[Senate Hearing 111-441]
[From the U.S. Government Publishing Office]
S. Hrg. 111-441
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 16, 2009
__________
Serial No. J-111-44
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
56-529 PDF WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 87
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 3
WITNESSES
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 4
QUESTIONS AND ANSWERS
Responses of Robert S. Mueller, III to questions submitted by
Senators Schumer, Whitehouse, Kaufman, Specter, Franken,
Grassley, Kyl, Sessions and Coburn............................. 40
SUBMISSIONS FOR THE RECORD
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
statement...................................................... 89
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
----------
WEDNESDAY, SEPTEMBER 16, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:04 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Cardin, Whitehouse, Klobuchar, Kaufman, Specter,
Franken, Sessions, Hatch, and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. I always hate to rush the
photographers. If I do this wrong, I hear about it at family
gatherings.
[Laughter.]
And the photographers understand what I am talking about.
Today we hold our second hearing this Congress on oversight
of the Federal Bureau of Investigation. Of course, we welcome
the Director, Robert Mueller, back to the Committee. As Senator
Sessions and I were saying to Director Mueller just before we
started, there is a briefing underway on Afghanistan, and that
is why a number of Senators have to be gone. Others may be
delighted to be here. I see Senator Grassley, my old friend of
decades here. He would probably rather be here than Finance
these days.
But I appreciate Director Mueller's continued dedication to
working with Congress to ensure that the FBI can effectively
pursue its critical missions in law enforcement and national
security while maintaining the values and freedoms that define
us as Americans.
Last month, Attorney General Holder announced a heightened
role for the FBI with the formation of a High-Value Detainee
Interrogation Group to interrogate the most dangerous and high-
value terrorist suspects. The group, bringing together
experienced professional interrogators, analysts, subject
matter experts, and linguists from across the intelligence
community, the law enforcement community, and the Department of
Defense, is going to be housed within the FBI. I have talked
with Attorney General Holder about this. I understand the
internal debates that went on on this matter, but the HIG is
being created to improve the ability of the United States to
interrogate dangerous terrorists effectively, and doing it in a
manner not only consistent with our law but consistent with the
values that make America different than other countries. And I
think it is a welcomed signal the administration has chosen to
house the HIG within the FBI. The FBI is an agency with a long
history of proven success in interrogation without resorting to
extreme methods that violate our laws and our values and fail
to make us safer.
In March, when the Director was before us, I noted his
important statement last year commemorating the 100th
anniversary of the FBI. In fact, I got a copy of that and put
it in the Congressional Record. The Director 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 with him.
The Committee is soon going to turn to discussion of the
expiring provisions of the USA PATRIOT Act, what needs to be
done in that regard. During the past few years, audit
provisions included in the previous PATRIOT Act statutes
brought to light the misuse of certain tools provided by the
PATRIOT Act. For example, National Security Letters allow the
Government to collect sensitive information, such as personal
financial records. As Congress expanded the NSL authority in
recent years, I raised concerns about how the FBI handles the
information it collects on Americans. I noted that, with no
real limits imposed by Congress, the FBI could store this
information electronically and use it for large-scale data
mining operations.
We know that the NSL authority was significantly misused.
In 2008, the Department of Justice Inspector General issued a
report on the FBI's use of NSLs, revealing serious over
collection of information.
I have also closely tracked the use of Section 215 of the
original PATRIOT Act, which authorizes an order for business
records. I have long believed that greater oversight of this
section is required, including broader access to judicial
review of the nondisclosure orders that are so often issued
with Section 215 demands for records.
Finally, I have raised concerns over the misuse of exigent
letters to obtain phone records and other sensitive records of
Americans, including reporters--including reporters--without a
warrant, without emergency conditions, and without a follow-up
legal process. Director Mueller has assured us that appropriate
steps have been taken to prevent a repeat of that abuse. He has
helped address concerns that records illegally obtained with
these letters may have been inappropriately retained by the
Government.
So I hope he would agree that as we consider the
reauthorization of expiring provisions of the PATRIOT Act, we
should keep in mind the proven effectiveness of audits,
reviews, and continuing oversight by Congress.
Our oversight also includes review of the FBI's
traditional, and vital, law enforcement role. The FBI has just
released the 2008 crime statistics, and the work of law
enforcement and the trend lines are to be commended. I hope
that the preliminary indications for this year show the
continuation of these trends despite the economic downturn and
financial crisis and that the assistance we were able to
include in the economic stimulus package to State and local law
enforcement will help to keep crime down throughout the
country.
In May, Congress passed and the President signed into law
the Fraud Enforcement and Recovery Act which gives
investigators and prosecutors the resources they need to
aggressively detect and prosecute the mortgage fraud and
financial fraud that contributed to the massive economic
crisis.
Director Mueller, I want to thank you personally and the
Bureau for the help you gave us in putting together that
important piece of legislation. The testimony of your Deputy
and others who came up here was extremely important to make
sure that we wrote a law that would actually give law
enforcement the tools they need to combat this really vicious
and malicious form of fraud.
I think we need a similarly aggressive approach to
combating health care fraud, another insidious form of fraud
that victimizes the most vulnerable Americans and drives up the
cost of health care for all of us. And seeing Senator Grassley
here, I might note that Senator Grassley was my chief cosponsor
on that piece of legislation and helped make sure that we got
it voted on the floor, and I know it was applauded when it was
signed into law by the President. So I applaud the Department
for its commitment to reducing waste and excess in the health
care system.
I thank Director Mueller for coming here, and once I again
I thank the hard-working men and women of the FBI, and I look
forward to your testimony.
Senator Sessions, you wished to say something.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. Thank you,
Director Mueller. Not often enough in our country do we have
people holding positions for which their background and
learning and experience equip them exceptionally well, and I
believe you are one of the most capable leaders we have in our
country. You are utterly experienced in the matters that you
handle now every day, and I thank you and all your agents who
work tirelessly to make sure that we are not subject to another
attack in this country and to fight crime and fraud throughout
our country.
And I know a lot of us were dismayed last month when Abdel
al-Megrahi, the person who was involved in the bombing of Pan
Am Flight 103 at Lockerbie was released. And thank you for
speaking directly on behalf of the feelings of so many of us
that this was an unconscionable and unacceptable decision to
release that murderer, and the political environment that he
was released in made it even worse. Every now and then a leader
like yourself needs to speak out on those kinds of issues, and
I appreciate that.
There are a number of issues I would like to talk to you
about. I am on the Armed Services Committee, and I need to be
at this briefing on Afghanistan. It is at a critical stage now,
so I will not be able to stay throughout this hearing. But some
of the questions I will submit to you in writing and ask a few
before I leave.
Last month, Attorney General Holder announced he was
establishing a High-Value Detainee Interrogation Group. The
interrogators will operate out of the FBI under the guidelines
established by the Army Field Manual. According to a Department
press release, the group would be subject to the National
Security Council for ``policy guidance and oversight.'' Beyond
the Department's announcement and a few press reports, we know
very little about how it will operate, either administratively
or operationally. We need to learn more about that.
I would just say this: That is an odd mixture. The FBI's
entire heritage and background and training is focused on civil
law enforcement in America and prosecution of cases in Federal
courts, primarily, in this country. We have always had military
commissions. They are referred to in the Constitution, and we
have had them before to deal with people who are unlawfully at
war with the United States. And they are not treated in the
same way, and I do not understand this at all. It really is an
odd mixture to me. It is blurring lines that should not be
blurred.
Last week, we had testimony from the National Academy of
Sciences on strengthening forensics in America, and they
questioned whether law enforcement should be involved in any of
the forensic activities. I think perhaps the greatest
technological development in criminal justice history is the
FBI fingerprint program and its availability to every law
enforcement agency in America, and it is used hundreds of
thousands of times every week. And this would be an issue that
I think we need to talk about, whether the FBI would be
required, if that policy were to be effected, to somehow
transfer this out of the oversight that you have so ably given
it for so many years.
This week, the Committee will consider legislation to
shield journalists from being compelled to testify or produce
any documents in investigations relating to certain protected
information. I believe this information will do considerable--
this legislation as written will do damage to our national
security. There are reasons, very good reasons, that nations
have to maintain a certain amount of secrecy, and I think we
need to be aware of that, and I hope to ask you questions about
that.
So thank you for being here today. I look forward to your
testimony, and I will probably submit some written questions to
you later.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. We will keep the record open for
any other statements, and, Director Mueller, please feel free
to go ahead, sir.
STATEMENT OF HON. ROBERT S. MUELLER, III, DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Mr. Mueller. Thank you, and good morning, Chairman Leahy,
Senator Sessions, and members of the Committee. Thank you for
having me here today.
When I was before the Committee back in March, I updated
you on our national security threats, our strategies to prevent
those threats from occurring, and ongoing efforts to develop
our intelligence capabilities and infrastructure. The statement
I have submitted today focuses on criminal threats as well as
our other priorities. I might say, in fighting crime the FBI
continues to focus on areas where our skills and our expertise
will have a substantial and a lasting impact.
Today's FBI is not an intelligence service that collects
but does not act, nor are we a law enforcement service that
acts without knowledge. We are a security service fusing the
capability to understand the breadth and the scope of threats
with the capability to dismantle those same threats, whether
they be terrorist or criminal.
On the counterterrorism front, al Qaeda continues to
present a threat to the homeland. Domestically, through our
Joint Terrorism Task Forces and overseas through our legal
attaches and international partners, we work to detect and
identify any potential al Qaeda operatives who may have access
to the United States. We are also alert to homegrown or self-
radicalized terrorists. And we work closely with impacted
communities, our law enforcement partners, and the intelligence
community to identify and to disrupt these threats.
Closer to home, we are focused not only on terrorist
threats but also on the threats posed by violent crime and
white-collar crime. To address these threats, we have moved
from a quantitative to a qualitative approach. We are using
intelligence to identify the greatest threats to each of our
communities. To be effective, we need to collect intelligence
that reveals any links between our existing cases and also
fills in gaps in our knowledge base.
Intelligence gathering differs from city to city and State
to State, just as criminal and terrorist threats differ. And
just as partnerships have been key to our efforts against
terrorism, partnerships are critically important in addressing
criminal threats as well. Partnerships have enabled us to
achieve notable successes in the fight against public
corruption, our top criminal priority.
Take as an example our efforts along the southwest border
where we have focused efforts and concentrated agents. With 120
of the 700 agents we have fighting corruption assigned to the
southwest border, we already have over 100 arrests and 130
indictments and over 70 convictions in this fiscal year.
We are seeing success in the fight against violent crime as
well. Earlier this week, we released the Uniform Crime Report
depicting crime statistics for 2008. And for the second year in
a row, there has been a decrease in violent crime. And while
the report does not give the reasons for that decrease, I do
believe that the drop in violent crime says much about the
efforts of State and local law enforcement and the efforts of
State and local law enforcement with the Federal agencies.
Within our criminal program, our field offices continue to
work with our law enforcement partners in Safe Streets, OCDETF,
Violence Crime Task Forces in order to fight crime in the
communities that you represent.
Yet despite the positive trends in this year's report,
violent crime continues to plague many communities, especially
small- to mid-sized cities. Gangs are morphing, multiplying,
and migrating, entrenching themselves not just in our inner
cities but increasingly in suburbs and rural areas.
The FBI focused its efforts on the most violent and
criminally active gangs, those that function as criminal
enterprises. This model enables us to remove the leadership and
the most dangerous members of violent gangs and seize their
criminally obtained assets. Our goal is not just to disrupt
their activities, but to dismantle their organizations
entirely.
We are also focused on economic crime, primarily mortgage
fraud, health care fraud. These are not victimless crimes. They
impact all Americans by stealing taxpayer dollars and
undermining the integrity of our financial and health care
systems. We currently have more than 2,400 pending health care
fraud investigations and more than 2,600 pending mortgage fraud
investigations.
Our investigations are focused on partnerships,
intelligence, and information sharing, and through task forces
and working groups and targeted law enforcement actions, we are
having success both in generating cases but also successfully
committing those responsible for those cases and in general
combating fraud.
In April of this year, 24 individuals were charged as a
result of a joint FBI-IRS investigation that identified an
extensive mortgage fraud scheme based in San Diego, California.
The scheme involved 220 properties with a cumulative sale price
of more than $100 million. Joint investigations such as this
successful investigation and prosecution mean that additional
resources for identifying perpetrators of fraud and additional
prosecutive options for bringing them to justice are essential.
Similarly, in June, I joined the Attorney General and
Secretary Sebelius in announcing indictments against 53 persons
in a combined enforcement effort targeting fraud schemes that
threaten Medicare. These schemes involve persons who arranged
unnecessary or non-existent treatment for straw patients who
were willing to go along with the scheme for money. Our
investigative partnerships, in this instance through the
Department of Justice and HHS, ensure the prompt resolution of
complex health care fraud cases and contribute to the
prevention of fraud and abuse.
In closing, I would like to thank the members of the
Committee for your support of the men and women of the FBI. We
continue to look forward to working with this Committee on
these and other threats and challenges facing our country. Mr.
Chairman, Senator Sessions, and members of the Committee, I
appreciate the opportunity to appear here today, and I look
forward to answering your questions.
[The prepared statement of Mr. Mueller appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Director.
Incidentally, there has been some mention of the Lockerbie
matter, and as I said, several of us, myself included, were at
a meeting over a long weekend, the 1st of September, and the
Labor Day weekend, on the meeting of the United States-United
Kingdom Interparliamentary Group that meets every 2 years. And
we raised with our counterparts from England the strong and
bipartisan displeasure with the release of the Lockerbie
bomber. I raised the point that it was very unusual for you to
speak out as you did and that I strongly agreed with what you
said.
Now, I said in my opening statement I was pleased to see
the Obama administration housing the High-Value Detainee
Interrogation Group in the FBI. You have had a long tradition
of conducting interrogations that have produced valuable--more
than valuable, actionable intelligence. Former FBI Agent Ali
Soufan testified to this Committee about his interrogation of
Abu Zubaydah almost immediately after he was captured. He used
FBI techniques that had proven useful time and time again. And
he learned that Khalid Sheikh Mohammed was the mastermind of
the 9/11 attacks, and he discovered Jose Padilla--something
that he has had to point out a number of times when the record
has been misstated.
What lessons in the long history of FBI interrogations will
you import to this High-Value Detainee Interrogation Group now
that it is going to be housed at the FBI?
Mr. Mueller. Let me start by saying that the concept is to
have this combined group administratively housed within the
FBI. Speaking specifically of the FBI, we have had a tradition
of negotiation and interrogation over a period of years that is
dependent principally on building a rapport. It is one way to
go. We believe we are successful at it. Many of our agents have
spent years on the streets as police officers before they come
to the Bureau conducting interrogations in many environments
and in many ways and have some expertise.
There are other substantial capabilities and expertise in
terms of interrogation elsewhere in the country in other
organizations--in particular, intelligence organizations. And I
believe the concept is to bring together this expertise in
terms of what techniques work legally and are appropriate under
the current statutes and regulations, but more particularly put
together not only the capabilities of an interrogator, but also
assure that from each of the agencies you have subject matter
experts, if it is terrorism or some counterintelligence arena,
that you have subject matter expertise as well as expertise and
background of the person to be integrated so that that
capability is used to full effect in gaining the information
you need.
I will say at the outset that what one wants to do is give
the policymaker the options on the table for how you proceed,
and to the extent possible, if there is the possibility or
anticipation of a court proceeding in the United States, leave
open that option.
By the same token, I must say that the most important thing
for us, whether it be the FBI, the CIA, or the intelligence
community, is to gain that intelligence information that will
prevent attacks in the first place as opposed to the
prosecution of somebody who has successfully undertaken that
attack.
Chairman Leahy. Will you have oversight of the HIG to make
sure that their methods are legal and effective?
Mr. Mueller. Yes, we will.
Chairman Leahy. What about the Army Field Manual? Does that
give any guidelines?
Mr. Mueller. It is, but, you know, the Army Field Manual,
which is the manual that is being used to conduct
investigations particularly overseas by the military in places
like Afghanistan and Iraq, has a set of procedures. There may
be other procedures there that are not contained within the
Army Field Manual that may be wholly useful and legal that
should be undertaken as well. And that is something that has to
be explored.
Chairman Leahy. But your department will have the oversight
in that?
Mr. Mueller. Our department has, yes, the oversight in
terms of we are putting it together, but I will tell you it is
going to be, I hope, FBI leadership with CIA as the deputy. I
have had conversations with Leon Panetta. We are agreed that
this is a valuable contribution and is going to be a joint
effort.
Chairman Leahy. Then in that regard--and you have been very
responsive to this Committee's jurisdiction for oversight--I
assume that you will be responsive to oversight requests from
the Committee on how this group is working.
Mr. Mueller. Absolutely.
Chairman Leahy. I realize, of course, in that regard there
will be areas that will have to be responded to in a classified
fashion, as well as others that can be done in an open fashion.
Mr. Mueller. May I mention two other aspects of it, Mr.
Chairman, if I might, and that is, the importance of having
uniform training and building training curricula that each of
the agencies contributes to and understands and build the best
possible training capabilities, but also pulling together the
science, the capabilities that are known in academia in one
place so that we can look at it and develop the best possible
techniques, legal techniques to proceed.
Chairman Leahy. When Congress included in the 2006 PATRIOT
Act reauthorization a requirement that the Justice Department's
Office of Inspector General conduct audits and reviews of the
use of National Security Letters authority and Section 215
orders for business records, the Inspector General found some
significant abuses, including widespread misuse of NSLs, so-
called exigent letters, also claiming emergency circumstances
to keep and obtain evidence the Government was entitled to.
You have told the Committee about the important steps--and
you and I have discussed it privately, too--that the FBI has
taken in light of these audits to change these procedures. The
Justice Department sent a letter to me this week. The oversight
provided since 2001 and the specific oversight provisions added
to the statute in 2006 have helped to ensure the authority is
being used as intended.
Would you agree with that, the congressional oversight and
the audits mandated have been helpful in encouraging the FBI to
improve its procedures to make sure these are being used in the
way they should be?
Mr. Mueller. Well, I will at the outset say that we have
for several years now used totally revised procedures that have
answered and responded to the criticisms of the Inspector
General, most particularly in the Office of Integrity and
Compliance within the FBI, which has now become a model for
such offices.
Whichever mechanism reviews it is of less importance to me
than there be periodic outside review. My belief is that this
could well be handled by the annual reviews that are done by
the National Security Division of the Department of Justice,
which has an oversight role in this particular arena. But I do
believe that there should be some outside review, periodic
review. My suggestion would be that it be with the--wrapped
into, rolled into that review which is already undertaken by
the National Security Division, Department of Justice.
Chairman Leahy. Thank you.
Senator Sessions.
Senator Sessions. Thank you.
With regard to the threat of terrorism and al Qaeda, do we
have any reason in this country to feel that that threat is
less today? Or can you tell us if there are any indications
that, in fact, the threat may be growing?
Mr. Mueller. As I think I have repeatedly testified and
discussed, the threat is always there, and the concern is that
we become complacent. I tend to look at the al Qaeda threat in
three areas:
One is arising directly out of Waziristan or the federally
administered tribal areas, where you have individuals or any
plot that is controlled by individuals in that area.
You then have individuals in other countries, whether it be
the U.K., the United States or elsewhere, who have been
radicalized in some way, shape, or form, who may travel to
Pakistan to obtain additional training, which is the second
level, and I call that a hybrid threat, and then come back and
pretty much on its own, not controlled necessarily by the al
Qaeda hierarchy in Pakistan. That is the second level.
And the third level is self-radicalized, on the Internet or
otherwise, individuals who have no contact with al Qaeda in
Pakistan, but subscribe to the same extremist ideology that
present a threat. It has continued to present a threat over the
last 8 years and presents a threat today.
Senator Sessions. With regard to the media legislation, the
media shield bill, you and a number of intelligence community
colleagues opposed the predecessor of that bill in a letter
stating, ``The high burden placed on the Government by these
bills will make it difficult, if not impossible, to investigate
harms to the national security and only encourage others to
illegally disclose the Nation's sensitive secrets.''
Are you aware of any Nation that has not found it necessary
to maintain secrets regarding their national security?
Mr. Mueller. I cannot purport to be an expert, but I do not
know of any.
Senator Sessions. Throughout the history of modern nations,
they all have intelligence agencies and have to operate with
some degree of secrecy. Isn't that true?
Mr. Mueller. True, but I do believe that we are somewhat
unique in that there is a First Amendment, which many countries
do not have as well.
Senator Sessions. Well, are you saying the First Amendment
prohibits the U.S. Government from maintaining secret
investigations of al Qaeda or other things of that nature?
Mr. Mueller. That is not at all what I am saying, and the
letter that I----
Senator Sessions. I did not think so.
Mr. Mueller [continuing.] Participated in writing on
January 23rd, it was my view then and my view now with regard
to the legislation.
Senator Sessions. Thank you for that. I think it is
important that we get that right, that legislation, and not
make a mistake on it.
Would you share with the members of the Committee what kind
of rules are in place and, for the most part, have been in
place for many, many years, 20, 30 years, about agents and
Assistant United States Attorneys, Federal prosecutors, when
they make inquiry of media people? Can an agent go out and
interview a newspaper person or can an Assistant United States
Attorney issue a subpoena on their own to a newspaper person?
Mr. Mueller. The basic rule, it cannot be done without the
approval of the Attorney General.
Senator Sessions. The Attorney General himself or herself.
Mr. Mueller. Yes.
Senator Sessions. This is one of the highest protective
standards in the Department of Justice, is it not?
Mr. Mueller. Excuse me just one second.
I wanted to make certain that--I know at one point when I
was at the Department of Justice, I was involved in one of
these, and I was Acting Deputy, and I wanted to make certain.
It was my role to advise the Attorney General, because it is
the Attorney General's responsibility to sign those.
Senator Sessions. Well, the point of which is this is
institutionally deep in the culture of the Department of
Justice.
Mr. Mueller. Yes.
Senator Sessions. The FBI and the Department of Justice
that it is a very sensitive matter to inquire of a free news
person in America, and it should only be done after the most
careful review, and there are standards set out in the U.S.
Attorneys' manual that have to be met, are there not, before
such things like----
Mr. Mueller. That is correct. And if you look at the
record, and I think the--I know in submissions from the
Department, the numbers of occasions on which approval has been
given is minuscule over the years.
Senator Sessions. That is correct. It just almost is not
done unless it has to be done for some very significant reason.
I am not sure that is always wise, but I think to err has been
on the side of protecting the media if there has been any error
in recent years for the most part.
Let me ask you about this entire--the high-value detainees
and whether or not they will be mirandized. The President said
of course we are not going to give Miranda to people we arrest
who are combatants against the United States, at war against
us. But it appears to me that is exactly where we are heading
if this commission or group that was formed within the
administration to study it, they have required and opined that
most prosecutions would be in Federal courts and not in
military commissions, or the presumption is that they would be
in Federal courts and not military commissions.
And isn't there--just yes or no--a big difference, a
significant difference between the evidentiary standards of a
military tribunal and a Federal court prosecution?
Mr. Mueller. Well, it may well be, but I do believe there
is a great deal of confusion about this. We have been working
over in Iraq and Afghanistan----
Senator Sessions. Wait a minute. It may well be. There is a
difference between a military commission with regard to Miranda
warning and a trial in a United States district court----
Mr. Mueller. There may be.
Senator Sessions. Yes or no?
Mr. Mueller. There may be.
Senator Sessions. I think there is. All right. Now, if you
are going to try a case in a Federal district court, Director
Mueller, aren't you required to comply with the rules of
evidence that are in force in that court?
Mr. Mueller. Yes.
Senator Sessions. And if you are going to bring a witness
in who has confessed to a military interrogation and try to try
them in a Federal court and they have not been mirandized and
they confessed, can't the defense lawyer likely prevail in
suppressing the confession?
Mr. Mueller. He would certainly try and likely prevail.
Senator Sessions. And doesn't that mean then if a
presumption is in place that these cases are going to be tried
in Federal court that we need to be mirandizing everybody
arrested in the war on terror----
Mr. Mueller. I do not believe that follows. I do not
believe that follows.
Senator Sessions. Well, who would we not mirandize?
Mr. Mueller. Most of the individuals that are picked up in
Afghanistan and Iraq have not been mirandized, although we have
been a participant in interrogations for the last 5, 6 years.
There are occasions, and a very few occasions, where the
determination has been made to mirandize somebody for a reason
principally to hold out the option of being able to try that
person in another court.
Senator Sessions. Oh, to hold out the option. So if you are
going to try them in Federal court, they should be mirandized.
Right?
Mr. Mueller. If you want the statement, a particular
statement at a particular time admissible in a Federal court,
generally that has to be mirandized.
Senator Sessions. I think that is correct.
Mr. Mueller. I agree.
Senator Sessions. And so if you have got a presumption that
these cases are going to be tried in Federal court, why
wouldn't the rule be pretty normal in the field by military
interrogators and others to give Miranda warnings? Wouldn't it
be making a mistake not to? And isn't that likely to reduce the
amount of intelligence they gather?
Mr. Mueller. I think you could make--sit and look at it and
determine what kind of information the person has, regardless
of what court the person----
Senator Sessions. Who is going to look at it, Director
Mueller?
Mr. Mueller. Who is going to look at it?
Senator Sessions. Who is going to be making----
Mr. Mueller. The National Security Council in terms of is
the intelligence more important than holding out an option in
Federal court. And sitting and looking at that, you would want
that option available, if it could be available, and not to the
detriment of gaining the intelligence you need to prevent
terrorist attacks.
Senator Sessions. I think it creates quite a bit of
pressure to give Miranda warnings on many, many, many cases if
the presumption is those cases are going to be tried in Federal
court and not a military commission, that this is going to
reduce the amount of intelligence obtained on the battlefield
that we have never given Miranda warnings before in the history
of this country of those who are at war against us, and it
represents a significant problem. And I do not agree with you
on that, and you can minimize it, and we will ask some written
questions. But I feel strongly about it. This is an alteration
of military effort, war, through a civilian prosecution, and it
is a dangerous trend, in my opinion.
Chairman Leahy. Director Mueller, isn't it a fact----
Senator Sessions. Well, why ask----
Chairman Leahy. Well, you have gone way over your time, but
I just want to cut to the chase here. If soldiers are on the
field, they have been in battle, they have captured some
people, they do not give the Miranda warning to them when they
capture them, do they?
Mr. Mueller. No.
Chairman Leahy. Of course not. And I wanted that clear
because I have actually had letters from people who have
listened to some of this hoopla that goes that say, ``How can
you capture somebody and you have to give them a Miranda
warning? '' Nobody does. My son was in the marines. You were in
the military. Of course we do not do that.
Senator Kohl.
Senator Sessions. I would just say the presumption came
into place on July 20th of this year that these cases would be
tried in Federal courts, and that inevitably requires a far
more--a far larger increase in Miranda warnings than ever has
been done in the history of this Republic, or any other nation,
to my knowledge.
Chairman Leahy. I might note that we have an awful lot of
people captured on the battlefield that are never going to see
a Federal court and are never going to be held anywhere else.
And when you win a battle and you capture somebody, you do not
give a Miranda warning.
Senator Kohl.
Mr. Mueller. And I do believe, sir, if you ask the
commanders in the field--in Afghanistan or Iraq--to determine
whether or not--the issue of whether or not you give Miranda
warnings has ever interfered with their ability to do their
job, I think they would say no, and it is important to have the
FBI there and the FBI's expertise there.
Senator Sessions. You think the FBI needs to be involved in
interrogations in Iraq now?
Mr. Mueller. In some, yes.
Senator Sessions. In some?
Mr. Mueller. Yes.
Senator Sessions. Are you going to pick and choose?
Mr. Mueller. We do it with----
Chairman Leahy. Let's hold that for the next round.
Senator Sessions. I think this is an important issue.
Chairman Leahy. Well----
Senator Sessions. We have muddled entirely the classical
distinction between war and criminal prosecution.
Chairman Leahy. Senator Sessions, I have allowed you to
have twice as much time even as I took in questions, and I want
to make sure, though--we have a number of Senators who also
want to go to this briefing. I want them to have a chance.
We will go to Senator Kohl.
Senator Sessions. I will excuse myself to go see what we
can do help win this war in Afghanistan.
Chairman Leahy. Then we will go next to Senator Grassley,
and then we will go next to Senator Feinstein, and then we will
go next to Senator Hatch.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
First, I would like to thank the FBI for your assistance,
with the serial murder string in Milwaukee that spanned over 20
years. The FBI was instrumental to this investigation,
resulting in a major arrest, as I am sure you are aware. On
behalf of our chief, our mayor, victims' families, and the
entire city, we would like to thank you and the FBI.
Mr. Mueller. Thank you. Thank you, sir. It was a joint
effort, and I appreciate Ed Flynn's comments in that regard.
Senator Kohl. Thank you so much.
As you said in your remarks at the outset, major crime
across the country is showing some decrease, but it seems to be
centered in the largest cities across our country. We in
Wisconsin have experienced the same kind of a decrease in
Milwaukee. It has been major and recognized and very much
appreciated. But in cities of medium and smaller size around
our State, we also have experienced significant increases in
major violent crime.
For example, in Racine, the number of violent crimes went
from 391 in 2005 to 542 in 2008. And in Madison, the number
went from 839 violent crimes in 2005 to 891 in 2008. And in
other cities, like LaCrosse, we have had similar significant
increases in violent crime from 2005 to 2008.
As you indicated, this also seems to be a pattern around
the country. To what do you attribute it? And what are some of
the thoughts you have about addressing this serious issue?
Mr. Mueller. Let me just say maybe three things.
The first is that the quality of policing in cities makes a
substantial difference.
Second, I do believe the spread of gangs can have a huge
impact in the rise of crime in particular cities, the MS-13,
the Latin Kings, you name those, and to the extent that they
gain a foothold in a community and you see crime rising.
And, last, although the violent crime statistics have gone
down over the last couple of years, I do believe that we will
face some resurgence in the future. You have a number of
persons being released from prison, in some cases because of
the shortage of prison space. You have a number of persons who
have spent substantial periods of time, having been arrested
10, 15, 20 years ago, coming out and coming out to an economy
that is very difficult to find a job. And, consequently, I do
believe we have to watch this closely.
To that end, we are working closely with our State and
local counterparts. My belief is always that we do a better job
working in task forces and combining the capabilities and the
skills of the local police departments and sheriffs' offices
with the FBI, ATF, and DEA. And that maximizes our capabilities
of addressing a particular violent crime program in a
particular city.
Senator Kohl. I appreciate that, but what would explain the
difference between the decrease in violent crime in the major
cities around our country, including Wisconsin, and smaller to
medium-sized communities?
Mr. Mueller. I am not sure anybody can put their finger on
it, and I am not certain that one answer fits all. As I go
back, it may be the quality of policing; it may be the impact
of taking out a particularly violent gang in a particular city;
it may be a combination of utilizing social services along with
the efforts of the Federal and State and local law enforcement
authorities. I do not think there is one answer.
We tend to look at crime and say, Okay, what is the fix for
crime generally in our cities, and too often it is
individualized. And I do recognize the pattern in our larger
cities has gone down more substantially than others, and to a
certain extent, I think the argument can be made that it is the
quality of policing in those particular cities.
Senator Kohl. Director Mueller, in your testimony you
emphasize the importance of the FBI's coordination with local
law enforcement by maintaining regular contact with the
officers who are on the street day in and day out and to work,
as you indicated, shoulder to shoulder with them.
I think we all agree that FBI coordination with State and
local law enforcement is a critical component of fighting and
preventing crime. For example, FBI agents are currently working
with the Racine Police Department and sheriff's office to
target violent street gangs and drug-trafficking organizations
operating within that area in Racine. Their presence in the
community is also important to further principles of community
policing that have been successful.
What are some of the specific programs that the FBI has a
been working on to achieve this shoulder-to-shoulder
coordination? Are there any new programs or efforts on the
horizon to improve the ones you are using now?
Mr. Mueller. Well, as I said, the critical programs for us
relate to working on task forces. Let me just do a count, if I
could. We have almost 200 violent crime, violent gang task
forces around the country. We have almost 2,100 agents working
gangs and criminal enterprises, which is a very substantial
number for us. We have 17 Safe Trails task forces that have
been set up to address violent crime in Indian country. We have
34 child prostitution task forces or working groups, and we
have eight major theft task forces. And to the extent that
persons are willing to sit down shoulder to shoulder with us
and share experience and expertise in task forces directed at
either a specific threat, like an individual gang, or a more
generalized threat, we are always open to do that.
I believe we are most effective when we work closely
together and share the expertise and capabilities in addressing
these crimes.
Senator Kohl. Director Mueller, the FBI has a broad
jurisdiction and a critical role to play in crime
investigations and law enforcement in ways that impact every
American. We count on the FBI to combat mortgage and corporate
fraud, health care fraud, international and domestic terrorism,
violent crime, crimes against children, and border violence,
just to name a few.
In these tough economic times, we are all cautious about
spending our money wisely and stretching each dollar as far as
we can. The FBI's budget has increased slightly from year to
year, but your needs and activities seem to grow considerably
every year.
What has the FBI done to try to stretch the limited dollars
that you have so that American taxpayers get the most for their
dollar?
Mr. Mueller. Actually, one of the more innovative and
useful programs we have had is for several years now we bring
in graduates of the various business schools around the
country. We bring them in as interns, and then we bring them in
for the FBI. They come out of business school with a desire to
make a difference and with expertise in areas such as finance,
procurement, and the like. And we set them to particular
issues.
For instance, we had millions of dollars of savings in
terms of utilizing rental cars in our rental fleet attributable
to the fact that we had a group of individuals that took that
particular problem and looked at a better way to do it that
would save millions of dollars. And we have replicated that in
a variety of areas throughout the Bureau.
We have to look at our facilities because we have 56 field
offices around the country, more than 400 resident agencies,
and we looked at savings in terms of we need the spread, we
need to cover the country, but we also have to look at savings
there.
I call it savings. Unfortunately, those who look at the
Federal budget call it ``cost avoidance'' as opposed to
``savings,'' but we are continuously driving to save money and
be able to utilize those funds in the areas that they may be
better spent.
Senator Kohl. Thank you so much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman. Thank you,
Director. It would be nice if I had the Department of Justice
here with you because I think there are a lot of questions that
they ought to be answering as well as you answering. But I have
the opportunity to ask you so I will start out with where we
were a year ago now.
I asked you a question about highlighting problems with
cooperation between the FBI and ATF. You gave what I would have
to consider a legitimate answer: ``DOJ requested the
opportunity to provide consolidated responses on behalf of all
involved DOJ components. The FBI has provided its input to DOJ
for preparation of a consolidated response.'' The only thing is
the Department of Justice has not responded.
So in this morning's paper, in regard to the same issue of
cooperation between ATF and FBI, we find the Department of
Justice, Inspector General Glenn Fine saying that there are
repeated squabbles, and feuding over bomb investigations.
So it brings me to my first question with you about the
article or about questions of the past. I have been asking
about FBI-ATF relationships for over 2 years, and my last
question was submitted, as I said, September 2008. I never
received a response. It is completely unacceptable that I get
more information from a newspaper article than directly from
the Department of Justice.
I am particularly concerned about this latest news report
because Committee staff received a briefing from your agency
and the ATF last year in which they were told, this Committee
staff was told, that the agencies understood the jurisdictional
problems and that these conflicts had been resolved, hence
raising questions about the Inspector General's report
seemingly refuting statements that we had in staff briefings.
So I want to know what the real story is. Could you tell
me, please, what is the true state of cooperation between the
FBI and ATF? Specifically, have the jurisdictional problems
been resolved? And I suppose in connection with answering that
specific question about jurisdictional problems, have they been
resolved, can the current memorandum of understanding be
improved in any way?
Mr. Mueller. First of all, they have not all been resolved,
as the IG points out. There are still issues. A year ago, we
had just entered into an MOU which addressed a number of the
issues in terms of responsibility when one gets to a scene.
As I think you are aware, inasmuch as we have
responsibility for terrorism, it is important for us. And I do
believe it is tremendously important for us to be on the scene
and utilizing our capabilities, both domestically and perhaps
internationally, when there is a possibility of a terrorist
event.
If it does not turn out to be a terrorist event and falls
within the purview of ATF, then it is appropriate that ATF have
it.
When we last talked a year or so ago, it was our
expectation that the MOU would satisfy that. As the IG is
pointing out, it does not satisfy it because two sides of it
are interpreting it different ways, and it has to be resolved.
I will tell you that at our level and the top levels, I
think the cooperation is excellent, is good, has been for a
year or two. When you get down to the field, there are pockets
where it is not so good. And I generally think that it is not
institutional but more individual, and each of our agencies has
persons that perhaps live more in the past than they should,
and so there is still work to be done, as the IG has pointed
out.
Senator Grassley. Well, for the taxpayers' benefit, I think
that they would expect agencies within the same Federal
Government working for the same American population would get
along to get done what needs to be done and not waste time that
way.
Let me go on to another----
Mr. Mueller. Can I just mention one thing, if I could? If
you look at the cooperation we have had, we have jointly
investigated any number of places and done it exceptionally
well, whether it be Oklahoma City or the 1993 bombings in New
York. The ability not to get along is the exception in my mind
and not necessarily the rule.
Senator Grassley. Well, if it gets the Inspector General's
attention, it seems to be still quite a problem. Let me go on
to another one.
In February, I cosponsored S. 372, the Whistleblower
Protection Enhancement Act, legislation updating whistleblower
protection for all Government employees. It addresses a number
of hurdles that good-faith whistleblowers face when bringing
complaints alleging retaliation for protected whistle-blowing.
The legislation was marked up in the Homeland Security
Committee where a compromise substitute was adopted.
As an original cosponsor, I am deeply concerned by a
provision that was included at the very 11th of hours which
strikes the current whistleblower protection for FBI employees.
That law was passed in 1978 and was not effective until 1997
when President Clinton issued a memorandum directing the
Attorney General to establish whistleblower protections for
FBI.
Those procedures have provided some basic level for
protection for FBI employees now over the years and, while not
perfect, are greater than if the Homeland Security Committee
substitute became law. I am very concerned with this provision
striking the existing provisions and have been working to
determine who authored it. In chasing down where this came
from, I have heard a number of different things. Some have said
the provision came from the White House, others said the
intelligence community, and others have directly stated it was
done at the request of the FBI. I understand that the Committee
members and the White House have said this provision will be
removed, but I still want to know where and why it came to be.
So, Director Mueller, I am going to ask five questions, but
they can be answered shortly. You have repeatedly stated your
view that whistleblowers should not face retaliation. First
question: Do you believe that current whistleblower protections
under Section 2303 should be repealed?
Mr. Mueller. I am not that familiar with the particular
statutory numbers. I would have to get back to you on that.
Senator Grassley. Well, do you have any idea where the
provision for repeal came from?
Mr. Mueller. No.
Senator Grassley. Did any individual of the FBI have
anything to do with drafting the provision?
Mr. Mueller. I do not know.
Senator Grassley. Would you get back to me on that?
Mr. Mueller. Yes.
Senator Grassley. Has the FBI provided any comment to the
Department of Justice, White House, or other executive agencies
regarding repealing the existing FBI whistleblower protections?
Mr. Mueller. I do not know.
Senator Grassley. Get back to me, please.
Mr. Mueller. Yes, sir.
Senator Grassley. Lastly, will you make--I hope you will
make a commitment to me and this Committee that the FBI will
not advocate to repeal the existing whistleblower protections
outlined in Section 2303 as part of whistleblower reforms.
Mr. Mueller. I cannot do that now. I would have to look at
it. I am not really familiar with the issue.
Senator Grassley. Well, you have kept telling me for a long
period of time, ever since you have been in office, and
predecessors to you, that you thought whistleblower protection
was important for----
Mr. Mueller. I do.
Senator Grassley [continuing.] FBI people.
Mr. Mueller. I would reiterate that I think whistleblower
protection is important, and as we have discussed, every year I
send out an e-mail to persons saying I will not abide, tolerate
retribution. Any time I get a claim of whistleblower status, I
send it immediately to the Inspector General so that there is
no conflict of interest, and I think as I have indicated to
you, and I think as has been proven over the years, I would not
put up with retaliation against whistleblowers.
Senator Grassley. On that last point, would you get back
whether or not you would support any modification of 2303?
Mr. Mueller. Yes, sir.
Senator Grassley. As well as the other two.
Mr. Mueller. Yes, sir.
Senator Grassley. And does that have to go through the
Department of Justice for you to answer my question on those
points?
Mr. Mueller. Yes.
Senator Grassley. Well, will they get back to me? You
probably do not know, because they have not gotten back to me
over the year on the other one.
Chairman Leahy. I will join with the distinguished Senator
from Iowa to help get those answers because----
Senator Grassley. Well, thank you. And I knew you would.
Thank you.
Chairman Leahy. Because the Senator from Iowa has been as
much a leader on these whistleblower matters as any Senator of
either party, and I will work with you on that.
Senator Grassley. Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you.
Director Mueller, we have--there are sometimes so many
jurisdictions that you have to appear before. I know one is, of
course, the Intelligence Committee. We are fortunate that we
have members of this Committee who, by tradition, also serve on
the Intelligence Committee. And we are, of course, twice as
fortunate to have the Chair of the Intelligence Committee here,
and I will yield to her now.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman. And
welcome, Director. It is good to see you again.
Mr. Mueller. Thank you.
Senator Feinstein. Let me begin by using my capacity for a
minute as Chairman of the Intelligence Committee to thank you.
I have mentioned to you, I think on three prior occasions,
about intelligence-related reports from the FBI not reaching
the Committee in a timely way, and I want to tell you they are
now reaching the Committee in a timely way. So thank you very
much for achieving that.
Mr. Mueller. And thanks also goes to the Department of
Justice for that.
Senator Feinstein. Well, maybe that is a precedent that
material can flow more quickly. So I thank the Department of
Justice.
Second, the FBI gang assessment indicated that violent
gangs are moving from large cities to smaller cities. Senator
Hatch and I have been working on a gang bill for 10 years now,
which has stalled because of an objection from the House of
Representatives to the fact that it has got an enforcement
portion to it.
Could the drop in crime--in large cities be related in any
way to the movement of gangs to smaller communities?
Mr. Mueller. I have not looked at that, and will.
Senator Feinstein. Would you?
Mr. Mueller. Yes, I will. I have not looked at that.
Senator Feinstein. Thank you very much. From an
intelligence point of view on the subject that Senator Sessions
raised about Miranda warnings, it is my understanding that the
FBI just wants to keep the possibility of Miranda warnings on
the table so that if you have been involved in an arrest of
somebody that is likely to be tried in a Federal court, that
warning can be given; but that soldiers are not giving Miranda
warnings nor is there any request for them to do so. Is that
correct?
Mr. Mueller. That is true. And, in fact, we have been, as I
say, operating with the military in Iraq and Afghanistan for a
number of years. The military welcomes us and our expertise,
and rare is the occasion that we will give Miranda warnings
when we are participating in an interrogation in that
environment.
On the other hand, you may pick up an individual who has
been indicted someplace and you have the possibility of
bringing that person back to the United States to face that
indictment for a terrorist act that occurred some time before,
and at least it ought to be put on the table as to whether or
not you wish to mirandize that individual before you talk to
him, both for--well, certainly to make a statement admissible
in court in the United States, but that does not necessarily
exclude that the person will be interviewed for intelligence
purposes as opposed to the admissibility of a statement in a
court in the United States.
Senator Feinstein. Thank you. I am pleased we cleared that
up. I think that is helpful.
In August, during the break, I had the opportunity to meet
with the Bureau of Alcohol, Tobacco, Firearms and Explosives in
Los Angeles and found it very interesting, and then later
during that period of time, I saw this quote from Dewey Webb,
the chief of the ATF office in Houston, saying that at least a
dozen women in the past 2 years have surfaced in Federal gun-
trafficking cases as suspects or cooperating witnesses in
Houston and South Texas, essentially women with no criminal
history, he asserted, were being used to be straw buyers of
high-powered weapons and then giving those weapons to relatives
or to smugglers to bring them into Mexico.
What do you know about this? And what is being done about
it?
Mr. Mueller. It is principally the purview, as you point
out, of ATF, but over the years a person who wants straw buyers
will use women or others without any criminal background and
often--it is not something new. It has been there for any
number of years. Often, whether it be a woman or a man who is a
straw buyer, it is the avenue you have to breaking down the
ring and getting the cooperation you need to investigate
successfully and to incarcerate the individuals who are
responsible. So it is a phenomenon that has been there for a
period of time.
Senator Feinstein. Well, perhaps we can discuss that more
fully another time.
Mr. Mueller. Yes, ma'am.
Senator Feinstein. But, you know, the Mexican Government is
very concerned about the massive importation of guns from the
United States into Mexico. Big guns, too.
Mr. Mueller. Yes.
Senator Feinstein. And we have to find a way to stop that,
so I would like to talk with you. But I would like to turn now
to a FISA matter.
Mr. Mueller. Yes, ma'am.
Senator Feinstein. The three sunsetting provisions of the
PATRIOT Act: lone wolf, the business records, and roving
wiretaps.
This is an issue where two committees have jurisdiction,
both the Judiciary Committee and the Intelligence Committee. I
spoke to Senator Leahy yesterday and indicated that we would
like to work together, if possible, so we do not get into
battles of sequential referrals and that kind of thing.
It was my thinking simply to extend those three provisions
until the PATRIOT Act is up for reauthorization, which is 3
years hence. I believe Senator Leahy will submit a bill that
does some other things as well.
I have just received a copy of a letter--written to me and
the Vice Chairman of Intelligence dated September 14th by the
Justice Department saying that they are in full support of
reauthorization of all three provisions, and that if there were
ideas for some changes, they would be happy to discuss them.
The letter is signed by Ron Weich, and it is a rather forceful
case for continuation.
I would like to ask you if you would discuss your use of
those three provisions and their relevance today in the
continuing concerns about terrorists infiltrating our country.
Mr. Mueller. Well, let me start by saying I hope you
reinforce each other to, again, pass these three provisions.
Chairman Leahy. We will work it out.
Senator Feinstein. Right.
Mr. Mueller. First of all, the business records, 215.
Between 2004 and 2009, we have used that more than 250 times. I
make the point that that provision is used with the approval of
the FISA Court. The business records that are sought there
relate almost--not all the time, but almost solely to terrorist
investigations in which the records that are received are
absolutely essential to identifying other persons who may be
involved in terrorist activities.
Senator Feinstein. Involving a foreign terrorist.
Mr. Mueller. Involving someone who is a foreign terrorist.
Senator Feinstein. So you are prepared to say that there is
no domestic exclusivity, but that this relates to a foreign
terrorist?
Mr. Mueller. Well, it relates to an agent of a foreign
power.
Senator Feinstein. Exactly.
Mr. Mueller. As it says in the FISA statute.
Senator Feinstein. So each one would.
Mr. Mueller. Yes. My understanding is that 215 relates to--
--
Senator Feinstein. It does----
Mr. Mueller.--any investigation relating to----
Senator Feinstein [continuing.] And I see that it has been
used that way.
Mr. Mueller. Yes.
Senator Feinstein. Okay.
Mr. Mueller. Let me just check and make sure. Yes.
Chairman Leahy. Do you want to answer that question?
Senator Feinstein. If he could just finish quickly on the
lone wolf provision and the roving wiretap provision.
Mr. Mueller. Roving wiretaps were used approximately 140
times over those same years, and it is tremendously important.
With the new technology, it is nothing to buy four or five cell
phones at the same time and use them serially to avoid
coverage. And the roving wiretaps are used in those
circumstances where we make a case that that is going to happen
and we get approval for it. It is essential given the
technology and the growth of technology that we have had.
As to the lone wolf, that has not been used yet, but my
belief is it needs to be there where we have an individual,
such as Moussaoui, whom we need to go up and get a FISA
warrant, either for a search or an interception, and cannot
identify specifically, with specificity, a particular foreign
power, that is, a particularized terrorist organization that he
belongs to, but we need to, as they say in this lone-wolf
context, go to the FISA Court and say, Okay, this is a lone
wolf, we cannot put the tie to this particular terrorist group,
but here are the reasons why we need to go up on this
individual.
So my belief is each of these three provisions are
important to our work.
Senator Feinstein. Thank you, Mr. Chairman, for allowing
him to answer. Thank you.
Chairman Leahy. Thank you.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I want to
thank you, Director Mueller, for the great service you have
given this country over all these years. We have been together
a lot of times, and all I can say is that you are one of the
heroes in this country, and so are all of those FBI personnel
people who really protect us throughout all these years. I just
want to tell you I sure appreciate you.
But I was relieved when the Census Bureau independently
chose to terminate its relationship with the Association of
Community Organizations for Reform Now, commonly known as
ACORN. I am deeply troubled by the most recent controversy
concerning that organization, and many other controversies,
too. The disturbing behavior of ACORN employees was captured on
video at ACORN offices in Brooklyn, New York, Baltimore,
Maryland, Washington, D.C., and San Bernardino, California,
giving guidance on criminal activity.
A documentary film maker posing as a prostitution ring
leader entered these ACORN offices and received advice on how
to maintain his enterprise and receive tax credits for doing
so. I was basically shocked when this advice included, among
other things, how to launder profits from an alleged
prostitution ring that was going to involve under-age girls.
Now, during a meeting, ACORN representatives were informed
that the girls were smuggled into the United States from a
foreign country for the purposes of sex trafficking. ACORN
employees were told by the film maker that the reason for
obtaining the residence was to establish a brothel that would
house these under-age girls.
Consistent amongst all three ACORN offices was the advice
to lie to law enforcement, conceal the profits, and ensure that
any of the under-age girls involved in the prostitution ring do
not talk to law enforcement. One ACORN employee in Baltimore
told the alleged prostitution ring leader that, ``Girls under
16 don't exist'' and ``Make sure they keep their mouths shut.''
Now, this heinous conspiratorial criminal activity is
usually carried out by organized crime families. However, it
appears that ACORN, which has offices in 41 cities nationwide,
has decided to engage in offering expert advice on how to get
caught running a sex slavery ring, money laundering, and even
mortgage fraud.
Now, this was not random, and the consistency of the advice
indicates that this system is systematic and widespread within
ACORN. The complicit behavior of ACORN employees in multiple
offices offering to assist persons engaging in sex trafficking
is egregious behavior.
Now, can you tell me if you have been made aware of all
these issues and if the FBI field offices in Washington,
Baltimore, and New York are examining these incidents?
Mr. Mueller. I think the first time I heard of this
incident to which you refer was last evening, and beyond that,
I do not know where we are. Clearly, given what you have said,
it is something, in consultation with the Department of
Justice, that we would look at.
Senator Hatch. This is what I have been led to believe, and
I would sure appreciate it if you would look at it and do
something about it.
Now, last month, the White House and the Attorney General
announced the formation of a new working group comprised of
Federal law enforcement and intelligence personnel for the sole
purpose of interrogating high-value detainees. This has been
referred to as the HIG. You are familiar with that.
Mr. Mueller. Yes, sir.
Senator Hatch. Okay. According to both the White House and
the Attorney General, the HIG will be housed inside the FBI,
and a senior FBI official will be in charge of the HIG.
Mr. Mueller. Yes.
Senator Hatch. However, the administration has stressed
that the HIG will not be a sub-unit of the FBI or DOJ. Now,
that point by the administration does not shed light on who the
HIG will report to, either the FBI or the National Security
Council.
Now, if the only goal of the administration is to prosecute
high-value detainees in Article III courts, the development of
evidence will be key to the Government's case.
What I have reservations about is evidence that was
developed by the intelligence community. For instance, in some
cases the Government may not be willing or able to produce the
source of the evidence in court.
Furthermore, the evidence may be the fruit of information
obtained from foreign intelligence or foreign investigations.
This information could lead investigators down a line of
questioning during an interrogation that they will have to
explain in court.
If trying these cases in Federal criminal courts is the
ultimate goal, what solution does the FBI propose to address
hearsay evidence exclusions? And just one follow-up question:
Will the FBI implement a policy on the HIG to begin each
intelligence interrogation with a Miranda warning? Is the FBI
currently mirandizing detainees in Afghanistan? I think you
have approached that. But if you could answer those three
questions.
Mr. Mueller. I think the heart of the issue is prosecution
is not the ultimate goal of every interrogation. It may well be
intelligence gathering. But by the same token, you should not
avoid the possibility that you may be able to obtain evidence
that would result in a prosecution. And, consequently, the
effort is to look at an individual, determine what is the
evidence you have on them. Is the evidence admissible into a
courtroom? Does it come from intelligence sources where it is
problematic given the reasons that you said, it may have come
from a source or method that would be disclosed or may have
come from a foreign country?
But tie that together and say, What do we have on this
individual? Firstly, how does it tie together to maximize our
ability to interrogate that individual? And the information
that you need to effectively interrogate an individual may well
come from law enforcement sources or it may well come from
intelligence sources. But the persons who are doing the
interrogation should have that information in front of them,
and in unique cases--this is high-value targets, and as I said
before, maybe somebody has been indicted before--at least have
the option of giving Miranda warnings in certain circumstances
where it is appropriate that would help the prosecution, not to
the detriment of gathering intelligence.
And so the group, the HIG units are a combination of
intelligence and law enforcement, FBI, but intelligence in
terms of CIA, in terms of DIA, with the combined expertise so
we can more effectively do it and make certain we have the
intelligence on the table.
The other thing that we have in this country that many
countries do not have is the Classified Information Procedures
Act, which enables us, as happened with Moussaoui and other
cases, to successfully try individuals while still protecting
sources and methods, while still protecting information that
may have come from overseas.
Senator Hatch. Well, thank you.
Thank you, Mr. Chairman. My time is up, and I will submit
the rest of my questions. Thank you, Mr. Director.
Chairman Leahy. We are going to be having votes on the
floor soon. What I am going to try to do is keep this going
during that time and have people take turns going over there.
Next is Senator Feingold, of course, and then it will be
Senator Kaufman and Senator Franken. I have the rest of the
list here. Senator Feingold, Senator Franken, Senator
Whitehouse, Senator Klobuchar, Senator Schumer, and Senator
Cardin.
Senator Feingold.
Senator Feingold. Thanks, Mr. Chairman.
Let me begin, Director, good to see you again. I would like
to first associate myself with Senator Kohl's comments about
violent crime in Wisconsin. The overall trend of violent crime
decreasing is, of course, heartening, but I urge you to
continue to work closely with State and local law enforcement
on these issues.
Director, as to the PATRIOT Act, three provisions of the
PATRIOT Act expire, as we know, at the end of the year, and yet
critical information about their implementation has not been
made public--information that I think would have a significant
impact on the debate.
During the debate on the Protect America Act and the FISA
Amendments Act in 2007 and 2008, I felt that critical legal and
factual information remained unknown to the public and to most
Members of Congress. This is information that was certainly
relevant to the debate and might even have made a difference in
the way some people voted.
During the last PATRIOT Act reauthorization debate in 2005
a great deal of implementation information remained classified.
This time around I think we have got to try to find a way to
have an open and honest debate about the nature of these
Government powers while, of course, protecting national
security secrets.
I have raised this repeatedly, as you know, with
administration officials over the past couple of years. I did
so most recently in June in a classified letter also signed by
Senators Leahy, Durbin, Wyden, and Whitehouse.
I appreciate that the Justice Department letter this week
made public for the first time that the lone-wolf authority has
never been used, as you just confirmed. That is a good start
since this is a key fact as we consider extending that power.
But there is also information about the use of Section 215
orders that I believe Congress and the American people deserve
to know.
I realize that you are not the sole person to make this
decision, but I am asking you today for your commitment to
advocate for finding a way to allow some limited information to
become public so we can have a real debate about this. Will you
make that commitment?
Mr. Mueller. I do not think I can because there is
inevitable tension between, particularly when it comes to
national security, keeping the information classified because
not to do so would harm national security. On the other hand, I
understand what you are saying in terms of what you learn on
the Intelligence Committee would be useful in the debate on the
floor, and there is a tension. But I do believe that the
information that is provided to the Intelligence Committee in a
classified setting is appropriately provided to the
Intelligence Committee in a classified setting, and while there
is that tension there, I can not give you the commitment that I
would advocate for releasing more information than we have in
the past.
Senator Feingold. Well, I hope you will reconsider that.
The fact is you have made public that the lone-wolf provision
has never been used. That is something that perhaps other
people would like to know. But you have chosen to do that, so
obviously you are not applying this as an across-the-board
rule. And I know that the number of times Section 215 orders
have been issued is something, but it does not come close to
providing the kind of information about the use of the
authority that I think is needed for meaningful public debate.
Mr. Mueller. And that may be where we disagree.
Senator Feingold. And I just want to say that I feel as
strongly as anybody in this body and in this country about
keeping things secret that have to be kept secret. And my
feeling and understanding about that has increased greatly as a
member of the Senate Intelligence Committee for the past 4
years. But I really do believe there is a way to do this, and I
hope you will work with us and consider appropriate disclosure
that is not harmful to our country but allows us to have a real
debate.
Mr. Mueller. I would do that in terms of particular pieces
of information, yes.
Senator Feingold. In December, the U.S. Court of Appeals
for the Second Circuit found that the gag order provisions of
the National Security Letter statute violate the First
Amendment. Has the FBI changed its procedures for NSL gag
orders to address the constitutional problems identified by
this decision? And if so, has it made these changes nationwide,
or are they just changed in the States that are in the Second
Circuit?
Mr. Mueller. Let me check one thing, if I might.
[Pause.]
Mr. Mueller. We made the change across the country.
Senator Feingold. Okay, good. While the court's decision
was specific to NSLs, it has implications for the gag orders
associated with the Section 215 orders as well. Has the FBI
made any changes to these procedures as a result of the Second
Circuit's decision?
Mr. Mueller. Not in that venue. We disagree with the
application of the Second Circuit opinion to these other
procedures.
Senator Feingold. All right. We will take that up in the
future then, but I appreciate the answer.
As Senator Leahy already mentioned, last year the DOJ
Inspector General issued a second set of reports on the FBI's
use of the National Security Letters and Section 215 of the
PATRIOT Act. In light of the upcoming reauthorization process,
I want to follow up on a particularly troubling incident
discussed in one of these reports.
The IG said that the FBI had issued NSLs to obtain
financial records in an investigation after the FISA Court had
twice refused to approve Section 215 orders in the same
investigation because of First Amendment problems. This
obviously leaves me very concerned about how seriously the FBI
takes First Amendment issues in the course of its
investigations.
Do you think it was appropriate for the FBI to seek
information using NSLs, an investigative tool that does not
require judicial approvals, to get around the FISA Court's
refusal to approve a Section 215 order?
Mr. Mueller. I am not familiar with this incident. Quite
clearly, in the way you have characterized it in terms of judge
shopping or process shopping, I am not certain that is
appropriate. But I am not familiar with the incident, and I
will have to get back to you.
Senator Feingold. Well, the report was issued a year and a
half ago. Has the FBI taken any action to ensure that this does
not happen again?
Mr. Mueller. There are a number of issues we looked at in
the wake of the two to three IG reports, and on this one I
cannot give you a specific answer at this time. We would have
to get back to you.
Senator Feingold. Well, I look forward to hearing from you,
and you have been responsive to my requests in the past, so I
look forward to hearing from you as soon as possible.
I would like to ask you finally about roving FISA wiretaps,
one of the provisions of the PATRIOT Act that is due to sunset.
I never objected to granting this authority to the FBI. My
concern as with a lot of the PATRIOT Act provisions, was that
adequate safeguards were not included.
For example, in the criminal roving wiretap statute, there
is a requirement that before a new phone or computer can be
wiretapped that has not explicitly been approved in advance by
a judge, there must be reason to presume that the target of the
surveillance is nearby. This is sometimes referred to as the
ascertainment requirement. It helps ensure that the FBI does
not tap the wrong phone or computer being used by an entirely
innocent American.
Why not include a similar requirement for the FISA roving
taps?
Mr. Mueller. It is my understanding--and, again, I have not
looked at it in a while--that we are required to show that
there is a likelihood that the individual will be using many
phones in order to get the approval for that particular
provision. It seems to me that that satisfies the due process,
the constitutional requirements, and is adequate. To prove more
would mean that we would be going back to the judges day in and
day out in this day where cell phones are throwaway cell
phones. Given the technology now, in many places, as we have
seen in the debate on FISA, the statutes do not keep up with
the technology.
In drafting and adding another requirement, it will inhibit
our ability to swiftly track those individuals who are seeking
to avoid surveillance, counter-surveillance, and----
Senator Feingold. Is that the consequence in the criminal
roving wiretap statute?
Mr. Mueller. Well, criminal rule is much--I think is--ask
my opinion, it is too restrictive.
Senator Feingold. Okay.
Mr. Mueller. It is too restrictive.
Senator Feingold. Fair answer.
Mr. Mueller. And we would be far more effective on
criminals if we went back to looking at Title III given the new
technology. Title III has been on the books for a number of
years. Technology has changed dramatically.
Senator Feingold. Thank you Director Mueller.
Chairman Leahy. Senator Franken.
Senator Franken. Thank you, Mr. Chairman, and thank you,
Mr. Director.
First of all, Director Mueller, I want to thank you for
providing me with briefings on Somali individuals from
Minnesota who returned to Somalia to join Islamic extremists.
After those briefings, I am satisfied that the FBI is doing a
very good job on the ground in the Twin Cities. Obviously,
these individuals are a rare exception within the Somali
community in Minnesota, which is a patriotic and hard-working
and important part of our State.
One of the many things that makes this country special is
that we are a melting pot, and we have people with the cultural
background and language skills that we need for these
investigations. How is the FBI doing on this front? Do we have
enough Arabic-speaking translators, for example, for terror
investigations?
Mr. Mueller. I cannot say we are doing as well as I would
like. We have almost doubled our capability since September
11th, but that was a small capability to begin with.
When it comes to Somali speakers or Pashtu or others where
there are various clan dialects and the like, it becomes even
more problematic. We have had substantial outreach programs
since September 11th in trying to attract those who have those
capabilities, both in terms of providing translating
capabilities but also as agents to be able to operate.
We are not where we want to be. It is tremendously
difficult, but we have done everything we possibly can to
encourage, recruit, and bring in persons from diverse
backgrounds.
Senator Franken. Okay. Thank you. The task force has been
discussed today. I am concerned about rendition, and I can see
from a release on the task force from the Department of Justice
on August 24th that actually we are going to--you are calling
it transfers or it was called transfers in this, but that is
rendition, isn't it?
Mr. Mueller. Well, there are renditions, somebody can be
rendered from another country pursuant to an extradition
treaty. I mean, that is also called rendition. Somebody can be
transferred from another country as a result of the other
country putting the person on the plane to the United States.
That is a rendition, albeit without any extradition paper.
There are other issues----
Senator Franken. My question is: Are we going to continue
the policy of rendition where we send folks, prisoners, to
other countries? And will the FBI be handing folks over to the
CIA for rendition?
Mr. Mueller. We have not done that in the past. We will not
do it in the future. I gave a brief description of that
because, yes, we have been involved in renditions, but not the
renditions I think you are asking about.
Senator Franken. Okay. I just want to make sure that there
are no transfers of people to other countries for torture,
and----
Mr. Mueller. We certainly would not do that. When we
transfer somebody to another country--actually, generally it is
the Marshals Service, and it is pursuant to paper,
extradition----
Senator Franken. Okay, and you do not hand them over to the
CIA?
Mr. Mueller. No. Have not, will not.
Senator Franken. Okay. The FBI has a human-trafficking
initiative that investigates and arrests traffickers. In
Minnesota, there is a serious problem with trafficking in
Native American communities. People are trafficking Native
American women. In fact, the Minnesota Indian Women's Resource
Center recently found that 27 percent of its clients, Native
American women, were victims of human trafficking as defined by
Minnesota law.
I want to know if human trafficking is a priority at the
FBI. And how many full-time employees investigate human
trafficking at the FBI? And how many man-hours are spent
investigating human trafficking at the FBI?
Mr. Mueller. I had not been aware, prior to the mention by
your staff, that this question might be coming up about human
trafficking of Native American women. It is something I have to
look into. I do not believe that----
Senator Franken. Please.
Mr. Mueller. We will. I can tell you that we have over 100
agents at work in Indian country. We have maintained that since
September 11th despite the other priorities. But I would have
to get back to you as well as to the number of agents and
others we have that are working on human trafficking in
general, and I will do that.
Senator Franken. Please get back to me on that and on how
many of your investigations have centered on trafficking of
Native American women.
The FBI gathers crime statistics from around the country,
but in Minnesota, Indian tribes actually do not participate in
our State's crime-reporting program. State laws says actually
that they cannot. This means that crimes on Indian reservations
are underreported in national statistics and that Indian tribes
themselves have difficulty tracking and analyzing crime, and
this is a big problem.
Do you know how many Indian tribes and reservations
participate in the Uniform Crime Reporting Program?
Mr. Mueller. I do not. I might be able to get back to you,
but it is a voluntary reporting structure.
Senator Franken. I have about a little bit over a minute
left, so I am just going to--you know, we hear a lot about
cyber terrorism, but I think a lot of folks do not have a clear
idea what it is and how it can actually harm people in the
country and just how fighting it is crucial in our war on
terror.
Can you tell me what cyber terrorism is and how it can
actually result in the loss of lives? Or do that for our people
watching.
Mr. Mueller. Well, if you have an attack, if you have a
denial-of-service attack or a worm or a virus, quite often you
do not know who is responsible for that. Is it a state actor?
Is it a country someplace? Is it a terrorist or a terrorist
group? Or is it an individual?
Whatever the activity is, you have to trace it back and
attribute it to one of the three. Generally, with terrorists,
it could be disrupting a communications network. The
possibilities are shutting down an electrical grid, shutting
down a stock exchange. In other words, any activity that would
bring attention to the terrorists that would disrupt our
capabilities would probably be called a terrorist activity.
Senator Franken. Can they do stuff with satellites? Can
they do stuff with air traffic control?
Mr. Mueller. Air traffic control is one that we would be
concerned about, but it generally is off the Internet and
utilizing the Internet as the vehicle as opposed to statutes.
You also have the more recent example of the Russians
disrupting the Georgian command-and-control capabilities before
the invasion of Georgia by Russia.
It is that kind of activity, either state-sponsored or
terrorist-sponsored, that can shut down various networks of the
military or in the private arena as well.
Senator Franken. And presumably we have really smart people
working on this. I remember the FBI several years ago did not
have the best--this is before you took office--did not have the
best computer system.
Mr. Mueller. Luckily, we do have very smart people. I
really rely on them.
[Laughter.]
Mr. Mueller. As do other agencies.
Senator Franken. I am very reassured. Thank you. Thank you,
Mr. Director.
Mr. Mueller. If I may make one other point on that.
Senator Franken. Sure.
Mr. Mueller. This is the wave of the future, though. For
the FBI, it is absolutely essential that we attract, we bring
in these people, because the battlefields of the future are
going to be in the cyber arena, and we have to grow in the same
way that NSA and the intelligence community and the military
have to grow to address those threats of the future.
Senator Franken. Thank you.
Senator Whitehouse [presiding.] Director, Chairman Leahy
has gone to the vote. He will be back shortly, but in the
meantime, it is both my turn and my temporary chairmanship, so
I guess I call on myself.
[Laughter.]
Mr. Mueller. Do I call you ``Mr. Chairman'' ?
Senator Whitehouse. Better not do that.
First of all, I welcome you here and thank you for your
continued leadership of the Federal Bureau of Investigation,
which is an organization that Americans are very proud of. You
have been given a significant new responsibility with respect
to the High-Value Detainee Interrogation Group, and very
recently. It was, I think, the end of August when this was
announced.
I am wondering what your administrative benchmarks are for
the next couple of months to keep that process moving forward
and to discharge the obligations that you have received. What
do you see as your next steps? When do you think the group will
be fully operational? What are the key benchmarks on the way
there?
Mr. Mueller. Let me start by saying we are in the midst
right now of following up with protocols for this group, but as
important as anything else is the leadership, both the
leadership from the Bureau and the leadership from the
intelligence community. And we are exploring names and options
for that.
The third area that we are--there is outreach to other
persons who have done research in this area to try to bring in
early the lessons learned and research from Phil Heymann at
Harvard, Defense Intelligence Committee, other areas who have
been looking at this over the last 3 years. So we start with
some accumulated knowledge upon which we will build.
But in my mind, the two critical issues are bringing
together our organizations to work closely together and
understand and have consensus on the goal of this structure
and, second, the leadership of it that should be supported by
all participants.
Senator Whitehouse. And could you put that into some kind
of a time horizon for me?
Mr. Mueller. I would say by the first of the year, but I
tend to be impatient. I will give you a longer----
Senator Whitehouse. That is an admirable quality.
Mr. Mueller.--time horizon than I would like. I can tell
you that just about every other day I am looking at one or
another piece of it.
Senator Whitehouse. Very good. I should take this
opportunity to congratulate you for the success that the FBI
has had in its role in these high-value interrogations. The
very identity of Khalid Sheikh Mohammed as the architect of the
9/11 horrors was something that was achieved by an FBI-led
interrogation. It was a joint effort. There were CIA and FBI
interrogators present. But I wanted to take this opportunity to
congratulate you because you played an effective role.
Mr. Mueller. Can I just----
Senator Whitehouse. Yes.
Mr. Mueller. Can I just insert something?
Senator Whitehouse. Please.
Mr. Mueller. That is, we have participated in
interrogations with the Agency and the military. There have
been successes across the board. And in my mind, we are not
where we are today without the activities and capabilities of
the Agency in terms of addressing the war on terror and the
military. And while I appreciate the congratulations, I must
say that we do spend a lot of time in attributing successes to
particular areas given the policy debate, but the fact of the
matter is the Agency has been absolutely instrumental in
bringing the safety to the extent that we have it today. And I
did want to make that point as----
Senator Whitehouse. That is a very good point, and I think
you are wise and administratively generous and prudent to make
it--and accurate, I believe, also. But I also think that the
FBI's role has been undersung, and I want to take this
opportunity to express my appreciation for your agency's
efforts.
Mr. Mueller. Thank you.
Senator Whitehouse. As we look toward bringing people from
Guantanamo to the United States for further detention, for
prosecution as criminals, for incarceration, presumably, after
a conviction, what is the FBI's assessment of the security
risks that that process presents? Do you believe that the
Federal Bureau of Prisons, for instance, has any--how big of a
hazard would the detention of these folks in the custody of the
Federal Bureau of Prisons be to the United States?
Mr. Mueller. I think it depends on the circumstances,
depending on where the Bureau of Prisons puts a person. Quite
obviously, you have been out to Colorado and seen Florence, I
think, and there is very, very little risk there. In most
Federal prisons, there is very, very little risk.
County jails are somewhat different. My expectation is that
when you are bringing persons from overseas who are involved in
terrorism, they will be given top priority in terms of assuring
that not only are they incarcerated, cannot escape, but also
that they do not affect or infect other prisoners or have the
capability of affecting events outside the prison system.
Senator Whitehouse. Assuming appropriate prioritization for
these individuals, do you have any doubts about the Federal
Bureau of Prisons' ability to keep them secure?
Mr. Mueller. Yes.
Senator Whitehouse. You do not have any doubts or you do
have doubts?
Mr. Mueller. Well, I know, I think the Bureau of Prisons--I
do not--I do not know the circumstances. My expectation is the
Bureau of Prisons along with the Marshals Service will provide
adequate and appropriate security.
Senator Whitehouse. Very good.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Senator Whitehouse.
Good to see you again, Director Mueller.
I just wanted to talk with you a little bit about the
white-collar area. I know you devoted some of your testimony to
that, and while I see the prosecution of violent crimes and the
investigation of violent crimes as well as terrorism to be
priorities of your work, I also have always believed that it
has been very difficult for local law enforcement to handle
some of these complex cases coming from that angle that my
previous job before I came to the U.S. Senate.
One of the things we have talked about at previous hearings
is the potential for fraud with the TARP money and the stimulus
money, and I wondered if there were--without revealing specific
cases, if the FBI is prepared for that type of fraud that we
might see.
Mr. Mueller. I think in the out-years we are going to need
additional resources. We have been given some resources. We
requested additional resources in the 2010 budget, and our
expectation is we will ask for more in the 2011 budget. And
there is no doubt in my mind that with the monies that are
flowing freely, relatively freely through the Federal
Government, we have to work closely with the IGs to identify
where those monies are flowing and who is going to take a piece
of it--whether it be through fraud or public corruption.
But with those amounts out there, there is no doubt that
there will be a number of people who seek to obtain those
amounts illegally, and it will take us as well as the Inspector
Generals as well as new ways of identifying and maintaining
data that will enable us to get to the heart of a scheme
relatively early, and through manipulating that data or pulling
in that data, be able to make a prosecutable case that much
quicker. And we are working on that at this point in time.
There is no doubt in my mind, whether it be from the TARP
or the stimulus package and the like, that there is going to be
fraud, abuse, betrayal of the public trust.
Senator Klobuchar. And you also have testified about the
health care fraud and the work that is being done there, and as
we deal with cost savings for health care and looking for those
savings, one of the things I was most startled by were some of
the estimates that the health care fraud costs taxpayers $60
billion a year, it potentially is 20 percent of total Medicare
spending. I know when I was a prosecutor, we had a number of
cases involving this that were quite shocking, and some of it
is technology because people are able to get into hospital
systems and start ripping things off or getting identity
numbers and things like that. And then some of it is just
providers, which is actually the scariest part, people putting
patients at risk or doing multiple billings, multiple
surgeries.
So could you address what the FBI is doing in that regard?
And I also have a bill on this to require direct depositing or
electronic funds transfer for the Medicare payments because the
regulations have not been uniformly enforced, and to me that is
a simple no-brainer that we would have direct depositing so
that would also help us to prohibit some of this fraud.
Mr. Mueller. I can tell you at this point we have almost
2,500 cases. This year alone, we have had 490 convictions in
health care fraud cases. We have ten task forces around the
country, and we have about almost 800 persons working on health
care fraud in which 460 are special agents.
That is not enough to address the problem, and as the
health care debate goes on and if, indeed, there is a health
care bill, we would hope that there would be provisions in
there that would address this particular issue. Perhaps the one
that you just suggested would be one. And our people I know are
looking at what might come out and how we can at the outset put
into place the records and the capability of access to those
records so that we can identify the fraud schemes without
waiting for somebody to walk in the door.
Senator Klobuchar. Exactly, and I would think your input
from the agency would be very important as we go forward. I
believe this has got to be part of any kind of health care
reform bill when we are looking at those kinds of numbers and
we are trying to save money. And like I said, some of these
schemes can be really easy. We had someone that just collected
Social Security numbers at a hospital because they happened to
be in a drawer in a little stack in a rubber band. Obviously,
they have changed their procedures since then. That was just a
straight identity theft scheme using the Social Security
numbers. But there are much more complex schemes, as you know.
Mr. Mueller. Well, on a number of occasions, the Attorney
General and Secretary Sebelius have spoken out about this and
are concerned about it and have taken the opportunity to make
the point in press conferences relating to health care fraud
where there have been successful conclusions to investigations.
Senator Klobuchar. Exactly. And I know, again, how high-
cost these investigations can be, but it is my hope, when you
look at that Madoff case--which, of course, was SEC; it was not
your issue. But to have all of those whistleblowers that have
called and tried to report that and $65 billion stolen, the
costs of these investigations may be high, but the cost of not
doing anything is so much higher. So thank you on that.
The last thing I wanted to ask you about was we recently
had a hearing on the National Academy of Science report on
forensic science, and as you know, they released a report in
February on some of the changes they would like to see, some
recommendations in the forensic science area. We had a very
interesting hearing with police chiefs and prosecutors and
people from the Innocence Project there, and we actually found
some general agreement. There were clearly disputes about some
of the language in the reports that the prosecutors did not
like, but there was some general consensus on accrediting some
of these forensic science labs and some certification and also
funding for more training in this area and also taking care of
some of the backlog that we have seen across the country.
Could you comment on the FBI's view on that?
Mr. Mueller. Well, I think our view is that we absolutely
believe that accreditation is tremendously important. We have
sought it and received it. But I think that that is absolutely
essential to raising the capabilities of laboratories around
the country. Training, quite obviously, always contributes to
that. The one area in which there was some discussion, and that
is, separating the forensics laboratory from the----
Senator Klobuchar. The police.
Mr. Mueller. The police. In our case, I think it would have
a substantially detrimental effect.
Senator Klobuchar. Right. I agree.
Mr. Mueller. And you as a prosecutor----
Senator Klobuchar. I totally get that part of it. That is
why I am trying to find the consensus pieces, and there was a
consensus on the accreditation, funding, training, backlog, and
then just some of these certification issues.
Mr. Mueller. We are on that train.
Senator Klobuchar. Okay. Good. Very good. Thank you very
much, Director.
Senator Whitehouse. I think we await the return of the
Chairman from the vote. It should be very shortly. If you do
not mind, I will take an extra moment and follow up with you,
until he gets here, on the questions for the record that I
asked when you appeared before the Committee on March 25th
having to do with issues surrounding the security clearance,
background checks, the hiring process for the individuals that
the FBI needs to bring on board as it takes more and more of a
national security-oriented role, people with foreign
experience, people with foreign language capability, people who
have more national security backgrounds and so forth.
You have a very considerable security clearance process,
and I gather from the response that I have been given that you
have been able to manage quite effectively to keep the security
clearance process within the 90-day timeframe that is suggested
for trying to bring people on board, and that in driving it to
that standard, you feel you have also been able to meet
national security and clearance security requirements.
Could you comment a little bit more about what it took to
get there? Was that an easy step? And did it sort of fall
within ordinary chains? Or did you have to really press matters
to get that accomplished?
Mr. Mueller. It has impact in two areas. One is our ability
to hire any given year. We get a 1-year budget, and often we do
not get our budget because there is a continuing resolution,
and so we have a much truncated time in which to bring those
persons on board.
Our Human Resources Division is completely revamping its
procedures, and while we will not get everybody on board or
will not by September 30th, we will be by the first of the
year. Certainly with agents and analysts, we actually are above
our numbers in hiring there, and we are just a bit down on the
professional staff.
We also have looked in the context of the overarching
review that has been done by the Office of the Director of
National Intelligence as to how to restructure our security
checks for our people and have done that, and then working--I
am not certain where we are in terms of the 90-day timeframe. I
would have to get back to you on that. But I do believe that we
are working with the ODNI and the rest of the intelligence
community to fix this problem.
Senator Whitehouse. I appreciate that. The Chairman has
returned.
Chairman Leahy [presiding.] Thank you. Thank you, Senator
Whitehouse, for filling in.
We have checked with whether Senators Schumer, Cardin, or
Specter are coming back. The votes, as I think they probably
told you, Director, is a whole series of votes. But you have
been here before. You know how that sometimes works.
Mr. Mueller. Yes, sir.
Chairman Leahy. I would state, however, that we have had--
on our side of the aisle, we have had 11 Senators who have
taken part in this, 11 Democratic Senators. We have also had
the distinguished Ranking Member, Senator Sessions, and two
senior, very senior members of the Republican Party take part--
14 of us. It shows how serious we take this. I would note that
you take the question of oversight seriously. You and I talk
not just here, but we talk during the weeks and the months as
we go along.
I would note that in the spring the National Academy of
Sciences issued a comprehensive report on the need to improve
forensic sciences in the United States. The Judiciary Committee
has held two hearings on this already. I have been disturbed by
some of the things I have heard.
When I was a prosecutor, I used forensic evidence all the
time. We did not have DNA then, but we used everything else. I
know how valuable it can be both to the prosecution and the
defense, but it is valuable only if it is accurate and reliable
and if it reflects state-of-the-art and technique. I think we
have to have total confidence.
As you know and I know, there are some cases that have no
forensic evidence. But when it is there, for the interest of
justice, it has to be accurate. It has to be something both
sides can agree on.
In the 1990's, I recall the FBI faced some similar
problems. We learned the FBI laboratory was not living up to
the highest standards. Ultimately, the FBI worked with the
Congress, and we built an entirely new FBI laboratory. A
massive undertaking. I think it was about $100 million, years.
Now the FBI is at the forefront of forensic science. In
fact, one area that we see now that people agree as being
solidly reliable, DNA, actually the standards were developed by
the FBI.
What do we do with forensic programs around the country?
Some argue that we should have one national lab. Others say
that State labs can be good. And as you know, some States have
very good labs; some States do not. How do we establish
standards so, if you are trying a case in Vermont or California
or Ohio and forensic science is used, that there is some
touchstone standard, like the National Academy of Sciences
said, that we can look at and say, Okay, we know this is good?
Mr. Mueller. I do believe that accreditation is
tremendously important, and driving persons to upgrade
laboratories and shaming them into seeking accreditation. And
it is going to require the support not just of the laboratories
themselves, but it costs money to upgrade a lab. It takes money
to train the various technicians you need.
Chairman Leahy. Money and time.
Mr. Mueller. Money and time, and you need everybody to be
pushing it. Particularly, in this case, it should be the
judges, it should be the prosecutors, it should be defense
counsel, it should be the technicians themselves. And as you
have pointed out, the guilt or innocence of somebody is often
dependent on the quality of that forensic evidence, even before
DNA.
The other aspect of it is, as everything else, we need to
work together. You indicate that we established the standards
with regard to DNA. Well, we did it with a working group of
individuals from around the country, from a variety of
laboratories, so that it was not the FBI dictating; it was law
enforcement within the United States coming together with an
appropriate solution and standards. The same thing can be said
for CJIS, the Criminal Justice Information Services, where we
have a board which is made up mostly of State and local law
enforcement that we basically are the administrator, and that
works exceptionally well.
So having the money, having the push, having the
accreditation, and then having the input of a board from State
and local law enforcement are, I would say, the key components.
Chairman Leahy. And this is something really that affects
everybody in the criminal justice system. It affects the
judges, defense attorneys, prosecutors. We have talked about
this before. A prosecutor wants to make sure they have got the
right person. The worst thing is you convict the wrong person
because it means whoever committed the crime is still out there
going free, plus the obvious violation of convicting the wrong
person.
You have what I call the ``CSI factor.'' You go into court
and everybody says, ``Well, where is the DNA? '' Well, a lot of
cases do not have DNA. Or, ``Where are the fingerprints? '' A
lot of cases do not have fingerprints. ``Where is the
ballistics? '' A lot of cases do not have it.
But when it is there, it ought to be something where--the
argument is we all agree on--I mean, agree on the finding;
otherwise, I think we are going to be in for some real
difficulty, especially with some of the court cases that come
down about requiring the testimony of the person who actually
did it. That could be almost impossible, and I know your
laboratory helps local law enforcement all around the country,
and that could create a real problem.
Let me ask you another thing while the staff is checking if
there are others coming back. We saw the murder of Marcello
Lucero, an Ecuadorian immigrant, brutally killed in Long
Island, and we have seen other such crimes against Latinos and
immigrants. The Southern Poverty Law Center showed that FBI
statistics suggest a 40-percent rise in anti-Latino hate crimes
across the Nation between 2000 and 2007.
What is happening here, and what steps are being taken? I
think both of us abhor hate crimes of any sort, whether they
are against Latinos, blacks, people because of their gender or
sexual identification. But is there an increase in Latino
immigrant hate crimes?
Mr. Mueller. I had not been aware of that. I will have to
go and check on that. But whenever we get allegations in that
regard, in consultation and in conjunction with the Department
of Justice to determine the applicability of our jurisdiction,
we thoroughly investigate and try and convict. I will have to
get back to you on that increase. I had not recognized that. I
know we have a problem with reporting of hate crimes because
some believe it is a somewhat nebulous category. Some are
unwilling to put it into that category, and our statistics, as
I say, are dependent on State and local law enforcement
providing that information.
We have in the last couple of years, when we have our
meetings with regard to the information that is provided to
CJIS, focused on that particular issue in order to encourage
State and local law enforcement to spend more time and enable
us to have accurate statistics in that regard.
Chairman Leahy. Well, the late Senator Kennedy had espoused
hate crime legislation, and I am proud to follow his lead in
doing that. We have legislation pending that would increase the
tools for Federal investigators, but also to State and local
law enforcement to deal with hate crimes. We know this happens.
We saw the murder of a guard at the Holocaust Museum, and your
Department was involved, something that all of us found as
shocking, I think, as you might see. Do you think if we pass a
bill we might be able to help law enforcement curb the trend of
crimes on ethnicity or race or sexual orientation or bias?
Would that help us?
Mr. Mueller. I would have to take a look at it, but it
might well.
Chairman Leahy. Thank you.
I see Senator Schumer here. I yield to Senator Schumer. You
voted, I take it.
Senator Schumer. I did. Thank you, Mr. Chairman. First, let
me thank you. I know you asked many more questions than you
thought you would, and you are a good friend, a great leader,
and a wonderful Chairman, so thank you for doing that. And I
hope the questions, Mr. Director, were not too difficult that I
caused to be asked.
Anyway, I have a bunch of questions. The first relates, of
course, to what happened in New York a few days ago. We marked
the eighth anniversary of our terrorist attacks, the 9/11
attacks, last Friday in solemn ceremonies, seeing the families
still wearing the pictures of the people they lost. And we
marked this day with remembrance, but also rededication to the
country's national security.
As I have said publicly, I think the FBI does a very good
job and is light years better than they were on 9/10/2001. And
a lot of that is to your credit, Mr. Director, and the men and
women who work for you, the thousands and thousands who do it.
In New York, we have a very good task force.
Now, my question is just, you know, this recent report put
New Yorkers on edge. It came at a time right after 9/11. There
are all sorts of rumors flying around, so I just want to ask
you a question, and I know that this is an ongoing
investigation. Not much can be said of it in public, nor should
it, so that the investigation is not compromised.
However, here is the one question I have. Could you assure
New Yorkers and the American public that the situation is under
sufficient control and there is no imminent danger to their
safety?
Mr. Mueller. I can say that I do not believe there is
imminent danger from that particular investigation, from what I
know of that particular investigation.
Senator Schumer. Okay. I think we will leave it at that. I
want to urge you to continue the Joint Terrorism Task Forces, a
very successful enterprise, and I would urge continued
cooperation. I intend to visit it shortly. They invited me to
come, and I will be there.
Mr. Mueller. Let me also put in and say without any
reservation that our relationships with NYPD in this and other
investigations could not be better, and that New Yorkers are
well benefited by the work of NYPD and Ray Kelly in making the
city safe. And in situations where there are investigations
being conducted, we have a very good working relationship and
will continue that relationship.
Senator Schumer. Good. Glad to hear it. I know it to be the
case, and thank you for saying it.
The next question relates to the terror alerts. As you
know, Tom Ridge, the former Secretary of the Department of
Homeland Security, recently wrote a book. It was entitled ``The
Test of our Times.'' The book reveals how some, including
former Attorney General Ashcroft, former Secretary of Defense
Rumsfeld, he said, pressured him to elevate the national
security threat just days before the 2004 election in what he
suspected was an effort to influence the election. That is his
characterization, not mine. Furthermore, he stated you were on
his side against raising the terrorist level.
Could you please provide us with what you know happened
then? Is it true that you were against raising the alert level?
Mr. Mueller. I cannot speak to the particular incident that
is recounted in Tom Ridge's book. What I can say is I do
believe throughout the years that we have been dealing with
terrorist attacks that any person sitting at the table was
interested in doing the right thing, not for political reasons.
Each one sitting at the table when these decisions were made
understands the decision may well relate to whether a person
lives or dies as a result of a terrorist attack. And I did not
see political considerations in those discussions.
Senator Schumer. Those specific discussions.
Mr. Mueller. Throughout.
Senator Schumer. Thank you. The next question relates to
the security of FBI data bases and cyber security experts. The
administration released a new National Intelligence Strategy
yesterday, and it designated cyber security as a new top
priority for the intelligence community. That makes a great
deal of sense. You told the Committee this morning how
important this area is and how important it is to hire
appropriate experts.
A report issued by a private consulting firm, Booz Allen,
this summer highlighted numerous continuing problems our
Government has in hiring enough capable cyber security experts,
and you cannot do this work without highly qualified personnel.
So, first question: Does the FBI have sufficient experts to
meet the Nation's growing cyber security needs? And, similarly,
is the FBI expanding its efforts to recruit and retain such
experts?
Mr. Mueller. Yes, in the wake of September 11th, we changed
the definition of our hiring needs, and cyber capabilities was
one of those areas that we immediately focused on. And since
then, we have brought in any number of persons who were program
analysts, software developers, all range of cyber expertise in
that particular category, are still recruiting for that
category. It is a--what do I want to say? It is one of the
categories that we understand is absolutely essential to get
the right people in it and one that is going to expand.
The other aspect that I do believe that is tremendously
important is we have a cyber task force that is relatively
large. That includes personnel from any number of agencies so
that we tap in not only to the expertise of the FBI, but also
the expertise of the intelligence community, the military, and
others.
Senator Schumer. Are you having, though, some difficulties
in finding enough cyber security experts?
Mr. Mueller. No.
Senator Schumer. No?
Mr. Mueller. No.
Senator Schumer. Good. I am going to ask the GAO to conduct
a report on the hiring of cyber security experts, not just in
the FBI but in other parts of the Government as well, so we can
comprehensively identify any systemic deficiencies and work
together to keep our intelligence agencies fully and
appropriately staffed.
Chairman Leahy. Is that it?
Senator Schumer. That is it.
Chairman Leahy. Thank you.
Director, we are now several minutes into a 10-minute roll
call vote. I will recess the hearing now, again with thanks to
you. I appreciate, as I said before, that you have always been
available when I have had questions, and I appreciate your
testimony here today. We share a common interest in law
enforcement--look forward that we can be proud of. Again, I
compliment you for your speech on the anniversary, on the FBI's
anniversary.
Mr. Mueller. Thank you.
Chairman Leahy. We stand in recess.
[Whereupon, at 12:10 p.m., the Committee was adjourned.]
[Questions and answers and submission follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]