a big part of it.
    First I will ask you, don't you think an effective entry-
exit system is important, and I understand you to say that 
fingerprints are a key part of that?
    Director Mueller. Yes. Yes, to both.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Sessions.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. Thank you, 
Director Mueller, and I thank you for your efforts to help 
bring the FBI into the 21st century. It is a big job.
    The first question I have is on surveillance programs. In 
March, the U.S. News and World Report published an article in 
which they claimed that the same legal reasoning that the 
administration used in defense of secret NSA electronic 
surveillance was floated as support for warrantless physical 
searches. According to the article, you were alarmed and 
personally very concerned, not only because of the blow-back 
issue but also because of the legal and constitutional 
questions raised by warrantless physical searches. Is this 
    Director Mueller. I am not familiar with any discussions 
about utilizing an authority, whatever authority, to undertake 
warrantless physical searches?
    Senator Schumer. So was U.S. News wrong in that?
    Director Mueller. I do not know what the reporter at U.S. 
News is talking about.
    Senator Schumer. OK. So let me ask you the question: Would 
you have legal or constitutional concerns about the use of 
warrantless physical searches in the United States?
    Director Mueller. Yes.
    Senator Schumer. That is a quick, straight, and to-the-
point answer.
    To your knowledge, has the FBI conducted any such searches?
    Director Mueller. No.
    Senator Schumer. Is it possible that such searches could 
have been conducted by FBI agents during your tenure without 
your knowledge?
    Director Mueller. It's possible, but I would doubt it.
    Senator Schumer. OK. The article also mentions that both 
you and Jim Comey had concerns about the NSA domestic 
surveillance program that the President has confirmed because 
you were worried about the ability to use any evidence that it 
might have gathered in court. Is this true?
    Director Mueller. I really believe I shouldn't go into 
discussions I may have had with others in the administration.
    Senator Schumer. OK.
    Director Mueller. And to the extent that there were 
concerns, there was an OLC opinion that supported the legality 
of the NSA program.
    Senator Schumer. But you--well, let me ask you: Do you have 
concerns? Do you believe evidence collected by the NSA without 
a warrant could be successfully challenged in a criminal 
prosecution in court?
    Director Mueller. I would say that there have been a number 
of cases so far in which this issue has been raised, and my 
understanding that in each case the judge who is presiding over 
the trial has not found it to be an issue.
    Senator Schumer. OK. Let me ask you this: Is there anything 
wrong with the Committee seeing the OLC opinion?
    Director Mueller. That's out of my bailiwick. That's up to 
the Department of Justice.
    Senator Schumer. Well, what do you think? Why shouldn't--I 
mean, there is so much secrecy about this whole thing, and I 
think it drives people on both sides of the aisle--well, it 
makes us upset.
    Director Mueller. I think that's an issue to be taken up 
with the Department of Justice. I have no say over what is 
released from--particularly when it's not our document.
    Senator Schumer. OK. Next I would like to ask about 
watchlists. We all know what watchlists are. They are 
important. But according to one report, there were several 
watchlists at one time, terrorist watchlists.
    Director Mueller. True.
    Senator Schumer. And the President set up a Terrorist 
Screening Center to consolidate and streamline this 
information, making sure it is accurate and effective. That is 
a common-sense idea.
    It is now 5 years, and we still do not have an accurate, 
comprehensive data base, according to the Inspector General 
Fine's testimony. And what is more, the Inspector General's 
office anticipates it will take several more years for the 
Terrorist Screening Center to fully review the records for 
accuracy and completeness.
    First, do you agree with that assessment?
    Director Mueller. Yes, sir. Records, when you combine the 
records from no less than, I think, 12 separate agencies in 
order to obtain a comprehensive terrorist list where there have 
been any number of agencies that have contributed the 
information that has put a name on a terrorist list, yes, sir, 
there are inaccuracies. I know that the Terrorist Screening 
Center is working hard, very hard. They have prioritized to 
eliminate those inaccuracies, but because of the size of the 
list, yes, it will take some time.
    Senator Schumer. Do you think 5 years?
    Director Mueller. I can't--
    Senator Schumer. You know, it is taking so--I mean, we 
understand that these things take a while, but whether it is 
computers or these watch lists, I mean, it seems to me that 
just from my small knowledge of this and of corporate America, 
if a corporation, a large corporation--an IBM, a General 
Electric--had this problem, it wouldn't take them 5 or 7 years 
to solve.
    Director Mueller. Well, they may have the personnel and the 
moneys to put to it. But I can tell you that we--
    Senator Schumer. Do you not have enough--
    Mr. Mueller [continuing]. Have over 200,000 names that have 
to be vetted. That takes a long time.
    Senator Schumer. Do you have adequate--if we gave you more 
personnel and money, could you do it quicker?
    Director Mueller. Yes.
    Senator Schumer. OK. Just one final question. The OIG made 
40 recommendations for improving the TSC. Do you intend to 
follow all of them? What steps have been taken to follow these 
recommendations so far? How many remain largely undone?
    Director Mueller. I'd have to get back to you. In general, 
almost--I think Glenn Fine would tell you almost to a one we 
follow the recommendations. Occasionally, there are one or two 
that we disagree on and we'll have a discussion.
    Senator Schumer. I would ask, Mr. Chairman, unanimous 
consent that the Director be given some chance to answer that 
in writing with a little more specificity. I don't expect it 
    Chairman Specter. It is acceptable to have him submit 
written responses. Thank you very much, Senator Schumer.
    Senator Schumer. Thank you.
    Chairman Specter. Senator Durbin?
    Senator Schumer. You are willing to submit those, I take 
    Director Mueller. Yes, sir.
    Senator Schumer. OK, thanks.
    Chairman Specter. Senator Durbin?
    Senator Durbin. Thank you, Mr. Chairman. The microphone is 
still warm.
    When we reauthorized the PATRIOT Act, one of the major 
concerns was its impact on libraries. And we felt, when we 
wrote the language--I use that term loosely because I did not 
specifically write that language, but Congress--that we had 
finally cleared it up, that unless a library was an Internet 
provider in its traditional function of just providing Internet 
services to its customers, that it would not be subject to an 
NSL. Is that your understanding now under the reauthorized 
    Director Mueller. I'd have to go back and look at the 
specific language. I can tell you that we have not--well, 
you've made the distinction between a library serving as an 
Internet service provider, which is one sticking point. I'd 
have to go back and look at the specific language, or could you 
hold just 1 second? Let me see if I could...
    Director Mueller. We would have to go back. It's somewhat 
of a complicated provision. I'd want to be precise in my answer 
to you. So I'd appreciate the opportunity to go back and take a 
closer look at it.
    Senator Durbin. We felt that we had finally put to rest the 
concerns of the library community that there were only a 
handful of libraries across America that served as Internet 
providers that may have been subject to the NSLs under the new 
reauthorized PATRIOT Act. And so if you would be kind enough to 
come back with, as explicit as you can, your understanding as 
to whether we accomplished in your eyes what we set out to do.
    Director Mueller. OK. I will say--there is one item you 
said that I'd probably take exception to, and that is, there is 
but a handful that are Internet service providers, and maybe 
the distinction between an Internet service provider and one 
who provides computer services in a library, because many, many 
libraries now across the country provide computer services.
    Senator Durbin. I will tell you, on the basis of what you 
just said we are going to be inundated by libraries now who 
thought this was cleared up. Please look at this--
    Director Mueller. I did not mean--I will give you a precise 
answer. I did not mean to confuse the issue at all.
    Senator Durbin. Please give us a timely answer, because 
there is a genuine concern across America in this community, 
and we felt we had finally put it to rest. And I wanted to hear 
those words from you so that I could sleep easy. But now I am 
going to have restless nights until you get back. Please do 
that as soon as you can.
    Let me move to another issue. A great source of frustration 
that we run into is when people are going through the 
naturalization process and they have to be subject to basic 
fingerprint analysis by the FBI. And the timing of this 
analysis is now a matter of grave concern because it is taking 
longer and longer for the FBI to complete this fingerprint and 
background check.
    Could you tell me if you are monitoring this, particularly 
in light of our current debate, which could dramatically expand 
the number of applicants for naturalization?
    Director Mueller. Yes, I will have to get back to you on 
that. I did not understand that to be the case, but I will 
check on that and get back to you.
    Senator Durbin. A serious issue. When we contact 
Citizenship and Immigration Services, they point the finger at 
you. They usually claim the background check is pending at the 
FBI. Now, maybe that is a convenient excuse. Whatever. I am 
sorry. I said ``fingerprint check.'' I meant ``name check.''
    Director Mueller. Oh, name checks.
    Senator Durbin. Name check, please, if you could address 
    Director Mueller. Yes, that has been on my radar screen, 
and we have been addressing that, and there is a very small 
percentage of name checks that we do not get back to very 
quickly. But I will have to get you those statistics.
    Senator Durbin. OK.
    Director Mueller. I know that that has been a concern.
    Senator Durbin. Thank you. I apologize for confusing that.
    You and I have had a long conversation about technology, 
and I am certainly not an expert at that nor claim to be. But 
it appears that you have been through several major crises with 
that, starting with what you inherited at the FBI. I guess the 
kindest thing to say is one failed attempt to try to reform the 
system at great expense, and now you are involved in another 
attempt. Can you just tell me how I would explain to people why 
this became so complicated with the FBI to establish a modern 
computer system?
    Director Mueller. I would reframe the question a wee bit in 
the sense that, yes, we had problems prior to September 11th. 
We have had any number of technological successes since then, 
all of which are overshadowed by the failure of one aspect of 
the Trilogy project. That is the Virtual Case File. People do 
not acknowledge that we have put new computers on everybody's 
desk. So we put through the--put down the local area networks, 
the wide area networks. We have IDW, Investigative Data 
Warehouse, all of which we have brought on board since 
September 11th.
    When it came to Virtual Case File, I had to make the 
decision that I could not spend another $50 million in a system 
that they could not assure me was going to work and it was time 
to bite the bullet. The contract we have with Lockheed Martin 
now is a phased project over a period of time. We have learned 
our lessons. We have built up our CIO shop. We have an 
enterprise architecture. We have a contractor in which I have a 
great deal of faith. We have done a much better job in setting 
out our requirements beforehand.
    I will be meeting with the CEO of Lockheed Martin every 
quarter, and I believe that we have turned the corner and are 
on the right track, and I believe--and I'd paraphrase something 
that the IG said. I think he said in one of his reports, 
scrutinizing this, that we appear to be on the right track now. 
I believe we are on the right track.
    Senator Durbin. Thank you, Mr. Director. Thank you for your 
service, and I am going to give you for your staff to review a 
colloquy between Senator Sununu and myself on the library issue 
and NSLs, which I hope you will look at in a timely fashion and 
respond to as quickly as you can.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Durbin.
    Director Mueller, we are near the ending of a vote. Senator 
Leahy and I are going to go vote, and we will be right back.
    Director Mueller. Yes, sir.
    Chairman Specter. Thank you.
    Senator Leahy. Mr. Chairman, I will also give him a copy of 
this. I told you I would give you a copy of the investigation 
in Pittsburgh. I have it. I will bring it down.
    [Recess at 11:08 a.m. to 11:29 a.m.]
    Chairman Specter. Director Mueller, in asking you the 
question about the FBI action to retrieve papers from Jack 
Anderson's estate, it is part of an overall concern about the 
increase of executive power where a great many things are 
happening, and this Committee has not been able to get answers 
to a great many questions. And you are the ranking officer of 
the principal investigative agency of the executive branch and 
have very widespread law enforcement authority, both as to 
crimes of violence and terrorism and intelligence gathering. 
And I have some specific questions in a context of a concern 
which this Committee has about the expansion of Executive 
    We have seen a pattern of activity. We have seen the 
incarceration of a reporter in a context where a grand jury has 
convened because of the disclosure of the identity of a CIA 
agent--a very serious national security matter. The focus of 
that grand jury shifted away from that to a question of 
perjury, which is also serious, but not at the level of 
national security. This Committee has had hearings and is 
preparing legislation introduced by Senator Lugar, and the 
legislation which we are preparing draws a sharp contrast 
between a reporter's answering questions that relate to 
national security as opposed to perjury.
    And it seems to me that a case may be made--I am not saying 
it should be, but may be made for a contempt citation for 
national security, but not for perjury. Perjury is important, 
but these are all relative matters.
    Then you have the introduction of the President's signing 
statement and what impact that may have on the interpretation 
of laws. You and I worked very hard to get the PATRIOT Act 
finished, and I appreciated your comment on what we have done 
in a balanced bill.
    We are going to have a hearing on that later, but what is a 
Presidential signing statement? You will be happy to know I am 
not going to ask you that question. I have got too many other 
questions for you. We are going to reserve that until later. 
And I say this with great respect to President Bush. This is an 
institutional issue, and he and I have had many conversations 
about the difference between the President and the Presidency. 
And the issue which we have on this surveillance program is an 
institutional issue.
    And there is the eight-page Attorney General's letter of 
October 15, 2002. I cannot remember seeing such a complicated 
exposition on a statement by the Attorney General, which starts 
off, ``The President and I place deterring, detecting, and 
punishing unauthorized disclosures of U.S. national security 
secrets among our highest priorities.'' And then he goes on and 
on and on as to how they are going to deal with it.
    He sends this letter to Speaker Hastert. Then he sends a 
copy to Vice President Cheney. I am not going to ask you why he 
sent a copy to Vice President Cheney either. Maybe it is 
because Speaker Hastert is the presiding officer of the House 
and the Vice President is the presiding officer of the Senate.
    Now the NSA program, the electronic surveillance, there is 
an investigation into a leak, and there is a suggestion that 
not only the reporter but the newspapers--or perhaps more 
importantly, the newspapers and the reporter are subject to 
    Now, that is in a context where the executive branch is 
violating the National Security Act, which requires disclosing 
information to the Intelligence Committees--not the Gang of 8, 
although as a matter of custom, that has been going on in 
Democrat and Republican administrations for a long time, and as 
Chairman of the Intelligence Committee in the 104th Congress, I 
was a member of the Gang of 8. And I can tell you we didn't 
find out very much. The Vice Chairman of the Senate 
Intelligence Committee, a member of the Gang of 8, has a 
handwritten letter, which has been published, to the Vice 
President complaining that he could not understand the program, 
that he did not have access to a lawyer to discuss the program, 
that he did not have an assistant to help him with the program.
    And let me come to a couple of questions in this context 
where you have the electronic surveillance program disclosed by 
the New York Times. It was disclosed on December 16th, right in 
the middle of our final day of argument on the PATRIOT Act. We 
had a hard time getting the PATRIOT Act passed. I think we 
might have gotten it passed if that disclosure had not been 
made on that day. Senators on the floor said they were in doubt 
or perhaps inclined to support the Act, and when they read 
about that story, they were against it. But to manage a bill 
like the PATRIOT Act, with all the complications, and to have 
that explode in my face was a real problem in trying to get 
some legislation through. And I committed to hearings, and we 
have had four hearings. We have not found out very much because 
the Attorney General will not tell us anything. And Senator 
Leahy, ardently, and others want to bring him back, and I am 
not going to bring him back in a futile effort.
    So here you have the NSA Program which, on its face, 
violates the Foreign Intelligence Surveillance Act. I do not 
give any credence to the argument that it was authorized by the 
resolution for the use of force. But if the President is using 
Article II powers, that trumps the statute. And I raised this 
issue with the President last week. He called a group of us in 
to talk about Sherman and talk about his agenda. And he said, 
``Are you saying I am doing something wrong?'' And I said, 
``No, I am not saying that, Mr. President. I don't know whether 
you are or not because I don't know what the program is.'' And 
if you're dealing with Article II powers, you have to have a 
balance. The Supreme Court has made it plain and no one 
disputes the fact that the President doesn't have a blank 
check. So it is a question of what is going on.
    Let me ask you specifically about your investigations as to 
reporters and as to national security cases. Do you agree with 
me that there is a sharp distinction between holding a reporter 
in contempt where there is a national security issue involved, 
like the disclosure of the identity of a CIA agent, as opposed 
to a perjury issue before a grand jury?
    Director Mueller. Senator, I think it would be a question 
of the context, although certainly being charged and convicted 
of a crime is different than being held in contempt. In other 
words, in terms of the penalty, quite obviously it is 
    Now, you are also talking about the difference between a 
perjury investigation and a disclosure of national security 
investigation. And I think it depends on the circumstances. I 
would note that in the case to which you are adverting, there 
was a judge who had to make the determination as to whether 
contempt was appropriate. In other words, it was not solely the 
executive's decision to make, but to hold the reporter in 
contempt, there had to be a showing and a judge had to make a 
determination as to the necessity for the information, and I 
presume made the determination taking into account the 
seriousness of the crime.
    That is about all I can--
    Chairman Specter. Well, you have not answered the question, 
Director Mueller.
    Director Mueller. There is certainly a difference between 
perjury and between--
    Chairman Specter. Well, you have cited differences, but the 
question is: Should Congress deal differently with a shield law 
for reporters on a national security issue like the disclosure 
of the identity of a CIA agent contrasted with a perjury 
    Director Mueller. Well, I can say generally, without 
knowing the context, certainly a national security violation 
may be far more--have a far more adverse impact on the public 
than a perjury violation. But talking generally, yes.
    Chairman Specter. Well, that is some help, although my view 
was pretty well established before your answer. I want you to 
take a look at these statutes on unauthorized disclosure, and 
when the New York Times writes about the considerations by the 
administration about criminal prosecutions under these statutes 
for newspapers and reporters, that is something which is a 
matter of the jurisdiction of this Committee as to what those 
statutes mean. The courts have to interpret them, but they 
interpret Congressional intent. And there is a very learned 
article by two professors from Columbia, Harold Edgar and Ben 
O. Schmidt, where they raise questions about these statutes, 
and come to these conclusions: ``There has to be a balance of 
the information, defense significance against its important for 
public understanding and debate.'' And they say that in the 
absence of a showing of Congressional intent to go after 
newspapers, that ``to whatever policy may become compromised by 
newspapers' disclosure or defense information, there has to be 
a balancing.'' Given the absence of Congressional intent, 
``doubts about whether to protect the efficacy of disclosure 
rather than stress its adverse security consequences should be 
resolved on the side of public debate.'' They raised a question 
about whether ``selective enforcement is a real danger.''
    But the newspapers have traditionally done a very important 
job in our society on exposing governmental wrongdoing, 
Senators' wrongdoing, corruption in Government. This Committee 
gets a lot of its leads on what we read about in the paper. 
There is a lot more oversight provided by the press than there 
is by the Judiciary Committee. It may even be that the FBI gets 
information leads as to what you do from what--may the record 
show an affirmative nod. We are making a little progress, just 
a little, Director Mueller.
    Let me say for the record that I have a very high regard 
for Director Mueller, and we have had a longstanding 
relationship, and I have a very high regard for the FBI. And as 
an Assistant DA, I used their evidence to convict the 
Philadelphia Teamsters. On the Warren Commission, we used their 
investigative resources to develop the single-bullet theory--
not giving you the blame for it, not giving your agency the 
blame for it, Director Mueller. But I would like to have your 
opinions of these statutes, and one addendum.
    I am particularly concerned about the failure of the 
Congress to assert our constitutional prerogatives. When you 
have the President's wiretap program, there is a provision of 
Article I, section 8, which sets forth Congress' power. It is, 
``To make rules for the Government and regulation of the land 
and naval forces.'' And that is about as close as you can come 
in 1787 to authority to watch what the Government does on 
electronic surveillance. The Congress has been inert, really 
indifferent to the incursions on our constitutional authority. 
And we are caught in a squeeze with the Supreme Court where 
they declare our Acts unconstitutional because of our, quote, 
method of reasoning and a usurpation of super-legislative 
authority. And it is a regrettable situation that we spend much 
of our time debating lobbying and ethics and campaign finance, 
which are all important subjects, but not nearly as important 
as our constitutional responsibilities.
    This Committee intends to be very vigorous in the pursuit 
of the electronic surveillance program. We are finding it hard 
to get traction on it, but we are going to keep trying. And we 
are going to be pursuing these statutes on disclosure, on this 
business about contempt for reporters. A contempt citation is 
different. Contempt citations for Judith Miller ended up in a 
longer jail term than most prosecutions.
    Senator Leahy, I have exceeded my time, but in the absence 
of any other Senator here to watch the clock, it is like a tree 
falling in the forest.
    Senator Leahy. I share the concern. I share the concern 
that this Congress has done very little oversight. This has not 
helped--there are some who may think at the White House this 
helps by having a Republican-controlled Senate that refuses to 
ask questions of a Republican administration. I would argue 
otherwise. Just as it would not help a Democratic 
administration to have a Democratic-controlled House and Senate 
that did not ask them questions. Asking questions makes people 
better. Those of us who have to run for election or re-
election, we know what that is like. We have to answer 
questions. This administration has been reluctant to, and I 
think it has hurt them.
    I think it is also what is behind this new idea of just 
classifying everything willy nilly. We saw it at the Archives 
where historians suddenly find materials that they have had for 
decades. The move was being made to yank them out and classify 
them. Something that is on a website for weeks and weeks and 
weeks is suddenly classified just before--maybe it is 
coincidence, but just before a Congressional debate begins 
where we might refer to that website.
    Even under the best of circumstances, it is difficult 
getting information from any administration. One of the reasons 
I support FOIA is that administrations, Democratic and 
Republican, will tout their successes. Most don't want to tout 
their mistakes.
    Mr. Chairman, you talk about sometimes getting the answers. 
As I recall, in the Intelligence Committee, when former 
Director of the CIA, Bill Casey, God rest his soul, came up for 
the third time in maybe a week or so to apologize to the 
Intelligence Committee because there was something that he was 
required by law to inform us of and had not. But he was there 
because even though nobody in the Congress had ever been 
informed of this, we read about it first in the newspapers. And 
then he would come up and say, ``By the way, I meant to have 
told you about that'' after somebody in the administration 
leaked it to the papers.
    After the third time, I said, ``You know, you are spending 
a lot of money to brief the Chairman, the Vice Chairman, every 
day someone comes from the CIA with a little package of 
classified material.'' I said, ``Why don't you do this? Take 
the New York Times, mark it `top secret,' and deliver that.'' I 
said, ``We have three benefits: one, we will find out about 
these things a heck of a lot quicker than we do from you; 
second, we will find out in far more detail; and, third, there 
is that wonderful crossword puzzle.''
    He did not find it as amusing as one of the agents who was 
sitting behind him, who suddenly didn't find it amusing either 
when the Director turned around and looked at him.
    Let me go to another question, I would hope when you are 
having discussions within the administration, no administration 
has ever spent so much money--it is now in the billions of 
dollars--to classify as much as this one has. Many of us are 
beginning to feel--and it is not just Democrats--many 
Republicans are beginning to feel that this is being done to 
cutoff criticisms of mistakes or open debate. And the Chairman 
said many, many times, we find out about things when we read 
them in the paper.
    Now, you and I have talked a lot about getting a fully 
functional case management system in the hands of agents. Last 
year, after consultants pronounced it obsolete and riddled with 
problems, the FBI scrapped the $170 million Virtual Case File 
component of Trilogy. Now we are told that the Trilogy 
successor, Sentinel, will cost the American taxpayers an 
additional $425 million. But what bothers me even more, it will 
take 4 more years to deploy.
    And then there is an article in U.S. News and World Report, 
which has often been very supportive of the administration. 
They suggest the Bureau may be skimming funds from other 
programs to help pay for Sentinel and hide its real price from 
Congress. According to the article, ``some agents in the field 
have been told to use their cars judiciously, curtail use of 
informants, covert offsite rentals for undercover operations,'' 
and then ``there is an increase in chatter that is as great or 
greater during VCF that Sentinel is going to fail.''
    Two questions. How confident are you in the FBI's current 
estimate for the Sentinel program, $425 million, 4 more years? 
And, second, are there other programs that have to be cut or 
scaled back to pay for Sentinel?
    Director Mueller. I am quite confident that we are on the 
right track with Sentinel for a variety of reasons: number one, 
the contractor, Lockheed Martin; second, it is a service-
oriented architecture, it is off-the-shelf products that we are 
using. And not only am I confident that we will move through 
the contract as we anticipated, but at the end of it, I think 
we will be far better off because we are--we will not be 
dealing with a proprietary system, but we will be dealing with 
a system of off-the-shelf products that can be continuously 
    One of the reasons that it is taking 4 years is I want to 
make absolutely certain that each phase--and there are four 
phases--is it works and is beneficial to those to whom it is 
being provided. And if it fails in phase one, which I do not 
anticipate, then we are not down a course that we cannot 
    Let me turn for a second to the issue about whether or not 
we have been open with the funding on this. We have been 
absolutely open with the funding on both Virtual Case File and 
now Sentinel. What that article--
    Senator Leahy. Is there anything that is being cut or are 
there any other accounts that are being tapped?
    Director Mueller. Let me explain that in the year 2005, 
because we did not have a contract and yet we had to anticipate 
the funding for 2006, we put aside $97 million in a 
reprogramming that was approved by the Department of Justice. 
It was approved by OMF, and it was thoroughly briefed to the 
Hill and approved by the Appropriations Committee on the Hill.
    Of that $97 million, approximately $73 million were 
redirected from no-year and prior year balances. There was a 
remaining $24 million in which a number of the divisions in the 
FBI contributed. And it is that shortfall that we had in order 
to bring in and utilize the $97 million in 2006, to which they 
may be referring. But all of this was--
    Senator Leahy. Would that $97 million be part of the $425 
million today or in addition to the $425 million?
    Director Mueller. I believe it is in addition to--well, no, 
I don't think--I think it is part of the $425 million. I will 
have to check on that.
    Senator Leahy. Are we over half a billion or under half a 
    Director Mueller. It is part of it. It is part of it. It is 
part of the 425.
    Senator Leahy. Do you anticipate any programs being cut to 
pay for Sentinel outside the $425 million?
    Director Mueller. At this juncture, no, I do not.
    Senator Leahy. Will you notify us if they are?
    Director Mueller. Yes, absolutely. In order to move the 
funds, we would have to do a reprogramming. It would have to be 
approved by the Hill, which is what we did with the $97 
    Senator Leahy. Now, going into an area that Senator 
Feingold raised, on Friday the Justice Department reported that 
in 2005 the FBI delivered 9,245 national security letters for 
information on 3,501 U.S. citizens and legal residents. Now, 
that is the first time that the numbers have been released. Of 
course, Congress required it in the PATRIOT Act 
reauthorization, and I worked hard to get that requirement. The 
Justice Department had originally objected to that, although 
they gave no reasons why they should keep it classified.
    The FBI was a lot more constructive in that discussion, and 
I want to thank you for that. You were far more open. We are 
not asking for ideatifying information, obviously, but the 
aggregate numbers don't give anything to any enemies. But it 
gives the American people a way to monitor the extent to which 
their Government is spying on them.
    How does that 2005 number compare to past years? If you 
were to take a trend line for 10 years--
    Director Mueller. On NSLs, you are talking about?
    Senator Leahy. Yes.
    Director Mueller. I would think after September 11th it 
would be--and the passage of the PATRIOT Act, it would be a 
substantial increase.
    Senator Leahy. Would you support declassifying information 
about the number of NSLs issued since 9/11?
    Director Mueller. I'd have to look at the issue. I can't 
give an opinion at this point, Senator.
    Senator Leahy. Well, nothing was given away or hurt by 
disclosing last year's. Give me your thoughts on that.
    Director Mueller. I will. I can tell you that there would 
be a substantial increase. I mean, our mission has shifted 
dramatically since September 11th. That is what I understand. 
    Senator Leahy. This is not a ``gotcha'' question. I am just 
curious about which way we are going, and, of course, I would 
expect a higher number after 9/11. But I would like to know how 
the trends are going.
    Director Mueller. Off the top of my head, I don't know what 
the trending is. I would say that is a very small number. When 
you talk--we have 300 million people in the United States now. 
It is a remarkably small number. I would say only--we only had 
that number. But I don't know the trending, and, again, it is 
an issue that I would have to think about, and quite obviously, 
the Department of Justice would have their thoughts on it.
    Senator Leahy. Thank you. We have a vote on, and I have 
gone beyond my time. You know, these annoying things, having 
votes, what in heaven's name do they expect Senators to do?
    For anybody who is watching this back in Vermont, that is a 
    Senator Leahy. I consider it a great privilege and a great 
honor to be able to vote. Last month, I became the 12th person 
in history to cast 12,000 votes. Some of my colleagues on the 
other side of the aisle said out of 12,000 I got three or four 
right. Thank you.
    Chairman Specter. Director Mueller, thank you very much for 
coming in today.
    Director Mueller. Thank you, Senator.
    Chairman Specter. We appreciate your service. We know the 
responsibilities. There is a lot of concern about the new 
system for recordkeeping, using the up-to-date techniques. It 
is problemsome that it will not be online fully operational for 
a very protracted period of time. But I like the idea of your 
sitting down with the contractors on a periodic basis. You have 
got a lot at stake there, and there have been a lot of 
problems, and you are not a magician. We do not hold you 
responsible for the problems you have had, but to get it done 
and get it done right is really important so you can function, 
you can have the information within your Bureau, and share the 
information with others.
    You have the PATRIOT Act, and we are concerned about the 
scope of the authority that you have, and we will have 
oversight hearings on it. We find those most productive. But 
what I would like to know--and we will be calling for some 
closed sessions--is what have these tools given you? What have 
these national security letters enabled you to find out? What 
have you been able to learn from the authority to get business 
records? Are you being unduly restricted by what we have put 
into the Act? Because the fight against terrorism is so very, 
very important. And we understand that you do not make 
decisions on the electronic surveillance program. I have not 
asked you any questions about that because I do not expect you 
to provide any answers on the subject. And the administration 
position on enforcement of these laws is not precisely your 
bailiwick, but it is close enough so that I think it is 
appropriate to ask you those questions. And you do conduct the 
investigations, and your agents are on the spot, and your 
agents are interviewing all these people for the grand jury. 
You are in the middle of these cases. You are not the 
prosecutor, but you are pretty close. You are pretty close to 
the prosecutor. And you have very heavy responsibilities on 
protection of civil liberties as well. And we are about to come 
to the Voting Rights Act, which gives you a lot of authority 
and a lot of important responsibility.
    So we thank you for coming in, and may the record show that 
we are letting you go about 20 seconds before noontime.
    Director Mueller. Thank you, sir.
    Chairman Specter. We have a vote. We have a second panel, 
and we will return shortly to proceed. Thank you.
    [Recess at 12 noon to 12:27 p.m.]
    Chairman Specter. We have delayed the appearance of Panel 
Two, but you have been here for the last 3 hours, so you know 
exactly what is going on.
    Your testimony is very important, and it is regrettable, 
but it is hard to round up Senators after votes. It just is. 
But your testimony will be reviewed, I am sure, by other 
members of the Committee and staffs.
    We turn first to the Inspector General of the Department of 
Justice, Glenn A. Fine. He has been serving in that capacity 
since August of 2000, although was acting Inspector General for 
a time. He has an outstanding academic record, magna from 
Harvard College, Rhodes scholar, master's degree from Oxford, 
and a law degree, again, magna cum laude from Harvard Law 
School. Why weren't you named Chief Justice?
    Chairman Specter. We will put in the record his curriculum 
vitae, which is outstanding, and we thank you for the work you 
are doing in this very important position, and the floor is 
yours for 5 minutes.

                   JUSTICE, WASHINGTON, D.C.

    General Fine. Mr. Chairman, thank you for inviting me to 
testify about the OIG's oversight work related to the FBI. The 
OIG has devoted extensive resources to reviewing FBI programs 
and operations at the FBI as it continues its transformation 
after the September 11th attacks.
    When assessing the FBI, I believe it is important first to 
acknowledge the dedication of its employees. The FBI attracts 
patriotic individuals who are committed to the FBI's important 
mission. These employees deserve recognition for the sacrifices 
they make in carrying out their critical responsibilities.
    Their task is difficult, and the FBI is under regular and 
probing scrutiny by Congress, the OIG, and other oversight 
entities. That is as it should be. Given the importance of its 
mission and the impact the FBI has on safety, security, and 
civil rights in the United States, such scrutiny is warranted. 
I have found that its leaders, particularly Director Mueller, 
understand the value of such independent oversight.
    In general, I believe the FBI has made progress in 
addressing some of its critical challenges, but more progress 
is clearly needed. The first area where additional progress is 
needed is the ongoing effort to upgrade the FBI's information 
technology systems. For too long the FBI has not had the modern 
IT systems it needs to perform its mission as efficiently and 
effectively as it should. The FBI's failed Virtual Case File 
effort was a major setback in both time and money in the FBI's 
urgent need for IT modernization.
    The FBI's current project to upgrade its information 
technology, Sentinel, appears to be on the right track. 
However, we have identified several issues the FBI needs to 
address as it moves from pre-acquisition planning to 
development of Sentinel. The OIG plans to closely monitor the 
Sentinel project, and we will raise any concerns with the FBI 
and this Committee as the project moves forward.
    A second challenge for the FBI is to pursue its law 
enforcement and intelligence-gathering missions while at the 
same time safeguarding civil rights. The OIG has performed 
various reviews related to civil rights issues, including a 
review of the FBI's compliance with Attorney General 
guidelines, a review of intelligence violations forwarded to 
the President's Intelligence Oversight Board, and a review of 
the FBI's interviews of protesters connected to the 2004 
Democratic and Republican National Conventions, which Director 
Mueller mentioned earlier today. Currently, we are reviewing 
the FBI's use of national security letters and orders for 
records under Section 215 of the PATRIOT Act.
    A third challenge for the FBI is to recruit, train, and 
retain skilled individuals in critical positions, such as 
intelligence analysts, linguists, and information technology. 
Moreover, the FBI has continuing turnover in key management 
positions at FBI headquarters and in the field. In my view, 
rapid turnover in these positions reduces the FBI's 
    Fourth, in large part the FBI's success depends on its 
ability to share information, both internally within the FBI 
and externally with its Federal, State, and local partners. 
Without effective information sharing, the FBI's 
counterterrorism, counterintelligence, and criminal 
investigative efforts are diminished.
    Fifth, while there is little dispute that the FBI must 
transform itself to place counterterrorism as its highest 
priority, the FBI cannot neglect other criminal investigative 
areas where it has a unique role to play. The FBI's allocation 
of investigative resources needs to be continually monitored to 
ensure that important areas are not neglected.
    Sixth, as the Robert Hanssen case demonstrated so 
tragically, the FBI must remain vigilant in its internal 
security and counterespionage efforts. The FBI can never afford 
to become complacent about the continuing threat of espionage 
from both inside and outside the FBI. The OIG is now conducting 
a follow-up review to assess the FBI's progress in improving 
its internal security since the Hanssen case.
    And, seventh, the FBI is a leader in a variety of forensic 
science disciplines, but mistakes in the FBI laboratory can 
have dramatic consequences, as demonstrated by the laboratory's 
fingerprint misidentification in the Brandon Mayfield case. The 
FBI must be vigilant to ensure that the laboratory is not 
vulnerable to mistakes or willful abuse.
    My written statement discusses in more detail many OIG 
reviews in these areas. In sum, our reports have found that 
while the FBI has made progress in addressing its changed 
priorities since the September 11th terrorist attacks, 
significant challenges and deficiencies remain. These are not 
easy challenges, and they require constant attention and 
oversight. To assist in these challenges, the OIG will continue 
to conduct vigorous oversight of FBI programs and provide our 
recommendations for improvement.
    That concludes my prepared statement, and I would be glad 
to answer any questions.
    [The prepared statement of General Fine appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, General Fine. And 
thank you for concluding almost on the button.
    We now turn to Ms. Linda Calbom, the Government Accounting 
Office's Western Regional Director and the author of the 
report. She is a summa cum laude graduate from Washington State 
University. Mr. Fine was magna. She is summa.
    Ms. Calbom. You beat me.
    Chairman Specter. Mr. Gannon, that puts a very heavy burden 
on you.
    Mr. Gannon. Can I leave now?
    Chairman Specter. I had Latin, and I don't know where we 
are going from here. We will put her extensive resume in the 
record, but we will note also that she spent 11 years in public 
accounting with Deloitte and Touche in Seattle, Washington, so 
she comes to this position with impeccable credentials. Thank 
you for joining us today, Ms. Calbom, and we look forward to 
your testimony.


    Ms. Calbom. Thank you very much, Mr. Chairman, and thank 
you also for the opportunity to discuss our report that we 
recently issued. And, of course, it was developed at the 
request of this Committee, and this report is on the results of 
our audit of FBI's internal controls over contractor payments 
and equipment purchases related to the Trilogy project.
    Also with me today is Eileen Larence, who is one of the 
Directors responsible for our report on information sharing, so 
she will be available to answer any questions you may have on 
that report.
    But today I wanted to summarize the results of our work 
with respect to, first, weaknesses in FBI's internal controls 
that made it vulnerable to improper payments of contractor 
costs; second, payments for questionable contractor costs that 
we identified in our audit; and, third, FBI's inadequate 
accountability for assets that it purchased with Trilogy 
project funds.
    First of all, FBI's review and approval process for the 
Trilogy contractor invoices, which was actually carried out by 
a team consisting of FBI, GSA, and Mitretek, did not provide an 
adequate basis to verify that goods and services billed were 
actually received by FBI or that amounts billed were 
appropriate. This occurred in part because the responsibility 
for the review and approval of the invoices was not really 
clearly defined or documented amongst the parties.
    In addition, contractor invoices frequently lacked the 
types of information necessary to validate the charges. For 
example, we have a slide--and, Mr. Chairman, I think in front 
of you is a sheet that shows an example here; of an invoice 
that has a lot of details about the small charges, but no 
details at all for the $1.9 million charge that made up the 
lion's share of the bill.
    Despite this, this invoice, and many others like it, were 
paid without requesting additional supporting documentation. 
These weaknesses in the review and approval process made FBI 
highly vulnerable to the payment of improper contractor costs. 
In order to assess the effect of these vulnerabilities, we used 
forensic auditing techniques to select certain contractor costs 
for review. As shown in the next slide, which I think you have 
up there as well, Mr. Chairman, we found about $10.1 million of 
questionable contractor costs paid by FBI. These costs included 
payments for first-class travel and other excessive airfare 
costs, incorrect billings for overtime hours, overcharged labor 
rates, and inadequately supported subcontractor labor and other 
direct costs.
    Given FBI's poor control environment over invoice payments 
and the fact that we reviewed only selected FBI payments to 
Trilogy contractors, other questionable costs may have been 
paid for that were not identified. Our audit also disclosed 
that FBI did not maintain accountability for equipment 
purchased for the Trilogy project. FBI relied extensively on 
contractors to account for Trilogy assets while they were being 
purchased, warehoused, and installed. However, FBI did not 
establish controls to verify the accuracy and completeness of 
contractor records that it was relying on.
    Moreover, once FBI took possession of the Trilogy 
equipment, it did not establish adequate physical control over 
the assets. Consequently, we found that FBI could not locate 
over 1,200 assets purchased with Trilogy funds which were 
valued at approximately $7.6 million.
    While we are encouraged by FBI's current efforts to account 
for these assets, its ability to definitively determine their 
existence has been compromised by the numerous control 
weaknesses identified in our report. Further, the fact that 
assets had not been properly accounted for at the time of our 
review means that they were at risk of loss or misappropriation 
since being delivered to FBI. In some cases, that was several 
    Our report includes 27 recommendations to address the 
issues that we identified in our audit, and I am pleased to say 
that FBI has been receptive to our recommendations and has 
begun to take actions to implement them. But let me just 
emphasize the importance of continuously monitoring the 
implementation of corrective actions to ensure that they are 
effective in helping to avoid the same type of pitfalls that 
occurred with the Trilogy project. Without such monitoring, 
Sentinel and other IT efforts will be highly exposed to the 
same types of negative outcomes that they experienced with 
    That concludes my prepared statement, Mr. Chairman.
    [The prepared statement of Ms. Calbom appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Ms. Calbom.
    Our final witness on the panel is Dr. John Gannon, Vice 
President and Senior General Manager for Global Analysis at BAE 
Systems, Inc. He has a bachelor's degree in psychology from 
Holy Cross, an MBA and Ph.D. from Washington University, St 
Louis, and is an adjunct professor in the National Security 
Program at Georgetown. He has an extraordinary list of awards: 
the President's National Security Medal, the CIA's 
Distinguished Intelligence Medal, the CIA's Director's Medal. 
And we will put into the record a full list of his outstanding 
    We have had a lot of panels up here before this Committee. 
I do not think we have had one with the credentials that you 
three bring.
    Thank you, Mr. Gannon, for joining us, and the floor is 
yours for 5 minutes.


    Mr. Gannon. Thank you, Mr. Chairman. Thank you for the 
opportunity to participate this morning in this important 
hearing. I have great respect for the Bureau as a Federal law 
enforcement agency, and strong admiration for FBI officers with 
whom I have worked over the years. FBI officers are working 
hard today in the most challenging environment they have ever 
faced under an able Director of legendary energy, dedication 
and integrity.
    The views expressed now and in my longer written statement 
for the record are my own. They are shaped by my professional 
experience working with the FBI during a 24-year career at CIA, 
during a brief stint as a team leader for intelligence in the 
Transition Planning Office for the Department of Homeland 
Security, and during a 2-year tour as the first staff director 
of the House Homeland Security Committee. The also are 
influenced by my long experience building and managing analytic 
programs in the intelligence community, where I served as CIA's 
Deputy Director for Intelligence, as the Chairman of the 
National Intelligence Council, and as Assistant Director for 
Analysis and Production.
    I would make four points to you, sir, today. First, the 
FBI, as I have observed it, has made progress in intelligence, 
but I think it is important for us to distinguish between the 
Bureau's traditional law enforcement mission and its new 
national intelligence mandate. In the first instance, I believe 
the FBI is increasingly using intelligence collection and 
analysis, including in its new field intelligence groups, 
against the increasingly complex issues associated with its 
criminal investigation mission. The Bureau should be encouraged 
in this path. Intelligence that benefits a special agent in 
charge can also be useful at the national level.
    But second, the FBI is unacceptably behind, however, in 
developing a national intelligence collection and analytic 
capability. The Bureau has not structured an intelligence 
collection requirements process that legitimate consumers can 
readily tap, and it is not, to my knowledge, producing on any 
predictable basis authoritative assessments of the terrorist 
threat to the homeland. These are serious gaps. It is a good 
thing that the Bureau's law enforcement culture is being 
enriched by intelligence. It is not a good thing that law 
enforcement continues to trump intelligence in the effort to 
build a domestic intelligence capability. The status quo, in my 
view, is not acceptable.
    Third. Even if the FBI were doing better on this domestic 
intelligence mission, I believe we would find that the mission 
in today's information environment is much bigger than the FBI 
and well beyond its resources and competence to carry out. 
Domestic intelligence today is about protecting the U.S. 
homeland from threats mostly of foreign origin. It does involve 
the FBI's law enforcement and counterterrorism work, but it 
relates more to the establishment of a national intelligence 
capability, integrating Federal, State and local government, 
and when appropriate, the private sector, in a secure, 
collaborative network to stop our enemies before they act, and 
to confront all those adversaries capable of using global 
electronic and human networks to attack our people, our 
physical and cyber infrastructure, and our space systems. These 
adversaries include WMD proliferators, terrorists, organized 
criminals, narcotics traffickers, human traffickers, and 
countries, big and small, working alone or in combination 
against U.S. interests.
    I see the FBI on its present course as a contributor to 
this vital effort, but not as the leader of a new model of 
collaboration in the information age.
    Fourth. Domestic intelligence, moreover, must be viewed as 
an integral part of U.S. intelligence community reform. The 
connection between foreign and domestic intelligence must be 
seamless today because the threats we face know no borders. The 
challenge is Government wide, has historic roots that long 
precede 9/11, and must be concerned, as I have suggested, with 
a range of deadly threats to our National security, largely 
from abroad and not restricted to international terrorism. The 
domestic piece must be an essential part of the transformation 
of U.S. intelligence driven by the Director of National 
Intelligence, the Secretary of Defense, the Attorney General, 
and the Secretary of Homeland Security.
    That coordinated effort today, which in my view, needs 
stronger sustained direction from the White House and the 
Congress, should be moving as a top priority to unify 
strategies, to clarify roles and responsibilities across 
competing agencies, and to reduce the IC's bloated bureaucracy, 
which is today larger than ever.
    Thank you, Mr. Chairman. I would be glad to take questions 
on what I have said or on the longer statement that I have made 
for the record.
    [The prepared statement of Mr. Gannon appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Gannon.
    Mr. Fine, the role you have as Inspector General for the 
Department of Justice is a very, very important role, and I 
have personally been very pleased to see the work that the 
Inspectors General do generally. During the time I chaired the 
Intelligence Committee, I took the lead--really, my staff 
director, Charles Battaglia took the lead--so often when leads 
are taken by Senators, they are really staff leads--in 
establishing the Office of Inspector General for the CIA. We 
almost lost the bill because of that provision, President Bush 
being an ex-CIA Director, but we got it through. So I have seen 
the work that the Inspectors General do.
    The initial thought which comes to my mind is whether you 
could exert your authority to review the electronic 
surveillance program, or perhaps I ought to begin and ask if 
you have reviewed the program for constitutionality?
    General Fine. We have not done that. That issue has to do 
with the legal authority for the program, and quite 
unfortunately, in my view, the jurisdiction of the Inspector 
General in the Department of Justice is limited to some degree 
because there is a Department of Justice Office of Professional 
Responsibility that has jurisdiction to review the actions of 
attorneys in the exercise of their legal authority up to and 
including the Attorney General. To my knowledge, the Department 
of Justice is the only area where the Inspector General's 
Office has that limitation on its authority, and so--
    Chairman Specter. Where does that limitation arise from, 
Mr. Fine?
    General Fine. It originally arose from Attorney General 
orders issued by Attorney General Reno and Attorney General 
Ashcroft, and it was codified in the DOJ Reauthorization Act by 
the Congress. So it would require a Congressional action to 
change it at this point, but it is a limitation on our 
authority that does not exist, to my knowledge--
    Chairman Specter. What does it say specifically to limit 
your authority?
    General Fine. That the Inspector General has authority 
throughout the Department of Justice except for the actions of 
attorneys in the exercise of their authority to litigate, 
investigate or provide legal advice. And so that has been a 
carve-out. The Department of Justice's Office of Professional 
Responsibility existed before the Inspector General's Office 
was created in the Department of Justice. We were created in 
1989, and that limitation on our authority has continued to 
    Chairman Specter. You say that the Office of Professional 
Responsibility has the authority to review what the lawyers do?
    General Fine. Correct.
    Chairman Specter. Has there been an inquiry by that office 
in the propriety of the opinion of the Department of Justice of 
holding the constitutionality of the electronic surveillance 
    General Fine. Yes. My understanding is the Department's 
Office of Professional Responsibility has been looking into 
that issue and is conducting a review of that matter.
    Chairman Specter. What is their basis for their doing that?
    General Fine. Because it revolves around the actions of the 
Department of Justice attorneys in providing legal authority 
for the--
    Chairman Specter. Well, I know they did that, but was there 
some predicate, some reason to conduct the investigation that 
you know of?
    General Fine. Yes. There was a request from several members 
of the House of Representatives to conduct that kind of 
investigation. It was sent to us. It was referred to the Office 
of Professional Responsibility. They agreed to do that.
    Chairman Specter. But ordinarily you need a predicate, you 
need some reason to conduct an investigation. Was any given?
    General Fine. There were questions about the authority and 
the legal opinion concerning that. And quite honestly, we often 
investigate things on our own when we see an issue that needs 
to be resolved, and I believe the Department of Justice saw--
    Chairman Specter. When you investigate things on your own, 
you ordinarily have a reason.
    General Fine. Correct.
    Chairman Specter. Was the House acting on the newspaper 
reports about the reported meeting in the hospital with the 
Attorney General and the Deputy and Chief of Staff?
    General Fine. I think the House was acting on the 
information that came out in the press regarding a surveillance 
program. And when that information arose, they sent the 
    Chairman Specter. Mr. Fine, there was an issue raised on 
your prior testimony, Mr. Fine, on making suggestions to the 
FBI. Have you done that?
    General Fine. I am sorry, Mr. Chairman?
    Chairman Specter. There was an issue raised. I had a 
hearing in July of 2005 about your feeling free to make 
affirmative suggestions to the FBI as well as performing your 
role as a constructive critic. Have you made suggestions?
    General Fine. Yes, absolutely. In almost all of our 
reviews, not only do we look backward and see what went wrong, 
but we try to make recommendations to improve operations and 
improve programs. And we follow-up through the FBI to resolve 
those issues, and sometimes we even open follow-up reviews to 
see whether they have actually implemented the changes that we 
    For example, we opened a follow-up review recently about 
the FBI's hiring, retaining and training of intelligence 
analysts. We made recommendations in a report several years 
ago. We want to see what progress they have made.
    Chairman Specter. Mr. Fine, the staff has prepared six 
tough questions for you which I do not have time to ask you, 
but they will be submitted to you, and we would like you to 
answer them for the record.

    General Fine. I would be glad to do that, Mr. Chairman.

    Chairman Specter. Ms. Calbom, you have noted that you have 
made 27 recommendations. How many has the FBI implemented?

    Ms. Calbom. We have not yet gone back in to look and see 
what recommendations they have or have not implemented. As part 
of our normal followup on any report, after some times has gone 
by, and particularly after we get their 60-day letter that they 
are required to respond back formally on their actions taken to 
implement our recommendations, then we will be going through a 
process where we will look at the actions that they have taken.

    Chairman Specter. So you will take a look to see how many 
they have implemented.

    Ms. Calbom. Yes, we will.

    Chairman Specter. Would you report back to us, if they do 
not implement them all, and tell us how many they have 
implemented, how many they have not?

    Ms. Calbom. We certainly can do that, Mr. Chairman.

    Chairman Specter. We would like to know that. You are going 
to continue your reporting on the Trilogy program and the 
Sentinel program to see if this money is being well spent. Here 
again, I cannot go into all these questions, but there are a 
series of very piercing questions which I would like to submit 
to you to have your answer for the record. But let me emphasize 
the need for you to keep a close watch on that program. It is 
going to take a lot of surveillance. The Director has committed 
to periodic review, but it is going to take more than that. Are 
you in a position to followup on that?

    Ms. Calbom. We have not received any formal request yet to 
do that, but certainly when we do, we are in a position to do 
that, Mr. Chairman.

    Chairman Specter. My request is not sufficiently formal?

    Ms. Calbom. It is now, yes, sir.


    Chairman Specter. Well, that is true, you said you hadn't, 
you did not say you haven't.

    Mr. Gannon, how well is the new Director of National 
Intelligence working out?

    Mr. Gannon. In some ways, I think there are some things 
being done. In other ways--

    Chairman Specter. Let me be specific. Has he taken command?

    Mr. Gannon. I would prefer to see a larger profile--

    Chairman Specter. Prefer to see what?

    Mr. Gannon. I would prefer to see a larger profile and a 
stronger direction.

    Chairman Specter. What is he not doing that he should be 

    Mr. Gannon. Partly some of the issues that I addressed in 
my opening statement. I think there is a real need to establish 
roles and responsibilities with regard to the Department of 
Defense, with regard to FBI. I talked somewhat critically about 
FBI, but what is the direction being given to FBI with the 
authorities that the DNI has?

    Chairman Specter. The Department of Defense is moving into 
these fields with a widespread expansion of powers. Is that 
consistent with having a Director of National Intelligence?

    Mr. Gannon. I think what is bothersome is that movement 
that you are talking about is taking place without any 
supervision beyond the Department of Defense, and I think it is 
needed, from the DNI, but also from the White House.

    Chairman Specter. Doesn't the DNI have authority over the 
Department of Defense on intelligence matters?

    Mr. Gannon. I think it is not entirely clear on some 
issues, but I think he has more authority than I am seeing 

    Chairman Specter. What are you saying, that he would have 
to invade the Pentagon in order to establish his authority?

    Mr. Gannon. No. I would say that you have to claim your 
jurisdiction you have, and seek jurisdiction that you might not 

    Chairman Specter. An invasion would not be necessary?

    Mr. Gannon. Right.

    Chairman Specter. But helpful.

    Mr. Gannon. And I think that is partly because the 
legislation does not make clear what authority he does have.

    Chairman Specter. Perhaps you have already done it, but we 
would be interested in a more precise analysis on that issue, 
as to where the Department of Defense is going. We note your 
emphasis on the Department of Homeland Security as having 
primacy. You think they should have primacy over the FBI, 

    Mr. Gannon. No, sir, I did not put it that way, and in my 
written statement, I do have quite a lot to say about the 
Department of Defense in the longer statement. But what I did 
say was that in the domestic intelligence collection, I think 
the model that we should be pursuing is a collaborative one, 
not a centralized new intelligence service or one that would 
make FBI what I do not think it can be, in that as a 

    Chairman Specter. I have written questions for you too, and 
one of them identifies your written testimony to push DHS into 
the lead role.

    Mr. Gannon. That is one. I offered two options. One is that 
if you want the FBI to be the leader of the domestic 
intelligence effort, there has to be some major restructuring 
done there that is not being done. You cannot get there from 
the path that FBI is on now.

    The other option is to reinvigorate, almost go back to the 
Homeland Security Act of 2002, and give the Department the 
authorities that it was supposed to have under that 
legislation. Then I think because it is a department that is 
designed really to build a collaborative model, it would be the 
integrator of the information and intelligence, and FBI would 
be a contributor, but the department would not control the FBI.

    Chairman Specter. Is the collaboration and integration 

    Mr. Gannon. I think in our society, I think the design of a 
system that is collaborative and not centralized as an 
intelligence service is, I think, the best model for our 
society as I see it and understand it.

    Chairman Specter. I do not understand your answer. Is the 
collaboration and integration adequate, satisfactory?

    Mr. Gannon. Oh, today?

    Chairman Specter. Yes.

    Mr. Gannon. Oh, absolutely not. I thought you meant is it 
in the model. No, absolutely not today.

    Chairman Specter. Well, would you--we are going to submit 
these questions to you, but add an additional one for me. What 
specifically ought to be done to make it collaborative and 

    Mr. Gannon. Sure.

    Chairman Specter. I really regret that there are not more 
Senators here to hear your testimony. But that is an inevitable 
fact of life. Everybody has many committees and many 
subcommittees, and frequently you are stuck with just the 
Chairman, but we have your reports, and we have your written 
testimony. And these questions are unusually good questions 
that I have reviewed that we will ask you to respond to for the 
record. They are so good that I am going to identify the 
staffers who worked on this hearing: Josh Latarette, Kathy 
Michalko, Adam Turner, Dallas Kaplan, Adam Caudle, Evan Kelly 
and Matt McPhillips. I will not identify who wrote them down 
because I may have misstated some of the names because the 
printing is not really legible.


    Chairman Specter. We have had some interjections from the 
peanut gallery, from the stands.

    These are really enormously important subjects as to how we 
get the FBI systems, in effect, with the high price on them 
noted. Somebody estimates it at a billion dollars. Very 
important how the system is working, and that the Department of 
Defense fit into the picture with the Director of National 
Intelligence. It has been a long time getting there. I worked 
on that, the Governmental Affairs Committee. We took time off 
from the summer of 2004, took time away from a campaign for 
reelection it was so important. That is pretty hard to do in 
August to come back. We had special hearings, and I drafted a 
bill on it, and others did too, and we finally put that into 
place. But unless it is implemented, it is worthless.

    So your supplemental ideas on how to accomplish that are 
very important, and we greatly appreciate them. Without 
objection, I am going to make a copy of the letter from 
Attorney General Ashcroft a part of the record.

    Let me express some regrets, that I had not known that we 
were codifying the Attorney General's limitation of the 
Inspector General's authority. It does not seem to me that the 
person to be inspected ought to have the standing to limit the 
inspector's authority. But then somehow, if it is codified--
there is a lot codified that does not have any Congressional 
intent behind it. Justice Scalia is right about that.

    Thank you all very much. That concludes our hearing.

    [Whereupon, at 1:02 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record