[Senate Hearing 110-881]
[From the U.S. Government Publishing Office]
S. Hrg. 110-881
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 27, 2007
__________
Serial No. J-110-23
__________
Printed for the use of the Committee on the Judiciary
----------
U.S. GOVERNMENT PRINTING OFFICE
38-189 PDF WASHINGTON : 2009
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 156
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 158
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESS
Mueller, Robert S., III., Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 5
QUESTIONS AND ANSWERS
Responses of Robert S. Mueller to questions submitted by Senators
Leahy, Kennedy, Biden, Schumer, Specter and Grassley........... 45
SUBMISSIONS FOR THE RECORD
Coalition of Civil Rights, Education, Religious, Professional,
and Civic Organzation:
June 26, 2006, letter........................................ 122
October 23, 2006, letter..................................... 128
Department of Justice:
Federal Bureau of Investigation, Criminal Justice Information
Services Division, Thomas E. Bush, III, Assistant Director,
letter..................................................... 131
Office of Legislative Affairs, William E. Moschella,
Assistant Attorney General, letter......................... 133
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
March 22, 2007, letter....................................... 143
March 26, 2007, letter....................................... 145
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
letter......................................................... 161
Mueller, Robert S., III., Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
prepared statement............................................. 163
Washington Post, John Solomon, Staff writer, March 27, 2007,
article........................................................ 178
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
----------
TUESDAY, MARCH 27, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 9:37 a.m., in
room 106, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, (Chairman of the Committee) presiding.
Also present: Senators Feinstein, Feingold, Schumer,
Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl,
Sessions, and Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. We are continuing our crucial
oversight role of the Department of Justice with this hearing
to examine the FBI's effectiveness in carrying out its domestic
intelligence and law enforcement mission.
I thank the FBI Director for appearing before us today. I
look forward to hearing his views on the Bureau's problems and
progress. I also thank the hardworking men and women of the FBI
who have been working long hours, day in and day out, all week
long, year after year, to keep our citizens and our communities
safe.
Almost 6 years after the September 11th attacks, it
troubles all of us that the FBI has not yet lived up to its
promise to be the world-class domestic intelligence agency the
American people expect and need it to be.
This morning we learn from a report in the Washington Post
that the FBI has repeatedly submitted inaccurate information to
the Foreign Intelligence Surveillance Court in its efforts to
obtain secret warrants in terrorism and espionage cases,
severely undermining the government's credibility in the eyes
of the Chief Judge of that court.
When I read that last night online, they were talking about
even considering making people who sent these reports in come
in and appear under oath. That is a very problematical thing,
and it bothers me very much.
But from the FBI's illegal and improper use of National
Security Letters, to the Bureau's failure to be accountable for
securing its own computers and weapons, to the politically
motivated dismissal of eight of the Nation's U.S. Attorneys,
there are growing concerns about the competence of the FBI and
the independence of the Department of Justice.
This pattern of abuse of authority and mismanagement causes
me and many others on both sides of the aisle to wonder whether
the FBI and Department of Justice have been faithful trustees
of the great trust that the Congress and American people have
placed in them to keep our Nation safe, while respecting the
privacy rights and civil liberties of all Americans.
It is more than just the FBI that deserves scrutiny for the
abuses and lack of competence that have come to light in recent
weeks. Last year, the administration sought new powers in the
Patriot Act to appoint U.S. Attorneys without Senate
confirmation, and new powers to more freely use National
Security Letters. The administration got these powers and they
bungled both of them.
One of my priorities in the first Patriot Act was to
improve oversight and accountability. Former House Majority
Leader Dick Armey and I insisted on, and succeeded in, adding
sunset provisions to the Patriot Act which would require us to
review what was going on.
In the recent reauthorization of the Act, one of my
priorities, working especially with then-Chairman Specter, was
to retain sunset provisions, and add new sunshine provisions to
require the Justice Department to report to the Congress and
the American people on how several parts of the Act are being
used.
The Inspector General's audit and report on National
Security Letters was one of these new requirements we added to
the law. The findings of that audit were very troubling
findings, and why we are here today.
I am deeply disturbed by the Justice Department Inspector
General's report finding widespread illegal and improper use of
National Security Letters to obtain Americans' phone and
financial records. Let me underscore that: widespread illegal
and improper use.
The Inspector General found 22 separate instances where the
FBI improperly abused National Security Letters. In case you
think 22 does not seem like a lot, that is 22 in a review of
only 77 files, and not a single one of those violations had
been reported by the FBI.
When he appeared before Congress last week, the Inspector
General testified there could be thousands of additional
violations among the tens of thousands of NSLs that the FBI is
now using each year.
Inspector General Fine also found widespread use by the FBI
of so-called ``exigent'' letters. These letters, which are not
authorized by any law, were used 739 times to obtain Americans'
phone records. But there was often no emergency, and never
follow-up subpoenas promised in the letter.
Despite these extensive abuses, the top leadership of the
FBI sat idly by for years doing nothing to stop this practice.
In fact, the Washington Post recently reported the FBI
counterterrorism officials continue to use the exigent letters,
even though FBI lawyers and managers expressed reservations as
early as 2004.
So I have already told the Director I want to hear what he
has to say about this and what the FBI is doing to ensure these
abuses will not happen again.
I look forward to exploring the Bureau's failure to account
for its laptop computers and weapons, delays with the Sentinel
computer program, staffing shortages, and growing calls to
replace the Bureau's Counterterrorism and Counterintelligence
divisions with an MI-5-style domestic intelligence agency.
It seems to me the FBI is, again, at a crossroads. Some are
calling on Congress to take away the FBI's domestic
intelligence functions and create a separate domestic
intelligence like Britain's MI-5. The leading Republican on
this oversight Committee questioned whether the Director is up
to the job.
Acknowledging shortcomings is well and good, and Director
Mueller, in what seems to be a break from many in this
administration, now says that he takes responsibility for the
egregious violations that occurred during the handling of the
NSLs, as he should.
But the Bureau, and the Department as a whole, must also
learn from its mistakes if progress is to be made, and the
Congress has a right to ask about that. This learning curve has
gone on far too long. A lot needs to be done. I want the FBI to
be the best that it can be, and I hope our oversight might make
that possible. We have a long way to go.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
The war against terrorism is deadly serious, and we know,
in retrospect, that 9/11 could have been prevented had there
been adequate intelligence and adequate coordination among our
intelligence agencies.
The United States places great reliance on the FBI and it
has an illustrious history. But the question is emerging as to
whether the FBI is up to the enormous task that we have asked
it to perform. Every time we turn around, there is another very
serious failures on the part of the Bureau.
We had the Inspector General in last week and went over
three of the Inspector General's reports, and they present a
picture of lack of competence, to put it mildly.
On the National Security Letters, the Inspector General
found ``widespread and serious misuse of the FBI's National
Security Letter authorities. The oversight was inconsistent and
insufficient.''
Then within the past 45 days, in a report on the issue of
terrorism reporting, the Inspector General concluded, ``the
collection reporting of terrorism-related statistics within the
Department is haphazard.''
Then on the issue of weapons and laptops, ``the FBI could
not determine, in many cases, whether the lost or stolen laptop
computers contained sensitive or classified information.''
Then another shoe drops, virtually on a daily basis. The
headline in this morning's Post: ``FBI Provided Inaccurate Data
for Surveillance Warrants,'' and the Foreign Intelligence
Surveillance Court threatened to require affidavits in open
court, and a real question as to whether the FBI was performing
so they could get warrants, as required under the law, to fight
terrorism.
With respect to the National Security Letters, the
Inspector General's report found that the FBI agents
consistently signed exigent letters where they had no exigent
circumstances, and it went on repeatedly without any
correction.
The Inspector General said that there was no evidence of
intentional misconduct, but where you have that pattern of
reckless indifference, at a minimum, that rises to the level of
what constitutes intentional misconduct. So, these are all
matters of enormous concern.
Director Mueller, this Committee has enormous respect for
you, and I have enormous personal respect for you. The question
arises as to whether any Director can handle this job. The
further question arises as to whether the Bureau itself can
handle the job.
These instances have stimulated recent debate on whether we
ought to turn to the British MI-5 system. I believe, Mr.
Chairman, that that is a consideration which would warrant very
serious deliberation by this committee. We have authorities
lined up on both sides, but there are sufficient problems that
I think it needs to be considered.
We had recent reports with respect to the termination of
U.S. Attorney Lam in San Diego, that there may have been a
request for her resignation because she was hot on the pursuit
of other leads following the conviction of former Congressman
Duke Cunningham and the 8-year prison sentence which he is now
serving.
I know in the San Diego Union Tribune there were comments
by the FBI's San Diego office head that her termination was
jeopardizing several ongoing investigations, and he used the
word ``guaranteed'' in referring to politics being involved.
If this is so, Mr. Director, this is not something that the
Justice Department ought to read about in the newspapers. If
there is any indication that Ms. Lam was asked to resign
because she was hot on the trail of other political operatives
on the issue of corruption, as with the Cunningham case, I
would suggest to you that the FBI has an affirmative duty to,
at a minimum, come to the Chairman and Ranking Member to report
matters of that sort. So, there are a great many issues which
we have to take up.
It may be that the Congress and the administration are not
providing sufficient resources to the Bureau. I appreciated an
opportunity yesterday afternoon, Director Mueller, to talk to
you personally and directly on these issues. I believe that
there has to be more attention paid to the issues as to whether
we are asking more of you than the available resources would
permit you to perform on.
When we talked about successes that the FBI has had on
terrorism matters, where you have successes and you cannot
publicize them, as I mentioned to you yesterday, I would call
on you to come in and talk to Senator Leahy and myself about
those matters.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Mr. Director, would you please stand and raise your right
hand?
[Whereupon, the witness was duly sworn.]
Chairman Leahy. Director, please go ahead with your
statement. I am going to ask members to keep as close to their
time in questioning, and you in your statement, as possible
because we have a number of matters going on, other Committee
meetings, and I want as many Senators as possible to have a
chance to ask questions.
Please go ahead, sir.
STATEMENT OF ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU
OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Director Mueller. Thank you, and good morning. Mr.
Chairman, Senator Specter, and Members of the Committee, thank
you for the opportunity to testify before you today.
For the past five and a half years, the FBI has been
undergoing significant restructuring, significant realignment,
and significant transformation, all designed to better position
the Bureau to meet the threats and the challenges of the
future. The men and women of the FBI have demonstrated the
ability and the willingness to embrace change for a better,
stronger, more effective organization.
As a result of these changes and the dedication of FBI
employees, our accomplishments have been many. They include:
terrorist plots thwarted, espionage activities intercepted,
cyber-intrusions detected, corrupt government officials
convicted, violent gangs dismantled, and corporate fraud
uncovered. Examples of these successes were provided to the
Committee when I last testified here in December.
Now, many of our counterterrorism cases have included the
issuance of National Security Letters. Today, given the recent
Inspector General report, I would like to address our use of
those letters.
The Inspector General and his staff conducted a thorough
and a fair review of this authority, and the Congress is
commended for requiring that this review be conducted. It is
absolutely effective and appropriate oversight.
And as you heard from the Inspector General, he did not
find any deliberate or intentional misuse of National Security
Letter authorities, Attorney General guidelines, or FBI policy.
And with regard to the use of exigent letters before this
committee, he testified that he did not find an intent to
violate the law, but rather ``the unthinking use of improper
form.''
Nevertheless, the review by the Inspector General
identified several areas of inadequate auditing and oversight
of these vital investigative tools, as well as processes that
were inappropriate.
We in the FBI, myself in particular, fell short in our
obligations to report to Congress on the frequency with which
we use this tool and in the internal controls we put into place
to make sure that it was used only in accordance with the
letter of the law. I am responsible for those shortcomings, and
I am also responsible for taking the steps to ensure that they
do not happen again.
The IG made 10 recommendations designed to provide both the
necessary controls for the issuance of NSLs and the creation
and maintenance of accurate records. I fully support each
recommendation and I am taking steps to implement them, as well
as a number of other steps that will ensure that we are in
compliance with applicable statutes and guidelines.
No one in the FBI wants to jeopardize the important tools
that Congress has provided to us to protect the country against
a terrorist attack. Mr. Chairman, my prepared statement
provides a thorough review of the three major findings by the
Attorney General--or by the Inspector General, I should say,
and also explains the steps that we are taking to address each
of these shortcomings.
I am very happy to provide additional detail in response to
questions that the Committee may have, but for the purposes of
my remarks this morning I would like to provide the general
contexts surrounding the FBI's use of National Security
Letters, as well as a couple of examples of how essential these
tools are in combatting terrorism.
As this Committee is well aware, the FBI began a
significant transformation following the terrorist attacks of
September 11. In the aftermath of that date, the men and women
of the FBI understood that counterterrorism is our first
priority and that every counterterrorism lead must be
addressed.
As Congress was providing us with new authorities in
support of this mission, we were also undergoing substantial
overhaul of our counterterrorism program.
By way of an example, we established a number of
operational entities, including the 24/7 Counterterrorism
Watch, the National Joint Terrorism Task Force, Terrorist
Screening Center, Terrorist Financing Operation Section, and
rapid deployment teams.
We expanded our intelligence capabilities, elevating
intelligence to a program level status and putting in place a
Directorate of Intelligence to govern FBI-wide intelligence
functions and establishing field intelligence groups in every
field office.
We enhanced our information sharing with our partners by
expanding our Joint Terrorism Task Forces, increasing
technological connectivity, and developing new vehicles for
communications, such as the Intelligence Bulletin.
We replaced outdated computer hardware with more than
30,000 new desktop computers with modern software applications,
and deployed a high-speed secure network, enabling personnel in
FBI offices across the country and around the world to share
data, including audio, video, and image files.
As these reforms were being implemented, the men and women
of the FBI were also charged with protecting this Nation from
terrorist threats of unprecedented dimensions.
While I am unable to provide a full picture of the nature
of these threats in such a public hearing, some of the plots
investigated and thwarted include destruction of the New York
Stock Exchange and other financial targets; attacks on U.S.
military facilities, Israeli government facilities, and Jewish
synagogues in the Los Angeles area; the destruction of the
Brooklyn Bridge in New York City; and the explosion of
commercial aircraft as they traveled from London to United
States destinations, to name a few.
In addition to these threats which have been publicly
reported, a number of other plots were being addressed for
which the mastermind of September 11th, Khalid Sheik Mohammad,
has recently claimed credit. Those details remain classified.
Mr. Chairman, it is within this environment of significant
internal transformation and unprecedented worldwide terrorist
threats that the FBI was utilizing the important new
authorities that Congress had provided in the USA Patriot Act.
I do not offer this explanation as an excuse for any of the
shortcomings found by the Inspector General, but only to
provide an over-arching context for the Committee and the
American people. Even within this context, mistakes made with
regard to National Security Letters are simply not acceptable.
As explained in detail in my prepared statement, these
deficiencies are being addressed and I welcome the committee's
input and suggestions for additional improvements to our
internal controls.
I do not believe, however, that the statute itself should
be changed. The relevant standard established by the Patriot
Act for the issuance of National Security Letters is unrelated
to the problems identified by the Inspector General.
As the Inspector General testified, the problems were
generally the product of ``mistakes, carelessness, confusion,
sloppiness, lack of training, lack of adequate guidance, and
lack of adequate oversight.'' In short, the statute did not
cause the errors, the FBI's implementation of the statute did.
In the meantime, I do believe it is important that the
Congress and the American people understand how essential
National Security Letters are to our efforts in the war on
terror.
A couple of examples. During the investigation of a
terrorist financier and recruiter, the FBI issued National
Security Letters for financial records and telephone toll
billing records. These records helped the FBI identify banks
and accounts that were being used to facilitate his terrorist
fundraising efforts.
He eventually was identified by someone as an individual
who would provide instructions for terrorist activities in the
United States, and although this financier and recruiter was
not prosecuted, he was deported based upon the information
developed during the investigation and attributable to the
information received by National Security Letters.
Another case. Last year, the FBI received information from
a foreign government indicating that persons using e-mail
addresses in the United States were in contact with an e-mail
address belonging to a suspected terrorist.
The FBI served NSLs on the relevant Internet service
providers, and the investigation which followed indicated that
these individuals were involved in plots against the United
States, resulting in indictments on various terrorism-related
charges.
Chairman Leahy. Director Mueller, we could go into a number
of these NSLs, a number of them that I've looked at. We're not
going to in an open session. We can talk about how some have
differing views of how serious a plot it was to take down the
Brooklyn Bridge, and others.
I'm not so much interested in those statistics. Remember,
I, along with Senator Specter, have supported the idea of the
NSLs. I also expect them to be used right, because the ability
to abuse them is enormous.
Let me--
Director Mueller. May I finish my statement, Mr. Chairman?
It is very short. I have a few minutes left.
Chairman Leahy. I think we are a little bit over time, but
go ahead, finish it.
Director Mueller. Thank you. Let me conclude on this by
saying, as reflected in these examples, through NSLs the Bureau
has established financial and e-mail linkages that resulted in
further appropriate investigation.
As the Inspector General has so testified, NSLs are an
indispensable--indispensable--tool in our conduct of
counterterrorism and counterintelligence investigations.
Now, for a moment, Mr. Chairman, I would like to turn to a
couple of other issues that I know are on the committee's mind.
The first, is the deployment of Phase I of Sentinel. As your
staff has recently been briefed, our contractor, Lockheed
Martin, has completed the critical design and build of the
software application and is presently in the testing phase.
Once testing is complete sometime next month, we will begin
piloting Phase I at Headquarters, followed by several field
offices, during which time Lockheed Martin will correct any
additional issues that surface.
Shortly after that, shortly after we complete the testing
in the pilot offices, we will begin a roll-out of Sentinel
throughout our organization. Again, we will continue to keep
the Committee updated on our progress in the weeks ahead.
I would also like to note, in addition to counterterrorism,
counterintelligence, and cyber responsibilities, public
corruption remains our top criminal investigative priority.
Public corruption is a betrayal of the public's trust and
cannot be left unchecked. Over the last 2 years, the FBI has
convicted more than 1,000 government employees involved in
corrupt activities, to include 177 Federal officials, 158 State
officials, and 360 local officials, as well as more than 365
police officers.
Finally, as this Committee is aware, the country is
experiencing an uptick in violent crime, particularly as it
relates to gang violence. By our estimates, there are now over
30,000 gangs across America and over 800,000 gang members.
As with terrorism, the most powerful response to this
growing problem is a joint response. The FBI has established
131 violent gang task forces across the country, enabling our
agents to work in lock step with police on the street, sharing
information and conducting investigations together.
And while our number-one priority remains preventing
another terrorist attack, the FBI remains committed to working
with our partners to combat violent crime and to lower crime
rates across America.
In closing, Mr. Chairman, let me reiterate that the FBI is
acutely aware that we cannot protect against national security
or criminal threats at the expense of civil liberties. We are
judged not just by our ability to defend the Nation from
attacks, but also our commitment to defend the rights and
freedoms we all enjoy.
In light of the Inspector General's findings, we are
committed to demonstrating to this committee, to the Congress,
and to the American people that we will correct the
deficiencies in our use of National Security Letters and
utilize each of the critical tools Congress has provided us,
consistent with the privacy protections and civil liberties
that we are sworn to uphold.
Thank you for the opportunity to conclude my statement, and
I am happy to answer any questions you might have, sir.
[The prepared statement of Director Mueller appears as a
submission for the record.]
Chairman Leahy. Well, I do have a few. I must admit that
when I've listened and read your statement, I still have some
very serious qualms. You said there's an uptick in violent
crimes. The administration--it's not your decision, but the
administration decision to cut money for COPS grants and other
things, apparently because we need the money to pay for the
well-run police forces of Iraq.
The Federal Government has spent almost $200 million on the
long-promised Integrated Wireless Network. Now we find the
Justice Department spent $772 million on that. The Department
of Justice and DHS, Department of Homeland Security, can't seem
to get together.
It's almost like one of you are the Sunnis and the others
are the Shi'ites, and somebody's got to tell the people--
somebody in the administration ought to at least admit some
mistakes and tell you guys that we're all supposed to be
Americans. We're all supposed to be working together. And I
know you have your own frustrations, and we can go into it
later.
We talk about the ability to obtain library records under
the PATRIOT Act. That gives me some concern, and I'll tell you
why. I'll just use an example. In 2005, the FBI issued National
Security Letters to four Windsor, Connecticut librarians.
Here's what they asked them to do: surrender all subscriber
information, billing information, and access logs of any person
related to a specific library computer during a specific time
period, according to press reports. But then the NSL also
prohibited the librarians from disclosing the fact that they
received the NSL or its contents, a so-called gag order, under
the PATRIOT Act.
So what you have is, if somebody sees a real abuse of an
NSL, it's like saying, let's check the records of everybody who
showed up in this hearing today, every citizen who showed up as
a member of the press or anybody else who came to this, but
let's not tell anybody we've done it. If there's abuses, the
very people who could uncover those abuses have been gagged,
told they can't say what's going on. This is Kafka at the
extreme.
Did the FBI abuse--two questions. Did the FBI abuse its
authority in this Connecticut case? And how many times has the
FBI issued NSLs to libraries or educational institutions to
date?
Director Mueller. A couple things, Mr. Chairman. The
PATRIOT Act was changed in the most recent iteration to provide
an opportunity for somebody to context portions of--
Chairman Leahy. In this case, did the FBI abuse its
authority?
Director Mueller. I do not believe so. But let me--
Chairman Leahy. How many times have you issued NSLs to
libraries or educational institutions to date?
Director Mueller. I cannot think of one, but I'll have to
go back and check. And I also--
Chairman Leahy. Was this Connecticut library the only one?
Director Mueller. I will have to go back and check.
Chairman Leahy. Will you supply the answer? Can we get that
answer before the end of the week?
Director Mueller. Yes. May I also say, Mr. Chairman, that
there was a report on our use of 215 of the PATRIOT Act that
was issued by the Inspector General on the same day he issued
the report with regard to our use of National Security Letters.
That report found no abuse and appropriate use of the 215
authority. It did not get much press, it did not get much
attention, but it also discusses our use of Section 215 with
regard to libraries. But again, I'd reiterate, that report that
came out the same day as the report on NSLs found our
appropriate utility of Section 215 of the PATRIOT Act.
Chairman Leahy. Over the weekend, the Justice Department
announced that the Office of the Inspector General and the
Office of Public Integrity have launched a joint investigation
into the firing of the eight U.S. Attorneys, something this
Committee is doing also.
Is the FBI investigating the allegations that have come to
light about politically motivated firings of eight of the
Nation's U.S. Attorneys?
Director Mueller. No.
Chairman Leahy. Have you been asked in any way to join with
the Office of Inspector General or the Office of Public
Integrity in these investigations?
Director Mueller. Not to my knowledge. In other words, I
have not personally. I don't believe anybody in our
organization has either.
Chairman Leahy. Will you check that--
Director Mueller. I will check that.
Chairman Leahy.--and let me know this week?
Director Mueller. Yes, sir.
Chairman Leahy. Thank you.
We talked a lot about the use of the NSLs, the Inspector
General's reports. You've spoken about your own responsibility.
I realize, though, this is a very large organization. We're
going to be reexamining the broad authorities we've granted to
the FBI under the PATRIOT Act, but in the meantime I just want
to ask what's being done in your shop.
I mentioned the 739 so-called exigent National Security
Letters, even though there's no emergency in some of these
cases. The FBI also sent these NSLs without issuing a subpoena.
It said, of course, the subpoena would be forthcoming. Just put
yourself in the position, for example, of the phone company, or
something.
They come in and the agent hands them that. They actually
have a department for that. They hand them the letter and they
say, but don't worry. Don't worry. There's going to be a
subpoena, but we need this right now. Now, their general
counsel is going to say, of course, follow that and make sure
you get the subpoena. But then we find the subpoenas never
showed up.
Today we learned through the press--not from anything we
were told by the Department of Justice, we learned from the
press, just as time and time and time again, even though we
have these oversight hearings, we first hear about these things
from the press, that the FBI repeatedly submitted FISA
applications with inaccurate information to the Foreign
Intelligence Surveillance Court to obtain secret warrants on
terrorism and espionage cases.
We set up all these procedures to help you, but we assume
somebody is going to follow the rules. What kind of management
failures made it possible for the FBI to send out hundreds of
National Security Letters containing significant false
statements about forthcoming subpoenas?
Director Mueller. Let me start by answering the first part
of the question, what we are doing about it. We have, in the
areas of concern identified by the Inspector General with
regard to the numbers, we have changed our procedures on the
numbers--identifying the numbers of National Security Letters.
We are requiring a hand count every month. We are keeping
copies of each National Security Letter in separate files.
Chairman Leahy. Had you been alerted of these abuses back
in 2004 when they were first discovered?
Director Mueller. No. But--
Chairman Leahy. Is that a failure of management?
Director Mueller. Yes.
Chairman Leahy. Okay.
Director Mueller. With regard to the future, we have a
software package and a computer program we started developing
last spring that will go online later this year that will
assure that every NSL is recorded and the appropriate
information is recorded for every NSL.
We have gone back and done, over the last several weeks, a
follow-up audit on IOB--possible IOB violations where we've had
more than 150 inspectors at each of our offices doing a 10
percent audit to follow-up.
Chairman Leahy. And going back to that, are you finding
information that was obtained, that it was unlawfully obtained?
Director Mueller. We're still getting the results of that
review, and there will be additional--I would expect additional
field work before we come to any conclusions.
Chairman Leahy. Have you seen any information that was
unlawfully obtained?
Director Mueller. Not so far. But I would expect there to
be some because I would expect, in the course of those audits,
that they would have found IOB violations that had not been
reported, or NSLs that had not been reported.
So I assume and presume in those results that there will be
additional instances. We are going to do a periodic review with
the Department of Justice of our various offices, up to 15 this
year, where we go in in-depth.
Those are just to mention a couple of the areas in which we
are addressing this issue. But it's more fundamental than that,
and it goes back to the question of, how could this have
happened?
And the way it happened was that we, in the wake of the
national security letters, when we got the authority, we put
into place procedures to account for NSLs. We put into place
procedures that the numbers would be recorded by the Office of
General Counsel.
We put into place procedures that we thought would be
followed in terms of giving us the accurate numbers and
accurate possible IOB violations. What I did not do, and should
have done, is put in a compliance program, complete with
auditing and follow-through to assure that those procedures
were being followed. That is something I should have
recognized. It's something I should have put into place before,
and it is something we are developing not just for NSLs, but
across the board, a compliance program.
I will tell you, Mr. Chairman, that when giving us funds,
Congress does not look at separate funding for compliance
programs. They give us funds to address terrorism, they give us
funds to address gangs, give us funds to address the criminal
challenges we have. For me, I have to focus on the fact that we
need funding for compliance programs.
We need funding for additional lawyers, we need to put into
case--into place the auditing capabilities that would show and
point out the deficiencies, such as we found in this Inspector
General's report.
Chairman Leahy. My time is up. When we come back I may talk
about how the administration spends funds on law enforcement in
Iraq. They ought to spend some back here at home.
Director Mueller. Sure.
Chairman Leahy. Senator Specter.
Senator Specter. Director Mueller, does the FBI have
sufficient funding on intelligence and counterintelligence
matters to protect the Nation from another terrorist attack?
Director Mueller. We have requested funds that we have not
received, whether it be through the Department of Justice or
through the budget process. So there are items we need and
would want that would--that would enhance our ability to
protect the American public.
Senator Specter. How much additional funding does the FBI
need on intelligence and counterintelligence matters to protect
the Nation from another terrorist attack?
Director Mueller. I would hate to give you off the--I will
provide that information.
Senator Specter. Would you please provide that?
Director Mueller. Yes, sir.
Senator Specter. Because we're asking you to do many, many
things, and the most important thing we're asking you to do is
to protect America from another terrorist attack. And this
committee, the Congress, would like to know what funding you
need to do that.
Turning to another subject, the San Diego Union Tribune has
this part of the story on January 13 of this year: ``The FBI
chief said Lam's continued employment as U.S. Attorney is
crucial to the success of multiple ongoing investigations.''
Director Mueller, is it true that Lam's continued
employment as U.S. Attorney was crucial to the success of
multiple ongoing investigations?
Director Mueller. I don't believe that to be the case. I do
believe that the investigations are ongoing as they were
before, and that my expectation is that they will be
investigated and prosecuted to the hilt.
Senator Specter. Did the FBI chief in San Diego complain to
Headquarters or you that he thought her continued presence
there was crucial--
Director Mueller. No.
Senator Specter.--To ongoing investigations?
Director Mueller. No.
Senator Specter. Had you heard that the FBI chief in San
Diego thought that?
Director Mueller. I heard from that article, yes, and we
followed up. I did not. John Pistol, my Deputy, followed up.
Senator Specter. And in what way did you follow-up, and
what did it disclose?
Director Mueller. Well, my understanding is that the--our
chief out there believes he was misquoted, but that our
investigations were continuing without any diminishment.
Senator Specter. The FBI has a Public Corruption section at
Headquarters.
Director Mueller. Yes.
Senator Specter. And that unit is designed to follow-up on
corruption cases. There's a great deal of controversy, as you
know, as to whether New Mexican U.S. Attorney Iglesias failed
to prosecute vote fraud cases.
Now, I know that that's a judgment which is made by the
attorney and is reviewed by main Justice, but I also have good
reason to believe that, as a practical matter, where the FBI
conducts the investigations they're intimately involved in it,
the agents on the scene have a view.
Was U.S. Attorney Iglesias correct in not bringing a
criminal prosecution on that vote fraud matter?
Director Mueller. I cannot answer that question, Senator. I
don't know the facts of it. I will tell you that I had--I had
not heard any concern from that office about prosecutorial
decisions that were made one way or the other.
Senator Specter. In the regular course of your business, do
you customarily hear a complaint from your FBI field office?
Director Mueller. I will in serious cases, yes.
Senator Specter. There have been reports that the--that the
activities of U.S. Attorney John McKay in the State of
Washington raised some FBI concern about McKay's initiatives in
Seattle in sharing information. Is there any substance to that
issue?
Director Mueller. I do not--I--I have seen that. I do not
know to which that refers. Mr. McKay was innovative in pulling
together the--a number of different departments to work
together on a combined database. It was funded by the Navy.
And the only issues that ever came up as to what extent--
no. To what extent certain pieces or components of the database
should be put in this joint database, but it was not a--not a
huge--huge issue at all. So I'm not certain what they're
referring to in that article.
Senator Specter. With respect to the complaint made by the
Chief Judge of the Foreign Intelligence Surveillance Court on
the reliability of information provided to that court, did that
situation have the potential to undermine the confidence of the
court and to slow down the issuance of FISA warrants important
for national security matters?
Director Mueller. I do believe, if it were not addressed,
that that was a potential. When we learned of the concerns of
the court, we put--about the numbers of mistakes that were made
in the affidavits, we addressed it with enhanced training, we
addressed it with the different procedures to assure the
legitimacy of different facts that were articulated.
Senator Specter. Let me--let me move on to one other issue
before my time expires, and that is the--
Director Mueller. Can I just finish a second on that, to
say that we've put in place these procedures, this compliance
program? My understanding is, the initial results are that we
have successfully driven down the--the incidence of mistakes.
Thank you, sir.
Senator Specter. With respect to the national security
letters and the misuse of the exigent category--exigent is
emergency.
Director Mueller. Yes.
Senator Specter. And it happened on a repetitive basis. The
Inspector General said that there was no intentional
misconduct. But the report shows that it happened repeatedly
and that, at a minimum, there was a reckless disregard for the
requirements of law on showing a factual basis for an exigent
classification, just again, and again, and again.
How does it happen, Director Mueller, that on matters as
important as an affidavit on a FISA warrant, and matters as
important as a national security letter on a representation of
exigent circumstances, that the agents repeatedly failed to
accurately state what the facts are?
That is the basic--that is the basic job of an
investigator, is to find the facts and to know the facts and to
make an accurate representation on the facts before you get a
warrant, a FISA warrant, before you issue a national security
letter. How can it be that your highly trained agents make so
many factual mistakes?
Director Mueller. Well, let me--I would make a distinction
between the FISA warrant and the FISA package. It's generally a
half an inch thick. The affidavits are exceptionally long. You
can have thousands of facts in there, and mistakes may be made,
although we do our level best to assure that there is no
mistake in an affidavit.
With regard to the national security letters, how that
happened--in other words, how, over a period of time, persons
would sign off on the same form, is something that I've asked
our Inspections Division to investigate to determine whether or
not steps need to be taken with regard to performance and to
determine exactly how that happened and what additional steps
we should take in order to address that particular situation.
Senator Specter. Director Mueller, I'm not impressed by
your assertion that there are thousands of facts. That's your
job. That's the FBI agent's job. When you came to us with the
PATRIOT Act and wanted expanded powers, we gave them to you to
fight terrorism.
And your agents are supposed to be accurate on the facts,
and if they're wrong on the facts, they're subjecting someone
to an invasion of privacy, to a national security letter, or to
a search warrant that ought not be issued.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Feinstein.
Senator Feinstein. Thank you.
Chairman Leahy. As I understand it, on our side the order,
as I presently have it, would be: Senator Feinstein--we're
going back and forth, of course--Senator Cardin, Senator
Feingold, Senator Whitehouse, and Senator Durbin. And I've been
told on your side, Senator Specter, it would be: Senator
Sessions, Senator Kyl, and Senator Grassley, in that order.
Senator Feinstein. Thank you very much, Mr. Chairman.
Good morning, Mr. Mueller. I wanted to begin with something
that Senator Specter said. He read to you a section of the
January 13 San Diego Union Tribune article that contained the
quotes from your FBI agents, and specifically `` `Lam's
continued employment as U.S. Attorney is crucial to the success
of multiple ongoing investigations,' the FBI chief said.''
Well, we followed up. I had my chief counsel call them to
verify what they said. And they said, yes, they said it, but
they also said they'd been warned to say no more. Are you aware
that they had been warned to say no more?
Director Mueller. Yes, I am.
Senator Feinstein. And why would that be?
Director Mueller. Because I did not think it's appropriate
for us to comment on personnel decisions that are made by the
Department of Justice.
Senator Feinstein. So if we wanted to find out if there was
a link between ongoing public corruption trials, we would then
have to bring those FBI agents back here and testify in front
of us in public?
Director Mueller. No, I don't think you would have to do
that. We would provide you the information that is necessary,
but I do not believe that it's appropriate for our Special
Agents in Charge to comment to the media on personnel decisions
that are made by the Department of Justice. I am not saying
that this Committee does not have the responsibility to follow
and determine what the facts are.
Senator Feinstein. Well, I profoundly disagree that he was
commenting on a personnel matter, per se. He was simply saying
that it would affect cases that were ongoing, and I think he's
entitled to his opinion. You're the one--this is the second
time, now, you've testified that public corruption is the
highest priority of the FBI.
Director Mueller. Yes.
Senator Feinstein. That's going to mean the investigations
are done and the public prosecutions are done. Well, six out of
the eight U.S. Attorneys dismissed were carrying out public
corruption cases, and that's the investigation that's going on.
So if we can't talk informally, we'll have to bring them back
here publicly, which is fine with me.
Director Mueller. Well, as I say, we are happy to provide
the information, Senator, on this issue. The only issue for us
was discussing it in the media.
Senator Feinstein. Okay.
Let me go to verbal emergency requests for NSLs. My staff
has learned that the authority to issue purely verbal requests
extends down to the Assistant Special Agent in Charge level,
the second-in-command or higher--
Director Mueller. Yes.
Senator Feinstein.--At each of the FBI's 56 field offices.
Can you explain why you decided to disseminate this
authority so widely?
Director Mueller. We set out a guidance to the field that
was relatively specific with the use of this authority and the
situations in which the authority is to be used, and the
paperwork that is supposed to accompany any such decision.
Because these decisions can--the request for information
can be in situations such as kidnapping or imminent terrorist
attack, we believe that the ASAC, given this new protocol,
should have the capability of making the oral request. We have
found in the past that when it is just the SAC, the SAC may be
out of a division for a period of time.
And if you put it at the SAC level, we have had occasions
where the SAC has had to, when they are out of that division,
they've had to go to another division to get that authority.
And so we've narrowed the--I would say rather substantially
narrowed the circumstances in which we would exercise this
authority, put in more controls, but by doing so believe that
we have to eliminate the problem that you have when you have
just the SAC as the only person who could authorize making the
oral request. I'd be happy to provide the publication or our
guidance to the field so you can see the--
Senator Feinstein. I would--I would like to see it because
it's my understanding that you have well over 100 FBI officials
now having this authority to issue essentially a verbal
emergency request without any contemporaneous paperwork at all.
Director Mueller. Well, the requirement is that there be
contemporaneous paperwork. In other words, yes, you make the
oral request, but you have to file--follow it up immediately
with a paper.
Senator Feinstein. Okay. Good.
Director Mueller. It's much like--to a certain extent it's
much like the emergency authorities that you have with the FISA
court, where you get the oral authority, and then within 72
hours you have to follow it up with the paperwork.
Senator Feinstein. Despite the IG's recommendation that the
FBI should keep a control file with copies of all NSLs, it's my
understanding that you're implementing a policy that will only
keep copies in investigative files because you consider that
more appropriate.
So my question is, how is this response sufficient in light
of the IG's report's claim that its investigations of NSLs was
hampered by the lack of an NSL control file?
Director Mueller. I'm not certain to what they're
referring. I recall a discussion we had in the last few weeks
with regard to where we would keep the NSLs and the necessity
of having not just one control file, but several control files,
depending upon the type of investigation. I would have to get
back to you on that--
Senator Feinstein. Right.
Director Mueller [continuing].--As to exactly how we are
requiring, or what file we're requiring, the NSL to be kept in.
Senator Feinstein. I would appreciate that. I believe it's
recommendation No. 1 that recommends that all signed NSLs be
kept in a control file so that in the future they're
accessible.
Director Mueller. Could you excuse--
Senator Feinstein. Because otherwise the future auditors
will be forced to hunt down NSLs from dispersed investigative
files.
Director Mueller. Can you excuse me just 1 second? Maybe I
can get a quick answer to this.
Senator Feinstein. Oaky.
[Pause]
Director Mueller. We actually have--as a result of the
discussions we had some time ago, we have established a
separate file, not necessarily a control file, not an
investigative file, but a particular file to hold these NSLs,
and we'd be happy to get more details to you.
Senator Feinstein. In how many locations?
Director Mueller. In terms of--well, each office would have
one. Now, I don't know--
Senator Feinstein. But that's the point. The point is, the
number-one recommendation of the IG is to keep them in a
central file so that they're accessible for auditors to get at
quickly.
And let me just say this. This was a very controversial
addition to the PATRIOT Act. There were many members that had
deep concerns about this. The language was negotiated. We were
very specifically trying to put in the checks and balances and
then it appears that they all just melted into oblivion with
the sloppy administration.
Director Mueller. I can tell you, Senator, I'm as
disappointed as you in the fact that we did not have the
auditing and the compliance capability to assure that we were
doing that which Congress anticipated that we would do. And as
I have said, we are putting in place, both for NSLs and other
areas, a compliance system.
I will--if you excuse me just 1 second on that issue about
central location.
[Pause]
I guess this may be a miscommunication. We did not
understand Glen Fine to be saying that we had to have them in
one office back at Headquarters. We had understood that it is
important to have the signed copies readily available for
auditors, but they could be in each of our field offices under
control. But if you have a different understanding of what he
is recommending, we will have to go back and sort that out.
Senator Feinstein. If you'd re-look at that, I'd appreciate
it.
Director Mueller. We would. Absolutely.
Senator Feinstein. Thanks, Mr. Chairman. My time is up. And
I have the recommendation here if you want it.
Chairman Leahy. Thank you.
Senator Sessions.
Senator Sessions. I agree with Senator Specter that the war
against terrorism is deadly serious business, and I believe
there's a clear need for the FBI to have the authority to issue
national security letters. We've had a big debate about that
and discussed it, and I think we came to a consensus on that.
The new procedures for national security letters provided
for in the PATRIOT Act were long overdue and, I felt, extremely
valuable in terrorism and counterterrorism cases.
And I think as a practical matter, those national security
letter capabilities could be one of the most important, if not
the most important, part of the entire PATRIOT Act.
As a practical matter, knowing how investigative agents
have to work and the realities of their lives, it provides them
information that's important. We also need to remember that the
Drug Enforcement Administration, the IRS, OSHA, and other
regulatory agencies have the power to issue such administrative
type subpoenas on relevant standards, and do so every day for
far less serious cases than terrorism cases.
So it's just really--it was always amazing to me that you
didn't have the power, on a Friday afternoon or a Saturday
afternoon or night, to be able to get an inquiry to make to a
motel whether or not some terrorist may be spending the night
there. I mean, this is the kind of reality that agents have to
deal with and I think it was good, what we did.
So let me ask you, do you think that the national security
letters, as a practical matter, are some of the most important
aspects of the PATRIOT Act?
Director Mueller. I absolutely do. I think Glen Fine, in
his report, points that out. A substantial section of his
report addresses that question because the question was
addressed to him by Congress: are these important? And he finds
that they are.
But they are the building blocks of our investigation. They
are the pieces of information that enabled us to tie Hasmi
Mitor to the rest of the hijackers. Had we had this vehicle
back in 2001, had we identified these individuals, it would
have been national security letters that would have given us
the contacts, whether it be telephonic or e-mail contacts, that
would have allowed us to identify others, perhaps, as part of
the plot.
Senator Sessions. Mr. Mueller, you're an experienced
prosecutor yourself. You held virtually every position in the
Department of Justice and tried many, many cases personally.
Would you explain to us what the difference is between a
search warrant--where someone goes into your house and takes
your personal records, which is based on an affidavit, probable
cause, and other kinds of high standards--and the ability to
obtain from a third party, a bank or a telephone company,
records that are not private, that were not in the possession
of the person you're investigating, but in the possession of a
third party?
Director Mueller. Well, as the Senator well knows, the
Fourth Amendment protects the right of persons to be safe in
their homes from search. Consequently, unless there are unique
and exigent circumstances, one needs a search warrant to do a
search in a suspect's home. On the other hand--
Senator Sessions. And that means going to a Federal judge
and getting that warrant, and you can't go in there until you
do that.
Director Mueller. And you need probable cause to do that
search.
Senator Sessions. Probable cause. On the other hand,
whether it be a criminal case or otherwise, records held by
third parties that are not covered by the Fourth Amendment that
are subject to, if it's in the criminal context, subpoena by
the grand jury, or in the national security context, in various
areas of records by national security letter.
Now, that national security letter only applies to these
records in the hands of third parties.
Director Mueller. Correct.
Senator Sessions. Not to your personal records, not to your
records in your personal office, not your automobile, and not
your home.
Director Mueller. That's correct. And also the national
security letter addresses not content of e-mails, not content
of telephone calls, but the information called meta data, when
it comes to e-mails or telephone toll data when it comes to
toll information. That is a key distinction because the
intrusion, when you're talking about the content, is far more
than if you were talking about telephone toll records or e-mail
meta data.
Senator Sessions. And if you investigate an individual and
believe he or she might be connected to a terrorist entity, you
would subpoena the telephone toll records. Not the substance of
those calls, just the toll records saying what numbers they
called, and if 50 numbers turn up going to 50 different known
or suspected terrorist individuals, you know you're on to a
significant case, probably, at that point. Is that right?
Director Mueller. That's correct. Practically--
Senator Sessions. Now--
Director Mueller. Practically, though, if you pulled in a--
in an address book that had been found in a--a terrorist safe
house and there is a number in the United States, you go look
up that number and that number has called 10, or 15, or 20
others, you have to not only identify those who were part of a
cell, but also exclude those who had been identified in contact
with these individuals, exclude them as being terrorists. So it
is as important in identifying those who might be part of the
cell as it is in identifying those who should be excluded from
further scrutiny.
Senator Sessions. Well, this is the basis of investigations
every day that have been going on in my 15 years as a Federal
prosecutor. I mean, that's what you do every day, you gather
this kind of evidence, and we need to get these principles
straight.
But I've got to tell you, Mr. Director, that I am
disappointed, when you've been given this very valuable power,
that we've ended up with this kind of embarrassing failure to
properly comply with the regulations and rules this Congress
has given you.
Now, you say you take responsibility because you didn't
create a sufficient compliance system. I think any manager can
say that if you don't set up a compliance system, you're going
to have violations. But it seems to me some of your people may
well have just not complied with clear directives of the
Bureau. Will you take any action--
Director Mueller. Yes.
Senator Sessions [continuing].--To discipline people who--
who violated your directives?
Director Mueller. Yes. I have directed that a thorough
inspection be done, investigation be done with regard to the
issuance of the exigent letters to determine what happened and
how that could have happened, and ultimately whether there
ought to be actions taken against individuals as a result of
what we find.
Senator Sessions. With regard to the Lam situation in San
Diego, did she try the corruption case involving the
Congressman personally?
Director Mueller. I don't know what role she had personally
in that case.
Senator Sessions. Well, isn't it true that U.S. Attorneys
come and go frequently, that many of them are sent to
Washington for months at a time and that investigations
continue by the professional assistants and professional FBI
agents that remain there?
Director Mueller. True.
Senator Sessions. And isn't it normally experienced
assistants who try big cases themselves for the U.S. Attorney?
I tried a few myself, but that was unusual. Most of the time
the U.S. Attorney had so much other work to do, and especially
in big offices, that professional assistants try the cases.
Director Mueller. That's true.
Senator Sessions. And I will just--and is--what would
happen--and this is important. Oh, my time is up. You caught
me.
Chairman Leahy. Finish your conclusion.
Senator Sessions. My question would be--
Chairman Leahy. I said at the beginning of this thing,
we're going to have to stick to the clock in the first round.
Senator Sessions. You did.
Chairman Leahy. Because we have many who have to go.
Senator Cardin.
Senator Cardin. Thank you very much, Mr. Chairman.
It's nice to have you here, Mr. Mueller. Let me go back to
the point of national security letters. The information that's
requested is very sensitive to the person whose material is
being released. And I appreciate Senator Sessions' comments
that it might be different than the protections under the
illegal searches. The information is extremely sensitive.
The audit has pointed out the misuse, and if it were not
for the protections put in for oversight by the Congress, I
doubt whether we would be here today and we would have the
information about the problems within your agency.
So my first question is the number of national security
letters that are requested. Why isn't that information released
and made public? What is the reason why that needs to be kept
classified?
Director Mueller. Okay. Excuse me just a second.
[Pause]
Director Mueller. My understanding, as I thought this was
the case, we released the number of records we get. There is
some total that is made public. But the breakdown is not made
public because it might give those who are looking at how we
address terrorism or counterintelligence and the like some idea
of our investigative activity. So there is one number that is
publicized.
Senator Cardin. The useful is the number of bits of
information you're seeking. The problem we have is that, during
some of the debate on the reauthorization of the PATRIOT Act,
there was an effort made to find out how often it was being
used.
And you released information about the request made under
Section 215, but did not do that for national security letters.
There was a debate within the press as to how often this was
being used. I just think that sometimes we downplay how often
this is used.
I'm concerned that you may very well be trying to cast a
very broad net to get as much information as you can possibly
get. That troubles my constituents because they don't want
their information taken inappropriately if it's not with cause.
Second, you're not focusing on the investigation when you--
it causes you, your investigators, to be a little bit more
sloppy if they're not going to take the time to figure out what
they really need.
If we have--if you make public more information that is not
vital to protecting the investigation, I think it gives us the
ability to help you to focus on what you really need, giving
you the authority you really need rather than just letting
investigators get as much information as they want,
compromising the privacy of the people of this country and
jeopardizing the focusing on the importance of investigations.
Director Mueller. Well, I would be happy to look at what,
if any, additional information we can disclose, whether it be
to Congress or to the public. But I would have to disagree with
the characterization that our agents cast a very broad net.
I would say that our agents follow our investigations,
whether it be intelligence or otherwise, to the extent that
they believe that there's information that is derivable that
will assist the investigation and no further.
A predication for each step of our investigations is an
important part of what each and every agent, each and every
analyst, and person in the Bureau learns as part of being a
member of this agency.
Senator Cardin. Well, let me switch subjects, because I
think it's a similar issue, on the number of people that are
included on different lists. The Terrorist Identities Mart Data
Environment List that has been filed.
Director Mueller. Yes.
Senator Cardin. As I understand it now, it has hundreds of
thousands of names on it.
Director Mueller. Yes.
Senator Cardin. It includes both Americans and foreigners.
It's used for different purposes, as I understand it. And I
just question whether that list is tightly guarded. I
understand every day new names are added and there's mistakes,
common names, et cetera. It's hard to get off the list once
you're on the list.
Director Mueller. Yes, it is guarded and it is vetted. It
is continuously vetted. Continuously vetted. But if we have--I
mean, what comes in to TIDE, amongst other things, is
information from foreign governments as to putative terrorists
who we do not want in the United States. And consequently it is
a list not just of persons in the United States, but persons
from around the world who are tied into terrorism who we do not
want in the United States.
Senator Cardin. I understand that. Also, there are
Americans on that list.
Director Mueller. Americans are on the--yes, I believe
Americans are on that list. Certainly Americans are on the list
that is in the Terrorist Screening Center, the one that we use.
Absolutely.
Senator Cardin. Again, I come to the point about making
sure you're--that you're careful on whose information you're
trying to get. If you've got a common name and you get on a
list, and you shouldn't be on the list, it's tough to get off
the list. It affects your life. This is very sensitive
information to the individual.
I just question whether you have the right safeguards in
place. I don't have confidence in looking at the manner in
which the national security letters were issued, and I still
don't--I'd like to know the number of times you're using it
because it's hard for me to understand how often this is being
used as to whether it's being judicious rather than saying, we
might as well get the information and see if we find something.
Director Mueller. I understand the concern. I share the
concern. We share the concerns with regard to the lists. I know
the Department of Homeland Security, ourselves, to the extent
we are--have the Terrorist Screening Center, have put in place
procedures so that complaints can be filed and ruled upon.
We do continuous vetting to try to eliminate those from the
list who no longer deserve to be on the list and have taken a
number of steps to reduce the incidence where American citizens
or those in the United States spend an inordinate time as a
result of their name being similar to somebody else's name on a
list. On the other hand--on the other hand, it's absolutely
essential.
Senator Cardin. Let me ask you one more question if I might
about Senator Specter's point about your independence to the
Congress as far as information that you may have that
compromises, for example, the integrity of the U.S. Attorney's
Office. Do you agree with Senator Specter's point that if
information was brought to your attention through the--through
one of your regional offices, that action taken could
compromise an investigation by the Department of Justice, would
you bring that information directly to our Chairman and Ranking
Member?
Director Mueller. I would have to look at the particular
instance. There would be other vehicles that perhaps one could
use, whether it be the Inspector General or OPR, depending on
the circumstances.
I would have an obligation to assure that that
investigation is continued without any fear of influence
politically. And ultimately we've had this dialog actually with
Senator Specter during my confirmation as to, what are the
obligations of the Director of the FBI when put in that
situation
My belief is, there's an obligation to assure the
independence of the investigation and you'll go through
whatever steps are necessary to have that assurance, and it may
well be briefing the Chairman and Ranking of this committee. I
don't exclude that as a possibility.
Senator Cardin. Well, there's been some very serious
charges made in regards to the firing of the U.S. Attorneys.
Director Mueller. Yes.
Senator Cardin. And the FBI has been mentioned. We
mentioned already Southern California. Have you inquired into
your regional offices as to whether there has been a problem
perceived by our regional offices in regards to the firing of
the U.S. Attorneys?
Director Mueller. I have not.
Chairman Leahy. And then after--after this answer--go ahead
and complete your answer, then after the answer we'll go to
Senator Kyl. Go ahead.
Director Mueller. Okay. I have not heard of any instance
where our investigations have been hampered or hindered as a
result of what has occurred.
There was one instance where, unrelated whatsoever to the
U.S. Attorneys who have been fired, where an individual came
forward believing that in a separate office, separate case,
there may have been some political influence, and that
particular case, we passed it on to the Inspector General to
follow-up on.
Chairman Leahy. Thank you. Thank you, Senator Cardin.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Thank you, Director Mueller, for your testimony. All of us
obviously are concerned about the mistakes identified in the
Inspector General's report and are anxious to see that the
measures that you have put into place, or will put into place
to correct it, are going to work.
We will continue to receive reports from the FBI. There
will continue to be oversight by this Committee and the
Inspector General will continue to do his monitoring of the
situation, and hopefully the combination of those things will
tell us whether what you've done will work.
I think it's important for Congress not to compound one set
of mistakes with another. And what I have in mind relates to
potential legislative changes. I've got a two-part question
relating to this, then I'd like to conclude with an unrelated
matter.
You testified that the mistakes that were made were not
related in the case of the relevance standard. You said that
the ``the relevance standard is unrelated to the problems that
were identified, so the statute didn't cause the errors and
should not be changed.''
I'd like for you to, A) expand on that. What did you mean
by that and why is the relevance standard important to be
maintained? And second, what is the reason for what is called
the gag rule and whether that should remain as part of the
statute, and why?
Director Mueller. Well, first of all, with regard to the
relevance standard, prior to the change in the PATRIOT Act in
2001, we would have to show probable cause before we could get
those third party records, show probable cause that these
records related to an individual who was an agent of a foreign
power--that agent of a foreign power could be a terrorist--
which gets the cart before the horse.
It's very difficult to make that showing without the
underlying records, and putting in place the standard--the
relevance standard, which is what you find in the criminal
arena--gave us the ability to obtain these third party records
and build, by developing predication, the basis for going
forward with more intrusive methods of investigation, whether
it be developing sources or obtaining a FISA wire, and the
like.
And those building blocks--those third party records become
the building blocks of obtaining the information you need to
pursue that investigation, and to go back to revert to some
other standard would absolutely handcuff us in our ability to,
as people have said, connect the dots, identify potential
terrorists. And so in our mind it's tremendously important to
keep that relevance standard.
In distinguishing between the standard and what happened,
that does not mean that we should not have procedures in place
to assure that the safeguards that have been placed in the
statute by Congress are not being adhered to.
And so the response in my mind should be, look at the FBI,
assure we're putting it in place, the safeguards, the auditing,
the compliance, to assure that this doesn't happen again, as
opposed to changing the relevance standard.
Now, I may have missed your second question.
Senator Kyl. The second question basically was the same
question regarding the gag rule. Why--and I know that isn't
what the technical name is. But whether it's important to
retain the confidentiality of the request.
Director Mueller. It is. It is, because if you do not
retain the confidentiality of the request you will have--are
going to--an example would be, we obtain information from MI-5
that a--one of the persons that they're looking at for
involvement in terrorism has--is corresponding with somebody
with an e-mail address in New York City, New York and providing
jihadist literature in the course of what they're sending to
New York.
We then would want a national security letter to that ISP
to obtain identification of who was using that screen name,
that e-mail address, so we can identify that person. If that
ISP then goes and tells that person, that's the end of that e-
mail account, that's the end of our trail, that's the end of
our investigation.
Senator Kyl. There was a newspaper account of someone who
was very unhappy about the fact that he or she had been served
with one of these letters and had to give up the information,
and the assumption by this individual that it was overly broad.
Is it quite probable that the individual had no idea what
you were seeking and, therefore, would have a very difficult
time of judging on his or her part whether it was an improper
request and was overly broad?
Director Mueller. I think that's probably true. What we
find in most cases, is we work with the ISP or we work with the
communications carrier to provide a request that is on target.
Nobody wants to get reams of information that is irrelevant
and often a person, a recipient, will come back and say, hey,
look, given the way I keep my records it will take me days, if
not weeks, to get this. What are you really looking for? And
the request is then narrowed to specifically identify what we
need and have the carrier respond.
But if we are to conduct intelligence and criminal
investigations into terrorists and be successful in stopping
terrorist attacks as--knock on wood--we have since September
11th, we need the ability to obtain this information and to
identify persons who are associating with each other for
purposes of undertaking or supporting terrorist--
Senator Kyl. But not have the information made public.
Director Mueller. And not have the information made public.
Senator Kyl. Let me totally switch subjects. One of the
U.S. Attorneys who was asked to resign was the very fine U.S.
Attorney in Arizona, Paul Charleton, who has had a running
battle with the Department of Justice, one of the reasons that
both he and the Department identified as the reason why he was
asked to leave, over the use of videotaped or recorded
confessions by the FBI.
His view was that they should be, the Department of
Justice, relying upon the FBI's view, was that they shouldn't
be. His view was that juries would be much more likely to view
a confession as legitimate if they could hear it on tape or see
it on videotape.
I understand there are reasons both for and against this. I
wonder if the FBI would be willing to consider whether, at
least in some instances, it wouldn't be appropriate to begin to
videotape or record confessions for use in jury trials.
Director Mueller. Well, for a substantial period of time
it's been the discretion of the Special Agent in Charge to
allow that. You need the approval of the Special Agent in
Charge. The concern we had with the way Paul addressed it, is
he indicated he would not take cases unless this had been done.
And at the time, there was a dialog--his view was not
necessarily shared by all of the U.S. Attorneys, and there was
a dialog with the Department of Justice as to where we should
go on this particular--in this particular arena. And so there
had been a dialog, and a continuing dialog. And within the last
year, I would say, we have given additional guidance to our
Special Agents in Charge, liberalizing the incidents of where
you would agree to it.
We interview thousands upon thousands of people every day
of the year and some of them may end up as defendants, some may
not. And it's not a question of just recording the interviews,
but also who is going to--if they're recorded, who is going to
transcribe them, how are they going to be handled, and they are
difficult issues. And the issues differ from jurisdiction to
jurisdiction, State to State.
Our concern here was that there was a--I would say a
dictate that this is the way you do it, while we were in an
ongoing dialog with the Department of Justice, as well as other
U.S. Attorneys.
Senator Kyl. Thank you very much.
Chairman Leahy. I might say to the Senator from Arizona, in
this day and age where so much is done electronically, the idea
of having it recorded, I find very, very appealing rather than
notes. I think it sure cuts down on cross examination, whether
your notes are accurate, whether you remembered it correctly,
and it's going to be what it's going to be.
Senator Kyl. Mr. Chairman, my inclination is to agree with
that proposition and to agree with the position of the U.S.
Attorney from Arizona. There are reasons the FBI Director has
said that they have a different point of view in at least some
cases.
I would just note that this is one of those policy
differences that was given as the reason for Mr. Charleton's
removal rather than any issue relating to his performance,
which, by all accounts, was very, very good.
Chairman Leahy. Without taking up other members' time,
perhaps you and I could discuss this further. I think you raise
a very good point and we should talk about it more.
Senator Feingold, thank you very much for being here.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. You're next. Next is Senator Grassley. If
he's not here, it will be Senator Hatch, and then it will be
Senator Whitehouse, then Senator Durbin.
Go ahead, Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Welcome, Director Mueller. I appreciate your being here,
and also for taking the time to meet with me last week to
discuss the Inspector General's report.
Mr. Chairman, I have a statement I would like to be placed
in the record.
Senator Feingold. Director, would you agree that without
this independent Inspector General audit, these misuses of the
NSL authorities might well have never been uncovered?
Director Mueller. It might well not have, although I would
hope that we would--my hope would have been we would have woken
up earlier. My hope was we would have identified this as a
persistent problem and addressed it, certainly not as soon as
the IG did.
Senator Feingold. All right. I appreciate that the FBI is
now undertaking its own review and audit of its use of national
security letters to follow-up on the IG's findings. I think we
both agree that this is long overdue. Will you commit to making
public the results of those internal reviews?
Director Mueller. I would agree to briefing this committee
on what happened in those reviews. Where it goes from there, I
would--we'll have to see. I don't know whether there are
privacy concerns or not--
Senator Feingold. All right.
Director Mueller [continuing].--But I do believe this
committee should be briefed in our findings.
Senator Feingold. Okay.
Part of that review should include a real effort to
determine why it took so long for information about certain
problems to make its way to your office when it was known by
people in the field.
It remains troubling to me that there were warning signs
that were apparently ignored or not acted upon appropriately.
Do you plan to take a close look at this action and make the
necessary adjustments in your internal procedures?
Director Mueller. Yes.
Senator Feingold. Okay.
The IG report questions whether case agents should be able
to ``access NSL information about parties two or three steps
removed from their subjects without determining if these
contacts reveal suspicious connections.''
The reason that this is permitted under current law--and I
think you were just discussing this to some extent with Senator
Kyl--is because the standard for issuing an NSL is mere
relevance to an investigation, a very broad standard.
Do you think that the FBI should be able to get the records
of an individual three steps removed from a terror suspect
without some additional suspicion? Wouldn't that have the
potential to cover a lot of innocent people?
Director Mueller. I think you'd have to look at particular
circumstances. Without any rationale, obtaining records from
individuals a third or fourth tier away, I do not believe we
should because there's no predication for doing that wide a
search. But I am not certain we do at this juncture.
In other words, my belief is that the agents will identify
the person that's supposed to be associated with a terrorist,
then go one, perhaps two, outside because there's predication
for doing the next two rings, but third or fourth, there would
have to be some predication.
Senator Feingold. But the relevance standard does not
require you to do that.
Director Mueller. Oh, I think it does.
Senator Feingold. You think it does?
Director Mueller. I think there is an outer limit to the
relevance standard, yes.
Senator Feingold. Well, let's take an example. Say you have
a suspect and you want to get the phone records of everyone
he's in contact with.
Director Mueller. Yes.
Senator Feingold. And some of these contacts are
undoubtedly going to be perfectly innocent, like restaurants he
orders carry-out from, or his barber, or his car mechanic.
Director Mueller. Yes.
Senator Feingold. Should you then be able to get the phone
records, or even the credit reports, of anyone who has used
those same businesses? Wouldn't that potentially sweep in all
kinds of innocent Americans?
Director Mueller. I think it would in that circumstance.
I'm not certain that that would--I mean, I guess you could
arguably say that meets the relevance standard, but without
more I would say that probably is not an area we should be
going.
Senator Feingold. Well, that gets right to the heart of the
matter because, understandably, you're defending the relevance
standard because of its role in trying to get information in
these investigations.
But let me suggest to you that there may be something in
between a pure relevance standard and previous law that could
try to avoid this very broad interpretation of relevance. And
given the record here, given what's happened, we all have
reason to be concerned about abuse. I think that's been the
message of this. So, I hope you'll be open to that.
At last week's House Judiciary Committee hearing, the FBI
General Counsel testified that she believes that one of the
root problems laid out in the IG report is that many FBI agents
grew up in the transparent criminal system where, as she put
it, if they mess up during the course of an investigation
they're going to be cross examined. They're going to have a
Federal District judge yelling at them.
On the national security side, on the other hand, she
explained that actions ``are typically taken in secret and they
don't have the transparency of the criminal justice system.''
She suggested that the difference requires a more vigorous
compliance system, that more controls are needed in the less
transparent arena of national security investigations. Do you
agree with that?
Director Mueller. I do.
Senator Feingold. All right.
Last--
Director Mueller. And if I might--
Senator Feingold. Yes?
Director Mueller. I think that is one of the lessons we've
learned from this, is if you look at, historically, the FBI as
we are changing and transforming ourselves, we have to
understand that it's not just transforming ourselves to
successfully address the mission, be it counterterrorism or
counterintelligence, but we also have to transform ourselves in
assuring that we protect the civil liberties and privacy rights
of the citizens in ways that may be unique and not comparable
to what we have done in the past on the criminal side of the
house.
Senator Feingold. And I would add that the distinction here
between the regular criminal procedure and what we're talking
about here relates as well to the language of the statutes. It
is not simply a question of how the procedures and the
compliance is done. It has to do with the difference of a word
such as relevance in one context or another because of the
ability of cross examination and scrutiny by a Federal judge.
Last week I asked the Inspector General his view on the
level of intrusiveness of the different NSL authorities. He
testified that he believes that the telephone and Internet
records authority is least intrusive, and that the authorities
for a financial record and credit reports are more so.
Do you agree with that distinction?
Director Mueller. I've given some thought, because I know
we discussed it. It really depends on what you mean by credit
reports. I tend to think credit reports are more intrusive
because there's more information than you'd have on a telephone
toll, but my understanding is credit reports are somewhat
ubiquitous now. But the argument certainly could be made that
there's a different degree of intrusion when it comes to credit
reports as opposed to telephone tolls.
Senator Feingold. For example, he testified that obtaining
the details of someone's financial transactions is more
intrusive than finding out their bank account numbers. Do you
agree with that?
Director Mueller. Yes.
Senator Feingold. And he testified that obtaining the
details about the phone numbers and e-mail addresses with whom
someone is communicating is more sensitive than finding out
what their own phone number and e-mail address is. Do you agree
with that?
Director Mueller. I'm sorry. Could you repeat that again?
Senator Feingold. He testified that obtaining the details
about the phone numbers and e-mail addresses with whom someone
is communicating is more sensitive than finding out what their
own phone number and e-mail address is. Do you agree with that?
Director Mueller. Quite probably.
Senator Feingold. Okay.
Thank you, Mr. Chairman.
Chairman Leahy. Senator Hatch.
Senator Hatch. Thank you.
Welcome to the committee, Director Mueller. I personally am
proud of the good work that you do, and you've done for a long
time. But, quite simply, we're here to find out how this
happened, why it happened, and to make sure it doesn't happen
again.
However, I have to disagree with some of my colleagues who
call for modifications to the law regarding NSLs, national
security letters. As the report states, NSLs in their current
form are indispensable tools which are critical for proper and
necessary investigations.
And even given my disappointment with this situation, I
respect Director Mueller for taking immediate and full
responsibility for the shortcomings we discussed today.
Now, the FBI employs more than 30,000 employees across 456
domestic cities and 50 international offices, so there is no
way you can possibly know every detail, every case, every
procedure or what's on the minds of individual agents all the
time.
However, as the Director has rightfully acknowledged, the
problems highlighted by this report, you've acknowledged them
and you've pledged to fix them. Now that's what the Congress
and the American public need, and that's what you've offered,
and I appreciate it, personally.
Now, I want to ask just a few questions that I think are
important. Some in Congress are using the contents of this
report as a reason to repeal portions of the PATRIOT Act as
they relate to national security letters. However, the report
states that prior to the PATRIOT Act--now, this is the report
that they're using to criticize. Prior to the PATRIOT Act, NSLs
were not viewed as an effective investigative tool, and that
the approval process could sometimes take over 1 year.
Now, how do you respond to those who suggest we
legislatively amend NSLs? Isn't that a process which would
change NSLs from indispensable to ineffective?
Director Mueller. Yes, it would. It would handcuff us and
inhibit us from doing the kind of investigation that's
necessary to thwart terrorist attacks.
Senator Hatch. So you don't want to lose these tools?
Director Mueller. No, I do not.
Senator Hatch. Although it hasn't received much attention,
the Inspector General also reviewed the FBI's use of Section
215 of the PATRIOT Act. Now, I know you've had some questions
on this, but I want to go a little bit farther.
Remember, while this section of the PATRIOT Act was being
debated, critics decried its usage and predicted doom and
gloom, painting a picture of FBI agents ransacking libraries
for people's reading habits. Now, the report shows that this
did not happen and found no widespread misuse of 215 orders.
In fact, it appears that the FBI was careful and showed
proper restraint in their application. In addition, FBI agents
commented that these 215 orders were essential to national
security investigations, absolutely essential.
Now, Director Mueller, can you comment about this report
and the FBI's use of 215 orders?
Director Mueller. Well, much of the focus has been on the
report on national security letters, but the report on 215 came
out exactly the same day and indicated that in that particular
arena there was no abuse. There was an appropriate use of that
authority.
So I would say, yes, we've got to learn from our mistakes
on the national security side, but we also ought to get credit
for our handling of our 215 authorities at the same time.
Senator Hatch. How important is that 215 authority to you?
Director Mueller. Very. It's exceptionally important in a
variety of circumstances where we cannot use NSLs, where the
intrusiveness--intrusiveness is such that it's important that
we have the stamp of the FISA court in order to get particular
types of records.
Senator Hatch. Okay.
The Inspector General, in his report, did not find that the
FBI agents used national security letters or sought information
that they knew they were not entitled to obtain through the
letters.
In fact, the IG, the Inspector General, said that in many
instances the agents were entitled to the information they
received. They were entitled to the information, but they got
it in the wrong way. You're aware of that?
Director Mueller. Yes, sir.
Senator Hatch. This does not appear to be a ``power grab''
where FBI agents formulated a plan to get information that they
knew that they shouldn't get.
Can you elaborate on the assertion that the FBI, in most
cases, is entitled to this information?
Director Mueller. In fact, what the Inspector General found
is that there was not an effort to circumvent the statutes or
the rules, but that as a result of not fully understanding the
authorities, or carelessness, or the like, that a vehicle was
used to obtain records that should not have been used, and that
in most cases, if not all cases, the agents were entitled to
the information and the information was relevant to an ongoing
terrorism or counterintelligence investigation.
Senator Hatch. Well, the Inspector General said, in his
report, that ``our examination of the violations we identified
did not reveal deliberate or intentional violations of the NSL
statutes, the Attorney General's guidelines, or FBI policy.''
Nothing was deliberate or intentional, for the most part.
''We believe that some of these violations,'' they go on to
say, ``demonstrated FBI agents' confusion and unfamiliarity
with the constraints of national security letter authorities.''
Now, how do you, as the Director of the FBI, intend to
address the confusion of FBI personnel in NSL statutes, and
what type of training and education will you provide agency
personnel to assure familiarity with these important statutes?
Director Mueller. Well, it would be on a variety of levels.
Everybody in the national security side of the house, the
national security branch, will be provided training. We'll
assure that everybody has received the training. We have
simplified and sent out additional guidance that would enable
persons to better understand the procedures that one needs to
go through.
But in the end, we have to always make certain that not
only is the training given, but the training is assimilated and
the individuals on the national security side of the house are
adhering to the processes and procedures that have been set up,
and we are--we have been for some time, and will continue to
develop that process.
Senator Hatch. To be clear, Director Mueller, do national
security letters allow for the FBI to obtain the content of
communications? In other words, did the abuses listed in the
report involve FBI personnel reading e-mails or listening to
private phone calls?
Director Mueller. No, sir.
Senator Hatch. I think that's important because a lot of
people thought that it went beyond that. Well, I've only got 15
seconds left. I have one more question, but I'll submit that in
writing.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman.
Welcome, Director. Thank you for your visit the other day,
by the way.
You've had a very long and distinguished history in and
around the Department of Justice. Just as a matter of personal
reference, can you ever recall a circumstance in which an
employee of the Department of Justice has exercised their Fifth
Amendment rights with respect to their official conduct as an
employee of the Department of Justice and remained an employee
of the Department of Justice?
Director Mueller. I wouldn't have--I--I cannot recall. That
is because I am not certain--I am not familiar with the
circumstances under which this may have come up in the past. I
know what you're referring to, quite obviously, and I just
cannot answer that.
Senator Whitehouse. I've never--I've never imagined that
would happen. I've never heard of it happening before. I was
just testing your recollection. You can't think of it ever
happening before either at this point?
Director Mueller. I cannot. But I must say I have not
focused on thinking back to circumstances where it may have
happened in the past.
Senator Whitehouse. Yes.
Let me go to the NSL issue which we talked about earlier.
Seeing it as a systems failure, which I think, clearly, it is,
in terms of the scope of what you intend to do as a response to
that systems failure, I wanted to suggest a couple of different
levels at which this appears to have failed and check with you
whether you agree with me. Obviously the NSL process had
failures, correct?
Director Mueller. Yes.
Senator Whitehouse. And those failures weren't caught and
reported to us until the IG process came along, so on top of
the NSL failure there was a reporting process failure, which
should have caught these. As I recall, it caught 26 errors in
44,000 files and the IG found, what, 17 in 44 files. So there
was a reporting failure?
Director Mueller. Yes.
Senator Whitehouse. Above the reporting failure is an
oversight failure, of not having made sure that there was a
reporting process in place that actually worked.
Director Mueller. Yes.
Senator Whitehouse. Would you agree that there was that
failure as well?
Director Mueller. I agree.
Senator Whitehouse. And the fourth, you used the phase
``meta data'' about the NSL, what's gathered. It strikes me
that there was sort of a meta failure as well here of the very,
what I would consider to be high-level management failure in
your relationship as an executive branch official with the
legislative branch of government, vis-a-vis the
responsibilities that were conferred on you when the NSL power
was expanded in the PATRIOT Act.
It's really that high-level failure that concerns me almost
more than any other, because that could apply to any other type
of responsibility that is given to you by this Congress with
conditions attached.
And there's at least a concern that I think is very
legitimate at this point, that somewhere in the FBI--the fact
that Congress has attached these critical conditions to a tool
that allows you to investigate, in a very private way,
Americans' personal records, it didn't get done.
And I'd like to hear you say that, as you address the
situation, you take it personally seriously that when Congress
gives you a particular set of responsibilities, it is
somebody's job very high up in your organization to make darn
sure that that gets done, not just because it's the right thing
to do, not just as a matter of process down inside the
organization, but because your relationship with a coordinate
branch of government that gave you this power demands that kind
of seriousness toward that other body of government.
Director Mueller. I agree. And my feeling--it was at the
meta level and the oversight level. There are various divisions
within the Department, a National Security branch, if you would
say, Office of General Counsel, our Inspection Division, all of
whom are players or participants in assuring appropriate
oversight with various roles to play.
But above that is my responsibility to assure that when
Congress gives us these authorities, that I bring into play
each of these particular functions within the Bureau to make
sure there are no--nothing that falls through the cracks. That,
I did not do.
That is what we have to put into place, and the lessons
learned on this, regardless of whether it's NSLs or some other
area in our National security responsibility, or some area
beyond that, in the criminal arena, for instance. So I
absolutely agree.
Senator Whitehouse. I would emphasize that I think,
particularly under the new leadership in this institution, it's
an important point because I think there's a fairly strong
sense that for a long time the executive branch has basically
blown off Congress, knowing that with Majority control they
didn't need to respond to us as a fellow institution. That
can't last.
That's not what the founding fathers intended when they set
up separated powers and checks and balances, and to make sure
that you've really engaged at that level is important to me.
Director Mueller. Thank you, sir.
Senator Whitehouse. The last question I'd have is with
respect to administrative subpoenas. Considering that national
security letters can be used to acquire not only meta data from
communications carriers, but also financial data from banks and
other institutions, and credit data from credit reporting
facilities, and so forth.
Are there places where the checks and balances that are
built into an administrative subpoena process would be useful
to add to the internal process for NSL letters?
Director Mueller. I would give up NSLs for administrative
subpoenas because I think administrative subpoenas are
beneficial both to the recipient as well as to our
investigators.
I say that because in the regime of administrative
subpoenas, there is, generally, opportunity for the recipient
to contest it in court on a variety of reasons, but there also
is the opportunity for the government to enforce it in court.
We do not have an enforcement mechanism for national security
letters.
If you talk to individuals who were recipients of national
security letters at various institutions, it could be
educational institutions, it can be communication carriers and
the like. They will give a subpoena preference because of the
fact that they understand it is a judicial instrument.
My belief is that adopting an administrative subpoena
regimen would simplify it for the agents, and also be
advantageous to the recipient, advantageous to the government
because of the enforcement or the challenge to enforcement that
would come with it, and would be a useful substitute for the
NSL letters.
I will tell you, if you look at our NSL authority it's no
less than four, and maybe as many as six, separate statutes
applicable to a variety of circumstances.
In order to obtain that type of compliance understanding,
it's very difficult to simplify. A simpler regiment that
persons would understand, whether it be from the perspective of
the agent or the recipient, I think, would go--would be
exceptionally helpful.
Senator Whitehouse. Okay. Thank you, Director,
Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Grassley.
Senator Grassley. Mr. Mueller, I'm supposed to give you the
courtesy of having questions I'm going to ask you, so I want to
give you the background of those questions before. And this is
the--in regard to Special Agent Michael Jerman. This is a
transcript that I'm referring to that we have.
My understanding is that all Special Agent Jerman tried to
do was to get the FBI to allow its own rules and acknowledge--
to follow its own rules and to acknowledge that a small part of
a meeting between white supremacists and an Islamic militant
was improperly recorded.
At first, the FBI denied the meeting was recorded at all,
and after the transcript surfaced the Inspector General
investigated and found that someone at the FBI had falsified
records in the case. Unfortunately, the Inspector General could
not figure out who did it.
These facts are disturbing, but even worse is that the FBI
seems more interested in protecting itself than in developing
some human intelligence on extremist groups. An FBI spokeswoman
even went on television to deny that the groups discussed
working together. The FBI also claimed that the subjects did
not discuss terrorism.
After a long struggle, this Committee finally obtained this
transcript I've referred to of that meeting directly from the
FBI. The transcript repeatedly contradicts what the FBI said
and supports what Special Agent Michael Jerman said.
The full transcript has never been made public. It is not
classified, but it is frightening evidence of white
supremacists and Islamic militants talking about working
together. What they have in common, is they're violently anti-
Semitic.
For example, in one portion of the transcript the Islamic
militant says that ``the enemy of my enemy is my friend.'' The
white supremacist agrees. Then the Islamic militant says that
anyone ``willing to shoot a Jew'' is a friend. That does not
sound like an innocent meeting between businessmen, and it does
sound like two extremists who support terrorism finding common
ground with each other.
In other parts of the transcript they talk about their
shared admiration for Hitler, arms shipments from Iran, their
desire for a civil war in the United States, and their approval
of suicide bombings, and, last, assassinating pro-Israeli
journalists in the United States. This is all in their very
first meeting with each other.
Any sign of cooperation like that between foreign and
domestic terrorist groups is exactly the type of intelligence
that needs to be identified and distributed to other
governmental agencies. That way the whole government can be on
the lookout for these groups building operational ties. If the
FBI can't recognize the importance of information like this, I
don't see how it can serve as effective domestic intelligence
agencies.
So my first question is, it's been more than a year since
the Inspector General found that Special Agent Michael Jerman
suffered whistle-blower retaliation from the FBI supervisor
George Martinez.
Has the FBI imposed any discipline on Martinez for
retaliating against a whistle-blower? If so, what was the
penalty? If not, what has taken so long, and when will this
matter be resolved?
Director Mueller. The answer to the first is yes, but we
will be happy to brief you on the circumstances of that within
the next several days.
Senator Grassley. Okay.
And then, Director Mueller, have you reviewed this
transcript and has the FBI let other intelligence agencies know
about it?
Director Mueller. I have not personally reviewed the
transcript. I would have to get back to you on whether or not
we have let other agencies know about what's in that
transcript.
Senator Grassley. Okay.
Now, it's my understanding that there's no FBI case on
either of the subjects in this transcript. Is that true?
Director Mueller. I'd have to get back to you on that.
Senator Grassley. Okay.
Can you explain why the FBI didn't jump at the chance to
infiltrate these organizations instead of wasting the time
retaliating against Special Agent Jerman?
Director Mueller. Well, my understanding is that the
Inspector General's investigation found no missed opportunity
in that set of circumstances, but I'll have to go back and look
at that and get back to you, Senator.
Senator Grassley. Okay.
I have some information, Mr. Chairman, that I want put in
the record that I have here.
[The information appears as a submission for the record]
Chairman Leahy. Without objection.
Senator Grassley. Okay.
And then, last week I wrote to you to ask for copies of
unclassified e-mails relating to so-called exigent letters that
the FBI used to obtain phone records without issuing a subpoena
or following the statutory process for the national security
letters.
Those exigent letters contained false statements, and we
need to figure out whether the FBI's supervisors signing them
knew that they were false. I understand that some of those e-
mails will establish that Bassam Youssef reported problems with
the exigent letters to the FBI's General Counsel's Office
before the Inspector General's Office learned of them. Your
staff has indicated that you will provide the e-mails, but we
haven't received them.
Why weren't we able to get those e-mails before this
hearing, and when will we be receiving them?
Director Mueller. I'd have to get back to you on the timing
of when you'll receive them. I think the e-mails are probably
fairly substantial, and before we provide it--those e-mails, we
want to make certain that we have the full universe of e-mails
that are responsive to the request.
Senator Grassley. Okay.
Youssef said that his supervisors in the operational units
at the FBI dismissed his concerns about the national security
letters when he took over the Communications Analysis Unit. Why
can't the FBI take internal criticism seriously and focus on
fixing the problems?
Director Mueller. Well, we do take internal criticism
seriously. As to the assertions there, that is being
investigated by Inspections now, who's looking at the full set
of circumstances relating to the issuance of the exigency
letters.
Senator Grassley. Last week I asked the Inspector General
if there needed to be an independent look at the exigent
letters issued to find out who knew what about the
misrepresentations, and when they knew it. He said he had not
conducted that sort of review, but that you had ordered a
special inspection.
Why should we believe that the FBI is capable of
investigating itself here, and wouldn't it be better if you
asked someone truly independent to get to the bottom of this?
Director Mueller. Well, in this--in this particular case I
think this will be an effective tool, for a couple of reasons.
First of all, the--we'll be doing this in conjunction with the
National Security Division of the Department of Justice. They
will be looking at it. But most particularly, we'll be
coordinating with the Inspector General, who is still doing the
2006 review.
We'll be coordinating with the Inspector General and making
certain that what we're doing in the course of our
investigations does not overlap with what he is doing, and so
the Inspector General will have insight into what we're doing,
and ultimately this Committee will be briefed on the extent of
our information, our investigation, and to the extent that
there is--there are issues relating to that, I would hope that
I would be able to answer them.
Senator Grassley. I'm done. But let me say one little
sentence to the Director. I'm glad that you said you will give
answers to us. I won't refer to a meeting that we recently had
because you asked us not to, but it was very helpful. I think
that you can be more open than you are and eliminate a lot of
anxiety I have about whether or not you're being forthright
with us.
Director Mueller. Thank you, sir.
Chairman Leahy. Thank you, Senator Grassley. Sometimes the
promise imposed by the Department of Justice in getting answers
back, but there's been several things, and your staff's been
keeping notes. We've been saying today, can we get answers back
quickly? I hope everybody understands that we're in somewhat of
an extraordinary time.
We want those back, and that includes the answers to the
questions Senator Grassley, Senator Specter, and I have asked.
I'm going to have to leave in a moment. I'm going to yield, for
his time, to Senator Durbin first, then Senator Specter will
take over. Senator Schumer will take over.
When Inspector Glen Fine released his report on the FBI's
use and abuse of national security letters, the committee's
distinguished Ranking Member, Senator Specter, said he was very
concerned that the FBI has so badly misused national security
letters, and I share that concern.
I also saw, just so people won't think this is a partisan
thing, in the House Judiciary Committee, Republican
Representative James Sensenbrenner called the FBI abuse of the
PATRIOT Act authority a ``gross overreach''.
He also said that he hoped that this would be a lesson to
the FBI that they can't get away with this and expect to
maintain public support for the tools that they need to combat
terrorism. I agree with Congressman Sensenbrenner.
So I hope that after the cameras and the hearing lights are
turned off, the bipartisan commitment to conduct meaningful
oversight of the broad authorities granted under the PATRIOT
Act to snoop on law-abiding Americans doesn't fade away with
the passage of time.
Let's get this thing right. That means honesty on the part
of the Department of Justice, it means commitment here. But
let's not just have this widespread snooping where you end up
with nearly a half a million people, for example, that some way
or another are connected on ``no fly'' lists, and the rest.
Then we're doing what we shouldn't be doing.
Director Mueller. Can I respond just briefly to that, Mr.
Chairman, only to say that I would disagree in terms of
overreaching. I believe the Inspector General found in almost
all cases that the documents that we sought from third parties
we could have obtained if we had used the right vehicle. That
would be the only comment that I would make, and thank you for
allowing me to make that comment.
Chairman Leahy. Thank you.
Senator Durbin.
Senator Durbin. Director Mueller, thank you for being here.
You occupy a unique place in American history, having been the
head of the FBI since 9/11. I believe you came within a few
days of that awful tragedy and you've had this responsibility
to try to keep our Nation safe in this post.
I'd like to ask you two very general questions to start
with which I think reflect why we're here today. Should our
Nation accept the fact that violating the privacy of innocent
Americans is simply the unavoidable collateral damage of the
war on terror?
Director Mueller. No, and I don't believe--I would disagree
with the predicate of that question. We firmly believe that we
have to protect the American public, while at the same time
protecting civil liberties and privacy concerns. And day in and
day out, we try to meet that balance.
Senator Durbin. Which was my second question, which I
believe you've responded to, but I'll state it anyway. Can we
keep America safe from our enemies, foreign and domestic, and
still preserve our constitutional rights? I take it from your
response that it would be in the affirmative?
Director Mueller. Yes. But I would add that the retaining
the standard and the national security letter, the vehicle, is
important to our ability to do that.
Senator Durbin. And I voted for the PATRIOT Act and the
reauthorization because I believe you need the tools in this
war on terror. But as you've said repeatedly during this
hearing, and I've heard you say personally and privately,
lessons have been learned in the last few weeks with this
Inspector General's report.
Comments that have been made by the General Counsel,
Valerie Caprone, when she testified at the House Judiciary
Committee, and said ``the problem is not with the law.'' She
said, ``there is no doubt that the problem with the NSLs was
the colossal failure'' her words, ``on our part to have
adequate internal controls and compliance programs in place.''
I think a fair analysis of her comment is that she thinks
this is a management problem. Our conversation--our private
conversation--suggested that there simply should have been
closer auditing of what was being done with exigent letters and
NSLs.
I disagree with that and I think other members of the panel
may as well. I believe there are some fundamental weaknesses
and deficiencies in the law that we have given such a broad
power to the Department and to the FBI, that it is really open
to abuse, and as a consequence, abuses occurred and have not
been documented.
I look back on the SAFE Act, which was proposed by a
bipartisan group of Senators, conservatives, progressives,
Republicans and Democrats, which was summarily rejected by the
administration.
One of the things that concerns me is that we are applying
a different standard when it comes to the investigation by the
FBI, then we are in other investigative circumstances in our
government. For example, you and other Justice Department
officials have repeatedly compared NSLs to grand jury
subpoenas. I think you would concede on the face that they are
different, substantially.
Director Mueller. I'm not certain I would concede that
because the standard is the same for grand jury subpoenas as it
is for a national security letter.
Senator Durbin. So let's get into it. In the case of a
grand jury subpoena, the government must make a showing of need
before a gag order is imposed. Would you support revising the
PATRIOT Act to require the government to show a need before a
gag order is imposed for a national security letter?
Director Mueller. No, I probably would not. I'd have to
give it some thought. I thought we were talking about the
standard. Apart from the standard, if you're talking about the
gag--as you call it, the gag rule, I think there has to be a
presumption in national security investigations that the fact
of the request for the records not be disclosed, but I would be
in favor, for instance, of the administrative subpoena
mechanism whereby somebody could go to court and challenge the
gag letter. In fact, the PATRIOT Act has given them the
opportunity. The latest iteration of the PATRIOT Act gives a
person the opportunity to go and challenge the gag order.
Senator Durbin. But you just touched on another fundamental
difference between the grand jury subpoena and the NSL, going
to court. Under the NSL, no one goes to court. Your agent, or
someone within your Department, makes a determination as to
whether someone's privacy is going to be invaded or violated.
There is no third party judge involved in this case. In fact, a
gag order stops those who are subject to this NSL from even
protesting the fact that this information has been sought.
Director Mueller. Well, my understanding is that given
the--in the latest iteration of the PATRIOT Act, the person who
is the subject of the gag order can go to court and challenge
that. And also, in the case of a grand jury subpoena, very
rarely does the agent go to court. The agent goes to an
Assistant U.S. Attorney. It is not the judge that issues the
grand jury subpoena.
The grand jury subpoena is issued pretty much as a matter
of course on the relevance standard with regard to our criminal
investigations, so I liken it, the NSL, to the grand jury
subpoena because they apply the same standard in comparable
investigations. I would also add, in the administrative
subpoena context we have the administrative subpoena capability
for issuing administrative subpoenas in health care cases, in
child pornography cases, in narcotics cases, in cases where the
threat is much less to the American public than you would have
with the threat of a terrorist attack.
Senator Durbin. Let me go to one other issue, if I might.
Director Mueller. Sure.
Senator Durbin. Under the Torture Convention which the
United States has ratified, it is illegal to transfer someone
to a country where they're likely to be tortured. Nonetheless,
the administration has reportedly rendered detainees to
countries that systematically engage in torture, including
Egypt, Saudi Arabia, and even Syria. Many of these detainees
say they were tortured in these countries.
One FBI agent stationed in Guantanamo was so concerned
about rendition to countries like Syria, that he wrote a memo
which has been made public under the Freedom of Information
Act. The FBI agent wrote that sending detainees to a country
that uses torture to be interrogated is ``a per se violation of
U.S. torture statute. This technique cannot be utilized without
violating U.S. Federal law.''
In a recent MSNBC report, Colonel Britt Mallow, the former
Commander of the Defense Department's Criminal Investigation
Task Force, and Mark Fallon, the Task Force's chief
investigator, reported that the FBI suggested sending a
Guantanamo detainee ``to another country such as Egypt or
Jordan where he can be interrogated with techniques the FBI
could not legally use.''
Director Mueller, what is your view on rendition? Do you
agree with the memo that your agent wrote saying that sending
someone to a country where they might be tortured is illegal?
And is it true that the FBI recommended sending a Guantanamo
detainee to a country like Jordan or Egypt so they could be
subjected to these interrogation techniques which would
otherwise be illegal?
Director Mueller. I can respond to the last piece of that
question. I'm not familiar with the recommendation of an FBI
agent. I would have to look at that. I will tell you that the
Inspector General is looking at our role with regard to
Guantanamo, what indications of abuse came to our attention,
what we did with them. This discussion that you just had or the
facts you've just given me will undoubtedly be part of the IG
review, but I am not familiar with the third prong of your
question.
Senator Durbin. If I could ask one last question. Recently
it was reported that when Secretary Gates took up the head of
the Department of Defense, he recommended the closing of
Guantanamo and that there was resistance and objection to that
from the Attorney General. Were you part of that discussion? If
so, what was your position on the closing of Guantanamo
Director Mueller. No, sir, I was not.
Senator Durbin. Thank you.
Thank you, Mr. Chairman.
Senator Whitehouse. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. You look good in
that chair. Maybe one day it'll happen.
And thank you, Mr. Director. I'd like to sort of go into
some more detail in the direction that Senator Specter took. As
you know, we've been looking in, and this Committee has been
looking, into the administration's unceremonious dismissals of
eight U.S. Attorneys. I know you were once a U.S. Attorney in
San Francisco, so that must--you know, may bother you.
It's been widely reported that both the White House and the
Justice Department have said that some of the fired U.S.
Attorneys didn't pursue voter fraud prosecutions aggressively
enough for this administration's taste.
And President Bush, by his own admission, passed along to
Attorney General Gonzales complaints about certain prosecutors
in New Mexico and other States who were perceived as being lax
in fighting voter fraud. So I just want to examine that
perception with you for a minute.
First, let me ask you, since 2001 has there been any FBI
investigation related to election fraud which you believe
should have resulted in an indictment, but did not?
Director Mueller. Not to my knowledge.
Senator Schumer. Okay.
Director Mueller. And none has come to my level.
Senator Schumer. Right.
Have you ever heard from your agents about any election
fraud case where there were no indictments when they thought
that there should have been?
Director Mueller. I have not.
Senator Schumer. Has any Special Agent in Charge ever
brought such a case to your attention?
Director Mueller. No, sir.
Senator Schumer. And have you ever asked FBI personnel
about election fraud cases in which indictments should have
resulted, but did not?
Director Mueller. No.
Senator Schumer. Okay.
Have you ever been asked by officials at the DOJ or
elsewhere in the administration about the FBI's view on how a
specific election fraud case was handled by prosecutors?
Director Mueller. No.
Senator Schumer. Were you consulted in any way about the
performance of any of the fired U.S. Attorneys with respect to
election fraud cases?
Director Mueller. No.
Senator Schumer. Did you ever talk to Kyle Sampson, the
Attorney General's former chief of staff, about the performance
of the fired U.S. Attorneys?
Director Mueller. I can't recall having any specific--I
certainly was not consulted and I cannot recall any specific
conversation I may have had with him. To the extent that I had
any conversation, it probably was with regard to San Francisco
because I was a U.S. Attorney there, and I believe that that
U.S. Attorney was one of those who was asked to leave.
Senator Schumer. Mr. Ryan.
Director Mueller. And so I'm not discounting the
possibility of some conversation, but I have no recollection.
Senator Schumer. You don't recall any conversation.
Director Mueller. No. No.
Senator Schumer. And how about any conversation about these
fired U.S. Attorneys and their performance with the Attorney
General?
Director Mueller. No.
Senator Schumer. Okay.
Now I'd like to go into a couple of specific examples,
because these came up. First, is John McKay. He's the former
U.S. Attorney in the Western District of Washington. He faced
complaints about his decision not to prosecute allegations of
election fraud in the very close 2004 gubernatorial election.
Mr. McKay said that here was ``no evidence'' of election
fraud and that he would have resigned if he had been told to
pursue a case. Now, isn't it true that the FBI agreed with Mr.
McKay's decision not to prosecute that case?
Director Mueller. I'm not familiar with our position on it.
Senator Schumer. Could you get back to us in writing on
that?
Director Mueller. Please let me think about that. I'm not
certain. I would have to consider whether that kind of
information into our investigative--
Senator Schumer. Okay. The reason I ask is, it was Mr.
McKay who said that the--I just want to get corroboration here.
This is not--
Director Mueller. Let me get back to you on that if I
could.
Senator Schumer. Okay.
Director Mueller. I don't want to open--I would want to
consider providing that kind of information in a case that did
not go forward. That would be unusual.
Senator Schumer. Here's what--just so you know, here's what
Mr. McKay said. He said the FBI ``concurred with the State
trial court judge that there was no evidence of election voter
fraud in that election.'' So would you just check with me and
check on that--
Director Mueller. Yes.
Senator Schumer.--and see if you can get back? Okay.
Maybe this. Just in case, although you're not familiar with
it--you don't recall having any discussions about this
yourself, I imagine, right?
Director Mueller. What do you mean by--
Senator Schumer. The McKay situation.
Director Mueller. The McKay? No. I did not have any
discussions with him.
Senator Schumer. Okay. Because, again, he said that his
prosecutors worked with FBI agents to review the fraud
allegations and to look at every piece of evidence in the State
court--in the State court case challenging the election.
He said he then made the decision not to pursue that case
after full consultation with the Department of Justice, and
after all that, he didn't find enough evidence. So I would
again ask you, this is serious. We want to see if Mr. McKay's
recollection--I have no reason to doubt. It is corroborated.
So I'd really like you to provide for us, within a week,
copies of any documents in the custody, control, or possession
of the FBI regarding allegations of election fraud in
Washington and the FBI's recommendations in that matter. I'm
going to send you a letter to that effect. I'm going to send
you a letter to that effect. But I don't see any good reason
why you shouldn't allow that, do you?
Director Mueller. I would have to think about that.
Yes, I can see that--we would have to think about that.
Senator Schumer. Okay.
Director Mueller. I would have to consult with the
Department of Justice.
Senator Schumer. Okay.
Director Mueller. Quite obviously, where we decide not to
go forward, disclosing investigative materials may set a
precedent that will affect or infect other things down the
road.
Senator Schumer. Okay.
Director Mueller. So I'd have to give some thought to that.
Senator Schumer. Okay.
Off the top of my head, I wouldn't mind, if you're worried
about somebody's name being out there, you know, someone--not
an FBI agent, but some possible person who might have been
alleged to commit voter fraud, if you want to redact names, in
this case I think that would be all right.
I just want to just get clear that the FBI backed up Mr.
McKay, because again, he's totally befuddled by this idea that
he didn't--you know, that he was--why he was fired, and this is
a possible reason. I just want to make sure that there was no
basis for it.
Director Mueller. Well, let me, if I could, look at the
request and see what we could do to accommodate it.
Senator Schumer. I'm going to go through questions with you
on a similar case. This is David Iglesias, which I believe
Senator Specter talked about. He was the former U.S. Attorney
from New Mexico. He was criticized for his handling of
allegations about flawed voter registration cards. That was in
the 2004 election.
He says that he set up a task force, investigated these
allegations fully, but he didn't find enough evidence to
prosecute anyone. Again, isn't it true that the FBI agreed with
Mr. Iglesias's decision not to proceed in that case?
Director Mueller. Again, I do not know. I will respond to
the request for the records, as appropriate.
Senator Schumer. Okay. Okay.
In other words, since all this has been in the papers you
haven't asked anybody about it?
Director Mueller. I have not been informed. No, I have not
asked anybody about it and I have not been informed one way or
the other as to the accuracy of the statements either by Mr.
Iglesias or Mr. McKay.
Senator Schumer. Okay. Let me just, again, state what he
said. Mr. Iglesias said that the Justice Department--he said
that he didn't enough evidence to pursue the charges, and his
quote is that ``the Justice Department and the FBI did not
disagree with his decision in the end not to prosecute.'' So
we'd want all information about those.
Now, this is about general complaints about voter and
election fraud. Has the Attorney General ever conveyed to you
complaints about how the FBI was handling any specific election
fraud matter or about the FBI's conclusion in an election fraud
case?
Director Mueller. No.
Senator Schumer. Okay.
And how about the White House or any other public official
in the same area?
Director Mueller. No.
Senator Schumer. Okay.
Based on your testimony--well, I guess we're going to have
to wait for written information about the cases that I've
asked.
And with that, let me just go here. Okay. Let me ask you
this. This, again, relates to the same topic. You served as a
U.S. Attorney, first in Massachusetts and then in the Northern
District of California. Is that right?
Director Mueller. Yes, sir.
Senator Schumer. And when you were a U.S. Attorney were you
ever contacted by Department of Justice officials? Just give us
the years for that, just so the record--approximately.
Director Mueller. I was Acting U.S. Attorney in Boston
probably from 1986 to '88. I was U.S. Attorney in San Francisco
from approximately 1999 to 2001.
Senator Schumer. Thanks. Okay.
Director Mueller. I was in both those offices for longer,
but those are my times.
Senator Schumer. Understood.
When you were a U.S. Attorney were you ever contacted by
Department of Justice officials, White House officials, or
other public officials about a specific case?
Director Mueller. Surely.
Senator Schumer. You were? Okay.
Let me ask you, did any administration or public official
pressure you and tell you not to prosecute a case or try to get
you to prosecute a case that you didn't think should be
pursued?
Director Mueller. I mean, that's, unfortunately, a fairly
broad question.
Senator Schumer. It is.
Director Mueller. But there are cases that have
international ramifications, for instance.
Senator Schumer. Right.
Director Mueller. If I indict the head of a country
someplace--
Senator Schumer. Right.
Director Mueller.--the State Department gets--without being
alerted, or even if alerted, gets unhappy. So there are a
number of considerations in the cases, and the question is so
broad. Yes, there are--
Senator Schumer. But I'm talking about specific pressure,
you ought not do this, for external reasons.
Director Mueller. Yes. But I think what you're getting at
is political or partisan political reasons.
Senator Schumer. Correct.
Director Mueller. And I cannot recall that happening, if
that's the thrust of the question.
Senator Schumer. Good. Well, that was my next question.
Okay. Good. Okay.
Well, here's what I want to ask you. So let's say, as a
U.S. Attorney, you did receive that kind of pressure. You
resisted it, which I imagine you would, knowing you and your
reputation. Then you were, 2 months later, fired.
You were told, we're not giving you a reason. Then it turns
out that they said you were fired for incompetence, but you
hadn't really heard about any specific incompetences as you
were U.S. Attorney. How would you feel about that?
Director Mueller. I'd really have to resist speculating on
that set of facts.
Senator Schumer. I figured you would. Okay.
I thank you, Mr. Chairman. My time has expired.
Senator Whitehouse. At that point, Director, this concludes
the hearing. I want to let you know how much I appreciate your
testimony and your long and extremely distinguished service to
the country, and your candor to the Committee today. We will
leave the record of the Committee open for a week so that you
may add to it, if that's enough time.
Director Mueller. Thank you, sir.
May I just check one thing, if I might, before we close?
Senator Whitehouse. Yes.
[Pause]
Director Mueller. Okay. Well, that's great. Okay.
Senator Whitehouse. The hearing is adjourned.
[Whereupon, at 11:54 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]