[Senate Hearing 110-939]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-939
 
            OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 17, 2008

                               __________

                          Serial No. J-110-118

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     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
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    71
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................    73
    August 7, 2008, letter.......................................    75
    September 10, 2008, letter...................................    78
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   112
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, Washington, D.C.................................     5

                         QUESTIONS AND ANSWERS

Responses of Robert S. Mueller to questions submitted by Senators 
  Schumer, Grassley, Cardin......................................    41

                       SUBMISSIONS FOR THE RECORD

Mueller, Robert S., III, Director, Federal Bureau of 
  Investigation, Washington, D.C., statement.....................   115


            OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION

                              ----------                              


                     WEDNESDAY, SEPTEMBER 17, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:31 a.m., in 
room SH-216, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Feingold, Durbin, 
Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, and 
Sessions.

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

    Chairman Leahy. Good morning. We are gathering today on 
Constitution Day. It is the 221st anniversary of our Nation's 
founding charter, and it is fitting that we continue our 
oversight of the Department of Justice today. And so we are 
going to examine the effectiveness of the Federal Bureau of 
Investigation in carrying out what we all agree is a critical 
role and responsibility in keeping us secure while at the same 
time upholding the rule of law. And we welcome back the FBI 
Director, and we thank the hard-working men and women of the 
FBI for upholding their motto: Fidelity, Bravery, and 
Integrity.
    I want to thank the Director for joining me in Vermont last 
month where together we visited the Joint Terrorism Task Force 
and the Internet Crimes Against Children Task Force based in 
Burlington, Vermont. We talked with members of the Federal, 
State, and local law enforcement organizations who work 
cooperatively on these task forces. They are working every day 
to keep us safe from terrorists and also to keep our children 
safe from those who would do them harm, and we appreciate it. 
And, Director, I thank you for going over and complimenting the 
men and women who work on those task forces. I know it meant a 
lot to them.
    In commemorating the 100th anniversary of the FBI earlier 
this year, Director Mueller said: ``It is not enough to stop 
the terrorist--we must stop him while maintaining his civil 
liberties. It is not enough to catch the criminal--we must 
catch him while respecting his civil rights. It is not enough 
to prevent foreign countries from stealing our secrets--we must 
prevent that from happening while still upholding the rule of 
law. The rule of law, civil liberties, and civil rights--these 
are not our burdens. They are what make us better. And they are 
what have made us better for the past 100 years.''
    I agree. I was so impressed with the speech, I then put it 
into the Congressional Record and referred to it on the Senate 
floor. And this oversight, of course, is making sure that the 
FBI carries out its responsibilities while maintaining the 
freedoms and values that make us Americans.
    We learned last month that the Attorney General was 
planning to revise the guidelines for the FBI's investigative 
activities. Allowing the FBI authority to use a vast array of 
intrusive investigative techniques with little or no predicate 
facts or evidence raises concerns and may potentially lead to 
the kinds of abuses we have seen with national security letters 
and with other vast grants of authority with minimal checks in 
the past.
    Senator Specter and I requested a delay in the approval and 
implementation of the Attorney General's new guidelines. The 
Department of Justice only agreed to a limited delay and 
pointed to today's oversight hearing as a key opportunity to 
explore questions or concerns--somewhat difficult to do because 
the Attorney General has refused to provide us with copies of 
the proposed guidelines. Senator Specter and I sent another 
letter to the Attorney General last week. We requested that the 
Committee be provided copies of the proposed guidelines in 
advance of today's hearing in order to allow for a meaningful 
exchange with the Director on this issue. The Department again 
said no, indicating that they could not share guidelines that 
have not been finalized.
    I remember as a young man enjoying reading Joseph Heller's 
novel ``Catch-22.'' I suspect the Attorney General has read the 
same book because his response is right out of ``Catch-22.'' He 
is saying he cannot give us copies of the proposed guidelines 
until they are finalized, but, of course, once they are 
finalized they are no longer proposed and subject to change.
    Also impairing our ability to make progress today is the 
administration's refusal to cooperate in oversight. As of 
yesterday morning, we still had not received the answers to our 
questions from our last oversight hearing with the FBI Director 
last March. Those questions have been pending more than 6 
months, with the Department of Justice holding up the answers.
    Now, even as we try to get a handle on the administration's 
latest expansion in the FBI's investigative authority, we are 
reminded of the problems that followed other recent expansions. 
Last month, Director Mueller apologized for the misuse of 
``exigent letters,'' in violation of the law, to obtain phone 
records from reporters. I am hoping that you will be able to 
assure us, and the Inspector General will confirm, that 
appropriate steps are made to prevent such abuses in the 
future.
    I am glad that we finally are going to be hearing of 
progress in getting through the backlog in the FBI's name 
checks for citizenship. I hope we will be able to go through 
those because, otherwise, we are going to have a whole lot of 
people who are going to get their final citizenship right after 
the election and too late to do the cherished part of a new 
citizen--that is, to vote in this country.
    We have to work together to ensure that adequate resources 
are being dedicated to investigating public corruption and 
corporate fraud--types of crime that the FBI is uniquely suited 
to investigate. They have to be comprehensively prosecuted to 
restore the public's faith in our Government and most recently 
in our economy.
    I am also concerned that the FBI's Cold Case Initiative has 
not led to a single prosecution for Civil Rights Era crimes, 
and I look forward to a response on that.
    In the area of violent crime, despite modest progress last 
year following several years of increases in crime, crime rates 
have remained essentially stagnant in this decade after years 
of consistent and substantial declines in crime in the 1990s. 
This is an area in which Senator Biden has raised a number of 
questions, and I hope the Director will join me and Senator 
Biden and others in supporting State and local law enforcement 
and collaborative efforts directly involving our communities in 
combating violent crime.
    I do applaud the Director's efforts to recommit the FBI to 
its best traditions. I would say he is doing that through his 
personal example and leadership. I appreciate the openness to 
oversight and accountability. I wish the rest of the Department 
of Justice would do that.
    I should also say that there will be questions here about 
the biological weapons that were used on the American people 
and the Congress in the fall of 2001. Biological weapons used 
on the Congress and the American people. It is still a matter 
of great concern not just to me as one who was the object of 
one of those attacks, but it should be a concern of all 
American people that are on our soil. Biological weapons were 
used to attack us.
    Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    I begin this oversight hearing, as I always do when 
Director Mueller appears, by thanking him for his service--a 
very distinguished public servant. Notwithstanding that, there 
is a certain tension between the legislative branch on 
oversight and the executive branch, and we have a number of 
serious questions to take up today. And I begin with the new 
guidelines and note the tremendous, tremendous difficulty this 
Committee has had on discharging its oversight function because 
the executive branch does not make, in my judgment, appropriate 
disclosures to this Committee.
    So I begin with a substantial amount of skepticism when I 
look at your new regulations--regulations which say the 
traditional standard for having a reason or a predicate for an 
investigation will not be undertaken, so that an agent on his 
or her own can start an investigation without any significant 
reason or basis for starting the investigation such as an 
anonymous tip, which we know cannot be relied upon for personal 
reasons often made.
    We have had in the past couple of days further information 
about what happened with the incident when White House 
officials went to the hospital bed of then Attorney General 
Ashcroft to try to get a certification for the warrantless 
wiretapping program, and that whole episode is a very, very 
unsatisfactory episode in the relations between congressional 
oversight and the executive branch.
    Senator Leahy, as Ranking Member then, and I as chairman 
were never told about the warrantless spying program, although 
it was, I think, fairly stated, the obligation of the executive 
branch to do so. And the specific statutory provisions were 
violated in the Foreign Intelligence Surveillance Act and the 
National Security Act of 1947, which required the Intelligence 
Committees to be told. And then sitting at that desk in early 
January of 2005, Attorney General Gonzales said that he would 
authorize the former Attorney General John Ashcroft to tell 
this Committee what happened on that incident, which we knew 
almost nothing about. And between the time the Attorney General 
made that commitment and I as Chairman contacted Mr. Ashcroft, 
the approval was withdrawn. And only lately has it come out 
what happened. Really a disgraceful episode in the effort by 
White House officials to get the Attorney General to certify 
that program of very dubious constitutionality.
    So when we are looking at new standards, Director Mueller, 
I approach them very skeptically. What might seem like a minor 
matter to some is the inquiry which I have made as to what 
happened on the leak of information from the FBI and the glare 
of publicity on Congressman Curt Weldon a few days before his 
reelection effort in 2006. And notwithstanding repeated efforts 
by me to get the information from you, it was not forthcoming. 
And, finally, you punted to the Attorney General, and I cannot 
get the information from him. It is a full-time job to pursue 
the executive branch on a relatively--well, no matter is minor 
when you have a Congressman involved, or any citizen involved, 
and there is an FBI leak and the reporters are there before the 
agents get there, and it is a few days before his election, 
which cost him the election. What happens?
    The Congressional Research Service has provided an 
extensive analysis of the oversight authority of Congress, and 
that is, to have access to information even on pending 
investigations to talk to line attorneys and to talk to agents, 
and official who has come before this Committee, the prior 
Attorneys General and Deputy Attorneys General committed to 
that proposition. You were confirmed, Director Mueller, before 
I was Chairman or Ranking and did not extract that commitment 
from you. But that commitment is applicable to you as well. It 
is the law on congressional oversight. But it is tougher than 
pulling teeth to get the information. It requires full-time 
pursuit. And I still have not gotten an answer to what happened 
on that FBI leak with respect to Congressman Weldon.
    So when I look at these guidelines, I am very skeptical. 
And subpoenas are issued. You cannot run Government on 
separation of power without good faith among the branches. And 
you cannot pursue the matters to the courts to have them 
adjudicate disputes between the legislative and executive 
branches. But that is what it has come to. And those disputes 
will be decided goodness knows when.
    So there a lot of questions which remain to be answered, 
Director Mueller, and when you and I talk privately, as we 
frequently do, you are a frequent flyer, a frequent guest in my 
office, and conversations are always satisfactory. But there is 
not much followup. And I know that you are under a lot of 
constraints when you are a participant in that visit to 
Ashcroft's hospital room. But I think you should have told us 
about that, and I am going to come to that when we come to the 
Q&A.
    Now for just a moment or two on the anthrax investigation, 
lots of questions are unanswered. Dr. Ivins got a letter on 
April 9th of 2007 that he was not a target, and then a warrant 
to search his home and cars was issued a few months later on 
October 31st of the same year. Well, what happened? We do not 
have any idea as to what happened in the interim.
    According to the October 31, 2007, affidavit, there was a 
contaminated mailbox with human Caucasian hairs. Well, why 
wasn't there DNA on Dr. Ivins until a few days before he 
committed suicide? The DNA was not requested, the swabbing, 
until July 23rd and 24th. And what is the situation between the 
October 31, 2007, affidavit for probable cause for a search 
warrant and proof beyond a reasonable doubt, which you came to 
later? And was the anthrax weaponized--that is, engineered to 
make it more deadly--or not? And how do you have an 
investigation where you come to the conclusion as to who the 
culprit is when the investigation is still ongoing? How do you 
do that?
    It is highly unusual to charge somebody after they are 
dead? There is no opportunity to defend themselves in a court. 
But I can understand with the high visibility of this anthrax 
investigation that it is an unusual circumstance which may--and 
I emphasize the word ``may''--justify breaching that rule of 
not charging somebody after they are dead when they do not have 
an opportunity to defend themselves.
    But there are just so many questions which remain 
unanswered, and I thank you for the briefings. You have been 
very forthcoming on the briefings, even though they are very 
problemsome from the point of view of your Bureau. And I know 
you have a dual responsibility to protect your Bureau, which I 
respect, and also a responsibility to be forthcoming. And I 
note in the House hearing yesterday you committed to an 
independent inquiry, and when the time comes to ask a question 
or two, I am going to ask you if you would permit this 
Committee to make a designation to sit on that committee--not 
that we have any doubt as to the objectivity of your 
selections, but a little oversight would not do any harm.
    Thank you, Mr. Chairman.
    Chairman Leahy. Director Mueller, would you please stand 
and raise your right hand? Do you solemnly swear that the 
testimony you give in this matter will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Mueller. I do.
    Chairman Leahy. Thank you.
    Director, before we go to questions--and we will have a 
number of people here--please go ahead and give your opening 
statement?

 STATEMENT OF ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU 
                        OF INVESTIGATION

    Mr. Mueller. Thank you, Chairman Leahy and Senator Specter 
and other members of the Committee, for having me here today.
    When I have come before this Committee in the past, I have 
discussed the FBI's transformation and I have recounted our 
many improvements and accomplishments. But marking milestones 
is about more than looking backward; it is also about looking 
forward. And so today I want to--in understanding and 
anticipating the questions, I do want to spend a moment 
focusing on what the FBI is doing--and will continue to do--in 
order to ensure that we can serve the American public for the 
next 100 years. And in the interest of time--and I know you 
wish me to keep this short--I will focus on four specific 
areas: first is intelligence, second is technology, third, 
briefly, human capital, and then the Attorney General 
guidelines. And by giving attention to these and similar areas, 
we will be prepared to confront the threats of the future, from 
mortgage fraud to terrorism and from crimes against children to 
violent gangs.
    First, intelligence. Intelligence is crucial to every 
investigation and operation the Bureau undertakes. The FBI has 
always excelled at gathering intelligence, even if we did not 
always call it that, and using it to build cases that led to 
courtroom convictions. After the September 11th attacks, we 
realized that we also had to strengthen our intelligence 
analysis and sharing.
    I have discussed our efforts in great detail in the past, 
from ramping up hiring and training of intelligence analysts to 
establishing the Directorate of Intelligence and the National 
Security Branch at headquarters. But intelligence gathering 
does not happen at headquarters; it happens out in the 
communities we serve.
    And so each field office established a Field Intelligence 
Group, made up of agents, analysts, linguists, and surveillance 
specialists. These are the operational arms of our intelligence 
program, and crucial to their efforts are our partnerships with 
Federal, State, and local agencies.
    Their work is not limited to counterterrorism threats. For 
instance, field offices near research universities or defense 
contracting firms are also focusing on potential espionage or 
proliferation threats. Offices along the Southwest border are 
focusing on violent transnational gangs. And our offices around 
the country from large cities to rural areas are concerning 
themselves with violent crime.
    To accelerate improvements to our intelligence 
capabilities, we have established a Strategic Execution Team to 
help us assess our intelligence program, evaluate best 
practices, and decide what works and what does not work, and 
then standardize it across the Bureau. That effort continues 
and has been integral to the FBI's effort as a full partner in 
the wider intelligence community.
    Second, we have made substantial progress in replacing and 
transforming the FBI's information technology systems to help 
us confront current threats and mission needs. Sentinel, a web-
based case management system designed to support both our law 
enforcement and intelligence mission, is progressing on time 
and within budget. And the first phase was successfully 
deployed in June, and the remaining phases will continue to 
deliver additional capability through the end of the program in 
the summer of 2010.
    We have expanded our desktop Internet access to over 19,000 
agents, analysts, task force, and support personnel. And when 
completed, we anticipate approximately 39,000 Internet desktops 
will have been deployed at all FBI locations. We have added and 
deployed over 20,000 BlackBerrys that have e-mail, Internet 
browsing, and custom features to FBI personnel around the 
world. And we are deploying other information technology 
systems that will dramatically enhance our ability to 
efficiently carry out our mission.
    Third, as you know, we have been hard at work continuing to 
build a strong human resources program to ensure we have 
optimal recruiting, hiring, training, and retention of our 
employees.
    Historically, the FBI has attracted recruits from the law 
enforcement, legal, and military communities, particularly to 
fill our special agent ranks. And this has served us well as a 
law enforcement agency. We have developed into a national 
security organization, and also we require employees with 
specialized skills--intelligence analysts, scientists, 
linguists, and computer experts.
    We are also strengthening our relationships with 
universities as a primary source of recruiting individuals who 
want to build a career in national security at the FBI.
    Fourth, while our employees are collecting, analyzing, and 
sharing intelligence under an improved internal framework, they 
will also be operating under new intelligence investigative 
guidelines.
    I would like to spend a few moments discussing the new 
Attorney General guidelines for domestic FBI operations which 
are in the process of being finalized and which have been 
briefed to your staff. With the input of this Committee, it is 
my hope and expectation that we can make these guidelines 
effective for agents operating in the field in the near term.
    Up to now, special agents have depended on several sets of 
guidelines to guide their investigations. Each set was tailored 
to a particular program area and, therefore, different rules 
govern different types of investigations. These differences 
were especially pronounced for national security investigations 
versus criminal investigations.
    To give you a few examples, the guidelines governing 
national security investigations prohibited recruiting or 
tasking sources unless the FBI had at least a preliminary 
investigation open. They also prohibited physical surveillance 
other than casual observation. The general crimes guidelines, 
on the other hand, which governed other criminal 
investigations, did not contain these limitations. And so, 
ironically, in many cases an agent could readily use physical 
surveillance to watch a suspected smuggling route for drugs or 
counterfeit blue jeans. He could not do so for a terrorist 
carrying a bomb.
    In the past, these rules may have been sufficient and 
appropriate for the threats they were meant to address. But 
criminal threats and national security threats do not fall 
neatly into separate categories.
    The threat of today, and of the future, is a dangerous 
convergence of terrorists, hostile foreign governments, and 
criminal groups operating over the Internet and through 
interconnected sophisticated networks. We may see organized 
crime laundering money for drug groups, drug groups selling 
weapons to terrorists, terrorists committing white-collar fraud 
to raise money for their operations, and, most threatening of 
all, hostile foreign governments arming terrorists with an 
arsenal of biological, chemical, or radiological weapons. 
Different rules should not apply depending on how the agent 
decides to describe what he or she is investigating.
    I must emphasize that the new guidelines are not designed 
to give the FBI any broad new authorities. The guidelines 
remove the last vestige of the walls separating criminal and 
national security matters. They will replace five separate sets 
of guidelines with a single uniform set of rules to govern the 
domestic activities of our employees. They set consistent rules 
that apply across all operational programs, whether criminal or 
national security. And they will give us the ability to be more 
proactive and the flexibility to address complex threats that 
do not fall solely under one program. And they will eliminate 
virtually all inconsistencies that have the potential to cause 
confusion for our employees.
    Several bipartisan commissions, as well as the Congress and 
the American people, have asked and expect the FBI to be able 
to answer questions such as: Are there sleeper cells in this 
country planning attacks like those our international partners 
in London and Spain have suffered since September 11th? In 
order to answer these questions, the FBI has to expand its 
intelligence collection beyond that which is collected as part 
of predicated investigations. It must examine threats in a 
proactive fashion and not simply rely on information that is 
provided to us.
    We have asked our employees to think proactively about the 
threats and vulnerabilities in their areas of responsibility, 
and our employees are up to the task. But they need consistent, 
clear guidelines that do not vary based on whether they are 
facing a threat from MS-13 or from Hezbollah.
    The FBI has the responsibility, indeed the privilege, of 
upholding the Constitution. We know that if we safeguard our 
civil liberties but leave our country vulnerable to terrorism 
and crime, we have lost. If we protect America from terrorism 
and crime but sacrifice our civil liberties, we have lost. And 
we are always mindful that our mission is not just to safeguard 
American lives, but also to safeguard American liberties. We 
must strike the appropriate balance at all times.
    Mr. Chairman, on a side note, I am certainly aware of the 
public's interest as well as the interest of this Committee and 
Senator Specter and others as well as yourself in the anthrax 
investigation. And as you know, the Department of Justice and 
the FBI do not typically publicly disclose evidence against a 
subject who has not been charged, in part because of that 
presumption of innocence afforded an accused. Because of the 
extraordinary and justified public interest and with special 
concern for the victims of the 2001 anthrax mailings, we, the 
Department of Justice, and the United States Postal Service 
briefed the victims, Members of Congress, and the media to 
provide information unsealed by the district court after the 
person we believe was responsible for the attack. This included 
information about science developed during the investigation 
and that was central to the ultimate focus of the case on Dr. 
Bruce Ivins. The science employed was developed and validated 
throughout the investigation with the help of more than 60 
outside experts and researchers. Nevertheless, because of the 
importance of the science to this case and to future cases, we 
have initiated discussions with the National Academy of 
Sciences to undertake an independent review of the scientific 
approach used during the investigation.
    Chairman Leahy. OK. Let me interrupt that point. And I have 
been very reluctant to even ask questions about this because my 
office and myself were put at risk in a letter that was 
addressed to me. And I realize we did not suffer like the 
families of those who had people die. But it is a matter I have 
thought about throughout this time.
    I have watched your testimony. You briefed me in Vermont. I 
have read the material. These weapons that were used against 
the American people--and they are weapons. They are weapons, 
the weapons that were used against the American people and 
Congress. Are you aware of any facility in the United States 
that is capable of making the weapons that were used on 
Congress and the American people besides Dugway Proving Ground, 
Utah, or the Battelle Facility in West Jefferson, Ohio? Are you 
aware of any facility in the U.S. capable of making these 
weapons other than those two?
    Mr. Mueller. In the course of the investigation, we 
determined that there were 15 laboratories in the United States 
and we also identified three laboratories overseas that had 
this particular virulent strain of Ames anthrax.
    Chairman Leahy. Are there any facilities capable of making 
the weapons used in the United States other than Dugway Proving 
Ground or the Battelle Facility in West Jefferson, Ohio?
    Mr. Mueller. I do believe there are others, and amongst 
those would be those that have this strain of anthrax.
    Chairman Leahy. So there are more than just these two 
places that are capable of making the weapon?
    Mr. Mueller. I would have to get back to you because I have 
not asked that particular question. But my expectation is that 
there are others who do the research in these facilities that 
have that capability.
    Chairman Leahy. At some point we are going to take a break 
in here, because of either votes or otherwise. During that 
break, please get me the answer to that, because I know of none 
besides Dugway and Battelle. If you know of others before we 
close the hearing today, give me the names of those others that 
could make this weapon used on Congress and the American 
people. And I ask this because I am also aware of the article 
on September 4, 2001, before this, in the New York Times when 
they said, ``Over the past several years, the United States has 
embarked on a program of secret research in biological weapons. 
Even the Clinton White House was unaware of their full scope. 
The projects, which had not been previously disclosed, have 
been embraced by the Bush administration, which intends to 
expand them.'' That was September 4th. The attack was on 
September 11th. The weapons used against the American people 
and Congress and this Senator were just after that time.
    I apologize to my colleagues for interrupting at this 
point, but when we have a break, double-check that and tell me 
if there are any others besides Dugway and Battelle.
    Mr. Mueller. I will do that, sir.
    Chairman Leahy. Thank you.
    Mr. Mueller. Let me finish up, Mr. Chairman, with a comment 
in light of the headlines over the last several days describing 
the turmoil in the financial markets. I do want to take a 
moment to mention our activities in response to the subprime 
mortgage crisis. And I do want to assure this Committee that 
although we have over 1,400 open cases and almost 500 
convictions in just the past 2 years, just like in the S&L 
crisis of the early 1990s as well as the corporate excesses at 
the beginning of this decade, the FBI will pursue these cases 
as far up the corporate chain as is necessary to ensure that 
those responsible receive the justice they deserve.
    And, with that comment on that crisis, sir, I would be 
happy to answer any questions you might have.
    [The prepared statement of Mr. Mueller appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you, and as I told the 
distinguished Senator from Pennsylvania, I think that is a 
matter of some--OK. You have commented on the corporate 
scandals like those of Enron and WorldCom. And do I understand 
from you that there will be investigations and you will carry 
out investigations regarding possible fraud or lawbreaking in 
those areas?
    Mr. Mueller. Yes, we have. As I indicated, we have more 
than 1,400 investigations ongoing into brokers, appraisers, 
buyers, lenders, but we also have 24 investigations looking at 
the larger corporations who may have engaged in misstatements 
in the course of what transpired during this financial crisis.
    Chairman Leahy. And I ask this because, obviously, 
everybody is concerned where the U.S. Government is on the hook 
for anywhere from $800 billion to $1 trillion. It is almost as 
much as we spent in the Iraq war. And if people were cooking 
the books, manipulating, doing things they were not supposed to 
do, then I want people held responsible. And I suspect every 
American taxpayer--I do not care what their political 
background is--would like them held responsible. And this 
Committee will keep in touch with you to find out just what is 
happening on that.
    Now, in your testimony about the Attorney General's 
proposed new guidelines, you stated that the new guidelines are 
not designed to give and do not give the FBI any broad new 
authorities.
    Now, we are unable to get a real careful review of that 
because, notwithstanding the Department of Justice saying we 
were briefed, we have not been. They have refused to share 
copies with us. It has been as superficial a briefing as 
possible. But based on the limited review that we were 
permitted, I was surprised by your statement. Under the 
proposed guidelines--and you and I have discussed this 
privately in some lesser detail, but line FBI agents would now 
be able to use several new intrusive techniques in national 
security investigations and the threat assessment level, 24-
hour surveillance, so-called pretext interviews, in which 
agents can misrepresent who they are while questioning people, 
recruiting sources to cover information about American 
citizens. Now, there is no predication, there is no evidence or 
factual basis that would be required for the FBI to conduct an 
assessment and use techniques. The guidelines do not require 
any supervisory approval. An FBI agent on his own could just go 
off and do this. They impose no time limit. It seems like a 
very broad, new authority in the national security area.
    Is it true there is no requirement under the proposed 
guidelines for anyone at FBI headquarters to approve a threat 
assessment and the techniques available for one?
    Mr. Mueller. Well, let me start by giving, if I could, an 
example, which I did mention yesterday. In terms of these 
techniques, if we got word from--it can be an anonymous e-mail 
that there was drug trafficking at a bar in a particular area, 
under the criminal rules we could establish a surveillance to 
determine whether or not that occurred, send an agent in in an 
undercover capacity, or recruit sources to do that.
    If that same e-mail came in and said that Hezbollah was 
recruiting individuals, or al Qaeda, we would be barred from 
doing that. The only thing we could do under the current 
national security guidelines is go in as an FBI agent and 
announce ourselves as an FBI agent and followup on it. It does 
not make any sense.
    Another example that--
    Chairman Leahy. Let's just back up a little bit on this. 
Let us say you just have a brand-new agent and he sees somebody 
driving, and he looks and he does not like what they had on as 
a bumper sticker on the car, and he says, ``Boy, this guy might 
be a threat. That does not sound like something that I think is 
very pro-American.'' And he opens an investigation all by 
himself. He does all the other things that can be done on this 
with checking out everything from employers on through. And 
nobody--he does not have to get anybody to sign off on that. 
Shouldn't there be somebody in the supervisory level to them--
nobody is asking us not to investigate possible terrorist 
threats. But you know and I know what happens if you get a 
brand-new agent who may just go off on their own. We saw this 
happen in the national security letters where they were issuing 
thousands upon thousands of this, where they were getting 
people's records and business records and everything else 
saying, ``Don't worry. There is going to be a subpoena 
coming.'' Of course, no subpoena came. People's lives were 
disrupted, their businesses were disrupted. Their employers 
were looking and wondering, ``Why are you under suspicion?'' 
And then they say, ``OK, now I am going to off to some other 
detail. I will just put that in my desk and go.''
    Shouldn't somebody be in the loop?
    Mr. Mueller. Well, in the course of the opening of that, it 
would be reviewed by a supervisor and assigned to that or some 
other agent. Also, in the internal guidelines of the Bureau, 
there would be a 30-day review of that. There would--
    Chairman Leahy. But there is nothing in these new 
guidelines?
    Mr. Mueller. Well, not in the guidelines, but in our 
policies within the Bureau that supplement the guidelines.
    Chairman Leahy. Which trumps?
    Mr. Mueller. Well, within the Bureau it is our policies 
that trump. In other words, there is a framework in the 
guidelines, which has always been the case, and then we have to 
implement them through policies. In a sensitive matter, for 
instance, whether it relates to a political or a religious 
organization and an individual wants to do an assessment, there 
is a specific requirement that that go through the Chief 
Division Counsel, it goes through the SAC, and there be 
notification to headquarters. So there is a regime that we are 
establishing to flesh out the framework of the guidelines.
    Chairman Leahy. OK. Well, we will go back to that, because 
I want to know just what those--exactly how that works, because 
as you know, the concern we had on the exigent letters and the 
concern you expressed when this became public.
    Mr. Mueller. Yes.
    Chairman Leahy. I have also been concerned about the length 
of time many of the FBI name checks have been pending. I have 
raised this with you or raised it with Secretary Chertoff. Last 
summer, the Department of Homeland Security failed to recognize 
the perfect storm headed their way: an upcoming national 
election, you have the failure of comprehensive immigration 
legislation, you have stepped-up enforcement activities by ICE, 
a widely reported fee increase at USIS. And DHS was still 
unprepared to handle the volume of applications. So you have 
thousands of people that want to become U.S. citizens, who look 
at this country and say, ``Here is a place where I can actually 
elect my leaders, and they are not appointed.'' And they are 
told, ``Gosh, even though you have got your applications in in 
plenty of time, we are not going to process this until after 
the election.'' And these are people who have been lawful 
residents here for years, paid taxes and so on. They have 
earned the privilege to become citizens. Are we going to meet 
the deadline to process these pending applications? Some are 
over 2 years old.
    Mr. Mueller. What I can tell you is that when we had the 
backlog, recognized it, we sought the funding, received the 
funding to address the backlog. We have taken a number of 
steps. We have raised fees, revised the criteria, prioritized 
the workload, and hired over 200 contractors, which means that 
in July of this year, we had eliminated the backlog of 
individuals whose requests had been pending longer than 2 
years. And by November of this year, we will have eliminated 
the backlog of requests that have been pending more than 1 
year.
    Now, I do not know whether it is going to be exactly by 
November 4th. They say by November of this year, and we 
actually have been ahead of our schedule.
    Chairman Leahy. USIS says there are 10,000 names still that 
have not been checked.
    Mr. Mueller. I would have to check that figure, sir. And I 
can tell you that by June of next year, 98 percent of all the 
background checks will be accomplished within 30 days. There 
will always be a few that take longer because we have paper 
records. We have miles and miles of records. And to the extent 
that we do a search of a particular file, we digitize it, but 
we have a number of files that have not been digitized. And so 
there will always be some delay on a very, very small 
percentage of those requests.
    Chairman Leahy. Again, we will go back to that, because it 
is not as though the election date is a surprise date.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Very briefly on the anthrax issue, because there are so 
many other subjects to be covered, did you personally review 
the evidence and come to the conclusion that there was proof 
beyond a reasonable doubt as to Dr. Ivins' guilt?
    Mr. Mueller. Yes.
    Senator Specter. With respect to the hairs which were found 
on the contaminated mailbox, identify in the affidavit of 
October 31, 2007, why was there no request made as to swabbing 
Dr. Ivins for DNA until very close to the time he committed 
suicide?
    Mr. Mueller. I do not know the answer to that. I would have 
to get back to you, Senator.
    Senator Specter. I am going to send you a letter, Director 
Mueller, setting forth a number of questions in this area, so I 
would ask you to get back to me there and on the other items.
    When do you anticipate designating an independent group of 
experts to review the anthrax issue?
    Mr. Mueller. We have been discussing it for several weeks, 
and I believe a letter is going to be sent either this week or 
next week. But I will tell you that we are not going to be--we 
are asking the National Academy of Sciences to identify the 
experts to serve on the panel. We will have no role in 
selecting those experts.
    Senator Specter. Would you commit to allowing this 
Committee to designate members of that group?
    Mr. Mueller. I would have to consider that. What I can do 
is give you a copy of the letter that we sent to--that we are 
or will be sending to the National Academy.
    Senator Specter. What is there to consider, Director 
Mueller? We would like to have the authority to name some 
people there to be sure as to its objectivity. We are not 
interlopers here. This is an oversight matter. What is there to 
consider?
    Mr. Mueller. I am not familiar with how the Academy of 
Sciences does these reviews, whether they have some 
restrictions themselves. And I have to get the input from the 
Department of Justice as well.
    Senator Specter. OK. Suppose this Committee decides we want 
to have an independent group. Would you commit to turn over all 
the evidence for oversight to our independent group? If we 
cannot designate a couple of members, maybe we will just pick a 
group.
    Mr. Mueller. Well, I am absolutely open to third-party 
review, particularly when it comes to the science.
    Senator Specter. I am not talking about third-party review. 
I am talking about the Judiciary Committee of the U.S. Senate--
    Mr. Mueller. I understand that.
    Senator Specter.--which has a constitutional responsibility 
and authority for oversight. And I am asking you for a 
commitment to let this Committee participate in the designation 
of this objective group.
    Mr. Mueller. To the extent that the rules of the science 
allow that to happen, I have no objection to that request.
    Senator Specter. Well, that is not far enough, but that is 
as far as I am going to go at the moment.
    Now on to these new guidelines. It was only as a result of 
the Inspector General's investigation which this Committee 
mandated in the law in the PATRIOT Act that we found out about 
the misuse of the exigent letters supposed to be sent only when 
there were, as ``exigent'' says, exigent or unusual 
circumstances. The Inspector General said, ``The FBI used the 
exigent letters in non-emergency circumstances, failed to 
ensure that they were duly authorized investigations to which 
the requests could be tied.''
    Now, in light of that very serious problem, why should we 
give you more powers, Mr. Director?
    Mr. Mueller. Well, as I indicated before, it is not new 
powers. It is the internal guidelines related to the techniques 
we can use at various stages of the investigation.
    Senator Specter. Well, you are taking--
    Mr. Mueller. Going back to the question that you asked, we 
have taken steps since we understood the problems with the 
national security letters to assure that not only that we have 
procedures in place, but that also we have a compliance program 
to make certain that we are following those procedures. And 
that compliance program is a new office that we have set up to 
assure that where there is a legislative or other internal 
responsibility that we adhere to--
    Senator Specter. I have got less than 3 minutes left. I 
have got to move on. We understand your assurances. We have 
heard them before. And that is why we are skeptical.
    Let me go to the issue as to what you conceive your 
responsibility to report to this Committee when we do not know 
something. On December 15th, I was managing the PATRIOT bill in 
response to your personal request for more authority. And we 
were in the final stage and were going to go to final passage. 
And that morning the New York Times published a story 
disclosing that this warrantless wiretap program was in 
existence and just knocked that effort into a cocked hat. And 
Senators said on the floor, ``We are about to support this 
PATRIOT Act. Now we found out about this secret warrantless 
wiretap program.'' Why didn't you inform me as Chairman and 
Senator Leahy as Ranking Member about the existence of this 
program?
    Mr. Mueller. Senator, it is a highly classified program. 
And, second, it was not our program. And, third, my 
understanding was that Congress had been briefed on the program 
and was continuously being briefed on the program.
    Senator Specter. Well, you did not make an inquiry of me as 
Chairman or Senator Leahy as Ranking as to whether we had been 
briefed. We are the principal oversight officers for the FBI, 
and you knew about the program. And it is more than first 
cousin; it is a twin brother on your work in intelligence and 
security matters. Why weren't we briefed?
    Mr. Mueller. Because I believed that Congress was 
appropriately briefed--that was what I was led to believe--in 
the appropriate committees, which would have been in this 
case--
    Senator Specter. Well, let's shift over to the National 
Security Act of 1947. You did know that that Act required 
Intelligence Committee members to be briefed. And you did know 
that the Intelligence Committees had not been briefed. Why 
didn't you report that?
    Mr. Mueller. I was of the belief that those who should be 
briefed in Congress were being briefed.
    Senator Specter. Well, Director Mueller, I do not consider 
that an adequate answer. You and I talked too often for you not 
to use the occasion sometimes to say, ``Arlen, you have been 
briefed on this top secret program.'' You did not know whether 
or not I had been briefed or Senator Leahy had been briefed. 
Don't you think you had an obligation to tell us as the 
principal congressional officers charged with oversight of the 
FBI about this program, especially when we were on the firing 
line for you, trying to get a PATRIOT Act passed? If you do not 
have a duty to tell us under those circumstances, who does, 
Director Mueller? We do not know what we do not know, which is 
obvious.
    Mr. Mueller. My understanding was that the intelligence 
agencies--
    Senator Specter. And somebody has to tell us. Now, I cannot 
get a reply from Attorney General Mukasey about the Weldon 
letter. What am I supposed to do? Run into his office and start 
going through the files? A little self-help? People like you do 
not tell us, how are we supposed to find out?
    Mr. Mueller. I believe--
    Senator Specter. Let the record--
    Mr. Mueller. I believed that the intelligence agencies 
responsible for the program had been briefed in Congress.
    Senator Specter. Well, that is an unsatisfactory answer, 
but we were told by the New York Times. And now we are trying 
to protect New York Times sources, so if they find another top 
secret program that you do not tell us about, we can find out 
about it. And you wrote a long letter in concert with the 
Attorney General and the Director of National Intelligence and 
the Director of Homeland Security and every other investigative 
agency you could find in the alphabet soup saying, ``Don't go 
for reporter's privilege.'' Now, how about that, Director 
Mueller? The Chairman wants to move ahead.
    Chairman Leahy. Go ahead.
    Senator Specter. Well, good.
    Chairman Leahy. I am enjoying it.
    [Laughter.]
    Chairman Leahy. I am enjoying it more than the Director is.
    Senator Specter. He is doing fine. Bob Mueller comes from a 
tough line of trial lawyers, and I looked over a good bit of 
the evidence on the anthrax case just to contrast prosecutors' 
opinions, and I have grave doubts about sufficiency of evidence 
for proof beyond a reasonable doubt. But come back to the last 
pending question, and that is, if newspaper reporters do not 
have the privilege to get confidential sources, which they will 
not get if they are not protected, since you will not tell us 
and the Attorney General will not tell us, and then you have 
this horrendous scene in Ashcroft's hospital room, if we do not 
pave the way for the newspapers to tell us, how are we going to 
find out so we can conduct oversight?
    Mr. Mueller. Senator, as I have indicated before, my 
understanding was that Congress was being appropriately briefed 
by the intelligence agencies and the appropriate committees in 
Congress were being briefed on that classified program.
    Senator Specter. Well, that is a classic non-answer, and I 
will let it stand for the record. You cannot do any worse than 
that.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. I should not, just so people 
understand, you have briefed me about the Ivins case. I 
understand and have read all the reviews and all that. If he is 
the one who sent the letter, I do not believe in any way, 
shape, or manner that he is the only person involved in this 
attack on Congress and the American people. I do not believe 
that at all. I believe there are others involved, either as 
accessories before or accessories after the fact.
    I believe that there are others out there. I believe there 
are others who can be charged with murder. I just want you to 
know how I feel about it as one of the people who was aimed at 
in that attack.
    Mr. Mueller. Senator, you have expressed that concern. I 
understand that concern, and I have told you that in the 
investigation to date, we have looked at every lead and 
followed every lead to determine whether anybody else was 
involved. And we will continue to do so. And even if the case 
does become closed, if we receive additional evidence 
indicating the participation of any additional person, we 
certainly would pursue that.
    Chairman Leahy. Thank you very much.
    Senator Feinstein has been waiting very patiently, and I 
yield to Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Just to clear the record, as I understand it--I am a 
crossover member on both Intelligence and Judiciary--the full 
Committee was not briefed on the Terrorist Surveillance Program 
of the Intelligence Committee, to the best of my recollection, 
until 2006. It took 5 years for us to get briefed, just so you 
know. The so-called Big Four were briefed, I believe, in 
October of 2000. The New York Times broke a story in December 
of 2005. Seven members of Intelligence were briefed in 2006, 
and then the rest. So it really was an egregious violation of 
the Terrorist Surveillance Act of the administration 
functioning outside of the law. And what we tried to do when we 
passed the Foreign Intelligence Surveillance Act--and it was my 
amendment--was to so strengthen the exclusivity section of that 
law that it could never happen again. But I do believe that 
your comment that members were fully briefed--I hate to say 
this, Mr. Director--is simply not accurate.
    Mr. Mueller. I think I said ``were briefed.'' I did not 
mean to make any comment on the appropriateness or the 
inclusion or the exclusion of any particular people in that 
briefing or those briefings.
    Senator Feinstein. OK. I would like to begin on one good 
note. In June, my Subcommittee on this Committee had a hearing, 
and former FBI agent Jack Cloonan testified, and I learned 
that, in fact, through FBI interrogation of detainees, a lot of 
information was pulled forward without any kind of enhanced 
interrogation techniques. And I particularly want to commend 
Agent Jack Cloonan, FBI Agent Ali Sufan, FBI Agent George Piro. 
It is my understanding that, including Cloonan and Sufan, they 
interrogated Ramzi Yousef that led to the 1993 World Trade 
Center bombings and produced valuable information following the 
USS Cole bombing. And I also want to say that, according to 
open sources, FBI interrogations of Abu Zubaydah were producing 
valuable al Qaeda-related information until the point that the 
CIA took over the interrogations. So I would like to say a 
commendation to them.
    Now, one of the things that has troubled me--and I am 
speaking as an Intelligence member now--is that on the 27th of 
November in 2002, Legal Counsel Marion Bowman, known as Spike 
Bowman, received a memo--the date the memo was sent from 
Guantanamo is redacted--but he did not receive the memo for 
months. It was held at Quantico.
    I have that memo in front of me, and essentially it is a 
legal analysis of interrogation techniques, and it goes through 
each stage: Category 1, 2, 3, it lists various interrogation 
techniques, Category 4. And it goes on to say, ``Information 
received through certain categories will not be admissible in 
any criminal trial in the United States. Information obtained 
through these methods might be admissible in military 
commission cases. The judge and/or panel may determine that 
little or no weight should be given to information that is 
obtained under duress.''
    And it goes on, on the third page, to say--talks about the 
United States torture statute: ``The intent of the user will be 
a question of fact for the judge or jury to decide. Therefore, 
it is possible that those who employ these techniques may be 
indicted, prosecuted, and possibly convicted if the trier of 
fact determines that the user had requisite intent. Under these 
circumstances, it is recommended that these techniques not be 
utilized.'' And it goes on to essentially make the case that 
they could be war crimes.
    Now, it is my understanding that this memo did not reach 
you.
    Mr. Mueller. Did not.
    Senator Feinstein. Correct. And according to the IG report, 
which I have here, you said that you did not become aware of a 
dispute between the FBI and the DOD over interrogation 
techniques at Guantanamo prior to the spring of 2004. Is that 
correct?
    Mr. Mueller. I believe that is correct.
    Senator Feinstein. OK. Reading from the report, ``One SSA 
who served two rotations as OSC at Gitmo told us he initially 
told the agents to write up detainee abuse allegations to a war 
crimes file so the FBI could retrieve the information if it was 
needed for further investigation. Two agents described 
instances in which they made such reports.'' And it goes on to 
describe one agent told the OIG that during his orientation 
when he first arrived, he was told that we should write up any 
potential war crimes allegations for inclusion in war crimes 
trials.
    Now, the first question I have is: Why weren't the concerns 
about torture that we now know was, in fact, going on at 
Guantanamo brought to your attention immediately or even a year 
later in 2003? That is the first question.
    Mr. Mueller. I would have to think some about that. I do 
believe that the persons who were handling that contacted and 
raised it with DOD, and they believed it was something that 
need not come up to my level. Quite obviously, when I heard 
that this was happening, I was upset, and that is not the case 
today.
    Senator Feinstein. Well, you know, this is reminiscent--we 
sat in this room with Ruby Ridge, and remember where the front 
office always gets protected. And as a product of the hearings 
on Ruby Ridge, the decision was made the front office would not 
be protected. So a memo like this, which is three pages long, 
which outlines what is going on does not reach you. You 
subsequently pull your agents out of interrogation--
    Mr. Mueller. Well, prior to that--
    Senator Feinstein. At some point you found out.
    Mr. Mueller. Well, prior to that, in 2002, there was a 
decision made when we heard that there were techniques that 
went beyond our techniques being utilized in, I believe it was, 
Pakistan, we made the determination that our agents would 
adhere to our protocols, would not participate in additional 
techniques, understanding that not them but some time later 
additional techniques had been approved by the Department of 
Justice with regard to DOD or with the agency.
    So we early on made a decision that we would maintain our 
protocol, would not utilize--not only not utilize but not 
participate in any of those techniques.
    Senator Feinstein. When did you make that decision?
    Mr. Mueller. In 2002, upon the initial hearing that 
additional techniques were being utilized by another agency 
overseas, and our persons had left that particular 
interrogation. We did not know the full extent of what 
techniques were being used.
    Senator Feinstein. That applied to all black sites and 
Guantanamo?
    Mr. Mueller. It applied to FBI agents wherever they were 
located.
    Senator Feinstein. OK. Thank you.
    Did you speak with DOJ or the White House about the 
concerns that FBI agents had, and specifically the Bowman memo?
    Mr. Mueller. Well, I made very clear my position that our 
agents would not participate in any such additional techniques. 
And I made very clear that that would be the case.
    Now, my understanding is there were discussions between 
other agencies and the Office of Legal Counsel and DOJ with 
regard to particular techniques; but I was not a participant in 
those discussions, and I was not consulted in those 
discussions.
    Senator Feinstein. Did this Spike Bowman memo ever go to 
the Attorney General or the President?
    Mr. Mueller. I do not know. I would doubt it.
    Senator Feinstein. Thank you. My time is up.
    Chairman Leahy. Thank you. The next person on the list I 
have from Senator Specter is Senator Grassley.
    Director, you made a comment earlier, and I will thoroughly 
embarrass the Senator from Iowa and wish him a Happy Birthday.
    Senator Grassley. Thank you very much. I appreciate it.
    Chairman Leahy. The first time in the 30 years I have known 
him that I have seen him blush.
    Senator Grassley, go ahead, sir.
    Senator Grassley. Mr. Chairman, I am going to start out by 
asking unanimous consent of you and the Committee to have my 
full statement made a part of the record and ask that 
documents, letters, and other materials I reference also be a 
part of the record.
    Chairman Leahy. Without objection.
    Senator Grassley. Since our last FBI oversight hearing in 
March, there have been major developments, as already 
expressed, in the anthrax investigation. After years of 
focusing on Stephen Hatfill as a prime suspect, the FBI paid 
him a multi-million-dollar settlement. Their new suspect, Bruce 
Ivins, committed suicide in August. And now the FBI is in the 
process of closing that case.
    This is one of the longest and most expensive 
investigations in FBI history, and there will probably never be 
a trial. Congress and the American people deserve a complete 
accounting of the FBI's evidence, not just as selective release 
of a few documents and a briefing or two. There are many 
unanswered questions the FBI must address before the public can 
have confidence in the outcome of the case, and a thorough 
congressional investigation is needed to ensure that those 
questions are answered. And I appreciate the Director referring 
to the National Academy, but I would like to also suggest that 
the National Academy would not be reviewing FBI interview 
summaries, grand jury testimony, internal investigative memos, 
other investigative documents. The Academy would only be 
reviewing the science, not the detective work. And, of course, 
I believe we need an independent review of both.
    On August the 7th, I wrote the Attorney General and 
Director Mueller seeking answers to 18 specific questions about 
the anthrax investigation. I have not received a reply. 
Director Mueller, we do not have time to go through all of 
those 18 questions here today, but I want to highlight one that 
you and I discussed last week. It has to do with when the FBI 
first learned of Dr. Ivins' late-night access to the lab around 
the time of the mailing. While the scientific evidence took 
years to develop, the lab access records were available from 
early in the investigation. Question No. 1 and No. 2 together, 
and then I will let you respond: Shouldn't his late-night lab 
access, which the FBI now cites as a key part of the case 
against Dr. Ivins, have led you to focus on him much earlier in 
the investigation instead of focusing on Dr. Hatfill? And, No. 
2, exactly when did the FBI obtain those lab access records?
    Mr. Mueller. I would have to get back to you on the 
specific questions, Senator. I know you were interested in 
them. I know that they were in that letter. We have drafted 
answers, and it is being--again, it is being approved. I would 
have to get back to you on specific answers to those particular 
questions.
    Chairman Leahy. Excuse me, on my time. I will certainly 
give additional time. I have to emphasize that the ``getting 
back to us'' is very difficult here because the answers then go 
to the Department of Justice. They sit on them, and we never 
get the answers. And it really is not fair. It is not fair to 
you, Director Mueller, because I know in many instances you 
sent your answers over to them. But they sit on them. It is a 
dark hole over there. We never get the answers. Senator 
Grassley has asked some very legitimate questions over the past 
year, and he has not gotten answers. Senator Specter has. As 
Chairman, I will insist we do get the answers, whether it is a 
Republican Senator or a Democratic Senator that asked the 
question. They work hard, all the Senators, both parties, on 
this Committee. They deserve to have their answers.
    Now, some of the questions that have been asked here today 
can be answered this morning. And when we do take our short 
break at some appropriate point, I would ask you to get on the 
phone and get us the answers.
    Senator Grassley. Well, thank you. I appreciate that 
support.
    Mr. Mueller. Could I just have 1 second?
    Senator Grassley. Sure. Go ahead.
    [Pause.]
    Mr. Mueller. I think I have some limited information, but I 
would prefer to confirm it during the break.
    Senator Grassley. OK.
    Mr. Mueller. And be able to get back to you on that.
    Senator Grassley. And that is OK, and that is probably more 
directed to the second one I asked, exactly when did the FBI 
obtain those lab access records. But surely you can say, as 
long as you had them a long time before, shouldn't that have 
caused you to focus on Dr. Ivins instead of Dr. Hatfill?
    Mr. Mueller. As I think I have explained and as we have 
briefed, the key disclosure in the investigation came when we 
were able to identify and match the genetic markers from the 
anthrax mailings to the anthrax that was contained in a flask 
RMR1029 that was maintained by Dr. Ivins, and that came in the 
spring of 2005. And at that time it triggered a number of 
investigative steps and put investigative steps in a new light 
given the fact that we had identified the anthrax in the 
mailings with that particular flask maintained by Dr. Ivins. So 
it was at that juncture that I would say the investigation took 
on a new focus.
    Senator Grassley. OK. Let me go on then. You were quoted 
August 8th, Burlington Free Press, as saying you are 
``unapologetic'' and that it is ``erroneous to say that there 
were mistakes.'' Well, the FBI focused on an innocent man for 
those 4 years. FBI officials anonymously told the press that 
Dr. Hatfill was the anthrax killer. The Justice Department 
effectively got him fired from his job. Yet even after new 
scientific evidence pointed away from Hatfill and toward Ivins, 
the FBI waited years to publicly set the record straight. So 
three questions, and I will ask them all at the same time.
    Should not the FBI apologize to Dr. Hatfill? Please explain 
how chasing an innocent man for 4 years was not a mistake, as 
you said it was not a mistake. And why did you wait until after 
settling Dr. Hatfill's lawsuit and after Dr. Ivins' suicide 
before clearing Dr. Hatfill's name?
    Mr. Mueller. I can speak generally. I do not believe that 
we inappropriately undertook any investigative steps in the 
course of the investigation, regardless of the individual. That 
means to say I think the steps that were taken in the course of 
the investigation, given the information that we had at a 
particular time, generated appropriate investigative steps in 
the course of the investigation.
    The lawsuit that was brought by Dr. Hatfill appropriately, 
we believe, focused on leaks, and one assumes it is FBI, but 
one should not make that assumption, but leaks about the course 
of the investigation that did harm his reputation. I abhor 
those leaks. It was inappropriate. And the settlement is an 
acknowledgment that those leaks should not have happened and 
that they harmed Dr. Hatfill's reputation.
    But in terms of the steps taken in the course of the 
investigation, given the evidence we had at a particular point 
in time, I think the steps taken were appropriate.
    Senator Grassley. Why did it take Dr. Ivins' suicide before 
Dr. Hatfill was cleared by the FBI?
    Mr. Mueller. Well, the fact that we had identified that 
flask as being--containing the parent of the anthrax used in 
the letters triggered a substantial additional investigation. 
We had to determine who else had access to that anthrax. We had 
to eliminate the persons who had access to that anthrax, and 
certain persons had been distributed portions or pieces--not 
pieces, but some of that anthrax for their own research. And, 
consequently, while it shifted the focus of the investigation, 
there was a tremendous amount of investigative work that had to 
be done to determine whether or not and who was responsible not 
just focused on Dr. Ivins, but anybody who may have had access 
to that anthrax over the period of time that that anthrax was 
in the suite and being maintained by Dr. Ivins.
    There were a number of persons who had been employed by 
USAMRIID over a period of time, and every one of those persons 
had to be investigated and ruled out as the possible person 
responsible for the mailings.
    Senator Grassley. Was anyone punished for those leaks that 
took place about Dr. Hatfill?
    Mr. Mueller. There is a continuing investigation by the 
Department of Justice. In the meantime, there was one person 
counseled in our organization as a result of confirming 
something that had been put out by somebody else.
    Senator Grassley. Mr. Chairman, did I use up all the 
additional time that I was allotted?
    Chairman Leahy. I believe you have.
    Senator Grassley. OK. Go ahead, and I will have a second 
round.
    Chairman Leahy. Thank you, and we will probably take a 
break around 11 o'clock for a few minutes, which will give the 
Director also a chance to make some phone calls to be able to 
answer the things where he is going to get back to us.
    On the list I have here, Senator Feingold, you are next.
    Senator Feingold. I thank you, Mr. Chairman, and welcome, 
Director Mueller. Thank you for being here. I think it is fair 
to say that you and I have had a good relationship in the time 
we have known each other. We have always had frank and honest 
discussions. I believe you are a straight shooter who has the 
best interests of the country at heart and who sincerely cares 
about and understands the importance of protecting civil 
liberties while fighting crime and terrorism aggressively.
    Unfortunately, however, the FBI has made some major 
mistakes in recent years. I am thinking particularly about the 
problems with national security letters. And I am deeply 
concerned about these new Attorney General guidelines. We are 
talking here about a situation where the FBI must police 
itself, and I am not convinced that these guidelines include 
adequate safeguards to protect against overreaching. Remember, 
the whole reason that the Department issued guidelines in the 
first place was in reaction to revelations about very 
inappropriate investigations and other activities that took 
place in the 1960s, particularly with respect to the civil 
rights movement.
    As Senator Leahy, the Chairman, already described today, 
the guidelines allow for what is called an ``assessment,'' 
which includes some quite intrusive investigative techniques, 
such as physical surveillance, questioning of friends and 
neighbors, including based on a pretext or misrepresentation, 
and the recruiting of informants--all with no reason for 
suspicion whatsoever.
    Basically, if I understand these draft guidelines 
correctly, so long as the FBI's purpose is detecting a possible 
national security threat or collecting foreign intelligence, 
you can pick any person at random off the street and say, ``I 
want to investigate that person, see if there is something out 
there that would justify a preliminary or full investigation.'' 
Since no reason or suspicion is required, this raises the 
possibility of racial profiling.
    Now, I know that you believe that racial profiling is wrong 
and it is unconstitutional. You have testified to that. And, 
yes, we have been told that the DOJ guidelines concerning 
racial profiling remain in effect. But, Director Mueller, these 
guidelines contain an exception for national security cases, 
and they are still just guidelines. They are not the law.
    So let me ask you: First, do you agree that it would be 
ineffective and counterproductive for the FBI to engage in 
racial profiling--
    Mr. Mueller. Absolutely.
    Senator Feingold.--in national security and foreign 
intelligence investigations?
    Mr. Mueller. Absolutely.
    Senator Feingold. You and the Attorney General now know 
that there is a lot of concern about these draft Attorney 
General guidelines. When they are finally published, if the 
current approach is maintained, there is going to be, I think, 
a public outcry. Wouldn't it be better to take the time to let 
the groups that are concerned about these issues analyze the 
draft and make suggestions about the kinds of protections that 
are needed to avoid an outcry when the guidelines are 
published? Why can't you at least solicit their suggestions in 
a meaningful process that involves more than a single meeting 
where the participants are allowed to look at the draft, but 
are not allowed to keep a copy?
    Mr. Mueller. Well, first of all, these are the internal DOJ 
guidelines established by the Attorney General. And this is the 
first time in my experience that we have sought outside input, 
not just from Congress but also from the ACLU, privacy 
interests, in order to get suggestions.
    Now, yes, we have maintained a process whereby we bring the 
guidelines, we allow whatever time is necessary to review the 
guidelines. They are a draft of the guidelines. We have 
elicited suggestions. We are incorporating the suggestions that 
have been made and have had an openness in the production of 
these guidelines that is far different than the sets of 
guidelines that have gone before.
    One point I do want to make, and that is the change in the 
responsibility and the roles of the FBI over a period of time. 
The American public--Congress was relatively content to 
evaluate the FBI and the success the FBI had in investigating a 
terrorist attack after it occurred, whether it be the 1993 
World Trade Center bombings, whether it be the Cole bombings, 
the East Africa bombings, whether it be McVeigh. But in the 
wake of September 11th, you and the American public are asking 
the FBI to prevent terrorist attacks. And in order to do that, 
it is much different than focusing on a particular individual 
who may have committed a crime.
    You are asking us--and I will go back to--I remember 
sitting here with Senator Specter, who is not here now, asking 
about the Phoenix memorandum. The Phoenix memorandum that came 
out before September 11th indicated that there were individuals 
from the Middle East who were attending flight schools in 
Phoenix, and the agent--who was a prescient agent--looked at 
that and said, ``Hey, look, this is of concern. This is a 
threat.'' Not an individual, these are Middle Eastern 
individuals who apparently were attending radical groups who 
were going to flight school.
    Now, in this day and age, the American public expects us to 
followup on that memorandum to determine whether any other 
individuals around the United States who may be undertaking the 
same activity, although these individuals have not committed a 
crime, these individuals--a crime has not been committed. And 
these guidelines that make a distinction between national 
security and criminal, in my mind, perpetuate the distinction 
in the Bureau between law enforcement and intelligence, where 
we, to undertake our responsibilities--
    Senator Feingold. I am running out of time, but as to the 
process, I have trouble understanding the reasoning for not 
allowing people to have a copy of this. If the guidelines are 
going to be made public anyway, why not let people see them and 
analyze them now? It would not only significantly increase 
public confidence in the guidelines, it would also improve 
them. What is the point of removing them from a room and not 
allowing people to really look at them?
    Mr. Mueller. There have been shifting drafts. They are in 
the middle of a process. And what we did is tried to include 
both Congress as well as the various groups in that process, 
giving--as I say, it is a draft. It is going to shift, and it 
is going to change. And our effort was to bring others outside 
who obviously have an interest in these--
    Senator Feingold. I can get you a ``Draft Only'' stamp, if 
that is what you need. You know, this is serious stuff, and it 
would help the process if we do this.
    Let me ask you one other thing. You mentioned in your 
discussion with Senator Leahy that many of the details about 
how these new Attorney General guidelines will work in practice 
will ultimately be embodied in FBI policies. If the Attorney 
General does decide to go forward in the near term with these 
new guidelines, will you commit that the related FBI policies 
will be made available publicly, to the greatest extent 
possible, so that the American people can understand fully what 
rules govern FBI investigations?
    Mr. Mueller. Yes.
    Senator Feingold. Thank you. I will stop at that point.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    In the order I have from Senator Specter, Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Let me just begin by saying that, in order that silence not 
be construed as consent, I just want to note for the record 
that I do not think that the tone of some of the questioning 
has been appropriate here. I specifically exclude, for example, 
the last questioner. Since I followed Senator Feingold, I do 
not want him to think that my comments are directed to him. We 
ask tough questions. That is appropriate. But I think we are 
all on the same side here.
    I wanted to pick up on something the FBI Director just 
said, because I, too, remember the aftermath of 9/11. And there 
has been a big debate about whether we should have the FBI 
actually doing the kind of investigation that he spoke of. My 
own view is that it is still not a close question. I have had 
the debate with the Director. He says the FBI can and should be 
doing this. If we do not give the proper authority, I am not 
sure that the FBI should be doing it. I am assuming maybe we 
would give a broader authority to a group that is separate, as 
exists in Great Britain. That is a debate for another day.
    We have said the FBI has the responsibility, and I think we 
have the responsibility, therefore, to assist in ensuring that 
you have the tools to get the job done.
    I just wanted to quote one thing from your statement and 
then ask you to expand on it a little bit primarily because in 
answering some previous questions, I think you were prepared to 
go beyond what you were allowed to say. And so I want to give 
you that opportunity.
    In your statement, you talk about how the rules, for the 
most part, dealing with crime investigations or terrorism 
threats can work together. But you go on to say, ``However, 
criminal threats and national security threats no longer fall 
neatly into separate categories. The threat of today, and of 
the future, is a dangerous convergence of terrorists, hostile 
foreign governments, and criminal groups operating over the 
Internet and through interconnected, sophisticated networks. We 
may see organized crime laundering money for drug groups, drug 
groups selling weapons to terrorists, terrorists committing 
white-collar fraud to raise money for their operations, and, 
most threatening of all, hostile foreign governments arming 
terrorists with an arsenal of biological, chemical, and 
radiological weapons.''
    To demonstrate this interconnectedness and also the folly 
of trying to separate rules governing crime investigation from 
this new terrorist threat, you were in the process of providing 
some examples, and I wonder if you could, to make this real, to 
just be real clear about real-life situations that might evolve 
here, if you could give us a couple of examples of how you see 
these things unfolding and why it does not make sense to have a 
different set of rules, especially a set of rules that makes it 
more difficult to investigate terrorism than crimes.
    Mr. Mueller. Well, I guess a couple examples from the 
terrorism field would be in Colombia, for instance, the FARC 
that is involved in narcotics trafficking but is also a 
terrorist group. You have the same thing occurring in 
Afghanistan with the Taliban intersection with narcotics 
trafficking.
    If you are looking at cyber as an example today, you have a 
number of fraud schemes that have migrated from the mails to 
the Internet. You also have a number of those affiliated with 
terrorist groups and responsible for garnering funds for 
terrorist groups using a number of scams on the Internet that 
can be treated as either money laundering or fundraising by a 
terrorist group or money laundering on the Internet. One is 
criminal, one is national security.
    The list of circumstances where you have terrorist groups 
or--not just terrorist groups but countries who commit 
espionage and seek to steal our secrets can be treated either 
as a criminal organization or as a terrorist organization or as 
operating at the behest of a foreign government who wants to 
steal our secrets. And what techniques we use to investigate 
that should not be dependent on the cubbyhole in which that 
particular activity is put. We need the techniques across the 
board regardless of what particular program we traditionally in 
the Bureau have operated it under.
    Senator Kyl. And if you could, one of Senator Feingold's 
questions I thought was a good question, and I would like you 
to have the opportunity to give a slightly more fulsome answer. 
Can you just pick up somebody on the street, whether it is a 
crime or investigating terrorism, what protections are there, 
what is the best way to describe the kind of assurances that 
this kind of thing simply would not happen so that the American 
people can be confident that the guidelines, along with the 
policies, along with complying with the law, prevent that kind 
of activity?
    Mr. Mueller. As opposed to the guidelines of the past with 
focus on a particular crime, the guidelines here focus on a 
particular purpose. There has to be an articulated purpose tied 
into a specified threat for the activity that is undertaken. It 
has to be written up. It will be assigned to an attorney. There 
will be a 30-day review of that. And there will be an 
increasing scale of review depending on the types of techniques 
that are going to be used. That has been traditional under the 
guidelines, whichever guidelines you have, and will be 
incorporated from the past guidelines to these guidelines.
    We are absolutely sensitive that we want higher review. For 
instance, if an agent wants to undertake activity with regard 
to a religious institution or political institution or the 
like, there is a higher level of review and authorization that 
is required, as well as the 30-day review, to assure that the 
investigation is being pursued, if not being pursued is being 
closed.
    Senator Kyl. And, finally, are there some time constraints 
that, therefore, call for a presumption to move ahead subject 
to all of the kinds of reviews that you have discussed here?
    Mr. Mueller. Well, the assessments will generally be--in 
general, I say--a 30-day review. When you move up to the next 
level and preliminary investigations, they can be undertaken 
for 6 months. If they do not go to a full investigation, they 
need to be closed. So there is a level of supervision that in 
the past has been more or less on its own. Supervision 
authority, documentation procedures being followed--
    Senator Kyl. If I could just interrupt for a second, I 
think there is kind of a tendency, because we watch too many TV 
shows, to think you have got to have some kind of probable 
cause to believe that the person is guilty before you can even 
begin investigating something. I wish you would address that 
point.
    Mr. Mueller. Every day, as most people know, we have a 
threat list of umpteen threats, generally anywhere from 11 to 
20 pages. A number of those threats can be e-mail threats from 
all around the world saying that this particular terrorist 
activity is going to occur in the United States or elsewhere 
tomorrow. That is the type of threat that comes in that 
warrants an investigation, an assessment, if you will, to 
determine whether or not it is valid and what further 
investigation needs to be made.
    Generally, we go to the IP address, and I do not care where 
it is, where it comes from--Pakistan or Malaysia or what have 
you--and we work to identify the person and to exclude that as 
a threat of moment. But that is the type of assessment.
    What you also have--and I do not want to mislead people--
you have assessments that would follow the recognition, as 
Agent Ken Williams did in Phoenix, of a circumstance that was 
bothersome to him, troublesome to him, and he believed needed a 
follow-up assessment. That would have been treated as an 
assessment as well.
    Senator Kyl. Thank you very much, Mr. Director.
    Chairman Leahy. Thank you very much.
    We will go to Senator Durbin, and then we will take a 10-
minute break.
    Senator Durbin. Director, thank you for being here, and I 
appreciate your service. It has been 7 very challenging years. 
I believe that it is 7 years that you have been in this 
position. We have worked closely, and I value the working 
relationship that we have had.
    I would like to follow-up on this guideline question and 
try to zero in on what I think is at the heart of many of the 
questions that have been asked of you.
    It is clear to me that in most instances, when it comes to 
an FBI investigation, there has to be some factual predicate 
which leads to that investigation. So my question to you is 
this: Is national origin or religion a sufficient factual 
predicate in investigations related to terrorism?
    Mr. Mueller. In and of itself, no.
    Senator Durbin. There has to be more?
    Mr. Mueller. There has to be more.
    Senator Durbin. I think that really gets to the heart of 
the question, and I hope that the guidelines will be shared 
with us and that they reflect what you have just answered.
    I will also say that one of the more troubling aspects of 
this administration's policies since 9/11 has been the question 
of torture and investigative techniques. Attorney General 
Mukasey has testified before this Committee, and we had a long 
day or two of questions related to these techniques, what was 
permissible and what was not. I called you the other day to 
mention that I was going to bring this up.
    In 2005, at a hearing before this Committee, I asked you 
about reports that FBI agents regarding--FBI agents regarding 
detainee abuses, they witnessed this. In these reports, which 
were publicly released under the Freedom of Information Act, 
FBI agents complained about ``torture techniques'' being used 
at Guantanamo. I asked you in 2005 whether the Defense 
Department has changed their interrogation policies as a result 
of the FBI's concern, and you said, I quote, ``I do believe 
they have.''
    I and other members of the Committee asked the Inspector 
General to investigate these FBI complaints. The Inspector 
General concluded, and I quote, ``We found no evidence that the 
FBI's concerns influenced DOD interrogation policies.''
    So I would like to ask you, What was the basis for your 
statement to this Committee in 2005 that concerns of FBI agents 
did change the interrogation techniques at the DOD?
    Mr. Mueller. I am not certain that--I do not have it in 
front of me, but I am not certain the question said, ``Did the 
concerns of FBI agents change the techniques?'' What I do know 
is the techniques had changed over a period of time. There were 
different orders given through the hierarchy at Guantanamo. 
There were a set of procedures, as I understand it, that were 
instituted, maybe in 2002, 2003, and then were rescinded over a 
period of time. I do not think I meant to--if I did, I did not 
mean to say that I knew that that was as a result of the 
reports from the FBI, because I am not certain it was a result 
of the reports of the FBI. It may well have been of the reports 
of Abu Ghraib which interceded to make those changes.
    All I know is that there were shifts in terms of the 
allowable procedures at Guantanamo over a period of time.
    Senator Durbin. If I asked you to step back and reflect on 
this period and this question and interrogation techniques, 
what could you say for the record has been the policy of the 
FBI under your directorship when it came to not only the use of 
these techniques, but also efforts to stop their misuse by 
other agencies of the Federal Government?
    Mr. Mueller. Well, with regard to the FBI participation in 
those techniques, I think, and the Attorney General report 
points out, that we maintain our own protocols that do not 
depart from utilizing techniques that include no coercion. With 
regard to--I think agents in the Bureau did exactly what was 
appropriate in complaining to their counterparts at Guantanamo. 
What I do not think we did a good job of is making certain that 
those reports came to the top so that additional requests--or 
to assure that these requests were being handled not just at 
the lower level in Guantanamo but higher here in Washington.
    One of the concerns we have had and one of the issues one 
had to wrestle with is that there were shifting definitions of 
what was allowable over the period of time, and to a certain 
extent, there was legal authority supporting those. And so a 
definition of what constitutes ``abused'' shifted over a period 
of time, depending on a number of factors. And I think we could 
have done a better job of identifying at the top these 
particular abuses and making the points perhaps stronger to 
DOD.
    But, on the whole, I think the FBI and its agents did a 
very good job in not participating in the techniques and 
alerting their counterparts that they did not agree with those 
techniques. I will tell you the other thing that I think we did 
appropriately is when we understood this was happening in the 
spring of 2004, we then went to any agent who had undertaken 
interrogations near Iraq or in Guantanamo and had seen abuse, 
and we went through every one of those and then referred them 
to the appropriate authorities once we were aware that this was 
happening. I do wish that we had done more earlier in terms of 
pushing to the top the concerns that they had lower down.
    Senator Durbin. My understanding in reviewing the history 
of this administration is that the Office of Legal Counsel and 
other offices were sending out from time to time memoranda 
explaining what they considered to be the outer limits of 
interrogation techniques. Some of these were rescinded. Is that 
what you referred to earlier?
    Mr. Mueller. Yes. They were memoranda that went to other 
agencies.
    Senator Durbin. But in terms of your agency and the work of 
your agents, you have consistently not--your agents have not 
engaged in these techniques and have reported abuses when they 
observed them?
    Mr. Mueller. Yes--not in all cases, but I think--certainly 
over a period of time in all cases, when we queried every agent 
who had participated in questioning in Guantanamo or over in 
Iraq.
    Senator Durbin. And when General Counsel Valerie Caproni 
testified and I asked her about techniques such as painful 
stress positions, threatening detainees with dogs, forced 
nudity, mock execution, and waterboarding, she responded, 
``Yes, those are abusive under all circumstances.'' Do you 
agree with that?
    Mr. Mueller. Yes.
    Senator Durbin. I would like to ask you--we just have--
well, I guess my time is up, but let me close by saying I am 
glad that you spent some time talking about the change in 
technology in the FBI. It is one thing you and I have worked 
on. I know it has been a painful, arduous journey. And it 
appears now that significant changes have been made for the 
record, and I am sure the Committee is well aware of it. On 9/
11, the FBI was woefully unprepared from a technology viewpoint 
in terms of some very fundamental issues--e-mail, access to the 
web, ability to transmit photographs electronically. It appears 
now from your opening statement that significant progress has 
been made and more is underway.
    Mr. Mueller. Thank you, Senator.
    Senator Durbin. Thank you.
    Chairman Leahy. Thank you. And I should note that we keep 
talking about all the failures leading up to 9/11. The Director 
took office just barely at that time, and these were the 
failures prior to him being there.
    I apologize to Senator Whitehouse. We are going to take the 
break now. When we come back, he will be recognized. Director 
Mueller will first be given a chance to respond to the 
unanswered questions. He can use the time during the break to 
make whatever call is needed to be able to answer them.
    We will stand in recess subject to the call of the Chair. 
Thank you.
    [Recess at 11:08 a.m. to 11:29 a.m.]
    Chairman Leahy. The Committee will be in order. I ask that 
the public please take their seats so that people's views are 
not obstructed.
    Before I go to Senator Whitehouse, Director Mueller, you 
had something you wanted to say.
    Mr. Mueller. Yes. You asked two questions and asked me to 
try to track down answers to two questions, one yourself and 
one, I think, from Senator Grassley.
    With regard to the two laboratories that you mentioned and 
were there any other laboratories that had the capability of 
weaponizing anthrax, I respectfully ask that we provide that in 
a closed session. Aspects of the response to that question may 
well be classified.
    Chairman Leahy. Well, do you have--and I understand from 
what you told me in a--you told me privately what the answer 
is. I will discuss with Senator Specter that we will make 
arrangements for the answer to be provided in a classified 
fashion.
    Mr. Mueller. I had one other--
    Chairman Leahy. Yes, please. Go ahead.
    Mr. Mueller. Senator, if I could, Senator Grassley asked a 
question with regard to when we received the records--after-
hour records of the access to the laboratories at USAMRIID, and 
the answer is in 2002 we obtained the records of not just the 
time in labs of USAMRIID but any number of additional 
laboratories such that we had thousands upon thousands of 
records of access to various portions or hot suites in 
laboratories around this country and other--I am not certain, 
but maybe labs in other countries as well. And after that, it 
was a question of focusing and utilizing those records as a 
portion or a part of the continuing investigation.
    Chairman Leahy. Thank you, and I also will leave the record 
open for Senator Grassley to do any followup that he wishes.
    Senator Whitehouse, you have been here right from the 
beginning of this hearing. I commend you, as I always do, for 
the amount of time you spend here. And I know you and I have 
had long discussions about these various subjects outside the 
hearing room, and I commend you for your diligence in the 
matter.
    Senator Whitehouse. Well, thank you, Chairman. I find these 
hearings highly informative, so I am delighted to be here and 
applaud, as always, your leadership of this Committee.
    Director Mueller, this is probably the last time in this 
administration that you and I will face each other in Committee 
hearings. We have had some ups and downs in the course of the 
hearings that we have had, but through it all, I have never 
lost confidence in your personal professionalism, nor have I 
ever doubted your desire to see the right thing done, both by 
and for your agency. This being our last encounter of this kind 
in this Presidency, I want to take the occasion to remark on 
the incidents surrounding the Department of Justice review of 
the President's program for secret warrantless wiretapping of 
Americans.
    Details of this incident have been disclosed to us in the 
Senate Intelligence Committee. Senator Schumer of New York, a 
member of this Committee, held a hearing that brought this 
story before the public. I suspect, Director, that if I am here 
30 years, I may never again see such a hearing as that one. And 
the Washington Post has published even more detail in an 
excellent two-part series in the last 2 days--few days, I 
should say. It has been a few days now.
    Director Mueller, I believe that the agencies of the 
Federal Government stand for something. I believe that the oath 
of office to these senior positions confers duties and 
responsibilities. I believe that the greatest failing of the 
so-called unitary executive theory, still pursued by the 
extremists who have controlled White House decisionmaking, is 
that it expects all executive agencies to bow down before the 
will of the White House, even when duty, honor, and often 
statute confer particularly responsibilities on those agencies 
and on the men and women who run them.
    This theory leads to a dangerous culture where yes-men and 
toadies become the constitutional norm. And they inevitably 
fail at a minimum to give the White House resistance and 
cautionary feedback consistent with their own duties to their 
agencies and to the public. This responsibility to the public 
and to the mission of the agency is nowhere more important than 
within the Department of Justice and within its components.
    A combination of toadyism at the top and the deliberate 
disassembly of the firewall protecting the Department of 
Justice and its prosecutors from political interference 
rendered that great Department more vulnerable to political 
abuse and infiltration than ever in its recent history.
    Attorney General Mukasey's refusal to look backwards, his 
determination to do no evil but also to see no evil renders us 
unable to determine to what extent the possibility of political 
influence actually became reality in investigations and 
prosecutions.
    But against that squalid backdrop stands the example of 
you, James Comey, and Patrick Philbin. I believe the strength 
of your conviction brought along Attorney General Ashcroft and 
many others. It is hard to explain how serious and how long-
lasting the damage to the Department of Justice would have been 
had you rolled over for Vice President Cheney and his 
operatives and ultimately the President at that grave time.
    It is hard to imagine in America circumstances in which the 
Director of the FBI has to order agents standing guard over a 
stricken Attorney General not to leave him alone with the White 
House counsel and the President's Chief of Staff to make sure 
that Deputy Attorney General James Comey stayed with him.
    But it is not hard to understand the feeling of pressure, 
isolation, and consequence that bore down on all of you through 
that episode. I will disagree with all of you on many things, 
but I wanted to take this opportunity today to say thank you. 
Against intense and hostile pressure from the highest offices 
in the land, you stood for the principle that all public 
offices have public duties and responsibilities and that 
honoring those duties and responsibilities, at least as God 
gives us each of us the light to see them, is a higher public 
virtue than mere obedience. That is an important lesson in 
democracy. I hope it is a lasting one, and I thank you for 
showing us it.
    I will reserve my questions for the record. I will ask 
that--I think the discussion that the Director had on the 
subject of the control over these new investigative areas of 
national security and foreign intelligence unhinges the 
Department's investigative responsibilities from some of the 
traditional restrictions that have customarily and over time 
developed around criminal investigations. For starters, a nexus 
to a crime, the theories of predication and the rules around 
them that have been developed, and all of that, I think it 
would be helpful, in addition to sharing with us the new 
guidelines when they become apparent, to allow some senior 
folks on your staff who are responsible for this new 
responsibility to come and brief those members of the Committee 
who are interested, and their staffs, on what the kind of 
affirmative protocol for providing guidance in those 
investigations.
    I have not seen them yet, but I suspect that the guidelines 
are written rather in the negative and do not disclose the 
administrative structure that enforces and supervises them. I 
think the Chairman is a very experienced prosecutor. I spent 
time as an Attorney General and the United States Attorney. I 
have comfort that there is a structure that I am familiar with 
that restricts criminal investigation to the legitimate 
investigation of crimes that actually happen or are believed to 
have happened.
    I am not convinced as to what the structure is that will 
limit investigations in the national security and foreign 
intelligence area to any reasonable benchmark or guideposts. I 
think you probably can provide it, but I think it would be 
helpful if we had that discussion, rather than just working off 
cold paper guidelines. And if you would agree to do that, I 
would appreciate it.
    Mr. Mueller. We have had preliminary discussions in our 
briefings with regard to what we plan to put into place to 
supplement the guidelines, but we would be happy, as we go 
through this process, to brief you on the structure, the 
administrative structure that will support the guidelines.
    Senator Whitehouse. You understand my question?
    Mr. Mueller. I do.
    Senator Whitehouse. Yes, OK. Thank you, Chairman. And thank 
you again, Director.
    Chairman Leahy. I thank you for that, and I would--I 
believe the article you were referring to was the excerpts from 
the book ``Angler.'' And I want to note my agreement with what 
you said, and that I agree with what you said about the 
integrity of the Director in what had to be a very difficult, 
and I suspect lonely, circumstance. So I applaud you for your 
comments, I applaud you for your statement, and I concur.
    Senator Feinstein. Mr. Chairman, if I may, I would also 
like to concur with the comments. I think Senator Whitehouse 
said those with a full heart. I think they were well stated 
and, Mr. Director, well deserved.
    Thank you very much.
    Senator Whitehouse. Thank you very much.
    Chairman Leahy. Thank you. And now we have Senator Cardin 
of Maryland, again, a very valued member of this Committee who 
brings his experience from his years in the other body.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman. I also want to 
concur in the comments made by my colleague from Rhode Island 
and thank the Director for the role that you have played. It 
does point out that it is not just the direct responsibility 
you have as the Director or the direct responsibility that we 
have as a Committee in enacting laws. But it is the role that 
you play in standing up for what is right and the role that we 
play in oversight that I think is critically important to our 
country.
    I want to cover two points today, if I might: one will be 
the anthrax investigation; the other will be the 2008 
elections.
    I just want to concur with some of the comments that have 
been made by my colleagues of the importance to be as 
transparent as possible in the anthrax investigation. There is 
a comfort level that has not yet been reached, and I agree with 
Senator Specter that we should be looking for ways to make the 
availability of the Academy of Sciences a more transparent and 
understandable process to give more information that the public 
can understand about this anthrax investigation.
    I represent Maryland. Fort Detrick, of course, is a 
critical facility for our national security. The community has 
been very understanding of what work is done at Fort Detrick, 
but they have a right to expect that those that work there are 
properly secure and are working in our national interest and 
that we are doing everything to make sure that is the case.
    One part of this investigation I would like to cover with 
you today that I think points out the concerns that many of us 
have about the completeness of the investigation. It is my 
understanding that Mr. Ivins had security clearance until July 
10th of this year. And if there was such mounting evidence 
against him, why was his security clearance maintained to such 
a late point? Did the FBI recommend that his clearance be 
changed and it was not followed up? Or was it just an 
oversight? Or did we not have credible information until after 
July of this year?
    Mr. Mueller. I would have to get back to you on the 
specific timeline, but the investigation continued and was 
not--there was no overt action taken until November, I believe, 
of 2007. At the time that the search warrant was requested and 
we had probable cause to believe that premises should be 
searched, we advised USAMRIID of our concerns. And my 
understanding is that at that point, while his security 
clearance may well have been maintained because there was no 
indictment, there were no public charges, nonetheless his 
access to the relevant spaces at USAMRIID was denied. And so he 
no longer had access to the compounds that he had access to 
prior to that day.
    Senator Cardin. And that was based upon the information 
obtained for the searches in November of 2007?
    Mr. Mueller. I believe that is the case.
    Senator Cardin. I would appreciate it if you would confirm 
that to the Committee, that, in fact, he did not have access 
after that date, because the information we received, it was a 
counselor challenging his mental status that ultimately led to 
the revocation of his security clearance.
    Mr. Mueller. That may well have been. That happened 
sometime later. And, again, the extent to which we have access 
to those records, I am not certain because they are privileged, 
and quite often in the course of a criminal investigation, if 
they are privileged records, medical records and the like, we 
do not have access to them. I would have to check as to when we 
found out about the--
    Senator Cardin. I appreciate that. I think it is important 
that access and clearance be very carefully monitored, 
particularly when there is criminal investigation that had 
reached the level that your investigation had reached. I would 
appreciate your getting back to me on that.
    Let me talk about the 2008 elections for one moment. This 
Committee has had oversight hearings as to the Department of 
Justice's actions to try to prevent a repeat of activities that 
occurred in the 2006 and 2004 elections, where there was voter 
fraud that took place in close proximity to the election, which 
makes it difficult for reaction to ensure that voters can 
participate without intimidation. We had a long letter sent out 
giving the wrong dates for elections, threatening people with 
parking tickets outstanding that they will be arrested, or new 
immigrant citizens, challenging their rights to vote.
    What role will the FBI play prior to the November 4th 
elections to be as constructive as possible for the enforcement 
of our laws and be prepared--and how are you preparing for the 
2008 election itself? Have there been meetings and discussions 
with the U.S. Attorneys? Is there a role that you are playing? 
Can you fill us in on this?
    Mr. Mueller. Whenever there is an election, we have 
specialist agents who are versed in this type of crime. Each 
one of our offices, every U.S. Attorney's Office, is instructed 
to take whatever allegations there are in, but then there is 
very close coordination with the Election Crimes Section of the 
Department of Justice. And so whatever allegations come into 
our offices are fed into the Election Crimes Section at the 
Department of Justice, and whatever additional investigation is 
necessary, there are steps taken, whether it be grand jury or 
steps taken by us, done in consultation with the Election 
Crimes Section.
    Senator Cardin. Well, I would just urge you to give this 
your personal attention. We are concerned--there are a lot of 
new participants in this election. There were exciting 
primaries for both the Democrats and Republicans. We have a lot 
of first-time voters. We are going to see that there is going 
to be a lot of activity on college campuses, and they are 
worried as to whether, in fact, the election system will be 
able to accommodate those voters.
    We are concerned about misinformation being intentionally 
used by some advocates in an effort to influence voter turnout, 
which would be inappropriate and aimed at minority communities. 
And I think the more work you can do leading up to November 
4th, the best it will be to prevent that type of activity from 
taking place, which is our goal; but if it occurs, to be in a 
position to make sure that we have the information necessary to 
hold those accountable for violating our laws.
    I would just urge you to give that personal attention.
    Mr. Mueller. I will.
    Senator Cardin. Thank you.
    Chairman Leahy. Did you wish to respond on that at all?
    Mr. Mueller. No. I am fine. Thank you.
    Chairman Leahy. I might say also that a number of us share 
the concerns that Senator Cardin has stated. It is not a 
partisan concern. It is a practical concern.
    I think of my own grandparents who taught me after they 
became citizens how wonderful that ability to vote is. One of 
my earliest memories as a child, probably 2 or 3 years old, is 
being carried into the voting booth with my parents, they 
holding me while they checked their paper ballots in 
Montpelier, Vermont. It is very, very important. Very, very 
important part of life. I just want to make sure that people 
want--as we have seen in the past, when there have been 
instances when people have been denied the vote for political 
reasons, that that not happen, and I think the whole country is 
going to have to rely on the FBI to be extraordinarily vigilant 
in that.
    I might mention, following on what Senator Whitehouse has 
said, a book that I read and found very enlightening, ``The 
Dark Side'' by Jane Mayer, she talks about a dinner party she 
attended. One of the lawyers at the party criticized Tom 
Wilner, another lawyer who had represented detainees, for 
defending terrorists down at Guantanamo, where the book toasted 
Mr. Wilner for doing what Americans should. Those of us who had 
the privilege, as you have and I have, of being prosecutors 
know the whole system breaks down completely if there are not 
defense attorneys. They are not enemies of the country but 
protectors of the system, just as the prosecutors are. So I 
commend you for that.
    Now, a question I asked earlier, and the clock can start 
here, and then I am going to--I am in my second round here. I 
understand Senator Grassley has a second round.
    These AG guidelines, if you open an assessment that allows 
an agent, among other techniques, to conduct an indefinite 24-
hour surveillance on a U.S. person, the regulations do not 
require a supervisor to look at that. I keep going back to the 
misuse of the exigency letters. You said the supervision would 
be put in place through FBI policies. If there are going to be 
policies anyway, why not just include them in the regulations 
to begin with?
    Mr. Mueller. Because I do think the guidelines have always 
been a framework, and there are any number of situations and 
techniques that could be used in any particular situation. And 
what is important is to have the guidelines as a framework, and 
then working on that framework, flesh it out with particular 
requirements that may change over a period of time. In other 
words, if we establish a 30-day review period for our 
assessments, we may find that is too short a time or too long a 
time. And we should not have to go through, in my mind, a whole 
process of going back, requesting a change from the Department 
of Justice. We ought to be able to change those policies--with 
scrutiny from the Department of Justice, quite obviously, and 
with briefing to Congress, but to change those internal 
policies depending on what we find, what we learn. And 
inevitably there will be some set that we would have to come up 
to put into practice that which are the guidelines from the 
Attorney General.
    Chairman Leahy. But you understand my concern, and I go 
back to the exigency letter when there was not adequate 
supervision.
    Mr. Mueller. Yes.
    Chairman Leahy. It is something both you and I agree on, 
and I just want to make sure there is supervision, because in a 
digital age so much of this stuff just lasts there forever, and 
we know what can happen. I used as another example, the 
Homeland Security, Senator Kennedy is denied access numerous 
times to an airplane because somehow he is on a terrorist list, 
or the year-old child who had to get a passport to prove they 
are not a 30-year-old suspected terrorist. It was so inflexible 
that the parents say, ``Look, it is a year-old child.'' 
``Sorry. It is the same name as a 30-year-old terrorist on our 
list''--or 35 or whatever it was. People who are suddenly 
turned down for jobs or a security clearance or college loans 
or anything else are never told why because somewhere they got 
put on a list. And you end up with almost an Orwellian concept.
    Our concern is not that we do not go out and make threat 
assessments, but that we do it in such a way that there is some 
supervision and some way for the record to be cleared if 
somebody does not--if the threat assessment turns out to be 
simply a case where a disgruntled friend or neighbor says, 
``Heck, I will drop a dime on this person, even if it is not 
legitimate,'' because in today's age, it is not a dusty file 
put off in a filing cabinet somewhere. It is in all kinds of 
data banks.
    Mr. Mueller. I do share your concern in that regard, Mr. 
Chairman. One thing I should add that I should have pointed out 
before in your hypothetical that you gave me, a person is 
driving down the street with--I think you said with a license 
plate that articulated something, that is under the guidelines 
as well as our procedures a circumstance where we could not 
open an assessment because the person was express First 
Amendment rights. And, consequently, that is an area that is 
carved out from that area where agents can undertake 
assessments.
    Chairman Leahy. Well, let's say there has been a threat 
assessment open, and let's go through all the various steps. 
The supervisor has looked at it. It is not just an FBI agent 
who is exercising a personal predilection or something. 
Somebody has looked at it and has said, ``Yes, this is a 
legitimate threat assessment. Let's follow it up.'' And all the 
appropriate steps are taken. The supervision is there, and they 
find, yes, there really was nothing there. It was a case of 
mistaken identity or whatever and that is it. The case is 
closed. But all that information that is gathered, what happens 
to it? Is it kept there forever?
    Mr. Mueller. It is there subject to the rules of the 
archives. It will be there for a substantial period of time, 
just as on the criminal side of the house where you have an 
allegation that somebody violated the criminal laws--and, 
again, it could be a disgruntled employee, it could be a 
disgruntled spouse, it could be a disgruntled friend, who 
triggers the process. We do an assessment, we do an evaluation, 
and we determine that that was baseless, we retain those 
records according to those rules that are laid down by the 
archives.
    Chairman Leahy. OK. But is there any firewall in there so 
the fact that this person's name, there has been an 
investigation is not out there blocking them from getting on 
airplanes, blocking them from getting turned down for a 
promotion or a job, blocking them from getting a loan on their 
home and so forth?
    Mr. Mueller. Well, unless there is some substantial 
substance to believe that the person is a terrorist, they do 
not--or they should not be or their name should not be with 
identifying data on the terrorist watchlist. We try to protect 
our records. We are very concerned about information that we 
may obtain relating to an allegation that turns out to be 
baseless be out there. But we have a records retention policy 
that we file in all of our programs.
    There are occasions where we are asked to do background 
investigations on persons who may want to be judges or join an 
administration. We collect a fair amount of information with 
regard to those individuals. They have committed no crime, but 
the information we have obtained is pursuant to an authorized 
purpose, and we maintain that, both the good and the bad, 
without our acquisition of that adversely impacting that person 
in public.
    Chairman Leahy. But, for example, going back to what--and I 
keep thinking of the exigent letters and what happened there. 
You called the editors of the Washington Post and the New York 
Times to apologize for illegally obtaining telephone records 
for several of their reporters back in 2004--not you personally 
obtaining them, but they were obtained by the FBI. And 
according to a briefing that we got from your staff, the FBI 
had no legal authority to obtain these records. The agents had 
falsely claimed that it was an emergency request in the 
records, and the FBI had simply ignored well-known requirements 
that they get approval from the Justice Department before 
seeking these records from journalists.
    The Department of Justice Inspector General said that the 
national security--the FBI used its national security authority 
in more than 700 letters where there is no basis in law.
    Mr. Mueller. Well--
    Chairman Leahy. Now, you have apologized--and I commend you 
for doing this--to the Washington Post and the New York Times 
for that. What about these other 700 people? Do they get 
apologies? Do they get a note or anything?
    Mr. Mueller. No, in the case of other investigations or 
information we obtain, it is maintained in our files for the 
period dictated by the archives and then ultimately destroyed, 
and no use is made of it in the meantime.
    With regard to those 700, we have pulled any--we have tried 
to pull--because we did not have the authority to collect, we 
have pulled that information from databases and sequestered it. 
And it has been eliminated from our files.
    With regard to the request that was made--actually, as I 
understand it--and the Inspector General is looking at this. As 
I understand it, an agent queried somebody in headquarters as 
to whether or not he could obtain records from an international 
entity relating to an ongoing investigation that did relate--
and the records did relate to the media. That was picked up by 
another agent as a request, and what happened is we did not go 
through the approval procedures. They were bypassed, the 
approval procedures at the Department of Justice, when the 
request for those records was made. And once we found out from 
the Inspector General that the records had been obtained, we 
have sequestered them and sealed them.
    Chairman Leahy. Thank you.
    Mr. Mueller. No investigative use was made of those 
records.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. I want to thank you because you got back 
very quickly, as you promised you would, if you could give us 
information about the lab access records, and you do that and I 
thank you. I would like to have one little followup on that, 
and then I will go on to something else.
    If the FBI had the lab access records in 2002, why did it 
take so long to analyze them and learn that he had been alone 
in the lab late at night around the time of the mailing?
    Mr. Mueller. I think the answer to that question, Senator, 
is that we obtained in 2002 thousands upon thousands of lab 
records from any number of laboratories who were in the purview 
of those laboratories that had individuals or had access to the 
Ames anthrax. And, consequently, we had a very large set of 
records, and it is only when they were used when we focused on 
an individual. And there has to be something that warranted us 
going to a particular record to analyze it beyond just the fact 
of analyzing hundreds--probably hundreds of thousands of pages 
of scientists, 99.9 percent of which were validly in the suites 
after hours. And so I think it was a question of focusing the 
investigation.
    Now, I say that without having talked to the agents but 
having had secondhand understanding. So I would like to confirm 
that, that that was the case.
    Senator Grassley. Well, if there is anything contrary, then 
you can submit that in writing. I have just one more question 
in regard to Dr. Ivins. Then I will move on.
    According to information released by the FBI, the material 
in the anthrax attack envelopes contained silicon. I understand 
that scientists at Sandia National Labs conducted a series of 
blind tests on samples of the material taken from the flask in 
Dr. Ivins' lab at Fort Detrick. Unlike materials in the attack 
envelope, the material in the flask did not contain silicon. 
Can you confirm that testing found no silicon in the flask from 
Dr. Ivins lab in Fort Detrick? And if there was no silicon in 
the flask material, then can you explain how silicon ended up 
in the attack envelopes?
    Mr. Mueller. You are a little bit out of my expertise at 
this juncture. I do know that there was an issue of silicon or 
silica at the outset, and it was determined that the silica was 
not on the exterior of the spore but was part of the growth 
process.
    Now, in terms of how that related to the anthrax in the 
flask maintained by Dr. Ivins, I would have to get back to you 
on that.
    Senator Grassley. OK, and I will be glad to have you do 
that. Thank you very much.
    In regard to exigent--
    Mr. Mueller. I will say, Senator, there are probably a 
number of scientists out there who are looking askance at my 
answer. I think it is pretty much on target, but I have to 
confess that I am a little bit out of my depth in terms of 
diving deeply into the science.
    Senator Grassley. I accept your confession and wait for 
your answer.
    This Committee requested e-mails related to the exigent 
letter controversy more than a year and a half ago. I recently 
received a letter saying that you would not provide the 
documents because of the ongoing Inspector General's 
investigation. However, the FBI previously indicated it would 
provide the documents and then actually provided a few of them 
last October, even though the Inspector General was 
investigating then as well. So your position on this has not 
been consistent. I do not believe that we should have to wait 
for months or years for the executive branch to conduct its own 
internal inquiries before we get answers to oversight requests.
    Two questions together. Why should we have to wait so long 
to get these documents? And then, second, in responding to 
congressional document requests like these, are you limited 
more than you would like to be by the Justice Department 
policies that prevent you from responding to Congress even 
though a more complete response would be in the interest of the 
FBI?
    Mr. Mueller. Excuse me just one second if I could.
    [Pause.]
    Mr. Mueller. Again, I am not certain as to why there is the 
inconsistency. We have tried to be as open as we can with 
regard to documents such as that. We are constrained 
periodically by the Department of Justice for reasons that are 
explained to us and which we tried to explain to you as well. 
But I would have to get back to you on this particular 
circumstance as to why--
    Senator Grassley. Can you concentrate on the second 
question, then, in regard--let me repeat it. In responding to 
congressional document requests like these, are you limited 
more than you would like to be by the Justice Department 
policies that prevent you from responding to Congress even 
though a more complete response would be in the interest of the 
FBI?
    Mr. Mueller. There are occasions--
    Senator Grassley. It can be less of a problem for you, let 
me add.
    Mr. Mueller. I will tell you without specific reference to 
a particular case, we do not see eye to eye--there are 
occasions where we do not see eye to eye with the Department of 
Justice. But I am a component of the Department of Justice.
    Senator Grassley. OK. Recently, the--
    Mr. Mueller. Relatively rare, I must say, but there are 
occasions where we part company.
    Senator Grassley. OK. Recently, the Attorney General 
proposed new guidelines for investigative activities by the 
FBI. I am concerned with the portion of the guidelines related 
to cooperation among Federal law enforcement agencies. 
Specifically, the section in question outlines how criminal 
matters outside the FBI jurisdiction are to be treated. It goes 
on to state--and I have got to paraphrase because I do not have 
a copy--that any criminal matter outside the FBI's jurisdiction 
that arises should be transferred to other law enforcement 
agencies with expertise. However, it adds that if it would 
jeopardize an investigation or a source, the FBI can simply 
write up a memo and forward it to the Deputy Attorney General 
and move on. The guidelines are silent as to what the Deputy 
Attorney General does with this information. I am concerned 
that this new provision could lead to gaps in information 
sharing and ultimately let criminal wrongdoings go unpursued 
because of turf battles. So four questions that kind of go 
together. I would like to state them all.
    Under the new guidelines, what would the Deputy Attorney 
General do with any information forwarded from an FBI field 
office that the office believed would jeopardize an FBI 
investigation?
    Two, would the other coordinate law enforcement agencies 
ever get that information?
    Three, would the FBI pursue the case?
    And, four, is the decision made by the field office to 
refer the matter to the Deputy Attorney General ever reviewed? 
And if so, could a field office decision to not share the 
information be overturned?
    Mr. Mueller. The answer to the first question, I believe 
the Deputy would look at it and determine whether or not the 
rationale given for not alerting the other agency was valid. I 
think the Deputy would also make a determination as to whether 
or not there was a time period during which they should not be 
notified, but after that time period or after that 
investigative activity, the other agency should be alerted.
    As to the third portion of the question, certainly the FBI 
should be pursued, and if it came from field to headquarters to 
the Deputy Attorney General's office, then headquarters would 
certainly be involved in that process.
    And, last, certainly the view of a field office would be 
and could be second-guessed by either headquarters or the 
Deputy Attorney General and the field office determination 
overturned, either at headquarters or with the DAG.
    Senator Grassley. OK. Thank you, Mr. Chairman. Thank you, 
Mr. Director.
    Chairman Leahy. Well, thank you, Senator Grassley. We will 
hold the record open for the appropriate time, also, Director, 
on some of these questions, if you find after looking at the 
transcript that there is additional material you want, of 
course, the transcript to be open for that, I would encourage 
you to do that. Many, as you have noticed, on both sides of the 
aisle have raised questions about whether the Attorney 
General's proposed new guidelines for FBI activities would give 
the FBI sweeping new powers with minimal checks to prevent the 
kind of things we saw in the national security letters.
    I think we could have been more productive today if the 
Attorney General had agreed with the request that Senator 
Specter and I made to provide copies of the proposed 
guidelines. But like the limited briefings that have been given 
to staff, the exchange today was a good start. I think it could 
have been better had we had that. That is not any criticism of 
you. That is a decision made by the Attorney General.
    I was pleased, though, with your promising this Committee 
that the FBI is going to be vigilant in investigating whether 
fraud or lawbreaking contributed to the ongoing financial 
crisis. It is the worst we have experienced since the Great 
Depression. It has exposed the American taxpayers to possibly 
trillions of dollars in losses. And, of course, we have seen 
the devastation of homeowners and investments and lives across 
the country. Drive through any community in America and look at 
the number of ``For Sale/Foreclosure'' signs--unprecedented, 
certainly in my lifetime. It is the kind of thing my parents 
told me about that they observed during the Great Depression.
    The Wall Street mess has a lot of causes, but it 
illuminates a number of the problems we have seen in these past 
few years. I think they include incompetence in some of the 
appointments to regulatory agencies the White House has made. 
These are people who are supposed to be the public's on-the-
scene watchdogs. We have squandered faith in market mechanisms 
by winking at increasing signs of excess and corner-cutting by 
rich and powerful corporations. I believe there has been 
indifference to the widening gap between the very super-rich 
and ordinary Americans, the lack of affordable housing. These 
are fundamentals of responsible economic and fiscal policy. It 
has been ignored in this administration, and whoever the next 
President is, they must try to straighten that out.
    On a personal level, I thank the Director for being here--I 
agree with what Senator Whitehouse and others have said--and I 
commend him for the amount of time you have spent in meetings 
and trying to answer my questions, including one that was 
obviously classified.
    Go ahead.
    Mr. Mueller. I am sorry. Could I interrupt just to clarify 
an answer I had before?
    Chairman Leahy. Of course.
    Mr. Mueller. In mentioning the subpoenas for the media 
records overseas, I mentioned that the individuals did not go 
through the process at the Department of Justice. What I failed 
to mention, which was another aspect of it, was that an exigent 
letter was used, which is also inappropriate. And I did not 
want to omit that from the calculus and paint it as something 
other than it was.
    Chairman Leahy. Thank you. I appreciate that. Several of us 
here will continue to work with you as these guidelines come 
out and with the Attorney General, even though he seems 
reluctant to work with us. But I would also--on a question I 
asked you, we will work with you and your office to provide in 
a classified fashion the response to Senator Specter and myself 
that will be available under the normal fashion that we 
handle--he and I handle a great deal of classified material 
here, and we will follow the normal procedures on that.
    With that, Director, I thank you for coming.
    Mr. Mueller. Thank you, sir.
    [Whereupon, at 12:13 p.m., the Committee was adjourned.] 

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