[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]

                                 
