[Senate Hearing 112-405]
[From the U.S. Government Publishing Office]
S. Hrg. 112-405
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
DECEMBER 14, 2011
__________
Serial No. J-112-57
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
prepared statement........................................... 70
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 80
WITNESSES
Mueller, Robert S., III., Director, Federal Bureau of
Investigation, U.S. Department of Justice, Washington, DC,..... 5
QUESTIONS AND ANSWERS
Responses of Robert S. Mueller III to questions submitted by
Senators Feinstein, Schumer, Franken, Grassley, Kyl, Sesions
and Coburn..................................................... 35
SUBMISSIONS FOR THE RECORD
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa:
Eric H. Holder and Robert S. Mueller, III, August 31, 2011,
letter..................................................... 74
Eric H. Holder, October 5, 2011, letter...................... 76
Eric H. Holder, November 14, 2011, letter.................... 77
Mueller, Robert S., III., Director, Federal Bureau of
Investigation, U.S. Department of Justice, Washington, DC,
statement...................................................... 82
Weich, Ronald, Assistant Attorney General, Department of Justice,
Washington, DC:
Senator Grassley, August 8, 2011, letter..................... 93
Senator Grassley, September 23, 2011, letter................. 94
Senator Grassley, November 30, 2011, letter.................. 97
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
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WEDNESDAY, DECEMBER 14, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Whitehouse,
Klobuchar, Franken, Coons, Blumenthal, Grassley, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. You can tell, Director, this is an
important hearing because you have the A Team of photographers
here. You have all the absolute best on the Hill. There used to
be one other very good photographer here on the Hill, but he
left to go to work for the President. But I do get to see him
now and then.
Today the Judiciary Committee will hear from Director
Robert Mueller of the Federal Bureau of Investigation. I want
to thank the Director once again for agreeing to put his life
on hold when called upon by the President earlier this year to
continue to serve for another 2 years as FBI Director. His
commitment and dedication to service are exemplary, and as I
said the last time when I mentioned this, I also want to thank
Mrs. Mueller. She is a wonderful person, and I know that she
also is willing to put a lot of her life on hold for that. So I
hope you will pass on my compliments to her.
Mr. Mueller. I will, Mr. Chairman, and thank you for that.
Chairman Leahy. Now, the Bureau plays an integral role in
protecting our Nation's security through its counterterrorism
investigations and intelligence gathering. Its work has
contributed to more than 400 convictions in terrorism cases
since September 11, 2011. Knowing this, I remain deeply
concerned about a provision of the national defense
authorization bill that would mandate--and I stress the word
``mandate''--as the Chair of the Senate Intelligence Committee
knows, the military detention of certain terrorism suspects,
even if they are arrested on U.S. soil.
Director Mueller has written that this provision would
adversely impact the Bureau's ability to conduct
counterterrorism investigations and inject ``a substantial
element of uncertainty'' into its operations. I appreciate what
Director Mueller meant when he wrote that the misguided
provision fails to take into account ``the reality of a
counterterrorism investigation,'' especially the successful
convictions that we have gotten in our Federal courts.
Now, Congress needs to do more to support important law
enforcement efforts. We should give law enforcement the
appropriate tools to combat the growing threat of cyber crime,
something Senator Coons mentioned in the other room. More and
more, American consumers and businesses are being targeted by
sophisticated cyber attacks designed to steal their most
sensitive information.
I met with the CEO of one of our largest companies the
other day, and he told me all the steps they have taken, the
millions of dollars they have to spend, just to defend against
cyber attacks, a lot of it coming from foreign countries,
competitors, and elsewhere.
In September, this Committee again voted for the Personal
Data Privacy and Security Act. It is long overdue legislation
that will provide tools to help law enforcement combat cyber
crime. And the Senate and the House should promptly pass this
measure.
In the last Congress, we made great strides toward more
effective fraud prevention. I worked hard with Senators on both
sides of the aisle to craft and pass the Fraud Enforcement and
Recovery Act, the most expansive anti-fraud legislation in more
than a decade. We enacted important anti-fraud provisions as
well, as part of both health care and Wall Street reform
legislation. And I am pleased to see that the FBI has greatly
increased the number of agents investigating fraud, leading to
more fraud arrests and greater fraud recoveries.
This year, I introduced the Fighting Fraud to Protect
Taxpayers Act, which redirects a portion of the fines and
penalties collected from wrongdoers back into fraud enforcement
efforts. And the bill would lead to substantial recoveries,
paying for itself many times over. This Committee voted for the
bill more than 6 months ago. It is time for the Senate and the
House to pass this bill without further delay to give law
enforcement the resources and tools they need to crack down on
fraud. We will say we are opposed to fraud, but we have got to
give law enforcement the tools to fight it.
I commend the FBI for maintaining its historic focus on
combating corruption. I have worked to develop bipartisan,
bicameral anti-corruption legislation, the Public Corruption
Prosecution Improvements Act. I have also worked on the
Civilian Extraterritorial Jurisdiction Act, which would hold
accountable American contractors and employees abroad who
engage in corruption and contracting fraud, especially when it
hurts taxpayers in this country.
At a time when anger at corporate wrongdoing, greed, and
corruption is at an all-time high--and I might say anger at
Congress--Congress should act promptly to give the FBI and
other Federal law enforcement the tools they need to rein in
fraud and corruption. And we should not let partisanship get in
the way of this.
Too often these days, whether it is Senator Whitehouse's
bill to make sure the FBI can respond to requests from local
officials to provide help in investigating violent crime, or
Senator Blumenthal's bill to close a gap in the law with
respect to the authority of the Secret Service, or our bill to
ensure that the U.S. Marshals upon request can provide timely
assistance in missing children cases, these seem to be delayed
for no good purpose.
I wish we all respected our law enforcement and national
security agencies more. I wish we would give them the support
they need and deserve. We hear a lot of tearing down of our law
enforcement. We should be building them up and giving them the
tools they need.
I thank the Director for returning to the Committee, and
through him I thank the hard-working men and women of the FBI.
I know many of them--not all by any means--but I know they do
vital work every day to keep us safe. And, Director, please
give my compliments to the men and women of the FBI.
Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, Mr. Chairman, for this very
important hearing, and I wanted to inform you that I was not
supposed to be here until 10:30 because I was supposed to be on
the floor, and when I got over there, they said it would not
start until 10:25. So I have to come back here and give my
statement. Then I will go back over there, and I will come back
for questions.
Chairman Leahy. In fact, if I might, I told the Director
when the first vote starts, I will stay until almost the end of
it and then go over. We will keep the hearing going, and
Senators can go over and vote and come back, and we will keep
it going.
Go ahead.
Senator Grassley. And, obviously, Mr. Mueller, you know
there are some questions I want to ask you.
It has been 5 months since Congress passed and President
Obama signed into law an unprecedented 2-year extension of
Director Mueller's term as Director of the FBI. Given the
historical problems with FBI amassing power, the President's
request to extend Director Mueller's term for an additional 2
years, breaking from our 35-year practice of limiting the
Director to a 10-year term, it was not a decision that I took
lightly. Ultimately, given the President's failure to nominate
a replacement timely and in a responsible manner, I agreed to
the request to provide this historic extension.
I am pleased that Chairman Leahy and members of the
Committee agreed with me and moved the extension through
regular order, including a hearing, an executive markup, floor
consideration, a new nomination from the President, along with
a final confirmation vote. This process sets the historic
record that extending a Director's term was not a fly by-night
decision. It also puts the President on notice to begin the
process of selecting and nominating a new FBI Director earlier
than the last attempt. Another extension will not occur.
That said, I want to welcome Director Mueller to this day's
hearing. His tenure as FBI Director has been a very good one,
and his dedication and reputation were significant factors in
his 100-0 confirmation vote in July. I am sure that when his 2-
year extension runs, he will be looking for the transition,
helping other people transition to office, and a well-earned
change of lifestyle.
First I want to discuss a perpetual problem at the FBI:
whistleblower protection. Director Mueller has repeatedly
assured me that he will not tolerate retaliation against
whistleblowers at the FBI. Despite these assurances, two
particular whistleblower cases have been dragging on for years.
These cases are largely fueled by the FBI's desire to continue
to appeal rulings and findings of wrongdoing by FBI
supervisors. FBI Agent Jane Turner filed a whistleblower
complaint in 2002 when she discovered FBI agents were removing
items from Ground Zero following 9/11. She faced retaliation
for raising concerns about these agents, and her case has been
stuck in administrative limbo at the Justice Department for
over 9 years. Nine years is far too long for any case to be
resolved, especially a whistleblower case.
Another case, that of Robert Kobus, a 30-year non-agent
employee of the FBI who disclosed time and attendance fraud,
has languished for over 5 years. Again, the FBI has continued
to appeal this case despite clear findings of retaliation.
I wrote to Holder last month about these issues. The
response was lackluster. If the Attorney General, the Deputy
Attorney General, and the FBI Director truly wished to help
whistleblowers, they have the power to end years of appeals. In
other words, you do not have to appeal. And there may be
reasons other than just money that you are appealing because
maybe you hope these people die and go away. I do not think
they are going to.
I also want to discuss some issues that have recently
arisen as a follow-up the FBI's closing the Amerithrax
investigation. The Justice Department recently settled a death
lawsuit in Florida for $2.5 million. The lawsuit raised
questions in the press given the potentially conflicting
statements made by the Justice Department that seemed to cast
doubts on Dr. Ivins' ability to actually manufacture anthrax.
Ultimately the Department filed a supplemental brief correcting
statements that seemed to cast doubt upon the FBI's case but
did not seek to refute the depositions of Dr. Ivins' co-
workers.
I wrote to the Attorney General and FBI Director in August
asking how the Department's filings and depositions could be
squared against the FBI's contention that Dr. Ivins was the
sole assailant. While the Department attempts to thread the
needle about the Government's liability, the fact remains that
the Government ended up paying $2.5 million to settle the case
and cast a further cloud on the FBI's assertion that Dr. Ivins
was the sole perpetrator.
I am also concerned about two other issues arising out of
the anthrax investigation. First, in responding to press
accounts questioning the Government's case against Dr. Ivins,
the FBI and the Department of Justice both allowed line agents
and attorneys to be interviewed on national television.
Now, pay attention to this because this is another
inconsistency between Congressional oversight and what the FBI
and the Justice Department is willing to do for other people
under other circumstances.
Despite this full and public access to the press that they
have given FBI agents on national television, the Department
has denied access to line agents as part of our investigation
into ATF's Operation Fast and Furious. Now, how do you square
that inconsistency? So I want to know from Director Mueller why
he allows line agents to provide detailed interviews to the
press on national television but repeatedly refuses to let the
Congress and their staff interview line agents and attorneys?
Second, I want to know why the Department of Justice has
declined to prosecute the individuals that leaked information
about the investigation of Dr. Steven Hatfill. That leak cost
the American taxpayers nearly $6 million in a civil settlement
for Privacy Act violations. The American people who picked up
the tab for this leak deserve to know the names of the FBI or
DOJ employees involved, why they were not prosecuted, and
whether they faced any administrative punishment.
I would also like to note that today is the 1-year
anniversary of the shooting of Brian Terry. My investigation
into ATF's failed Operation Fast and Furious continues. I sent
Director Mueller a letter dated October 20, 2011, asking some
questions about the FBI's investigation of the murder of Agent
Terry. I have not received a response, but I have talked to
Director Mueller. He has been very good to come to my office
and discuss these cases. I would like a commitment from
Director Mueller that my letter will be answered in writing.
The Terry family deserves answers about Agent Terry's murder,
and answering my letter is another step toward getting those
answers.
If we have time during these rounds of investigation, I
would like to ask the Director about his involvement in
drafting of a memorandum that was reported in the press
regarding the targeted killing of al-Awlaki, the potential
transfer of known enemy combatant Daqduq from U.S. military
custody to Iraq, the FBI's involvement in the investigation of
mortgage fraud at Countrywide Financial, and the alleged cozy
relationship between mobster Mark Rossetti and the Boston FBI.
Thank you very much, Mr. Chairman.
Chairman Leahy. With that cheerful welcome, Mr. Director,
will you please stand and raise your right hand? Do you
solemnly swear that the testimony you will give will be the
truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Mueller. I do.
Chairman Leahy. Go ahead, please, sir.
STATEMENT OF HON. ROBERT S. MUELLER III, DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Mueller. Thank you. Good morning, Chairman Leahy,
Ranking Member Grassley, other members of the Committee.
Chairman Leahy. Is your microphone on?
Mr. Mueller. I am sorry. Let me start again. My apologies.
Good morning, Chairman Leahy, Ranking Member Grassley, other
members of the Committee, and thank you for the opportunity to
appear today before the Committee and discuss your concerns. I
also want to thank you for your continued support of the men
and women of the FBI.
Three months ago, our Nation marked the tenth anniversary
of the September 11th attacks. The horrific events of that day
were the prelude to a decade of political, economic, and
cultural transformation, and globalization and technology have
accelerated these changes. And since that time, there have been
significant changes in political leadership across the world,
including the recent events in Libya and Egypt. And in the
economic arena, the past decade has seen billion-dollar
investment frauds, the failure of storied financial
institutions, and the abuse of financial products which have
undermined the world's financial system. There has also been an
exponential expansion in the development of new technologies,
and these advancements have changed the way we work, the way we
socialize, and the way we communicate with each other.
These changes in the global landscape have posed
significant challenges to the FBI and our partners in the
intelligence community and in the law enforcement community.
Accelerated by these changes, the threats to our Nation are
constantly evolving, and today's FBI now faces an ever changing
threat environment.
Let me begin with the terrorist threat. During the past
decade, we have weakened al Qaeda. Due to the coordinated
efforts of our military, the intelligence community, law
enforcement, and our international partners, we have captured
or killed many al Qaeda leaders and operatives, including Osama
bin Laden and Anwar al-Awlaki, and we have uncovered dozens of
cells and prevented numerous attacks.
Yet core al Qaeda operating out of Pakistan remains
committed to high-profile attacks against the West. This was
confirmed from the records we seized from bin Laden's compound
upon his death. And meanwhile al Qaeda affiliates have emerged
as significant threats. Al Qaeda in the Arabian Peninsula,
operating in Yemen, has attempted several attacks on the United
States, including the failed Christmas Day airline bombing in
2009 and the attempted bombing of U.S.-bound cargo planes in
October of 2010.
Most recently, we have a growing concern about the threat
from homegrown violent extremists. These individuals have no
typical profile. Their experiences and motives are often
distinct, but they are increasingly savvy and willing to act
alone, which makes them increasingly difficult to find and to
stop.
We must as an organization, working with our counterparts,
keep adapting to these changing terrorist threats, staying one
step ahead of those who would do us harm. And we must do all of
this while respecting the rule of law and the safeguards
guaranteed by the Constitution.
Let me turn for a moment from terrorists to spies. Many
people assumed the end of the cold war made the world of cloak
and dagger obsolete. Unfortunately, espionage is still very
much with us. Nations will always try to learn one another's
secrets to gain political, military, or economic advantage.
Indeed, the foreign intelligence presence operating in the
United States is roughly the same as it was during the cold
war. And apart from the more traditional types of espionage,
today's spies, just as often students, researchers, business
people, are operators of front companies, and they seek not
only state secrets but trade secrets from corporations and
universities, such as research and development, intellectual
property, and insider information.
Turning to the growing cyber threat, the anonymity of the
Internet makes it difficult to discern the identity, the
motives, and the location of an intruder, and the proliferation
of portable devices that connect to the Internet only increases
the opportunity to steal vital information. The number and
sophistication of computer intrusions have increased
dramatically in recent years. American companies are losing
billions of dollars' worth of intellectual property, research
and development, and trade secrets. Outside attackers burrow
into company networks and remain undiscovered for months or
even years. And we must also consider that hostile nations or
terrorist groups could launch cyber attacks against our
critical infrastructure.
To combat these threats, the FBI has cyber squads in each
of our 56 field offices and more than 1,000 specially trained
agents, analysts, and forensic examiners that run complex
undercover investigations and examine digital evidence.
The FBI leads the National Cyber Investigative Joint Task
Force that brings together numerous partners from the
intelligence community and other Federal agencies to identify
and disrupt significant cyber threats. These efforts have led
to successful disruptions of large-scale illegal botnets and
transnational hacking schemes involving in some cases millions
of computers and millions of dollars.
We also face threats from sophisticated financial crimes as
well as health care and mortgage frauds. The FBI and law
enforcement partners continue to uncover major frauds, insider
trading activity, and Ponzi schemes. At the end of fiscal year
2011, the FBI had more than 2,500 active corporate and
securities fraud investigations, a 47-percent increase since
2008. Over the past 3 years, the FBI has obtained approximately
$23.5 billion in recoveries, fines, and restitutions in such
programs. And during fiscal year 2011, the FBI obtained 611
convictions, a historic high.
The focus on health care and mortgage fraud is no less
important. In 2011, the FBI had approximately 2,600 health care
fraud investigations and roughly 3,000 pending mortgage fraud
investigations with nearly 70 percent involving losses of more
than $1 million.
Let me just add that public corruption remains among the
FBI's highest priorities, particularly along the southwest
border. The FBI continues to dedicate resources to 13 Border
Corruption Task Forces focused on disrupting the efforts of
Mexican drug organizations to corrupt U.S. public officials.
Finally, the FBI continues to work hard to protect our
communities from the longstanding threats from gangs and
violent crime. We have more than 150 Safe Streets and Safe
Trails Task Forces across the country. We target high-level
violent enterprises and senior gang leadership to yield the
greatest impact prosecutions.
Nor have we forgotten the children. We remain vigilant in
our efforts to remove predators from our communities and to
help keep our children safe. And we have ready response teams
stationed across the country to quickly respond to child
abductions.
Now, regardless of the complexity and the evolving nature
of modern threats, the rule of law will remain the FBI's
guiding principle, as will the protection of privacy and civil
liberties for the American people.
Chairman Leahy and Ranking Member Grassley, let me conclude
by thanking you and the Committee for your continued support of
the FBI and its mission. Of course, I would be happy to answer
any questions you might have.
[The prepared statement of Mr. Mueller appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much. I am sure that
other Senators are probably going to ask you about Fast and
Furious, which was not my No. 1 choice to ask, but I have been
reading so much about allegations and conspiracy theories that
have been aired by some Congressional Republicans, I thought I
would ask you a couple questions.
Congressman Issa went on national television and suggested
the FBI engaged in a coverup of the crime scene at which
Immigration and Customs Enforcement Agent Brian Terry was
killed and is continuing a coverup. He suggested that there was
a third gun recovered at the crime scene, even that it was the
murder weapon, and that the FBI was intentionally covering it
up. I believe I know the answer to this, but what are the facts
with respect to whether there was a third gun recovered at the
scene of the crime, as Chairman Issa suggested?
Mr. Mueller. Well, let me start with adamantly rejecting
the suggestion that the FBI would in any way cover up what
happened in the tragic killing of Brian Terry. To the contrary,
every available and necessary resource has been put on that and
similar investigations where we lose one of our own.
I am familiar with the suggestion that there was a third
gun at the scene. There was no third weapon found at the scene.
There were two weapons that were found at the scene, not a
third. Why there were suggestions as to a third, I am still not
certain. It may well be that the two weapons that were found
were designated K-2 and K-3 because there was a K-1 that was
not a weapon. But the fact of the matter is there were only two
weapons found at the scene.
Chairman Leahy. Also, the Congressman said the FBI is not
looking for the killer of Brian Terry. How would you respond?
Mr. Mueller. Again, to the contrary, there has been one
arrest. There is an ongoing investigation. Documents have been
filed that are under seal, and there is an ongoing, strong
investigation. And we will bring to justice those persons who
are in any way involved in the killing of Officer Brian Terry.
Chairman Leahy. I ask the question only to clear the air,
and obviously any one of us who have been involved in crime
investigations knows that the less you talk about the steps you
are taking, the more effective it is going to be. But I did
want those allegations out there. Knowing the answers to them,
I thought it would be a good chance for you to be able to state
publicly the answer you did, and I thank you.
Now, protecting American consumers and businesses from
cyber crime has been a priority of the Committee for many
years, and recently the FBI issued a warning about a new
phishing scheme in which cyber criminals are stealing American
consumers' bank account information. At the same time they are
launching denial-of-service attacks on U.S. banks to conceal
these crimes. It is not like the old days where somebody would
come with a gun into a bank, steal a few thousand dollars, and
usually get found quickly thereafter. A study released by the
Symantec Corporation estimates the cost of cyber crime globally
is $114 billion a year.
In September, the Judiciary Committee favorably reported
legislation that would provide new tools to the Justice
Department to combat the growing threat of cyber crime,
including a provision that would amend the criminal code to add
to violations of the Computer Fraud and Abuse Act the
definition of ``racketeering'' to make it easier for the
Justice Department to go after such cyber crime.
So I will ask you first how concerned you are about the
growing threat of cyber crime. And would my proposal help the
FBI investigate organized crime and cyber crime?
Mr. Mueller. As I have indicated in my remarks, both my
remarks here today but also the longer statement that I
submitted, cyber crime is going to be one of the top priorities
of the FBI in the future for the very reasons that you
articulated and the amount, the numbers of dollars that are
lost in a variety of ways. But perhaps a more immediate concern
is the possibility of people using cyber skills to attack our
National security, whether interfering with the electrical
grids or the energy and the like. We have seen around the world
countries willing to utilize the cyber battlefield before they
launch attacks.
And so for us in the FBI, we have a long-range plan to
buildup our cyber capabilities. We have since 2001 roughly
doubled the number of personnel that we have on this particular
priority. And we have used some innovative ways to address
cyber criminals using both the criminal authorities as well as
the civil authorities. Making cyber offenses the predicate
offenses for racketeering, a racketeering charge, would be
helpful--would be both appropriate as well as helpful. And so I
believe--I have not had a chance to discuss it with the
Department, but my expectation is that the Department would be
supportive, as would we.
Chairman Leahy. It is a long way from the Bonnie and Clyde
or Willie Sutton days. You can have a career criminal a few
decades ago who might have spent years robbing banks, while the
same thing can be done now in a nanosecond.
Mr. Mueller. And the persons will not be in the city where
you are located or the county or the State or even the country.
They can be in Turkey or Morocco or Romania or Bulgaria or
Estonia or Singapore. And, consequently, the change for us is
that we have to develop the relationships to be able to conduct
these investigations worldwide if we are at all to be
successful in addressing cyber crime.
Chairman Leahy. I recently introduced a bipartisan Violence
Against Women Reauthorization Act of 2011. I worked with
Senators Crapo and Kirk and many Senators on this Committee. I
know the FBI is currently working to update the definition of
rape for the Uniform Crime Report. Why is that important to
update that?
Mr. Mueller. That definition was in some ways unworkable,
certainly not fully applicable to the types of crimes that it
should cover. And as I think you are aware, the Advisory
Committee for NCIC, in developing the statistics, approved a
change to that definition, and my expectation is it will go
into effect sometime this spring.
Chairman Leahy. Thank you. Last, Senator Grassley and I
worked together in this Congress on the Fighting Fraud to
Protect Taxpayers Act to give the Department of Justice and the
FBI additional resources to investigate fraud cases at no cost
to taxpayers. It is a good investment. The Vice President
announced this week in 2011 the Department of Justice recovered
$5.6 billion in fines, penalties, and recoveries from fraud
cases, $15 billion since the start of this administration. That
is a lot more than it cost to investigate and prosecute them.
If we can pass the bill that Senator Grassley and I have
introduced--it is now stalled in the Senate even though it
saves taxpayers money--I suspect we will recover even more.
Would the American people benefit--and I realize this is kind
of a leading question--but would the American people benefit if
the FBI could hire more fraud investigators because of
increased resources to target fraud if the Fighting Fraud to
Protect Taxpayers Act becomes law? Feel free to answer that any
way you want.
Mr. Mueller. Well, the obvious answer to that leading
question is yes.
[Laughter.]
Mr. Mueller. But whenever it comes to the budget issues and
discussions, we have got to prioritize. Certainly white-collar
crime in particular, large-scale white-collar crime is one of
our substantial priorities.
Chairman Leahy. Thank you.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman, and I appreciate
the FBI. I had the honor to work with them 15 years as a
Federal prosecutor. I believe they represent the very finest in
American law enforcement, maybe the finest, you would think, I
am sure, and I share the view they are perhaps the finest law
enforcement agency in the world ever seen. They are highly
paid. We have increased the numbers. We have provided them
technical support and training the likes of which few agencies
in the world can match, and certainly not in the numbers that
we have seen before.
So we expect a lot out of the FBI, and I believe your
background as a prosecutor and having worked with the FBI for
many, many years provided you the kind of experience necessary
to be a good Director.
I would just say with regard to your letter of November
24th on mandatory military detention, I thought you overstated
the case but raised some points of importance. The legislation
in conference was altered. It is clear to me--let me just say
this: I am absolutely convinced that the right policy is to
presume that combatants against the United States will be held
in military custody, but I absolutely believe the FBI should
participate in those investigations. So we added language that
said, ``Nothing in this section shall be construed to affect
the existing criminal enforcement and national security
authorities of the FBI with regard to a covered person,
regardless of whether such covered person is held in military
custody.''
Does that answer at least some of the concerns you have to
make clear that the FBI might continue to participate in
investigations in which your ability and skills would play an
important role?
Mr. Mueller. Senator, you might understand that I would
disagree on the characterization that I overstated it. I would
say that I stated it appropriately in that letter, my concerns
with regard to the NDAA. And there were two basic concerns.
The first was the adverse impact on our authorities or the
lack of clarity with regard to our authorities. And the
language that was developed goes a long way to resolving that
particular issue, and it tends to assure us that our
authorities will be maintained.
The other concern I voice in the letter is the uncertainty
that the statute raises with regard to what happens at the time
of arrest, and as I know you know, having been a prosecutor, it
is tremendously important at the time of arrest that you make
the right decisions in terms of addressing the person,
particularly persons whom you hope to cooperate, not just
interrogate but to cooperate and turn around on others. And the
statute lacks clarity with regard to what happens at the time
of arrest. It lacks clarity with regard to what happens if we
had a case in Lackawanna, New York, and an arrest has to be
made there and there is no military within several hundred
miles. What happens if we have a case that we are investigating
on three individuals, two of whom are American citizens and
would not go to military custody and the third is not an
American citizen and could go to military custody?
Now, in my discussions with others, I understand the answer
to be, well, the President can waive this provision; or,
second, procedures are going to be developed that will satisfy
that uncertainty. And my continuing concern is that that
uncertainty will be there until it is resolved in some way, by
statute or otherwise.
If I may just add one other point--actually, two points. I
am as interested as anybody in developing intelligence to
prevent attacks because if there is an attack, the person they
are going to look to sits here. What I am concerned about,
however, is long term as well. This statute that gives the
military an inroad to making detentions in the United States
may be applicable and work well with the persons you have now.
But 5 years or 10 years down the road, what could this mean?
And so while the changes in the statute have addressed some
of my concerns, the changes have not--and I appreciate it--they
have not addressed all of my concerns.
Senator Sessions. We disagree. To me, there is no rational
argument that can be made that would suggest the United States
is not in a better legal position to treat an al Qaeda member
arrested in the United States as they are, a military
combatant, with the full ability of the FBI to participate in
the investigation. Giving Miranda warnings, presenting them to
courts in very short order, providing them with lawyers within
hours of arrest, allowing them to make phone calls to their co-
conspirators that civil law prosecution requires is not helpful
in a war. So that is where we disagree, and I will go to the
next question.
Mr. Mueller. May I just clarify one thing?
Senator Sessions. All right.
Mr. Mueller. What I have focused on is what happens at the
time of arrest, and----
Senator Sessions. Well, listen, you need to work this out
with the Department of Defense, don't you----
Chairman Leahy. Let him answer the----
Senator Sessions. Well, I want to--my time is about up.
Mr. Mueller. I just want to say that the focus----
Senator Sessions. I let him talk.
Mr. Mueller. I just wanted to make certain that you
understand that my focus is on the uncertainty that happens
during that period of time, at and about the time of arrest,
and what happens afterwards, particularly when we have been
successful getting people to cooperate.
Senator Sessions. Yes, I certainly agree. I think that is
what the purpose of this was, presumptively treat them as a
military detainee and then to have memorandums of understanding
or cross-designations that would allow full participation. But
maybe this language will help you there. I appreciate you
sharing that.
With regard to the Chairman's talks about fraud and
prosecutions, I got to tell you, I am disappointed in the
decline of those prosecutions. This chart shows some of the
cases and their declines. We have had some progress in some of
the cases, but bank embezzlement went from 230 in 2006 to 130.
Financial institution embezzlement went from 31 to 17.
Financial institution fraud went from 752 to 570. Bankruptcy
fraud stayed about flat. Bank robbery prosecutions down
significantly. In a time when the American people are concerned
about the financial integrity of some of the businesses that
are failing--and it does appear many of them have had
wrongdoing as a part of that--are you concerned that we are not
adequately addressing it? And I would note--and I will ask you
maybe in written questions--that your numbers look a lot
better. But to me, I have always felt the Administrative Office
of the Court's numbers represent a more accurate number than
agency numbers. So your numbers do look better than that, but I
think these are the ones that represent people actually charged
and actually convicted.
Mr. Mueller. Let me just respond to the last, because we
want to correlate those numbers. We in no way wish to fudge the
numbers, and you will see in a number of categories the numbers
going down, particularly since 2001 because we had to
prioritize.
Senator Sessions. Well, this is from 2006 to 2011.
Mr. Mueller. And I will tell you there is not an FBI agent
who joined in the last 15 to 20 years who does not love doing
bank robberies. But the fact of the matter is we cannot afford
to do the same number of bank robberies and embezzlements that
we have done in the past because of the demands of terrorism,
gangs, cyber, cyber intrusions----
Senator Sessions. Well, bank robberies--I understand the
argument. That has been going on for 25 years----
Chairman Leahy. The Senator's time has----
Senator Sessions [continuing]. But the other ones are
more----
Chairman Leahy. The Senator's time has expired, and as I
said earlier, I am glad to see the Department of Justice has
recovered $5.6 billion this year alone through fines,
penalties, and recoveries, $15 billion so far in this
administration.
Senator Kohl.
Senator Kohl. Thank you very much, Mr. Chairman.
Director Mueller, the FBI has proposed closing three of its
six Wisconsin satellite offices. If these closures go through,
the Western District of Wisconsin will be especially hard hit
and will lose half of its FBI offices. As I told General Holder
and I wrote to you last month, I have strong objections to
these closures. You have indicated that Wisconsin will not lose
agents or resources, so this clearly is not a simple cost-
saving issue, and we think it is a bad idea to close these
offices.
As I have heard from law enforcement throughout the Western
District in Wisconsin, FBI presence in these semi-rural areas
is critical to maintaining long-term partnerships that protect
Wisconsinites from criminal and terrorism threats.
Now, you have long emphasized to our Committee the
importance of the FBI's coordination with local law
enforcement, and you have stressed that the FBI must maintain
close contact with the law enforcement officers who are on the
street day in and day out, working ``shoulder to shoulder''
with them.
How are these closures which would move FBI agents hours
away from large cities like Wausau and La Crosse consistent
with the statements that you have made about working shoulder
to shoulder with local law enforcement?
Mr. Mueller. Well, the broad view is, Senator, we have 56
field offices and just less than 400--I think it is about 385,
390 resident agencies around the country. And the fact of the
matter is we have undertaken a review for the last 2 years on
all of our resident agencies to determine if they are the most
effective way of providing the support to State and local law
enforcement, which is tremendously important, as you indicate.
I did go back after the last hearing and look at the issues
relating to these resident agencies, and I do believe that
there are cost savings, particularly with regard to the
necessity for outfitting our resident agencies with SCIFs where
classified information can be maintained. It is very expensive
to rent the space and put in the capability of a resident
agency to handle classified information. And so, yes, it does
go to cost.
What we have tried to do is look at the threats in the
Western District of Wisconsin and determine how best we can
address those particular threats, understanding that the
personnel who were in these other two resident agencies would
be in the other resident agency that is in western Wisconsin.
And so I would like nothing better than to tell you,
Senator, I agree, we are going to keep them; but in reviewing
the situation, I do agree that the decision is appropriate to
consolidate those resources in a particular resident agency
where we can better prioritize, make some savings, and my hope
and expectation is provide exactly the same degree of service
that we had before.
Senator Kohl. I understand that there are a total of 26
office closures being proposed all over the country over the
next 2 years, and three of them are in Wisconsin. Can you
provide me a list of the other 23 proposed offices to be
closed?
Mr. Mueller. I think I would have to get back to you on
that. I presume we would be able to, as long as other
notifications have gone out.
Senator Kohl. Thank you, Director Mueller.
[The information appears as a submission for the record.]
Senator Kohl. As I stated earlier, and often, and here
today, I object to these closures in Wisconsin. Now, I
understand that you have already signed off on them, but I hope
in the spirit of open-mindedness you will continue to work with
me and to consider the possibility that maybe we can do better
in Wisconsin in serving the people of Wisconsin. I know you are
an open man. You have indicated that time and time over your
tenure. So while the issue is said to be closed, I would like
to hope that it is not finally and irrevocably closed.
Mr. Mueller. There is a crack there.
Senator Kohl. All right. Thank you.
[Laughter.]
Mr. Mueller. I am always open to additional arguments.
Anytime before something happens, I can be--if I see I am
making the wrong decision, I try to entertain the information
and make the right decision. So I would welcome what other
information or whatever you want to provide.
Senator Kohl. Well said, and I appreciate that.
Mr. Mueller. Yes, sir.
Senator Kohl. Director Mueller, last week this Committee
passed a bill that I authored to increase the maximum sentence
for economic espionage, which, of course, is the theft of trade
secrets for the benefit of foreign countries, and to direct the
Sentencing Commission to consider increasing the sentencing
range for trade secret theft and economic espionage. This is an
important step to stem a surge in crime that costs United
States companies billions of dollars each year, and I look
forward to its swift passage.
As you know, when companies fall victim to trade secret
theft, they are often reluctant to share details of the theft
with the Government for fear that if the theft becomes publicly
known at the investigatory stage, it will harm their reputation
and bottom line. But if the FBI, on the other hand, does not
know about the theft, it cannot investigate and help other
companies guard against these threats.
Director Mueller, what steps are you taking to improve your
relationship with the private sector to assure them that their
information will not be exposed unless or until the Government
decides to prosecute the case? What efforts are you taking to
bring more economic espionage cases?
Mr. Mueller. Well, in terms of the economic espionage
cases, we have had some substantial ones. Several of them I
think are listed in my longer statement where we have arrested
and successfully prosecuted individuals who have stolen secrets
from various corporations. One large case, agricultural
entities where an individual had stolen a well-recognized
biologist's--stolen their secrets and was in the process of
taking them to China where we interceded and successfully
arrested the individual and successfully prosecuted him. And
there have been a number of these particular cases.
We appreciate the enhanced sentencing. Enhanced sentencing
transcends into enhanced deterrence. With regard to working
with the private sector, I would say that it is much like the
issues relating to a data breach where companies would be
reluctant to inform us of intrusions because of the impact on
those companies. We work very closely through a number of
outreach programs that we have in every one of our districts to
assure the corporations and business leaders in that particular
community that there are ways of keeping their secrets private.
We can go in and get a court order that maintains that privacy.
But it is absolutely imperative that we know what is happening
in order to be able to stop it, and if it is in your company,
it may be in another company, and you have to let us know what
is happening if we are to protect not just your company in the
future but other companies that may be adversely affected as
well.
Senator Kohl. Thank you.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Grassley.
Senator Grassley. Yes, thank you, Director Mueller, for
coming.
My first question is about the letter authorizing the
targeted killing of Anwar al-Awlaki and another U.S. citizen.
The reason I ask this question is I am getting a lot of mail
from Iowans wanting to know the authority for the United States
to take that action, and I assume this letter gives that
authority.
Do you support Congress having a copy of that letter?
Mr. Mueller. It really is not my--sir, it is not my role.
It is--whatever may have been developed would be developed by
the Department of Justice. We would not have played a role in
it. Some of our information may have been used if there was
such a finding. But I ask that you perhaps direct that to the
Department of Justice.
Senator Grassley. The Department of Justice settled a civil
lawsuit for Dr. Hatfill for violation of the Privacy Act for
leaking details of the investigation. It cost the taxpayers $6
million in the settlement. I have repeatedly asked both the
Department as well as your agency to identify the individuals
who leaked information on the investigation. I have been
repeatedly told the investigation is ongoing, and I assume that
is the excuse for not answering our information we have
requested.
In response to an August 31, 2011, letter on the anthrax
attacks, the Department of Justice informed me that the
investigation is complete and that no criminal charges will be
filed against those who leaked the information.
I have three questions. I will give you all three of them.
Were the individuals who leaked FBI agents or employees of the
FBI? What, if any, administrative action did you take against
these individuals if they were FBI agents or employees? And do
these people still have their jobs if they are FBI employees?
Mr. Mueller. Well, Senator, I appreciate your discussing
this with me. These questions are more specific than the ones
you raised when we met, and I would have to get back to you on
it because it is specific to the FBI. I know there were other
entities other than the FBI and the Department of Justice that
had undertaken an investigation as well. So I will have to get
back to you on that. And to the extent that the investigations
were undertaken by entities in the Department of Justice, I
would defer to the Department of Justice in terms of providing
information. But to the extent that it is specific to the FBI,
I would have to get back to you on those questions.
Senator Grassley. My next question deals with sensitive
interactions between the FBI and other law enforcement
agencies, and you probably know that sometimes you get
accused--your agency does--of not playing well with other law
enforcement agencies. I am sure you would agree that if we are
busy fighting each other, then we are not fighting our real
enemies.
Recently, I have seen news articles about infighting
between the FBI and New York police. I was especially bothered
by press reports of the FBI sources pointing out weaknesses of
the New York Police Department terrorism case. At the same
time, I am hearing complaints about the FBI's inability to
cooperate with the Department of Homeland Security OIG in
border corruption investigations. These complaints sound as if
the FBI is using kind of a Pac-Man mentality.
Since the culture of an organization starts at the top, I
am concerned about what may be going on in management at the
FBI. So I want to assume that you would agree that FBI agents
should not anonymously or publicly attack the New York Police
Department. I am sure that you are committed to having the FBI
work with all appropriate partners in addressing border
corruption.
So this question: What are you doing to improve the FBI's
working relationship with other law enforcement agencies? And
how are you relaying that message to line agents and
supervisors? And whether it is by impression or whether it is
fact, it does not matter. There is a feeling out there that it
exists, so it is a problem for you.
Mr. Mueller. Well, it is. I confess it has been a long-term
problem with the FBI. In the wake of September 11th, we
identified ten priorities. Eight of them were programmatic
priorities, as you can imagine: counterterrorism,
counterintelligence, and cyber; and then on the criminal side,
public corruption and the like.
The ninth priority was collaboration with our Federal,
State, local, and international partners. And there were only
ten priorities, and the significance of that is that we
understood that we could not be successful by our own, that our
success is dependent upon our partnerships. And since September
11th, since I have been there, I think we have made substantial
strides in working with State and local law enforcement. And if
you do talk with the IACP, International Sheriffs, or a number
of the organizations, Major City Chiefs, my hope is and
expectation would be that they say there has been a substantial
change and we work very collaboratively.
I was as distressed as you and others to see the press
reports, anonymous, of Federal Government persons talking about
another prosecutor's and another agency's investigation, this
being NYPD. I gave directions that that should not happen, and
when I saw it happening, I again went back to give directions
to have it stop. I had Sean Joyce, who is the Deputy, talk to
Ray Kelly. I had talked to Ray Kelly. He gave me a call, and we
have discussed this. It does not interfere--we understand it
should not have happened. From our perspective it should not
have happened. But we still have a very good relationship with
NYPD, particularly when it comes to addressing terrorism.
We recognize, I recognize that Ray Kelly has done a
remarkable job in terms of protecting New York City from
terrorist attacks, New York City being a principal target. And
as I say, these things are unfortunate. I wish they did not
happen, but our relationship remains solid.
Second, with regard to what is happening on the border in
terms of the handling of public corruption cases within the DHS
agencies, we seek to work with those partners that want to work
with us in developing these cases. And we leave it up to the
Department of Homeland Security to sort out the counterparts
with whom we should work, understanding that public corruption
on the border is a substantial issue and those cases have to be
addressed, and they have to be addressed swiftly. And we seek
to do it with the Inspector General's office or the Internal
Affairs, whichever entities would join with us in addressing
that form of public corruption.
Senator Grassley. Thank you.
Chairman Leahy. Thank you very much.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Mueller, as you know, I have known you for a long time.
Mr. Mueller. Yes, ma'am.
Senator Feinstein. I think the FBI is very fortunate to
have your leadership. You have always been a straight shooter.
I think your credibility and integrity is unmatched, and I just
want to say that.
As you may know, ICANN, the Internet Corporation for
Assigned Names and Numbers, which governs top-level Internet
domain names, is planning to open these wide effective January
12. Names will go beyond .com, .mil, .edu, .gov, and the other
established extensions to virtually anything, .gap--and the gap
is very concerned--.sex, .disney, .bomb, anything.
Do you think it would be advisable for ICANN to delay this
extension so Congress and others can take a closer look at this
situation, evaluate its implications for United States
consumers, United States businesses, and, most importantly,
Internet security?
Mr. Mueller. Senator, I have not looked at this in some
time, and what knowledge I have is somewhat passing. My
impression is that it opens up a can of worms, and we do not
know exactly what is going to happen as a result. So any effort
to analyze and to in my mind constrain the different uses to
which this could be put would be valuable. I understand,
however, that ICANN has been a product principally of the
United States or is an entity supported principally and agreed
to by the United States and certain countries, but there is a
desire out there to break the hold. So it may well be an uphill
battle, but any effort that can be made to look at and
anticipate what is going to come out of this would be, I think,
beneficial.
Senator Feinstein. Well, another way of doing it--and I
thank you for that--is to stagger what they can do at any one
time so you do not have literally hundreds or thousands of new
domains appearing all at once with all kinds of mischief.
Mr. Mueller. Let me ask you this, if I could get back to
you and talk to Sean Henry----
Senator Feinstein. Would you, if you would?
Mr. Mueller [continuing]. And get his impact. He is the
expert in this area, and we will get back to you and see what
thoughts we might have on that particular issue.
Senator Feinstein. If you could, I would appreciate that.
Mr. Mueller. Yes, I am happy to do that.
Senator Feinstein. As you know, when you first began to
develop a National Security Division and go into the
intelligence area, I doubted whether it could be done
efficiently and effectively. I believe you have done it. I
think the record indicates that. I think the intelligence, I
think the way the 56 offices operate, I think the fact that you
have made 400 prosecutions as opposed to six military
commission trials has demonstrated that the FBI has been
effective.
As you know, the defense bill will have a military
presumption in it, it looks like. Many of us on this side of
the aisle do not believe that is the way to go, that there
ought to be flexibility for the administration to say the
evidence in this case best suits itself for a Federal
prosecution, the evidence in this case suits itself for a
military commission, and have the ability to make that
decision.
I have never asked you, at least, for your view on this.
Could you talk a little bit about this and why you believe that
this flexibility is so important?
Mr. Mueller. Well, as I indicated in response to questions
from Senator Sessions, when the bill first came out and we
looked at it, I had several concerns and expressed those
concerns in a letter to the Armed Services Committee. The two
concerns were: first of all, what impact it might have on the
continuing use of our authorities; and then, second, it created
uncertainty as to what happens at the time of arrest,
particularly at a critical time when we are trying to get a
person to cooperate.
Now, the legislation talks about not interrupting
interrogations, which is good, but gaining cooperation is
something different than continuing an interrogation. And my
concern is that you do not want to have FBI agents and military
showing up at the scene at the same time on a covered person,
or with a covered person there may be some uncovered persons
there with some uncertainty as to who has the role and who is
going to do what.
The answer, as I understand, in the legislation is, well,
procedures are to be developed by the administration.
Procedures can change. Procedures can be controversial. And to
a certain extent, to the extent that the statute introduces
uncertainty, that is problematic for us. And to the extent that
the uncertainty is to be resolved by procedures, procedures can
change. And they can change if you have somebody different in a
particular position within the Government that can exploit
procedures where they cannot exploit a statute.
So my concern comes in resolving that uncertainty, and I am
not certain that the drafters of the statute went some distance
in resolving the issues relating to our authority with the new
language, but did not really fully address my concerns about
what----
Senator Feinstein. Because I have been told that you are
satisfied with what has been worked out.
Mr. Mueller. I was satisfied with a part of it with regard
to the authorities. I still have concerns about the
uncertainties that are raised by the statute, and my
understanding last week is that there were some suggestions as
to fixes that could be proposed in terms of resolving that
other concern that I addressed in my letter.
Senator Feinstein. Could I ask that you get your specific
concerns to us? Some of us are working on a bill in this area,
so it would be very useful to have those.
Mr. Mueller. Well, I did articulate the second part of my
letter. The first part related to the authorities. The second
part related to the concerns I have about what happens at the
time of arrest. And so I have put that in the letter, but I
will go back and see if we can--see if there is a possibility
in conjunction with the Department of fleshing that out some.
Senator Feinstein. I appreciate that. Thank you very much.
[The information appears as a submission for the record.]
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Whitehouse was next, but Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Thank you, Mr.
Director, for your service.
Mr. Director, millions of Americans have smartphones with
pre-installed software designed by a company called Carrier IQ.
Recent research has shown that it captures a broad range of
sensitive information----
Chairman Leahy. If the Senator would yield just a moment, I
should note Senator Whitehouse went to vote so he could come
back to continue the meeting going.
Please go ahead.
Senator Franken. Recent research has shown that Carrier
IQ's software captures a broad range of sensitive information
like the content of text messages, the content of searches,
even if those searches are--if the user thinks they are
encrypted, Carrier IQ gets them back unencrypted; also the full
addresses of the websites that users use or visit.
News reports have suggested that the FBI accesses and
analyzes information gathered by Carrier IQ's software. What
wireless carriers has the FBI requested this information from?
And what information have you obtained from those requests?
Mr. Mueller. Let me start off by saying we have neither
sought nor obtained any information from Carrier IQ in any one
of our investigations. Let me follow up by saying that there
was some confusion, I believe, in terms of the response to a
Freedom of Information Act request which indicated a standard
exemption was being utilized, and from that it was extrapolated
that perhaps we were obtaining information from Carrier IQ. As
I said before, we are not, have not sought and do not have any
information from Carrier IQ.
Senator Franken. Not directly from Carrier, but what about
from the wireless carriers?
Mr. Mueller. That is very general in terms of wireless
carriers. I am sure--well, let me put----
Senator Franken. Did you get information from them from the
use of their software of Carrier IQ?
Mr. Mueller. No, I do not believe so. If you are specifying
the use of the Carrier IQ software by a wireless carrier, have
we sought that? I do not believe so. In other words, I would
have to--I would have to check and be more specific in the
question and the answer I give you because----
Senator Franken. Can we follow through with that?
Mr. Mueller [continuing]. Whether it be FISA Title III, we
would seek particular information. I do not know any
information that we seek from wireless carriers or what have
you, and I am not talking about Carrier IQ. I am talking about
wireless carriers that we may obtain information that in some
way Carrier IQ may have been involved with. I would have to get
back to you specifically on that particular question.
Senator Franken. Great. I appreciate that.
[The information appears as a submission for the record.]
Senator Franken. In January, the FBI will roll out a facial
recognition service in four States. That service will allow
State and local law enforcement agents in those States to use a
photo of a criminal suspect the way they use fingerprints right
now to see if that photo matches up with people already in the
system.
What protections will the FBI have in place to make sure
that innocent people are not added into this database and to
make sure that this service is not used for non-law enforcement
purposes?
Mr. Mueller. Well, this service is going to be used solely
for criminal law enforcement and booking photos and the like.
It will be made available to other law enforcement in the same
way we provide other data to law enforcement, but we will
ensure that they are to be used only for approved criminal law
enforcement purposes.
Senator Franken. OK. Well, as you roll out this service, I
would appreciate it if your office would keep our office up to
date on this.
Mr. Mueller. Happy to do that.
Senator Franken. I would just like to follow up on Senator
Feinstein's point, just to ask you to also keep me in the loop
on ICANN and their plan to greatly expand these numbers of top-
level domains.
Mr. Mueller. Happy to do that.
Senator Franken. I think that is an issue that might affect
the agency's ability to fight Internet fraud and identity
theft, et cetera.
I would like to ask you about reports of virulently anti-
Muslim statements in some of the FBI's training materials. I am
worried that this will further set back the FBI in its efforts
to partner it with the Muslim American community to fight
terrorism.
Has the FBI issued a clear and unequivocal apology to the
Muslim American community for the bigoted and inflammatory
statements found in those materials? And would you do so now?
Mr. Mueller. We have met with various of the
representatives of the Muslim community and not only said we
apologize for what had happened, but also explained to them the
process that we are undergoing to address this issue. It came
to our attention last summer that there may have been
inappropriate materials in the course of our training. In the
wake of that, we put together a panel of individuals, two from
the FBI, three from outside the FBI. The ones outside the FBI
have credentials that--one was at West Point, one was at the
Naval Academy. But they have credentials at Harvard--not
Harvard--Yale, Princeton, and Johns Hopkins. They are outside
the FBI with two persons from the FBI who have credentials in
the same arena, and they put together a document, a touchstone
document that would be the base document for any of our
training when it comes to addressing the counterterrorism,
particularly when it relates to Muslims.
After putting together that document, we pulled together
all of our training materials since September 11th,
approximately 160,000 pages, and have gone through and reviewed
those materials with the context being how does it relate to
the document that these outside and inside experts put
together. And then in response to FOIA requests, we have been
producing those documents to the public.
Yes, we did have materials in these documents that were
inappropriate. They did not represent in any way, shape, or
form the FBI's perception. It is tremendously important that
the Muslim community cooperate with us, and the Muslim
community in many of these prosecutions has been the entity,
individuals from the Muslim community have been the ones that
alerted us to the issues. And I would say overall I believe our
relationship with the Muslim community is very good.
Things like this, as you indicate, set it back, but I do
want to assure that we are addressing it, and we are addressing
it comprehensively, and it does not represent the belief of the
FBI.
Senator Franken. It is an anomaly.
Mr. Mueller. It is an anomaly. A perfect word to address
it, yes.
Senator Franken. Thank you for validating my use of
``anomaly.''
[Laughter.]
Mr. Mueller. Thank you.
Senator Franken. And for your service.
Senator Whitehouse [presiding]. Director Mueller, let me
jump in and take us back to the cyber issue.
Mr. Mueller. Yes.
Senator Whitehouse. We are being attacked across the
Internet in a whole variety of different ways. We have the sort
of light-of-day theft and piracy of intellectual property--
movies, music, goods, electronic games--that is rampant around
the world. We have direct fraud and theft against individual
Americans and businesses. We have what you might call the
``brain drain'' of intellectual property that is stolen, very
often without the knowledge of the company, out of their
computers and exported, it appears, primarily to China so that
they can compete against our manufacturers without licenses and
without R&D expense. And it appears to be national policy on
their part to do this. And then, of course, you have the danger
of sabotage through the cyber vector, either of our critical
infrastructure, our banks, our electric grid, and of military
technology that could be disabled or interfered with.
You stack all of that up, and I think there is a case to be
made that this may be the greatest transfer of wealth through
theft and piracy in the history of the world, and we are on the
losing end of it.
So I am concerned about the resources that we dedicate to
this. I understand that you are dealing with budget
constraints; you are dealing with an OMB that is primarily
concerned about budget, not your outcomes. But what I am
hearing back from the private sector folks who are involved in
network security and who engage with your agency all the time
is that your capability is extraordinary. The people who are
involved are absolutely first rate. Organizations like the
NCIJTF are operating at the highest level of professionalism.
If America could get behind the classified screen and see what
they were doing, people would be really proud and impressed.
So the capability is great, but the capacity is what two
recent folks said to me, ``woefully inadequate,'' that there
has been one Coreflood case which was a great case, but there
could have been a dozen because the problem that Coreflood went
after of botnets is profound. It is all over the Web. You
mentioned a variety of cyber prosecutions for intellectual
property theft. I am not aware of one of them that is a pure
cyber case. I believe that they all involved an individual who
actually appropriated, expropriated intellectual property. And
yet you see--I had a CEO of a major American energy innovator
tell me that when he announced a new product, he got hit by
60,000 attacks in the next 2 hours, his company did. We have
had one of our major defense contractors have the plans for an
entire joint strike fighter hoovered out of their electronic
records. We have been briefed about an American company that
had a huge investment in a new product that is gone, and there
is actually a facility that is being prepared to make that
product. Again, no license, no R&D, just stole it from the
company.
So I am concerned that we do not yet have the right model
for dealing with this in terms of capability, and I have spoken
to Jack Lew and to Dana Hyde at OMB, and they are willing to
open up to a discussion that would look into how we might
better pursue this. You know, should it be its own organized
crime strike force model from the Kennedy era? Should it be
akin to OCDETF, which has been quite successful against
domestic narcotics trafficking? Should it be a new DEA or ATF
or FBI? Should it be that big when you consider the scope of
the threat and the complexity of making these cases, the
forensics of putting together the case, the international angle
to virtually all of them, the complexity of the statutes?
I mean, you stack it all up, and each one of these cases is
an almost majestic accomplishment to pull it together. And if
we are going to do a lot of them, which we need to do, we have
got to, I think, throw more money at the problem. And how we
best do that I think is a discussion that we need to have, and
I would like to ask you if you would be prepared to join in
that discussion and let me know who the right person to
participate in that discussion for the FBI would be, kind of
brainstorming what should this look like for the coming
century, because it is not clear that the existing model just
accreting a few more agents here or a few more agents there is
where we want to end up.
Mr. Mueller. Let me talk a little bit about where I think
we need to go. There are several steps that we are taking to
position ourselves to address this phenomenon. The first is----
Senator Whitehouse. You agree it is enormous, it is
massive.
Mr. Mueller. Enormous. It is massive. And there has to be
triage, and there has to be prioritization, but there has to be
additional resources that are directed to it.
One of the base things we are doing is upgrading the
capabilities of every one of our agents by having a basic cyber
training so that it brings everybody up to a level to handle
much of the cyber crime or that which has migrated to the
Internet with sufficient understanding and background in the
cyber arena, a baseline for every one of our agents.
Second, to add and to continue to grow with persons who
have the backgrounds in this arena, an agent cadre.
Third, internationally. I was in Romania and Bulgaria last
week. Both areas, particularly Romania, it is known for its
widespread Internet fraud. We have specialists over in Romania
at this point. I have got two persons, one that used to be an
IBM programmer, the other one worked for a number of software
companies, and it extends our reach to our counterparts in the
Romanian and the Bulgarian services. We have persons in
Estonia, I think in Latvia, and a number of other countries
where we have expanded internationally in order to address
these crimes.
Internally, the structure of the FBI does not lend itself
to easily addressing cyber. Yes, we have a Cyber Division, but
what we find, when it comes to espionage, it is now cyber, and
the information is exfiltrated as opposed to getting an
intelligence officer, getting him in and getting him latched up
with people. It is cyber.
Senator Whitehouse. The era of microfilm is over.
Mr. Mueller. It is still there. People use--they do not
want to lose their old ways. We are the same way. But if you
are sitting back in one of these countries and you are saying,
``Where can I get the biggest bang for my buck? '' it has got
to be in exfiltrating the information without risking people
overseas.
And so what we are looking to do is build on the concept of
the NCIJTF, which is threat focus cells. As you know, the
principle there is you take an intrusion and you bring your
best people to address it, not knowing whether it is going to
be espionage or a crime, whether it is going to be a high
school student, and then decide how you are going to treat it,
whether you are going to treat it as a crime domestically,
whether you are going to treat it as a national security risk
to be addressed by other agencies in the intelligence side. And
that concept of the NCIJTF in my mind has to grow to address
cyber crime, because you cannot address it as we have crimes in
the past where we have organized crime, we have narcotics, we
have public corruption and the like, because it cuts across all
those.
So organizationally, we have got to change and buildup our
capabilities. Building up the specialists such as the persons
that we have over in Romania and Bulgaria now is tremendously
important. And we have to find better ways to be more
efficient, particularly when it comes to the forensic areas.
And as you know, being a United States Attorney, backlogs in
terms of forensic capabilities often hold up prosecutions. We
have to become more efficient when it comes to utilizing the
forensics to translate what we have forensically into the
courtroom and putting people away.
That is generally the direction that we are going in. I
would be happy to both myself talk with you and also have Sean
Henry, who basically oversees this side of the house, sit down
with you and discuss additional areas.
Senator Whitehouse. Good. Well, I have talked to some of my
colleagues on the other side of the aisle. They are equally
interested in participating in this and trying to figure out
where the choke points are, what the best structure would look
like, and then I think we have got--it is a big enough problem
that I think we need to figure out what the proper design
should be for going after it and then worry about how we pay
for it, because, frankly, if, in fact, we are on the losing end
of the biggest transfer of wealth ever through wealth and
piracy, then paying for stopping it is a 1,000:1, 10,000:1,
1,000,000:1 payback. It is really a big deal. I have heard
numbers as high as $1 trillion a year as estimates of what we
lose in intellectual property that is just siphoned away, often
unbeknownst to the factory or chemical plant or whoever it is
that feels that they have adequate security.
In terms of the numbers that we do have--I am going to keep
going for a little while because I think some of my colleagues
are coming back from the vote, and I will turn it over to them
as soon as they return. But while I have you, I would like to
pursue this a little bit further with respect to the FBI's own
numbers.
When you describe that an agent is headquarters Cyber
Division personnel or in the computer intrusion program or in
the cyber crime program, does that mean that they are full-time
absolutely only dedicated to cyber? Or is this a little bit
more like--on the DOJ side, they will report how many cyber
AUSAs they have, but having been a U.S. Attorney, I know
perfectly well that those cyber AUSAs are probably doing other
cases. They are just the ones who have to listen to the
conference call with the mute button pushed while they are
preparing their gun case or their drug case or whatever, but
they are not really a full-time, cyber-only, dedicated member,
you know, prosecutor. How does the FBI's count work for that?
Do you count your cyber people people who are designated if a
cyber case comes up but they are working bank robberies,
terrorism, whatever else while they are in between cases?
Mr. Mueller. Well, nobody is in between a cyber case now. I
mean, there is so much work to go around, rarely do you find
that. I would have to look at----
Senator Whitehouse. If you count an agent as a cyber-
dedicated person, the agent is 100 percent cyber?
Mr. Mueller. Well, 90 percent. I mean, they have additional
duties. They may have SWAT duties, for instance, that kind of
thing. But in terms of their caseload, it would be a cyber
caseload, and each of the special agents in charge are
desperate for additional persons for their cyber squads.
I am not certain what statistics you are looking at, but we
have doubled the number of agents who are doing cyber cases
since 2001. That is still less than 1,000. But we are----
Senator Whitehouse. Yes, compared to, say, nearly 5,000 DEA
agents, nearly 2,500 ATF agents, approximately 3,200 Secret
Service agents, over 1,400 postal inspectors, and over 1,200
NCIS agents--all who are doing great work, all who I am very
proud of, but when you put those numbers side by side and match
it against the cyber problem, there is a disconnect.
Mr. Mueller. Well, I think we are one of the agencies--the
Secret Service quite obviously does, but we have separate cyber
career paths. We recruit and bring in agents for the cyber
program into new agents class. They get the foundational
instruction as to how to be an agent, how to conduct
interviews, be an agent, the same way the military will bring
somebody in, well, you are army first and then your secondary
will be artillery or tanks or something like that. For us, we
bring them in, you will be an agent first, but you have
particular qualities. You were a software programmer before. I
do not want you to do narcotics cases. I want you to do--you
are in here to be in the cyber program. And we put them in
generally a smaller office for a period of time, but in the
cyber arena, and then they will graduate to a larger office.
We have a number of cases, a number of capabilities now
where we have persons with special expertise that may be living
in Cleveland or San Diego or Portland, Oregon, or Portland,
Maine, whom we will bring in on a virtual case, coordinated by
headquarters, but where the expertise is around the country,
and the bad guys can be anywhere. And for us to be effective
down the road, we are going to have to make use of those
specialties, regardless of where the individual lies, because
the crime is most often not a local crime, not a State crime,
but a crime that is launched overseas. And we need to bring the
expertise to developing that and allow that group of persons,
wherever they are in the United States, to bring the case to a
successful close.
Senator Whitehouse. And, first of all, let me just make
clear that I very much applaud the direction that you have been
going in. I think that within the resources and structure that
you have been provided, I am very laudatory of the focus and
the professionalism and the additional resources, particularly
as you have been constrained and had the terrorism
responsibilities added all at the same time. So I do not want
to in any way have anything that I have said be taken as a
criticism of you or the FBI management. I think it is Congress'
job to make sure that you have the resources and the structure
that will be most effective to accomplish your mission, and
that is a discussion that we need to be having in a different
way here in the Congress.
Let me ask you one more question about these cyber cases
and where in the array of cases that the FBI engages in they
rank in terms of their resource intensiveness and their agent
intensiveness. It strikes me that between the subject matter
expertise that is necessary to deal in this specialized area,
between the computer familiarity that is required and the
forensic computer capability to pick apart the actual traffic
of what was done where and understand it and be able to bring
it out of the code and make it real for prosecutors, for
instance, who have to make the case, dealing with the fact that
the vast majority of this crime has an overseas component to
it, if not being primarily directed from overseas, which means
you have to deal with intelligence services and with legats and
with foreign treaties and with--and it is probably a
complicated racketeering type case to begin with. So you add it
all up, and it strikes me, as a guy who used to have to run
these kind of cases, that this is the sort of thing that I look
at and think, ``Oh, my God, I am going to have to put an awful
lot of people on this one to get it done right. This is about
as complicated as it gets.''
Is that your take on this as well?
Mr. Mueller. It really depends on the case, and one thing
that I do believe should not be lost in this is that often
sources, human sources, are as important as anything else. When
you talk cyber, you think about that person with the software
development expertise that you need to do the kind of
investigative work. But often in these cases it is a
combination of cyber and also sources, so we cannot forget
that.
But it really depends on the case, the spread of the case,
how far it takes you, whether or not if you are operating in
Turkey or Morocco or Estonia or Latvia or Romania or France,
England, Sweden, something like that, it brings in the legal
attache's office, and our people spend a fair amount of time
coordinating with their counterparts overseas. I did not just
mean Europe, but also in the Far East, quite obviously.
And so it can take a lot, but you take down something like
Coreflood, and with the innovative ways of addressing that, it
was a relatively small group of people in New Haven and
headquarters and some across the country and some
internationally that were able to undertake that. And once you
develop, as you would know as a prosecutor, a template for
doing these kinds of cases, it is easier the next time around.
Senator Whitehouse. Easier the next time. Very good. I see
that Senator Coons has returned from the vote that is going on
right now on the Senate floor, and I recognize him.
Senator Coons. Thank you, Senator Whitehouse. The Senate is
voting now on an amendment to the United States Constitution,
and our Chairman is about to speak, so please forgive the
interruption, if you would, in this hearing.
Director Mueller, thank you for your service and for your
testimony here today and for your willingness to continue in a
leadership role at the FBI. As you were just discussing with
Senator Whitehouse, one of the challenges, I think, that we
face in this particularly difficult budgetary environment for
State and local law enforcement around the country is the
steady downward pressure on local law enforcement agency
budgets.
In my role as county executive before becoming a Senator,
one of the things we relied heavily on was an effective
partnership with the FBI. The FBI works very well and closely
with State and local law enforcement through a task force
structure and does a lot of information sharing.
Talk, if you would, a little bit about how the FBI and DOJ
have institutionalized openness and partnering with local law
enforcement through the National Data Exchange, or N-DEx, and
others, and what impact you have seen on the reach and
effectiveness of your multi-agency task forces given what I
presume must be the steadily decreasing availability of local
law enforcement partners given the budgetary pressures local
law enforcement currently face.
Mr. Mueller. Let me start by saying my belief is that we
are most effective when we work in task force, or work in joint
investigations. Bringing together expertise from a variety of
different places enhances your capability. I worked here in the
U.S. Attorney's Office, and they had a cold case squad with FBI
agents working with homicide detectives from the Metropolitan
Police Department, and the homicide detectives were some of the
best investigators I have ever seen. The FBI brought
capabilities that State and local did not have, and it worked
exceptionally well. And that in my mind has been a model.
Out of that has come, as I think I have said in some of my
remarks, over 150 State and local task forces relating to
violent crime and drugs and gangs in particular. We had, I
think, 34 or 35 Joint Terrorism Task Forces in 2001. We are now
up at around 100. We have Safe Trails Task Forces in Indian
country, and we now around the country have started Cyber Task
Forces. We have regional forensics labs which relate to the
handling of cyber material and the forensics aspect of it. And
so we have developed these over a substantial period of time.
When it comes to cyber in particular, we are at the
threshold of a development of an approach to cyber crime across
the country, and I say that because in the past the State and
local law enforcement have not been able to develop the
capabilities in this arena as far as perhaps we have and look
to us, look to the Secret Service and look to others to handle
much of the more important work. The impact of the cyber arena
is such that in the future the Federal authorities will not be
able to do it alone, and we are going to have to continue to
develop the task force structure and have State and local law
enforcement develop the capabilities to address cyber in the
same way that State and local law enforcement has developed it
in a variety of areas in the past.
I will tell you that when I visit offices, when we have
them and have an exchange about what is happening in particular
offices around the country, one question we ask is: Have you
seen State and local law enforcement officers leaving task
forces because of the budget constraint? And very rarely is
that happening. I do believe that State and local law
enforcement appreciate the opportunity to participate at that
level and find that participating in these task forces
leverages their capabilities, and it is not just having a
person on a task force, but they can be more effective as a
State and local department with having persons on the task
force.
Senator Coons. Well, that is a testament to the value that
State and local law enforcement finds in partnering with the
FBI because of your superior intelligence and specialized unit
capabilities and your National information-sharing role. You
referred to cyber crime, something we are both very concerned
about, as are a number of my colleagues. There have been a
number of recent reports suggesting that cyber crime has
exploded in the last decade, that it is growing at a dramatic
pace, that it has consequences not just for individuals and for
harm to them, but also broader harm to our economy. In fact, I
think it was the Executive Assistant Director for the FBI that
described it as an ``existential threat'' to the United States.
And I am wondering--I know you and Senator Whitehouse just had
an exchange about this--whether you are resourced effectively
in terms of the number of agents, the training. I know you have
very difficult choices to make, many different areas of
challenge in your service.
If I understand right, there are about 1,000 advanced
cyber-trained FBI agents, but nearly five times that many
dedicated to the war on drugs. There have been some studies
that have suggested that at the State and local level we do not
have enough professionals, law enforcement officers trained to
the right level.
How do you feel we are doing at staffing and training in
the FBI to meet the level of threat? And what else could we in
the Congress be doing to support you in that effort?
Mr. Mueller. In the wake of September 11th, we knew we had
to prioritize and in the wake of September 11th move 2,000
agents from the criminal side of the house to national
security, particularly counterterrorism. Of those,
approximately 1,500 were in the drug program. Another 500 were
doing smaller white-collar criminal cases, but we had to
prioritize.
We have doubled the number of agents--almost doubled the
number of agents that are doing cyber work at this juncture,
and we have a number of specialists in addition to agents who
do the forensics and work on it.
Our drug cases are in the context of OCDETF and the joint
task force arena. We rarely at this point in time do any
individual drug cases such as we did beforehand.
Do we need additional resources? Yes. Is the No. 1 request
I make each year in the last several years when we took care of
counterterrorism to a certain extent a request for more agents
in this arena? It is. Has Congress given us some? Yes. In any
one of these, is it enough? Probably not. Part of it is also
our prioritize, our reorganization so that we can address these
cases more efficiently, and it goes to something I was saying
to Senator Whitehouse, and that is, around the country we will
have this area of expertise, and where in the past it was
important to have it localized on local cases, that expertise
has to be utilized to address cyber cases wherever they may
arise because often at the outset of any intrusion you do not
know where the home is. And, consequently, we as an
organization have to adapt as well as getting additional
resources, but adapt our structure and our organization to be
more efficient in handling these cases.
Senator Coons. How does the FBI differentiate between a
criminal cyber threat and one that implicates the national
security and that then implicates other non-law enforcement but
more military-oriented assets in the cyber field?
Mr. Mueller. Well, we established a National Cyber
Investigative Joint Task Force. It might be worthwhile for you
to visit it if you have not. But it has ourselves and other
relevant agencies in this arena, intelligence agencies as well
as law enforcement agencies. And so in conjunction with NSA,
for instance, and others, once a substantial intrusion is
identified, it will be looked at, and the beginning work
forensically will be done by a number of contributing agencies
who have that expertise without putting it into a particular
cubbyhole at the outset. You do not know whether the person is
a foreign state or an organized crime group or an organized
crime group operating at the behest of a state or the high
school student in a bedroom down the block.
And so we treat them each at the outset with the same
approach to dissect it and try to identify it, and once you get
an identification you can make a decision, OK, this is
domestic, it is a criminal case, it will be handled
domestically, or no, it is a national security threat that
ought to be handled by our military in some way, shape, or
form, and then allocate--or then tag it with, OK, how are you
going to resolve this, how are you going to disrupt this
threat.
Senator Coons. And that exact process, that interface, that
decisional iterative process is of great interest and concern
to me given your exchange with Senator Sessions and Senator
Feinstein previously in the context where in the National
Defense Authorization Act a number of us have raised real
concerns about the possibility of uncertainty. I would agree
with you. I take very seriously your written input to the
Senate that you have real concerns about the possibility in the
short run and the long run that the military and law
enforcement will begin having an unresolved and unclear joint
role in investigations, in apprehension, in the early stages of
trying to encourage cooperation and that in the lack of a
resolution there, there is both a threat to civil liberties and
a possibility of missing vital opportunities for us to advance
our National security.
In the national security context, in the counterterrorism
context, it implicates constitutional liberties, civil
liberties, and our National security, and I think that is true
both in cyber and in the development at the very earliest
stages of potential counterterrorism cases within the United
States.
Speak, if you would, about how you would encourage us to
resolve some of these longer-term issues. There was no specific
hearing for the detention provisions of the NDAA. There were a
number of us who voted to pull those provisions out of the
Defense Authorization Act to have a brief period where we would
have focused hearings, get input, but it concerned me deeply
that leaders in our law enforcement and counterterrorism and
national security communities in the current administration
opposed the language in that bill. And without having the
benefit of a hearing or full development of this intersection
between security and liberty, I was gravely concerned about our
moving forward with this language.
How would you advise us to deal with this in a way that
does not deprive law enforcement of critical tools in the fight
against both cyber crime and terror?
Mr. Mueller. Well, I would hesitate to try to advise
Congress in this way. What I tried to do is express the
concerns I have with the language that has been presented, and,
again, it focuses on--part of it has been resolved in terms of
our ongoing authorities, for which I am grateful. The other
level of concern relates to the uncertainty of what is going to
happen at the time of arrest and what is going to happen in
terms of investigations down the road. Is it going to go
military? Is it going to go Article III? And the statute is
still unclear in terms of allocating that.
Now, I know the argument on the other side is that will be
cleared up by procedures, and that will be developed by the
President, and the President has the waiver authority. Given
the statute the way it is now, it does not give me a clear path
to certainty as to what is going to happen when arrests are
made in a particular case and the facts are gray, as they often
are at that point, and the possibility looms of we will lose
opportunities to obtain cooperation from the persons that in
the past we have been fairly successful in gaining.
Senator Coons. Well, I see that it is time for me to
conclude my questions. I just want to congratulate you and the
agency for being a very successful partner in the war on terror
and in the effort to isolate, identify, and prosecute folks who
are engaged in domestic efforts at terrorism. I want to thank
you for your efforts in combating cyber crime, and in
particular some of the issues that Senator Kohl raised about
trade secret theft are a real interest and concern to me, and I
would like to note I share Senator Franken's concerns about
some of the as yet unknown privacy implications of the software
on our cell phones.
Thank you very much for your testimony today.
Thank you, Mr. Chairman.
Mr. Mueller. Thank you.
Chairman Leahy. [Presiding.] Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you,
Director, for your public service not only in your present role
but throughout your career as a prosecutor and as a member of
our military, and thank you for being so forthright in your
answers today to some difficult areas of questioning.
I want to come back to cyber but in a different context,
and I am very concerned about cyber attacks on this country,
which General Petraeus has said will be our next 9/11, and you
have very vividly and graphically described what you view as
the threat. But the threat to women and children on the
Internet I think is equally troubling, and I proposed a bill
called the Internet Abuse Act, which would be a companion to
the reauthorization of the Violence Against Women Act, which
focuses on stalking, intimidation, harassment, which can lead
to physical violence when it occurs on the Internet, lead to
physical violence then in the real world.
I would like to get from you some sense of what you view as
the perils and the dangers on the Internet to children and
women and what the FBI is doing to combat them.
Mr. Mueller. Well, we have a number of programs to address
that. Our one program we have had for years is the Innocent
Images program that I think you are probably familiar with from
your time as Attorney General in Connecticut, in which we
operate undercover on the Internet to identify stalkers, and
particularly it is related to children.
The threat that you articulate to women and children on the
Internet is growing daily, and the ubiquitous nature of the
Internet is such that it is very difficult to address and to
educate persons because a number of people, including
occasionally myself, are baffled by what happens when certain
things--when you are on the Internet and getting on the
Internet, many people I think are baffled by the privacy
protocols and uncertain as to how to utilize them. But our
programs are directed at identifying those persons who are
luring children into sexual liaisons on the Internet. Quite
obviously, beyond that there are and have been prosecutions,
most recently I think in California, for persons who were
stalking in some sense on the Internet, but also others who
were driving--particularly in schools, driving other children
to suicide and the like. And so the variety of harm that can
come from abuse on the Internet is substantial.
We have throughout the country over the last several years
put together with U.S. Attorney's Offices, FBI, as well as
State and locals ICAC teams that address this together, but
there is so much of it out there you have to prioritize. And,
again, it is going to be--I absolutely agree that it is going
to be a huge issue in the future, this particular area, and
anything that can be done legislatively to enhance the
penalties, enhance the certitude of conviction appropriately,
and deter persons from abuse on the Internet will be welcomed.
Senator Blumenthal. Well, I am glad to hear you make that
comment because that is exactly the goal of the measure that I
proposed, to enhance the certitude and make penalties more
severe so that individuals who, in effect, are aiding and
abetting or enticing or luring or harassing on the Internet can
be held more accountable. And I am delighted to hear that you
would consider supporting that kind of measure.
I also want to ask you, if I may, about human trafficking
by Federal contractors abroad. You may be familiar with this
problem where contractors on our bases abroad in effect take
advantage of individuals who are recruited from Third World
countries, more than 100,000 foreign nationals working on our
bases abroad, sometimes exploited by our contractors. And,
again, I have worked with the Chairman--and I thank Senator
Leahy for his support--to try to target and criminalize the
human trafficking of persons working for contractors abroad
under conditions and terms that would not be tolerated in this
country. And I would like to ask you whether the FBI is doing
anything on the enforcement side with respect to this problem.
Mr. Mueller. This is an issue that I am not familiar with.
I will go back and see what, if anything, we are doing in that
arena. Since our presence usually is in embassies, not really
on military bases, that falls to the various law enforcement
entities in the military generally. But I will go back and see
what, if anything, we are doing here, and if there is any issue
with regard to our jurisdiction to investigate or prosecute in
an Article III court, we will get back to you on that.
Senator Blumenthal. I appreciate that. And, finally,
because my time is almost up, you mentioned the idea in your
responses to one of the questions, perhaps from Chairman Leahy,
of making a cyber crime a predicate under the Racketeering Act.
I wonder if you could expand on that thought.
Mr. Mueller. Only to say I think it is a good idea, that it
would enhance--it should be a predicate, in my mind, and the
sentences attendant to a conviction on racketeering are
substantial and would send the message.
I think too often in the past we have looked at individuals
who were involved in cyber crimes, and they may be relatively
young individuals, and there may be a perception among some
that it is a turnstile. Yes, you may get caught, yes, you may
be convicted, but you will be walking out relatively soon, and
the crime may be worth the time that you spend. That cannot be
the message that is sent. The message to be sent is that if you
engage in cyber crime you will go to jail, and you will go to
jail for a substantial period of time.
Senator Blumenthal. And I think that observation, your
support for that kind of measure, illustrates the kind of gaps
that may be arising. The Internet Abuse Act that I proposed is
one measure trying to address them, but using a cyber act, so
to speak, as a predicate for a racketeering violation I think
is a very promising avenue that we should explore. Thank you.
Mr. Mueller. Thank you.
Chairman Leahy. Thank you very much, Senator Blumenthal.
Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
Thank you also, Director Mueller, for being willing to stay
through our votes and everything else and for your good work.
You have served the FBI so admirably. I think it is quite a
testament that President Obama asked you stay for another 2
years, and you were confirmed by a vote of 100-0. That is
usually like for volley ball team resolutions or something, so
excellent work.
I wanted to ask about something that has been on my mind
because this Committee passed the synthetic drug bill. I have
one, Senator Schumer has one, Senator Grassley has one. The one
I have deals with a synthetic hallucinogen known as 2C-E. As
you probably know, the House passed similar versions of these
bills this past week. In our case in Minnesota, this young man
died and the problem, as you know, is nationwide. I just think
it is incredible, talking to some of our police chiefs,
especially in the rural areas of our State, where they have
seen this increase in these cases, and it is very difficult if
you are in a city like Moorhead as opposed to Minneapolis to
try to get experts to prove what the substance was. And in the
first half of 2011, there were roughly 6,600 calls to poison
control centers across the country. That is 10 times the amount
we had in all of 2010. So it is clearly a growing issue.
Senator Paul currently has a hold on these bills in the
Senate. We are trying to get them done by the end of the year.
I had a good talk with him yesterday. I hope we will be able to
work this out. But I wanted to get your take on this problem.
One of my views is we can add these substances to the schedule,
but we still have an issue with the way the analog statute
works that we may want to make some amendments going forward.
That is something I want to work on, but let me get your take.
Mr. Mueller. I am afraid I cannot be as much help as
perhaps I would want to be because it really falls within the
purview of my friends at the DEA, what you are getting at. But
to the extent that it is coming along in the same way that
OxyContin or some of the other drugs, we have to watch it, and
together with State and locals and our friends at DEA, not only
would we want to watch it, but also have the statutes in place
that enable us to appropriately address it and send the persons
who were involved in this kind of trafficking to jail.
Senator Klobuchar. Very good. Well, we have been working
with DEA, obviously, and they came out and did--along with Gil
Kerlikowske, and we have been working on it. But I just want to
call it to your attention.
I also know that the FBI and the DOJ have been focusing on
the health care fraud issue.
Mr. Mueller. Yes.
Senator Klobuchar. Minnesota tends to have better
enforcement in those areas, and I know there are certain areas
known as ``hot spots'' where a lot of our health care dollars
are getting sucked down to places that are not as good at
trying to track these things. Could you talk about those
efforts and what you have seen with the coordination with the
HEAT task forces.
Mr. Mueller. One of the interesting things is the benefit
from building an intelligence capacity to address
counterterrorism and then bringing it to bear in the criminal
arena. We have found, as you point out, that there are health
care hot spots where there will be schemes and plots that are
utilized for a period of time by a number of individuals. There
will be an enforcement effort that shuts it down, often by a
task force of ourselves working with individuals who are from
the AG's office or from State and local, but then it will pop
up someplace else.
One of the things the building of an intelligence
infrastructure across the country enables us to do is to
identify this, educate others, and be on the alert for other
places where the same hot spots may grow if we do not get in
there early and address it. And so with a combination of task
forces, identification of those, as you call them, hot spots
where the activity is particularly high, but also with the use
of intelligence to identify where the persons are going to move
next, we have had some impact.
It is still billions of dollars. It is still rampant out
there. But we have increased personnel, and we have identified
and added persons across the board to address health care. And
I think we are being effective, but there is still more work to
be done.
Senator Klobuchar. Very good. I know you talked to some of
my colleagues bout cybersecurity. Actually, one of the examples
that you used was Cargill--Cargill is based in Minnesota--in
your testimony of some stolen secrets that they experienced.
Mr. Mueller. Yes.
Senator Klobuchar. And I just see this as the next big
thing we need to work on, cybersecurity for our country, but
also Internet fraud and some of the things that we are seeing
being stolen. The Internet Crime Complaint Center, or IC3, is a
partnership, as you know, with the FBI and the National White-
Collar Crime Center aimed at addressing Internet crime.
In my former job as a prosecutor, this was just at the
beginning of all this, and we would have local police who would
be confronted with computers, and they would turn them on, and
everything would vanish. We have gotten much better than that,
but there is so much of an issue for local police not having
the resources to deal with this, so much of it international.
Could you give us an update on that? And where do you think
we need to go?
Mr. Mueller. Well, we have to build our resources across
the Government and better organize to address cyber, identify
the lanes in the road with some additional particularity. At
home we have to adjust our organizational structure to address
cyber. One of the points I do make is we have expertise around
the country, but you never know where an intrusion is going to
arise, much less from whence it came. And, consequently, we as
an organization have to address cyber crime differently than we
address bank robberies, which was localized and the expertise
was across the country. Here we do have expertise across the
country, but often the crime can shift from city to city,
county to county, country to country, and we have to be able to
address that, and that is what we are working on.
I will say that today, of the number of Senators who have
questioned me--maybe six, seven, eight--maybe four of them have
been focused on cyber crime. Four years ago, one would not
have. And I venture to say when we meet again, as undoubtedly
we will next spring, that it will be a No. 1 issue on the
agenda. Too often, in a variety of ways, the statutes do not
keep up with technology, particularly in this day and age and,
consequently, the work of this Committee to provide the tools
to address the enhanced technology will be tremendously
important.
Senator Klobuchar. Well, thank you very much for that. We
look forward to working with you.
Mr. Mueller. Thank you.
Senator Klobuchar. Thank you.
Chairman Leahy. I will put in the record or submit to you
for answers some questions by Senator Grassley, and if I have
other questions, I will submit them for the record.
[The information appears as a submission for the record.]
Chairman Leahy. Not seeing others and knowing what is going
on on the floor, we will stand in recess, but with the
appreciation of the Committee to Director Mueller.
Mr. Mueller. Thank you, sir.
[Whereupon, at 12:05 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follows.]
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