[Senate Hearing 113-326]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-326
 
            OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION 

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                        WEDNESDAY, JUNE 19, 2013

                               __________

                          Serial No. J-113-18

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
            Bruce A. Cohen, Chief Counsel and Staff Director
              Kolan Davis, Republican Chief Staff Director



                            C O N T E N T S

                              ----------                              

                     STATEMENTS OF COMMITTEE CHAIR

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    42
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     3

                               WITNESSES

Witness List.....................................................    41
Mueller, Hon. Robert S. III, Director, Federal Bureau of 
  Investigation, U.S. Department of Justice, Washington, DC......     6
    prepared statement...........................................    44

                               QUESTIONS

Questions submitted by Senator Sheldon Whitehouse for Hon. Robert 
  S. Mueller III.................................................    58
Questions submitted by Senator Charles Grassley for Hon. Robert 
  S. Mueller III.................................................    59
Questions submitted by Senator Orrin Hatch for Hon. Robert S. 
  Mueller III....................................................    71

                                ANSWERS

Responses of Hon. Robert S. Mueller III to questions submitted by 
  Senators Whitehouse, Grassley, and Hatch.......................    72


            OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION

                        WEDNESDAY, JUNE 19, 2013

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 
Klobuchar, Franken, Hirono, Grassley, Hatch, Sessions, Lee, 
Cruz, and Flake.

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

    Chairman Leahy. Good morning. Today the Judiciary Committee 
welcomes Robert Mueller for what is likely to be his final 
appearance before this panel as Director of the Federal Bureau 
of Investigation.
    As we know, Director Mueller began as head of the FBI just 
days before the terrorist attacks of September 11, 2001.
    And, Director, I remember being down in your Intelligence 
Center at the FBI building right after that and going over, 
still sifting, what we knew and actually what we did not know 
about that attack.
    For nearly 12 years, he has led the Bureau as it has 
shifted its primary focus to national security and 
counterterrorism efforts while still carrying on the historic 
mission of fighting crime. And that transition, while important 
for our national security, of course, has had, as expected, 
some problems. From National Security Letters to the latest 
revelations about the use of the PATRIOT Act, I remain 
concerned that as a country we have yet to strike the right 
balance between the intelligence-gathering needs of the FBI and 
the civil liberties and privacy rights of Americans. I also 
want to make sure that the shift, while necessary, in the FBI's 
focus does not unduly hamper the Bureau's ability to 
investigate cases involving fraud and violent crime that 
significantly affect the everyday lives of Americans.
    These are concerns I express, but I think one thing that 
the Director knows and the public knows, I have never 
questioned the integrity, the dedication, and the consummate 
professionalism of Director Mueller as he has led the Bureau 
through very difficult times. He has been a steady and 
determined leader of the FBI. He has spoken forcefully about 
the need to protect Americans' civil liberties, and I remember 
sitting there at the 100th anniversary of the Bureau and the 
Director's very strong statement about the civil liberties of 
all Americans. And it was no surprise that a committed public 
servant like Bob Mueller would agree to put his long-awaited 
vacation and travel plans on hold when the President asked him 
to stay on board for another two years. He has devoted his 
entire life to public service. We were just talking about how 
Senator Feinstein knew him during a very terrible time, at the 
time when she became mayor of San Francisco with the tragedies 
that led up to that. And we are grateful to him and his family 
for their continued sacrifice.
    I might mention in this regard, Director Mueller, your 
wife, Ann, she is--I know what she has put up with, with the 
absences and all. You have a wonderful family. I have had the 
privilege of meeting them. But I hope you will tell Ann also 
how much I and the others appreciate what she has done, too, to 
make it possible for you to be Director. You are going to leave 
enormous shoes to fill.
    As the FBI now prepares for its first change in leadership 
since the 9/11 attacks, we have to review closely the broad 
intelligence-gathering powers that Congress granted the FBI. 
They face daunting national security challenges, but we also 
have to ensure--and this is the responsibility of not only the 
FBI but the oversight--that they do not violate the privacy 
rights and civil liberties of law-abiding Americans. I have 
long said that protecting national security and protecting 
Americans' fundamental rights are not mutually exclusive. We 
can and we must do both.
    The recent public revelations about two classified data 
collection programs illustrate the need for close scrutiny by 
Congress of the government's surveillance activities. I have 
been troubled for years by the expansive nature of the USA 
PATRIOT Act. These powerful law enforcement tools, including 
Section 215 orders, require careful monitoring. That is why I 
authored legislation in 2009 that would have improved and 
reformed the PATRIOT Act while also increasing its 
transparency. My bill was reported by this Committee on a 
bipartisan basis in 2009 and 2011. I intend to reintroduce--
just so everybody will know, I am going to reintroduce that 
bill tomorrow and hope that Senators from both parties will 
join me in this effort to improve the PATRIOT Act.
    The American people deserve to know how broad investigative 
laws like the PATRIOT Act are being interpreted and used to 
conduct electronic surveillance. Americans also deserve to know 
whether these programs have proven sufficiently effective to 
justify their breadth. Right now, I have to state I remain 
skeptical.
    I also firmly believe that we need to maintain close 
oversight over the broad surveillance authorities contained in 
the FISA Amendments Act. I have had concerns about the scope of 
Section 702, even though its statutory focus is on foreigners 
overseas. That is why I pushed for a shorter sunset, greater 
transparency, and better oversight last year when Congress 
considered reauthorizing these provisions. I regret that the 
Senate rejected my efforts. I think now there is a possibility 
they may in further legislation accept these commonsense 
improvements.
    We have to have an open debate about the efficacy of these 
tools, particularly in light of the Boston Marathon bombing in 
April, not only how we collect it but what we do with it once 
it is collected, whether intelligence obtained by the FBI had 
been properly relayed through the Joint Terrorism Task Force to 
the Boston Police Department. There have been questions raised 
that it was not. And I know the Inspector General for the 
intelligence community is conducting an independent assessment.
    Finally, the FBI's increased focus on counterterrorism 
cannot come at the expense of the regular law enforcement 
efforts. Preliminary data released earlier this month show that 
in 2012, the overall violent crime rate in the U.S. rose for 
the first time since 2006, and I think we should look at why 
and is the FBI able to work with their State and local partners 
in this. I know the FBI has been at the forefront in using 
forensic science in its investigations. It has had problems in 
the past with its crime lab, and I look forward to working with 
the FBI to develop comprehensive legislation on forensic 
matters.
    So I thank the Director for being here, but when I thank 
you, Director, I also thank the hard-working men and women of 
the FBI. I know you are proud to serve with them. They are 
proud to have you leading them. And I look forward to the 
Director's testimony.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Grassley.

 OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM 
                       THE STATE OF IOWA

    Senator Grassley. Director Mueller, thank you for your 
service as well and extending that period of time that you are 
willing to serve the people of this country.
    Thank you, Chairman Leahy, for calling the hearing, and I 
welcome Director Mueller back, particularly because this is 
likely to be the last hearing he will appear before the 
Committee.
    Over the past 12 years, Director Mueller has done a good 
job of transforming the FBI from a law enforcement agency into 
a national security agency. The wall between intelligence and 
criminal cases has come down, and the integration of law 
enforcement and intelligence has worked. Those fundamental 
changes have made the FBI stronger and more successful in 
stopping terrorist attacks before they occur. They have also 
helped strengthen the FBI when tragic events like the Boston 
bombing have occurred.
    Cooperation between the FBI, federal agencies and partners, 
and State and local law enforcement has been improved. However, 
there are still problems with the FBI that need to be 
addressed, such as retaliation against those who speak out and 
blow the whistle on internal problems.
    That said, for a second time I thank Director Mueller for 
his service, and I am sure that he is looking forward to much 
deserved time off. Unfortunately, we still do not know who will 
be replacing Director Mueller when he leaves. This is very 
concerning and, of course, raises questions about the upcoming 
transition.
    For starters, the President has not submitted a nominee to 
the Senate to fill the vacancy. There have been media reports 
that the President intends to nominate James Comey, former 
Deputy Attorney General in the Bush administration, but no 
official nomination has been received. It is unclear what the 
intention of the White House is with the release of Mr. Comey's 
possible nomination.
    Whatever the motivation, it does not change the fact that 
the President has not formally nominated anyone to succeed 
Mueller. The President needs to send a nomination to the Senate 
and in short order; otherwise, we will not have enough time to 
properly vet the nominee and ensure that the new Director is in 
place prior to Director Mueller's departure. Given the FBI's 
role in counterterrorism, counterintelligence, and criminal law 
enforcement, any delay in appointing a Director means a vast 
bureaucracy will be left to an Acting Director.
    I would like to hear from Director Mueller about the 
transition planning, how he intends to hand things over to the 
next Director, and what contingency plans are in place in the 
event an Acting Director is necessary.
    There are a number of other matters to discuss.
    First, there has been a lot of news following the 
classified leaks of two national security programs operated by 
NSA and utilized by the intelligence community. The leak of 
classified information related to the 215 business record 
program and the 702 foreign intelligence has started a debate 
about whether these programs strike the proper balance between 
civil liberties and our security. As a result of the release of 
information, the administration chose to release additional 
details explaining how the programs operate, including the 
facts surrounding successes in thwarting terrorist attacks.
    More importantly, the information details the various 
safeguards and programmatic oversight built into the program. I 
am always of the opinion that more oversight is needed of the 
Federal Government, and given the classified nature of these 
programs, Congress needs to be extra vigilant in conducting 
oversight of these programs.
    Yesterday's public hearing held in the House Permanent 
Select Committee on Intelligence was a good opportunity for 
Congress and the administration to show the American people 
that these programs can be discussed in an open manner. More 
hearings should be held so people better understand how the 702 
program and Section 215 work. This includes the necessary 
declassification of information to assist Congress in 
determining whether the law was followed. Absent some level of 
transparency, the American people will not understand how their 
government works.
    There is a lot of distrust in government these days, and it 
is certainly understandable given the scandal at the IRS, the 
secrecy surrounding the administration use of drones, subpoenas 
seeking reporters' emails and telephone calls, along with the 
effort to legislate in spite of constitutional protections and 
civil liberties. An open and transparent discussion of these 
programs is the only way that the American people will have 
confidence in what their government is doing.
    I continue to believe that a major problem causing the 
leaking of classified information is the lack of whistleblower 
protection for members of the intelligence community. The final 
version of the Whistleblower Protection Enhancement Act that 
was signed into law last year failed to include protections for 
the intelligence community, and I authored those. These 
provisions were originally included in the Senate-passed 
version but did not pass the House.
    Specifically, it would have provided a protected method for 
employees to report concerns through a protected channel within 
the intelligence community. I believe the existence of such a 
channel would help stop would-be leakers from releasing 
classified information. So I would like to hear from Director 
Mueller about whether he would support such a provision.
    Another critical national security issue to address is 
cybersecurity. The House has passed four separate bills 
addressing the issue. The Senate continues to address the topic 
in various committees. All the proposals recognize the need to 
strengthen the Nation's cybersecurity defenses. Where they 
differ is how to do it. The FBI plays a front-line role in 
addressing and investigating cybersecurity, so the Director 
might information us about what barriers exist and are 
preventing efforts to combat cyber attacks against our computer 
systems.
    Regarding traditional criminal matters at the FBI, I remain 
concerned about the number of cases where individuals may have 
been convicted based on faulty FBI crime lab reports. Chairman 
Leahy and I sent a number of letters regarding the unpublished 
results of the 1996 review of the FBI crime lab. To date, we 
have not received a briefing on this request. The Department of 
Justice continues to focus only on prospective review of 
criminal cases and not provide answers to the Committee as to 
what happened during this previous review. I would like to hear 
what the Director says about the matter and what has been done 
to bring justice to defendants that may be innocent as a result 
of faulty crime lab work.
    I will ask the Director about the FBI's plans for using 
unmanned aerial systems or drones. At the last oversight 
hearing with Attorney General Holder, I asked about the 
Department's use of drones, and in a written response, the 
Attorney General indicated DEA and ATF had purchased drones and 
were exploring their use in law enforcement. Absent from this 
response was an indication of how the FBI was using or seeking 
to utilize drone technology. So I will ask Director Mueller 
whether the FBI has purchased or is considering purchasing 
drones, what limitations the FBI has put in place, and how the 
FBI plans to use drone technology.
    I will ask about the FBI's investigation into Border Patrol 
Agent Brian Terry's murder. It has now been 2-1/2 years since 
the murder. The FBI has cited the ongoing investigation as a 
reason for not providing information. However, at some point 
the FBI will have to answer questions about this matter, and it 
is a matter of courtesy and humanity to the family to do that.
    And, finally, I remain concerned that whistleblowers at the 
FBI continue to face retaliation and delay in clearing their 
names. So I will ask the Director about the final outcome of 
two whistleblower cases brought by employees at the FBI that I 
have been tracking for years. The first is that of Agent 
Turner, who blew the whistle on FBI employees removing evidence 
from the World Trade Center site following the 9/11 attack. The 
second is employee Robert Kobus, who blew the whistle on time 
and attendance fraud at the New York City Field Office FBI. The 
Deputy Attorney General found Special Agent Turner was subject 
to adverse personnel action. Why has the FBI appealed and 
fought Special Agent Turner's case for nearly a decade? And 
what action was taken against those persons who participated in 
the retaliation? And in regard to the Kobus case, what is the 
current status of that case? And if there has been a ruling, 
why has my office not been provided a copy?
    So thank you very much, Director Mueller, for your service 
but also for helping me get to the bottom of some of these 
things.
    Chairman Leahy. Thank you very much.
    Director Mueller, we will, of course, put your full 
statement in the record. As I said, this is probably your last 
appearance here, but you have served with distinction as only 
the sixth Director of the Federal Bureau of Investigation, 
which was a great career starting your service as a U.S. Marine 
in Vietnam and through to the present.
    We will, of course, put your full statement in the record, 
but the floor is yours. Go ahead.

  STATEMENT OF HON. ROBERT S. MUELLER III, DIRECTOR, FEDERAL 
     BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Mr. Mueller. Well, thank you, Chairman Leahy, and good 
morning, and thank you for the kind comments about my wife, who 
deserves very much of the credit, I must say. Both she and I 
appreciate you thinking of her. And, Ranking Member Grassley, 
thank you for your comments, sir. And thank you to all for 
giving me the opportunity here to testify on behalf of the men 
and women of the FBI. And on behalf of them, let me begin by 
thanking you for your support of the institution over the last 
11-1/2 years since September 11th. Any progress that we have 
made in that time frame is attributable to a number of 
entities, one of them being this particular Committee.
    Now we live in a time of diverse and persistent threats 
from terrorists, spies, cyber criminals and, at the same time, 
we face a wide range of criminal threats, from white-collar 
crime to child predators. And just as our national security and 
criminal threats constantly evolve, so, too, must we, the FBI, 
evolve to counter these threats, even during a time of 
constrained budgets.
    Today I would like to highlight several of the FBI's 
highest-priority national security and criminal threats, 
starting with terrorism. As illustrated by the recent attacks 
in Boston, the terrorist threat against the United States must 
remain our top priority.
    As exhibited by many of our arrests over the past year, we 
face a continuing threat from homegrown violent extremists. 
These individuals present unique challenges because they do not 
share a typical profile. Their experiences and motives are 
often distinct, which makes them difficult to identify and to 
stop.
    And at the same time, foreign terrorists still seek to 
strike us at home and abroad. Terrorists today operate in more 
places and against a wider array of targets than they did a 
decade ago. We have seen an increase in cooperation among 
terrorist groups and an evolution in their tactics and in their 
communications.
    While core al Qaeda is weaker and more decentralized than 
it was 11 years ago, it remains committed to attacks against 
the West. And al Qaeda affiliates and surrogates, in particular 
al Qaeda in the Arabian Peninsula, pose a persistent threat. 
And in light of recent attacks in North Africa, we must focus 
on emerging extremist groups capable of carrying out additional 
such attacks.
    Turning briefly to that which was mentioned, that is, 
cyber, the cyber threat has evolved significantly over the past 
decade and cuts across all of our FBI programs. Cyber criminals 
have become increasingly adept at exploiting weaknesses in our 
computer networks, and once inside they can exfiltrate both 
state secrets and trade secrets. And we face persistent threats 
from hackers for profit, organized criminal cyber syndicates, 
and what we call ``hacktivist groups.''
    As I have said in the past, I do believe that the cyber 
threat may well eclipse the terrorist threat in years to come. 
And in response, we are strengthening our cyber capabilities in 
the same way we enhanced our intelligence and national security 
capabilities in the wake of the September 11th attacks.
    The Cyber Division is focused on computer intrusions and 
network attacks. FBI special agents work side by side with 
federal, State, and local counterparts on cyber task forces in 
our 56 field offices, working together to detect and disrupt 
computer intrusions.
    We have increased the size of the National Cyber 
Investigative Joint Task Force, which brings together 19 law 
enforcement, military, and intelligence agencies to stop 
current attacks and prevent future attacks. And cyber crime 
requires a global approach, and through our 64 legal attache 
offices overseas, we are sharing information and coordinating 
investigations with our counterparts.
    Finally, on this particular point, we recognized that the 
private sector is an essential partner to protect our critical 
infrastructure and to share threat information. We have 
established several noteworthy outreach programs, but we must 
do more. We need to shift to a model of true collaboration, 
build structured partnerships within the government and in the 
private sector.
    Turning to the FBI's criminal programs, we have a great 
range of responsibilities from complex white-collar fraud to 
transnational criminal enterprises, and from violent crime to 
public corruption. And given the limited resources, we must 
focus on those areas where we bring something unique to the 
table.
    For example, violent crime and gang activity continue to 
exact a high toll on our communities and through Safe Streets 
and Safe Trails Task Forces, we identify and target the most 
dangerous of these criminal enterprises.
    At the same time, the Bureau remains vigilant in its 
efforts to find and stop child predators. Our mission is 
threefold: first, to decrease the vulnerability of children to 
exploitation; second, to provide rapid, effectiveness response 
to crimes against children; and, third, to enhance the 
capabilities of State and local law enforcement through task 
force operations such as the Innocent Images Initiative and the 
Innocence Lost Initiative.
    Now, let me pause for a second and spend a moment 
discussing the recent public disclosure of highly classified 
national security programs.
    The highest priority of the intelligence community is to 
understand and combat threats to our national security, and we 
do so in full compliance with the law. We recognize that the 
American public expects the FBI and the intelligence community 
to protect privacy interests, even as we must conduct our 
national security mission.
    The FISA Court has approved both programs, and these 
programs have been conducted consistent with the Constitution 
and the laws of the United States. The programs, as we heard 
yesterday, have been carried out with extensive oversight from 
the courts, from Congress, and from independent Inspectors 
General. And these programs do remain classified, so there are 
significant limits on what we can discuss this morning in an 
open session.
    I do know that there have been classified briefings on 
these programs for Senate Members over the last couple of 
weeks, and I hope most of you, if not all of you, were able to 
attend. And if you were unable to, I would suggest and 
encourage you to do so.
    As to the person who has admitted to making these 
disclosures, he is the subject of an ongoing criminal 
investigation. These disclosures have caused significant harm 
to our Nation and to our safety, and we are taking all 
necessary steps to hold accountable that person responsible for 
these disclosures. But as this is a matter actively under 
investigation, I cannot comment publicly on any of the details 
of the investigation.
    Now, in closing, I would like to turn to sequestration. The 
impact of sequestration on the FBI's ability to protect the 
Nation from terrorism and crime will be significant. In Fiscal 
Year 2013, the FBI's budget was cut by more than $550 million 
due to sequestration. In Fiscal Year 2014, proposed cuts will 
total more than $700 million. The ongoing hiring freeze will 
result in 2,200 vacancies at the FBI by the end of this Fiscal 
Year with another 1,300 additional vacancies in 2014.
    I have said and you have said that the Bureau's great asset 
are our people. Additional operational cuts will impact our 
ability as an organization to prevent crime and terrorism, 
which will impact the safety and the security of our Nation.
    I will say we all understand the need for budget 
reductions, and we are going through a thorough review of every 
dollar spent, and I am sure we can find savings. I would like 
to work with the Committee to mitigate the most significant 
impacts of the cuts, both this Fiscal Year and those we 
anticipate for the next fiscal year.
    Chairman Leahy, Ranking Member Grassley, and Members of the 
Committee, I again would like to thank you on behalf of the 
Bureau and all our people for your support of the FBI and its 
mission. Our transformation over the past decade would not have 
been possible without your cooperation. Again, thank you 
personally and on behalf of the FBI for your efforts and your 
contributions, and I look forward to answering 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, Director, and I 
share your concern about sequestration. The kind of meat axe 
approach of that has been devastating to law enforcement. It 
has been devastating to some of the critical work we do in 
seeking cures for major diseases. In a number of areas, it has 
put out scientific efforts behind so many other countries, and 
it is questionable whether it will take us decades to get 
caught back up.
    Let me talk about the PATRIOT and FISA authorities. As you 
know, I have had concerns about Section 215 of the PATRIOT Act 
and Section 702 of the FISA Act, the Foreign Intelligence 
Surveillance Act, for a number of years.
    Now, the Director of National Intelligence has declassified 
some more information about the bulk collection, the huge 
amount of collection of phone records under Section 215, and I 
think the American people want to know if it has been 
sufficiently effective to justify what is a very expansive 
scope.
    Last week, I asked the Director of the National Security 
Agency, General Alexander, to provide specific information--he 
had been going in broad generalities. I asked him for specific 
information about cases where data obtained through Section 215 
proved critical to thwarting a terrorist threat, even if he had 
to do it in a classified setting. He promised he would provide 
that by now, by this time this week, and he has not yet, but I 
assume that having promised publicly that he would, he will.
    Last week, we heard it was dozens of plots. Yesterday we 
heard it was 50. But then either way, it seemed clear that the 
majority of those cases were not under Section 215. They were 
702, an entirely different type of program.
    So let me ask you this: Have phone records obtained through 
Section 215 of the PATRIOT Act been critical to the disruption 
and discovery of terrorist threats? And if so, how many times?
    Mr. Mueller. Well, the answer to that is yes. I would say 
for most of the occasions it has been a contributing factor, 
one dot amongst a number of dots, but there are those cases 
where it has been instrumental. The one that was mentioned 
yesterday is an individual out of San Diego who we had opened 
in 2003, based on an anonymous tip that this individual was 
involved with Al-Shabaab, providing support to Al-Shabaab in 
Somalia. We did an investigation. We closed the investigation 
down.
    Chairman Leahy. But in that case, the initial was from a 
tip, not from something----
    Mr. Mueller. That was in 2003. We closed it down in 2003. 
In 2007, NSA was up on a telephone line in East Africa. They 
had the number of that telephone line, but they could not tell 
what calls were made to that telephone line in East Africa. 
And, consequently, they took that number, ran it against a 
database, and came up with this number, telephone number in San 
Diego. All they had was a number. They then go through the 
additional legal process to get the subscriber information that 
is not included in the database, and from that went up on a 
FISA after they gained the requisite predication. That was a 
case that was solely based initially--the reopening of that 
case, that person has been convicted, I think pled guilty, and 
is about to be sentenced. But that is one case where you have 
215 standing by itself.
    Now, the point----
    Chairman Leahy. Is it possible to say how many where 215 
has been critical? Because we are talking about billions of 
phone numbers. How many----
    Mr. Mueller. Let me, if I could, say two things. You are 
going to get--I know we are working through the list of 
numbers--or not numbers, the list of cases, and of those 
domestically I think there will be anywhere from 10 or 12 where 
215 was important in some way, shape, or form.
    Chairman Leahy. Out of the billions of phone numbers that 
were collected.
    Mr. Mueller. Yes, but let me go back to September 11th. On 
September 11th, al-Mihdhar was one of the principal hijackers 
ultimately--I think he was in the plane that--one of the planes 
in New York, but I may be wrong on that. But he was a principal 
hijacker, and the intelligence agencies were on him, tracking 
him through the Far East. Nobody had him in the United States. 
Ultimately he comes to the United States in 2000.
    Sometime thereafter, the intelligence communities are on a 
number in Yemen that is known to be affiliated with terrorists. 
At that point in time, without this particular capability, they 
had no way of identifying whether there was somebody in San 
Diego calling this number in Yemen. The IG report afterwards 
indicated that had we had this information, we may well have 
been able to stop the attack. If we had had this program in 
place then, the NSA or the intelligence community would bring 
that number to us, we would run it against that database, and 
what would come up was Mihdhar's number in San Diego, and we go 
through exactly the same routine we did----
    Chairman Leahy. I understand, but you also have a whole lot 
of other things that happened there. I mean, the 9/11 
Commission showed that the failure of the CIA and the FBI--and 
I realize it was before your time, but the failure of the CIA 
and the FBI to share information created problems. Al-Mihdhar 
had been placed in the State Department's tip-off watchlist. 
Had the CIA shared records with the FBI, that might have made a 
difference.
    Had Minnesota had the warnings----
    Mr. Mueller. Moussaoui.
    Chairman Leahy. Had the warnings of the agent out there 
been followed up in Washington, that might have made a 
difference. We could look at a whole lot of things that I 
assume we are doing a lot better today. But the--and, of 
course, we know that the President was told in August of a 
serious concern about this.
    So I realize the mistakes were made before 9/11. We are 
trying to close that. I just want to make sure if we are 
collecting--I was concerned about the testimony last week by 
the NSA as though somehow--and they were conflating 215 and 702 
as though this was critical to everything, and yet as you know, 
you collect several billion phone calls, and sometimes you do 
not have anything unless you got a tip from just good police 
work that makes you look back and find out what those--what 
numbers are worthwhile.
    I worry that we get so imbued with the technology that we 
forget that somehow all the technology in the world does not 
begin to help as much as just collecting the dots, connecting 
the dots.
    Mr. Mueller. Well, I think what concerns me is you never 
know which dot is going to be key. What you want is as many 
dots as you can. If you close down a program like this, you are 
removing dots from the playing field.
    Now, you know, it may make that decision that it is not 
worth it, but let there be no mistake about it, there will be 
that fewer--those fewer dots out there to connect if you do not 
have that ability to go back in records that retain the toll 
records or a database that retains those toll records and 
identify that particular person in the United States who is in 
communication with the terrorist number overseas.
    Chairman Leahy. I will have further questions, but one of 
them I have again on connecting the dots, we have heard 
conflicting testimony that on the Boston Marathon bombing, even 
though the Boston police had four officers assigned to the 
Joint Terrorism Task Force, they were not given all the 
information the FBI had about what the Russian security service 
said, cryptic though it might be, and were not told that 
Tamerlan intended to travel abroad. Is that true?
    Mr. Mueller. Well, yes and no. Let me, if I can explain. It 
is a Boston task force. The Boston task force last year had 
probably close to 1,000 threats related to counterterrorism. 
You do not--everybody on that task force handles federal 
threats or local threats or what have you. It is a task force. 
The question, I think, from Ed Davis' point of view is, should 
the hierarchy of the Boston Police Department have been 
informed?
    This, because it was resolved, it was not an immediate 
threat, did not get briefed up through the task force to the 
higher levels of the FBI, much less the other participants in 
the task force. So I do not think it is fair to criticize the 
task force concept for not--in something like this, doing the 
briefings higher up the chain of command given the number of 
cases that we handle in this area.
    I will tell you that if you talk to State and local law 
enforcement, I think they will say that the work that we did in 
the course of this investigation was first rate, that the 
relationships that we have developed over a period of time are 
extensive, and the success of bringing--identifying the two who 
were responsible for it in such a short period of time is 
attributable to that work of State and local law enforcement, 
but also contributed to by us and the relationships.
    Chairman Leahy. Thank you very much. And I apologize to 
Senator Grassley for taking extra time on this, but please go 
ahead.
    Senator Grassley. I just told him he does not need to 
apologize. He is Chairman of the Committee.
    During the last hearing, May 2012, Senator Hatch asked a 
question as to whether or not President Obama discussed 
potential successors with you. You responded at that time that 
he had not in the past--or he had in the past but not recently. 
Now, I do not expect to get any information on the content of a 
discussion you might have with the President, but I do ask this 
question: Since the hearing, May 2012, have you discussed 
potential successors with President Obama?
    Mr. Mueller. Well, yes. I generally do not like to get into 
conversations between myself and----
    Senator Grassley. No, and you----
    Mr. Mueller. But I will say yes, without any of the 
content.
    Senator Grassley. You have answered the question.
    Mr. Mueller. Okay.
    Senator Grassley. Do you have a transition plan in place 
for your successor? And if so, how much time is needed to 
implement the plan in order to provide a seamless transition?
    Mr. Mueller. We have been preparing, as you can imagine, 
for the last two years--in fact, the last two and a half years, 
and we have already prepared the extensive materials that the 
successor will have to review. We are prepared to start the 
briefings as soon as the person is sworn in. We have been 
looking at personnel so that there can be some overlap of 
personnel so that the person comes in and has key components 
that are ready to support them, in the same way that when I 
came in before September 11th, the FBI supported me.
    Senator Grassley. Approximately how much time is necessary 
for that?
    Mr. Mueller. Well, it is a learning experience, and we will 
get the briefings and the like, but it will take maybe three--I 
would say a month to really get one's feet on the ground. But 
in that month, I can tell you something is going to happen, so 
whatever you planned in terms of sitting down and looking at 
something, something else will come up, and your attention will 
be diverted. So it is hard to say a specific time frame.
    Senator Grassley. This is so important because we will have 
about four weeks in July, we will have only four days after 
your term ends to consider a nominee.
    Do you have any idea when we might expect a nominee to come 
up from the White House?
    Mr. Mueller. I do, but I am not in a position to be able to 
advise the Committee.
    Senator Grassley. Okay. Then let me go on to another one. 
This involves Fast and Furious. In my opening statement, I said 
I know that the FBI does not talk about ongoing investigations. 
However, eventually the FBI has to talk about the Brian Terry 
murder investigation, just like eventually you had to talk 
about the anthrax investigation.
    I am going to be submitting a detailed list of questions 
about the concern that the Terry family has that there was an 
attempt to cover up the connection between the guns and the ATF 
operation. According to the family, the indications of an 
attempted coverup have not been fully investigated.
    So all I am asking you now: Would you be able to respond to 
my written questions before you leave office?
    Mr. Mueller. I would have to look at it and see how 
extensive, but we will make every effort to do so.
    Senator Grassley. Okay. And then just one question in 
regard to this issue, so I will ask right now. On October 20, 
2011, I wrote you to ask what time the FBI arrived in Peck 
Canyon where Border Patrol Agent Brian Terry was murdered. 
There are conspiracy theories out there that the FBI or an FBI 
informant was out in Peck Canyon before Agent Terry was shot. 
Do you believe that there is any truths to those theories?
    Mr. Mueller. No, I do not believe there is any truth in 
those theories, but I would have to go back and make certain. 
Off the top of my head, I do not believe there is any truth, 
but I would like to go back and make certain that we have 
nothing that would be supportive of those theories.
    Senator Grassley. okay. And then I would like to have that 
in writing.
    Senator Grassley. I want to go to drones. In recent 
responses to questions I asked Attorney General Holder 
following his last oversight hearing, the Department of Justice 
advised this Committee that both DEA and ATF have acquired 
unmanned aircraft systems. The Department indicated that those 
agencies were drawing up plans and procedures to use them. The 
responses did not indicate whether the FBI had acquired any 
drones and whether there were future plans for drone technology 
use by your agency.
    Does the FBI own or currently use drones? And if so, for 
what purpose?
    Mr. Mueller. Yes, and for surveillance.
    Senator Grassley. Okay. Does the FBI have any agreement 
with any other government agencies--let me suggest a couple; 
there might be others: DOD and Homeland Security--to receive 
assistance in the use of drones?
    Mr. Mueller. I am not certain. I do not think so. But 
whenever--well, all I am saying is that one of the issues with 
drones, any use of drones by any agency, is what happens in the 
airspace. To the extent that relates to the airspace, there 
will be some communication back and forth.
    Senator Grassley. So instead of asking you a question, I 
think I can assume, since you do use drones, that the FBI has 
developed a set of policies, procedures, and operational limits 
on the use of drones, and whether or not any privacy impact on 
American citizens.
    Mr. Mueller. We are in the initial stages of doing that, 
and I will tell you that our footprint is very small. We have 
very few, and of limited use, and we are exploring not only the 
use but also the necessary guidelines for that use.
    Senator Grassley. Does the FBI use drones for surveillance 
on U.S. soil?
    Mr. Mueller. Yes.
    Senator Grassley. I want to go on to a question----
    Mr. Mueller. Well, let me just put it in context.
    Senator Grassley. Sure.
    Mr. Mueller. In a very, very minimal way and very seldom.
    Senator Grassley. Okay. Currently it is a crime to purchase 
material for the production of illegal passports, to forge 
illegal passports, to distribute illegal passports, and to 
engage in other criminal activity that facilitates trafficking 
of false passports. The immigration bill before the Senate will 
weaken this current law. Under the bill, only those who 
produce, issue, or distribute three or more passports will have 
committed a crime. Under the bill, only those who forge, alter, 
or possess or use three or more passports will have committed a 
crime. Even more outrageous under the bill, only those who use 
any official material to make 10 or more passports will have 
committed a crime.
    Question: Will these changes in current law have a negative 
impact on counterterrorism or counterintelligence efforts of 
the FBI?
    Mr. Mueller. I am not familiar with the current law, and 
even less so with the proposed law, so I would have to get back 
to you on that particular question.
    Senator Grassley. It would be very important that you get 
back to us in two or three days, because these are issues 
before Congress right now.
    Mr. Mueller. I will try to, but I must say I am not certain 
we have that much experience in the prosecution under those 
statutes. But let me look at it, and we will try to get back to 
you in short order.
    [The information referred to appears as a submission for 
the record.]
    Senator Grassley. Would you agree with this, that the 
weakening of current law creates a loophole that could allow 
terrorist groups such as al Qaeda or Hezbollah or other foreign 
spies to more easily operate within the United States?
    Mr. Mueller. Without analyzing the bill, I really am not in 
a position to opine on it.
    Senator Grassley. Okay. I will yield.
    Chairman Leahy. Thank you very much.
    Senator Feinstein.
    Senator Feinstein. Well, thank you very much, Mr. Chairman. 
You made several remarks as to the integrity and the service of 
the man before us. I cannot help but note it is the first time 
I have seen just one person at this very long table. I think 
that is due deference.
    Director Mueller, I first met you when I was mayor--and I 
think it was 30 years ago--and you were United States Attorney 
in San Francisco. I have watched your progress. I have watched 
you serve two Presidents, one Republican, one Democrat. I have 
watched your extraordinary integrity. I have watched you remove 
the FBI from certain interrogation having to do with detainees 
when you did not think it was appropriate. I consider you to be 
a man of high integrity and very strong values, and I think 
that you have brought that also and strengthened it in the 
organization you represent.
    I for one, and I think everyone, am very sad to see you go. 
You look young and vital to me, and----
    Mr. Mueller. I feel that way, too, I might add.
    Senator Feinstein. Well, that is good. I wanted to just 
have a talk with you about these two programs, because I go 
front and center with them as Chair of the Intelligence 
Committee of the Senate. And, you know, we have looked and 
tried to provide the oversight and see that they follow law. We 
had a classified briefing--and I will say one thing about it--
for 47 members and had the former chief judge of the Foreign 
Intelligence Surveillance Court there to explain how the Court 
proceeds.
    I, as you do, believe that both these programs are legal, 
that they are carefully overseen. Senator Leahy mentioned the 
one that collects phone record data, not the names but the 
data, not the content but the data. Only 22 people have access 
to it, and it was queried approximately 300 times only this 
past year.
    You yourself mentioned that it was responsible and helped 
in 10 to 12 percent of the 50 cases where the NSA has said it 
is helpful. I am asking you now for a qualitative judgment. I 
have made mine. How do you judge the 10 to 12 percent: as 
highly worth it or not worth it?
    Mr. Mueller. I think it is very difficult to judge a 
program in that particular way, particularly a program that 
will give you a key to preventing a terrorist attack. And how 
that one lead you have, how can you differentiate that from 
five or six or others that may come up in the same place? Which 
of those leads is going to be the one to help you disrupt a 
plot?
    In my mind, the communications capabilities of terrorists 
is the weakest link. If we are to prevent terrorist attacks, we 
have to know and be in their communications. Having the ability 
to identify a person in the United States, one telephone number 
with a telephone that the intelligence community is on in Yemen 
or Somalia or Pakistan or what have you may prevent that one 
attack, that Boston or that 9/11. And so, on the one hand, yes, 
it is relevant evidence; yes, it is critically important that 
we have that link. And then the question is: When you legislate 
it and you have this vast volume of records, how do you 
appropriately give oversight at the Justice Department in the 
National Security Division, in the Inspector General's office, 
through the FISA Court, and through Congress. And I think 
anybody who looks at these programs wants to make sure they are 
legal, that they are effective, that there is appropriate 
oversight because it does raise national security and civil 
liberties concerns.
    But once you look at that, once you identify it, then are 
you going to take the dots off the table, make them unavailable 
to you when you are trying to prevent the next terrorist 
attack? That is a question for Congress.
    Senator Feinstein. Well, the way I looked at it, 
particularly with Nazibullah Zazi, was that this was an attack 
which could have killed hundreds if not thousands of people, 
that he was not going to be the lone perpetrator, that we know 
there were at least two conspirators who were going to 
participate in it. We know about other things that showed that 
there were going to be more people. And it seems to me that if 
we were not able to protect it and the New York subway were 
blown up in a number of different places, with hundreds of 
people or thousands of people literally being killed, that 
there would be no question as to its value and worth.
    I have come to believe that the only way we prevent these 
attacks is good intelligence. How do you get good intelligence 
when likely one of the conspirators is in another country, 
connected with a terrorist group, and one is in this country 
prepared to carry it out? So to me, the value of those programs 
in preventing loss of life in this country is substantial.
    Here is the question. Because you have that 10 to 12 
percent, do you think it would be possible not to collect the 
database but to be able to query the database if the time for 
keeping that database was extended to five years with the phone 
companies?
    Mr. Mueller. I know Keith Alexander and others are looking 
at the possibility of restructuring the program in this way. In 
my mind there are two disadvantages--maybe three.
    First of all, there is no records retention requirement on 
telephone companies at this point, and they are all over the 
lot. Some may do it--and I throw this out--18 months, some may 
be less, some may be more. And in that database that they keep 
will be those numbers that are calling the suspect numbers 
overseas.
    Second, if you have a number in Yemen, that would require 
you to go to three or four or five or six particular carriers 
with separate legal paper and require them to come and pick up 
what they have collected and are keeping there and get back to 
you--the point being it will take an awfully long time. And in 
this particular area, when you are trying to prevent terrorist 
attacks, what you want is that information as to whether or not 
that number in Yemen is in contact with somebody in the United 
States almost instantaneously so you can prevent that attack. 
You cannot wait three months, six months, a year, to get that 
information and be able to collate it and put it together. 
Those are the concerns I have about an alternative way of 
handling this.
    Senator Feinstein. Well, let me ask you this: Is it 10 or 
12 cases or 10 or 12 percent?
    Mr. Mueller. Ten or 12 cases. I should have----
    Senator Feinstein. Ten or 12 cases.
    Mr. Mueller. Yes, and some of them are two--I am not 
certain whether all of them are 215. They are a combination or 
one or the other.
    Senator Feinstein. I see. Thank you.
    One other quick question. People are concerned about 
privacy. I think the greatest threat to the privacy of 
Americans is the drone and the use of the drone and the very 
few regulations that are on it today and the booming industry 
of commercial drones.
    You mentioned that you use it for surveillance. What are 
the privacy strictures on the use of drones by your agency 
today?
    Mr. Mueller. Well, it is very seldom used and generally 
used in a particular incident where you need the capability. I 
will have to go back and check in terms of what we keep in 
terms of the images and the like. But it is very narrowly 
focused on particularized cases and particularized needs in 
particularized cases, and that is the principal privacy 
limitations we have.
    Senator Feinstein. I would like to get that information. I 
think it would be helpful to us legislatively.
    Mr. Mueller. I will be happy to do that.
    Senator Feinstein. Thank you very much.
    Senator Feinstein [presiding]. Senator Hatch, you are next.
    Senator Hatch. Well, thank you so much, Madam Chairman.
    Well, I came here today basically to thank you for your 
service. I also want to thank Senator Feinstein for her kind 
remarks about you. Senator Feinstein has done an excellent job 
on the Intelligence Committee. Up until I left a few years ago, 
I believe I was the longest-serving person in history on the 
Intelligence Committee, so I have been fully aware of these 
matters. And all I can say is I want to pay tribute to you, 
General Alexander, and others in the intelligence community and 
the FBI for the work that you have done to protect our country 
and to ferret out these problems that really could have been 
very disastrous had we not had the abilities that you have been 
describing here today.
    But I also want to personally thank you for the terrific 
service you have given. I have watched you very carefully. I 
have been Chairman on this Committee. I have been Ranking 
Member on this Committee. I just have to say that I do not know 
that we have ever had an FBI Director as good as you are, and, 
frankly, every one of us has confidence in you and your ability 
and your integrity. That is a pretty high comment, really, 
because we--and that is meant very, very sincerely. I have 
watched you over the years. I have watched the FBI do the job 
that in many ways they never get thanked for and really are 
not--in many ways people do not even know about it. It is a 
thankless job in many ways, and you have given almost 12 years 
of your life to this type of work. I just want to personally 
tell you how much I personally appreciate you and appreciate 
the FBI and those who have served with you all these years. And 
I wish you the very, very best when you finally do hang them up 
here, and I think all of us--or at least I can speak for most 
all of us, we just think you are terrific.
    I will not take any more time, but I just wanted to make 
sure I let you know just how deeply I feel toward you and those 
at the FBI who have been doing such a great job all these 
years.
    Mr. Mueller. Well, thank you very much, Senator. I remember 
you chaired my confirmation hearing--I will not forget that--a 
number of years ago. But I have been very lucky and fortunate 
to have the opportunity to do this job, which I have loved and 
enjoyed, and thank you for those comments.
    Senator Hatch. Well, you have done a great job. Thank you.
    Senator Feinstein. Thank you very much, Senator Hatch.
    Senator Klobuchar is next. I do not see her. Senator 
Franken is not here. Senator Sessions.
    Senator Sessions. Well, those were kind comments, Director 
Mueller, and I would echo them. You know my admiration for you 
as a professional is exceedingly high, and you came to the 
office with the kind of skills, experiences that others have 
noted that gave you an opportunity to be very, very effective 
in this important position. So I really salute you for that. 
Your integrity is undoubted, and your experience and love of 
your country is undoubted. So I wanted to join in my comments 
in that regard.
    There are so many things that are happening now, and I 
think the FBI needs to rise to the occasion. The FBI is such a 
premier investigative agency. I had the honor to prosecute 
cases brought to me by FBI agents for almost 15 years, and I 
met with them personally for hours and weekends and nights and 
know how meticulously they work to do everything exactly right. 
And when I hear people have doubts, great doubts sometimes, 
about the integrity of the average cases and agents that I 
know, I know that is just not right. They try to do the right 
thing every day. If they are involved in anything seriously 
wrong, discipline will fall swift on them. They can make 
mistakes, and Congress sometimes creates circumstances that 
puts them in difficult positions, and life is tough for agents 
out there. But, fundamentally, day after day, I have worked 
with FBI agents. They are personal friends of mine, remain so 
for decades, and I just want to share those thoughts.
    Maybe you would like to comment about the fidelity of your 
agents.
    Mr. Mueller. You are not going to find a better group of 
people to serve with. The testimony was most firmly felt when I 
was a new person in the institution. In the wake of September 
11th and the organization, every agent, every analyst, every 
professional support staff worked flawlessly in response to 
that. And that was just indicative of the capabilities of the 
organization and the quality of the people.
    Senator Sessions. Well, I agree. Director Mueller, one of 
the big matters before the Nation today is the IRS scandal 
involving the actions that have been taken to target 
conservatives or Tea Party groups. It so happens that I know 
Becky Gerritson of the Wetumpka Tea Party, who testified before 
the House Committee. And she was a normal housewife, American 
citizen, who got deeply engaged in trying to make her country 
better. She loves this country. Her integrity is high. She was 
trying to do the right thing. And I believe that the IRS did 
not perform and handle their applications for status correctly. 
I believe it is a very serious matter, and I am concerned about 
it.
    You were asked last week, I believe, about this as to 
whether or not the victims, the potential victims of these 
abuses have been interviewed, and I believe you said no. I 
believe on May 14th Attorney General Holder said that an 
investigation had been commenced. Is the FBI the lead agency of 
the IRS matter?
    Mr. Mueller. Yes.
    Senator Sessions. And you have designated agents in charge 
of that investigation?
    Mr. Mueller. Yes, I have.
    Senator Sessions. And you were asked before whether you 
knew the names of those. Can you tell us those names or how 
many have been assigned to it?
    Mr. Mueller. I can say that over a dozen agents have been 
assigned locally. I can tell you that it falls within the 
purview of Valerie Parlave, who is the Assistant Director in 
charge of our Washington office, who is in charge of this 
investigation at the field level; but we also have people at 
headquarters that are monitoring it.
    I cannot tell you who in the course of the investigation 
has been interviewed. I will tell you that before we initiated 
the investigation, if--and we did get complaints, those 
individuals were interviewed before we even initiated an 
investigation. And they would be the victims which you 
mentioned.
    Senator Sessions. Well, the FBI is the right agency, in my 
opinion, without question. It should not be the internal IRS IG 
or others. And you have the independence to do that 
effectively, and I believe you can do that. But I called Ms. 
Gerritson this morning. It so happens she was discussing with a 
lawyer, and they said they have been talking to other so-called 
potential victims, and none of them have been interviewed, none 
of them have been contacted about an interview, even an 
appointment set up with them. I think that is pretty slow. I 
think the first thing you do from my experience is you go out 
and interview the people and find out what conversations they 
had, what documents they have, what the basis parameters of the 
problems are, and get busy on it.
    Do you think--it seems to me that you are running behind 
here. What would you say about that?
    Mr. Mueller. Well, I am not familiar with the day-in and 
day-out details of the investigation. Quite obviously, given 
what you have said, I will go back and see where that is. But 
also in these investigations, one of the first things you do, 
as you well know, as a prosecutor is have the records so that 
when you do the interviews you have the requisite materials so 
that you can do an effective interview.
    Now, I am hypothesizing because I do not know what is 
happening at the level of who in particular is being 
interviewed. But I will go back and check on that.
    Senator Sessions. I think you need to get that level. I 
think it is too slow. And I think you can always have agents, 
well, we are getting our records together, and we are reviewing 
some----
    Mr. Mueller. No, I understand that.
    Senator Sessions. Somebody needs to go out and find out 
what the problem is, talk to the people and see what the 
problem is first.
    Mr. Mueller. I tell you, there is urgency with the 
investigation. It is not languishing.
    Senator Sessions. All right. And I would share with Senator 
Grassley deep concern that this immigration bill would say for 
passports, which you should be aware of and they need to be on 
top of, only those who produce, issue, or distribute three or 
more passports have committed a crime. Under the bill, only 
those who forge, alter, and possess three or more passports 
will have committed a crime. And only those who use any 
official material to make 10 or more passports will have 
committed a crime.
    So I hope you will look at that. We would like the FBI's 
advice if this makes it more difficult to produce integrity in 
the passport processing business. Would you look at that?
    Mr. Mueller. Yes, will do.
    Senator Sessions. Thank you.
    Mr. Mueller. Yes, will do.
    Chairman Leahy [presiding]. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you so much, Director Mueller. Thank you for your wonderful 
service for the last 12 years. Thank you for the work that you 
have done in Minnesota. And I think the Nation was riveted with 
the work that you did and your agents did with Boston, so thank 
you for that. And I also noticed there were ATF agents there, 
so I am going to start with that.
    We just had a hearing for the President's nominee for the 
head of the ATF. Do you think it would be helpful to have a 
permanent head of the ATF?
    Mr. Mueller. I think it is always beneficial for the agency 
to have a permanent head.
    Senator Klobuchar. Very good. Are you aware that since the 
position became confirmable that this Congress has not ever 
confirmed anyone for the job?
    Mr. Mueller. I understand that.
    Senator Klobuchar. Yes. And one of the ideas put out there, 
if they are just simply not going to or are unable to get 
bipartisan support for a nominee, enough, at least, to put us 
over the top so we get a confirmed nominee, is Senator Durbin's 
idea to actually put the ATF under the FBI if for a number of 
years it goes without getting a confirmed Director. What would 
you think of that idea?
    Mr. Mueller. That is something that would require a great 
deal of study before one wanted to embark on some sort of 
merger.
    Senator Klobuchar. I understand. I just think we are at the 
point where we have 2,400 agents who deserve a permanent head, 
and just as your agents have a permanent head, and I am hopeful 
we will be able to get this done this year. But I just wanted 
to put that out there for your people to think about because we 
are sort of left with, we hope, a confirmation ahead. But if 
that does not happen, we have to think of other ways to get 
this done. So I appreciate that.
    The other question--there have been several questions on 
the NSA issue, and I appreciated your comments earlier, I think 
it was to Chairman Leahy, about supporting declassifying, or 
working to do that, some of the FISA opinions. Is that correct?
    Mr. Mueller. Well, I have not been asked about the FISA 
opinions in particular. What we were talking about was the 
examples of where either 215 or 702 had been used. My 
understanding, though, is that the ODNI is looking at 
declassification possibilities with regard to the FISA Court 
orders, if that is what you are----
    Senator Klobuchar. Yes, that is what I meant.
    Mr. Mueller. Yes.
    Senator Klobuchar. And so do you think that could work?
    Mr. Mueller. I leave that--there was testimony in 
yesterday's hearing before the House with regard to that 
ongoing process, and I would have to defer to the ODNI for an 
answer on that.
    Senator Klobuchar. I appreciate that, and I also appreciate 
the information that has been put out to show the number of 
terrorist attacks that have been averted. I think that is 
important for the public to understand exactly what is going 
here and get the facts right about the numbers.
    Can you talk about--and maybe you want to defer this to 
another time--the various checks throughout the process for 
data collection and analysis that people would understand would 
protect privacy?
    Mr. Mueller. Well, certainly if you look at 215, the 
significant figures, you do have a database. It just has 
metadata in it, numbers, it does not have any information with 
regard to who. It has those particular numbers, no content. You 
have just 22 persons who have access to this, to run the name--
not the names, but run the numbers against the database, 20 
analysts and two supervisors. And last year, there were only 
300 inquiries, approximately 300 inquiries made into that 
database.
    You then have overlapping and the overlay of oversight from 
the Department of Justice, the IG's office, the FISA Court that 
renews 215 every 90 days, and then, finally, the oversight from 
Congress. So each of the three branches of government have a 
role in assuring that privacy interests are protected here.
    And at the other end, you have the possibility, the strong 
possibility and the actuality that in some cases this has been 
instrumental in contributing to the prevention of terrorist 
attacks.
    Senator Klobuchar. Thank you very much.
    Another issue we have talked about before is the problem of 
synthetic drugs. We have had deaths in Minnesota as they have 
had in many other States, a huge increase in the number of 
calls to the Poison Control line and others. And as you know, 
we passed some legislation targeting certain of these synthetic 
drugs, but I believe there is still more work to be done, and I 
am working on the so-called analog drug provision where I think 
that we could do more with that. But could you update us on the 
general state of synthetic drug use in the U.S. and how the 
provisions we passed last year are helpful and what more you 
think we could do?
    Mr. Mueller. Well, I am somewhat familiar with that, know 
it is on the increase. I am not familiar with the last part of 
your question as to what more we could do. It is really not our 
bailiwick. It is more DEA. And particularly in the time of 
budget constraints where we have to prioritize, that 
unfortunately drops down further on our list.
    Senator Klobuchar. Right, and we have been working with----
    Mr. Mueller. We are sympathetic and supportive, but I wish 
I could do more.
    Senator Klobuchar. Right. We have been working with DEA on 
this issue. It is just that I continue to see that has not gone 
away, and it obviously contributes to other crime as well. So I 
just want to put it on your radar screen.
    We are working on a bill on metal theft. We have seen a lot 
of that throughout the country with buildings and issues, and I 
know you talked about high-tech stalkings, the cyber crime 
issue. And you have said you believe the FBI must change with 
evolving technology to better address criminal and national 
security threats. What is the FBI currently doing to keep up 
with the changes in technology?
    Mr. Mueller. Well, internally, let me just say we 
understand that we have to have the basic knowledge of 
technology to conduct investigations in this age. Every agent, 
to the extent that you need to be refreshed on where we are in 
order to do our job, is getting greater training.
    Our specialists, we have got more than 1,000 personnel 
around the country that are specialists in this particular 
area. But I think the key for us is the NCIJTF, National Cyber 
Investigative Joint Task Force. Following the pattern of what 
we did after September 11th is understanding that we cannot do 
it alone. Having a task force concept where you have all of the 
major players in the cyber arena participating so that if there 
is a substantial intrusion, we immediately have those who would 
be involved, whether it be DHS, NSA, DOD, there trying to 
determine how to address it is critically important.
    The other thing that we have done and put a great deal of 
focus on in the last six to eight months is work with private 
industry, providing information to private industry based on 
what we have found so that they can protect their networks. So 
growing internally, growing the NCIJTF, and then building our 
capacity with the private sector have been the three areas that 
we have been focused on.
    Senator Klobuchar. Okay. Thank you very much, and thank you 
again for your service.
    Mr. Mueller. Thank you, ma'am.
    Senator Feinstein [presiding]. Thank you, Senator 
Klobuchar.
    Senator Cruz.
    Senator Cruz. Thank you, Madam Chairman.
    Director Mueller, it is good to see you.
    Mr. Mueller. Sir.
    Senator Cruz. Welcome. Thank you for testifying. You and I 
have known each other a long time. A dozen years ago, you were 
my boss at the Department of Justice, although let me say any 
mistakes I may make, you will be fully held harmless.
    [Laughter.]
    Mr. Mueller. You were clean. Not to worry.
    Senator Cruz. Well, and let me also echo the comments of 
colleagues of mine on both sides of the aisle thanking you for 
your service and your integrity. You have spent many decades in 
public service focused on law enforcement, and indeed, I recall 
when we were working together at the Department of Justice, 
almost every day in the morning at staff meeting, the question 
you would ask was essentially: Are we locking up bad guys? And 
I appreciate that focus to protecting the innocent and to going 
after bad guys, and thank you for a lifetime of service.
    Mr. Mueller. Thank you, sir.
    Senator Cruz. I want to talk about two topics that are both 
of significant importance. The first is the IRS, and I want to 
echo some of the concerns that Senator Sessions raised about 
the groups that we know were targeted by the IRS that are 
reporting that they have yet to be contacted or interviewed by 
the FBI.
    As you know well, in any investigation that is in a highly 
politicized climate, that involves potentially corruption and 
political interference from the White House, the investigation 
is a perilous endeavor and an endeavor of significant 
importance to the populace. And so I want to ask: What level of 
priority would you characterize the IRS investigation at the 
FBI?
    Mr. Mueller. I would say it is as high priority 
investigation in that there are--it needs to be handled with 
care, but it also needs to be pushed aggressively because it is 
a very important case.
    As I think you are aware--we have worked together--I will 
pull no punches in terms of where that investigation would 
lead. And we would go down any path that would lead to evidence 
on individuals, organizations, or otherwise, and we are in the 
process of doing that.
    We have, I think, substantial numbers in terms of those who 
are working day in and day out on the investigation, both 
internally in the FBI but also with support from the Department 
of Justice where we need legal process.
    Again, I will have to get back to you in terms of--and as I 
said to Senator Sessions, in terms of the pace and progress of 
the interviews, but I am aware of some of the goings-on in the 
investigation, and I do believe that we have moved it 
expeditiously during the period of time we have had it open, 
which is probably about a month now.
    Senator Cruz. How many agents or other personnel have 
been----
    Mr. Mueller. We have approximately 12 agents here in DC 
that are working on it, but also agents designated around the 
country because of the breadth of the investigation who also 
will be working on it, depending on where the investigation 
takes us around the country.
    Senator Cruz. And I wanted to ask additionally if the scope 
of the investigation includes looking into whether individuals 
have been politically targeted. I can tell you that we are 
hearing more and more anecdotal reports not just of Tea Party 
groups or conservative groups that were delayed or targeted in 
(c)(4) applications, but donors who supported Governor Romney 
in the campaign, who supported Republicans, who found within 
weeks or months of their support becoming public suddenly they 
were targeted for audits.
    Now, those are very difficult questions to answer if there 
is a pattern of doing so because those audits are not generally 
public. But do you know if the scope has included whether there 
was targeting of individuals for political activity by the IRS?
    Mr. Mueller. I think you can understand that because it is 
an ongoing investigation, I am leery about delving into it much 
more about what is happening in the course of the 
investigation. All I can do is I assure you--and you know me--
we will push it wherever it goes.
    Senator Cruz. Well, I would certainly urge the FBI not to 
narrowly circumscribe the scope, because the last time there 
was an instance of an administration trying to use the IRS to 
target political enemies, it was the Nixon administration, and 
it led to grave consequences. And I think the FBI is well 
situated to pursue a serious, impartial, fair, and yet vigorous 
investigation of whatever the scope of conduct and illegal 
conduct may have been.
    Mr. Mueller. Okay.
    Senator Cruz. I want to talk about a second topic briefly, 
which is that I am concerned that this administration's 
priorities in the war on terror have been misallocated; that, 
on the one hand, the administration has been less than vigorous 
in protecting the civil liberties and constitutional rights of 
law-abiding citizens; and yet, on the other hand, the 
administration has been less than effective in investigating 
and going after real live terrorists. And a concern in 
particular I have is that your efforts and those of the FBI 
have been unduly constrained and handcuffed. And I would point 
to two instance: one, the Fort Hood shooting, where we had with 
Major Hasan considerable evidence, including his emails with 
Anwar al-Awlaki talking about killing other service members; 
the FBI was aware of that, and yet we failed to stop that 
terrorist attack.
    Likewise, with the Boston bombing, we had considerable 
evidence with the Tsarnaev brothers of their affiliation with 
radical Islamic views, their advocacy of those views. We had 
reports from Russia, and yet we failed to stop that attack.
    In your view, why is it that law enforcement was not able 
to connect the dots with Fort Hood and with Boston and prevent 
those attacks beforehand? And what policies have changed under 
the Obama administration concerning the investigation of 
radical Islamic terrorism?
    Mr. Mueller. Well, in neither case, whether it be Fort Hood 
or the Boston case, would I say that there were policies that 
inhibited us from doing our job. I will tell you in the Fort 
Hood case, prior to the time of Fort Hood al-Awlaki was seen as 
a proselytizer, a radical imam, but was not known to have 
engaged in operational activities. Consequently, when we looked 
at emails, we did not look at them through the operational 
prism. Had we done so, perhaps other steps would have been 
taken.
    There were judgment calls that were made in the course of 
that, for instance, whether you interview Hasan, that in 
retrospect could have gone the other way. But I do not think 
that there were any constraints, statutory or otherwise, that 
enabled us--or disabled us from doing the job.
    In the case of Boston, yes, we were alerted by the Russians 
to Tamerlan's movement toward radicalization, and the 
expectation from the Russians was that he was being radicalized 
and would be going back to Russia to fight with perhaps the 
Chechens. They alerted us they wanted us to do what 
investigation we could and alert Tamerlan when--or alert the 
Russians when Tamerlan went back to Russia.
    We did an investigation based on what the Russians gave us. 
That investigation required going through all of the databases, 
went to the university or the college that he attended for a 
period of time, interviewed his parents, interviewed him, did, 
I think, a very rational, responsible, and thorough 
investigation given the information we had.
    He then goes back to Russia, and when he comes back, what 
we did not do, which we are going to do in the future, is the 
TECS alerts that come into the task force have to be identified 
to a particular person as opposed to just coming into a task 
force.
    In any event, there is nothing that constrained our 
investigation at the outset back in 2011, and in my mind, even 
if we had done the one or two things that in retrospect we 
could have done better, I do not think we would have been able 
to stop that particular attack. But I do not believe we were in 
any way constrained from doing the investigation that we 
thought necessary once we had the information.
    Senator Cruz. Thank you.
    Senator Whitehouse [presiding]. Senator Franken, your 
timing is perfect. You are next in order.
    Senator Franken. Thank you. I apologize for--I was at a 
HELP Committee hearing, and I am sorry I missed--and I hope I 
do not ask things that have been asked before, but my staff 
tells me that my questions are still relevant.
    First of all, I just want to thank you for your service, 
Mr. Director, and I believe our country is a safer place 
because of your steady leadership.
    Mr. Mueller. Thank you.
    Senator Franken. You will be missed.
    I would like to turn to the subject of the surveillance 
programs that my other colleagues have been discussing. Mr. 
Director, I believe the government must give proper weight to 
both keeping Americans safe from terrorists and protecting 
Americans' privacy, and part of weighing that properly is 
making sure that there is enough transparency, I believe, so 
that Americans understand the protections that are in place.
    Based on the briefings I have received, I believe these 
programs include reasonable safeguards, but I believe the 
government needs to be more transparent with the American 
people about these programs. And I think the American people 
have the right to know what is going on, to the extent that is 
consistent with national security; and I believe that the 
government can and should provide that information, again, in a 
way that does not compromise our security.
    Director Mueller, do you think that the government could be 
more transparent to the American public about these 
surveillance programs in a way that is consistent with national 
security?
    Mr. Mueller. Well, there are two levels of transparency. 
The first is transparency throughout the government, and 
transparency to certainly the FISA Court--it is under the FISA 
Court--and also transparency to Congress. And given the 
briefings and the like, I think there was transparency to those 
elements.
    Now, when you talk about transparency to the American 
public, you are going to give up something. You are going to be 
giving signals to our adversaries as to what our capabilities 
are. And the more specific you get about the programs and the 
more specific you get about the oversight, the more specific 
you get about the capabilities and the successes, to that 
extent you have people sitting around saying, okay, now I 
understand what can be done with our numbers in Yemen and in 
the United States, and consequently I am going to find another 
way to communicate, and I am going to keep that in my mind. And 
so there is a price to be paid for that transparency.
    Now, where that line is drawn in terms of identifying what 
our capabilities are is out of our hands. You tell us to do it 
one way; we will do it that way. But there is a price to be 
paid for that transparency.
    Senator Franken. And that is the question, and in order to 
do these programs, you need the trust of the people. And, of 
course, this all changes when there is a disclosure like there 
has been, and that is why we have obviously seen NSA be more 
forthcoming with that kind of transparency that I have been 
asking for.
    I want to ask you specifically about Section 215, the 
authority in the PATRIOT Act that authorized the collection of 
telephone metadata. Importantly, by statute, only the FBI has 
the authority to request business records under Section 215. It 
is not the Director of National Intelligence. It is not the 
Attorney General. It is the Director of the FBI.
    Last week, Director Clapper declassified the fact that the 
telephone metadata collected can be queried only when ``there 
is a reasonable suspicion based on specific facts that the 
particular basis for the query is associated with a foreign 
terrorist organization.'' He also declassified the fact that in 
2012 this database was searched only 300 times.
    Mr. Director, this is the kind of information that I think 
the American public benefits from knowing and that can build 
further trust between the public and the Government. Do you 
think that that kind of information would have compromised--
would be compromising before the disclosure?
    Mr. Mueller. I certainly think it would be educating our 
adversaries on what our capabilities are, and the specificity 
that the dialogue--and you have to with the leak, because the 
leak looks at just a small sliver of information on a 
particular program. A leak does not talk about all of the 
oversight. A leak does not talk about all of the legal 
constraints in terms of how the program operates. One has to 
respond, so there has to be responsive transparency in this 
particular instance--at this particular point in time, but, 
generally, no. It educates the persons, as I say, about our 
capabilities and makes it that much harder to prevent the next 
terrorist attack. And I will tell you that inevitably the 
communications are the soft underbelly of the terrorists. They 
have got to communicate. And to the extent that we can 
intercept those communications, to that extent we can prevent 
terrorist attacks. If that goes dark on us, if we are black, 
then we are going to be sitting waiting for the next one 
without the tools we need to prevent that attack.
    Senator Franken. I understand your view on that.
    Let me ask a similar question. I have cosponsored 
bipartisan legislation to release, again, consistent with 
national security--and this is--I am asking you your judgment 
on this. The Court opinions interpreting key provisions in the 
PATRIOT Act and the FISA Intelligence Surveillance Act, I think 
what is hard here is that it is hard for Americans to debate 
the merits of a law when the law is kind of secret. Do you 
believe that the American people would gain trust and benefit 
from perhaps a redacted version of these decisions and opinions 
by the FISA Court on some of them?
    Mr. Mueller. Let me start by saying I understand the 
frustration. You are right, the American people are frustrated. 
You may be frustrated not having access to the particular legal 
theories espoused in those opinions.
    I do know that the ODNI is looking at the possibility of 
releasing redacted copies. The lawyer for the ODNI spoke 
yesterday at the hearing and indicated that they are reviewing 
at least the key opinion or opinions with regard to 215 and 702 
to see whether that can be accomplished. So I have to defer to 
the ODNI on that.
    Senator Franken. Okay. And, again, that is in the context 
of them already being disclosed, so----
    Mr. Mueller. Well, the opinions, I do not think--I do not 
think the opinions--maybe----
    Senator Franken. The opinions have not been disclosed, but 
the programs being disclosed.
    Mr. Mueller. Yes, yes.
    Senator Franken. Okay. Well, thank you again, and since 
this may be the last time you testify before us, I again want 
to thank you for your steadfast leadership and your service.
    Mr. Mueller. Thank you.
    Senator Franken. Thank you.
    Senator Whitehouse. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman, and thank you, 
Director Mueller, for joining us today and for your service to 
our country.
    With respect to Section 215 of the PATRIOT Act, is it the 
Bureau's practice to request records or other tangible things 
related to Americans that themselves are not relevant to an 
investigation to obtain foreign intelligence information or to 
protect against international terrorism or clandestine 
intelligence activities?
    Mr. Mueller. I am not certain I understand the question. 
Are you talking----
    Senator Lee. When you make a request----
    Mr. Mueller. The applicants on 215 orders, but----
    Senator Lee. I understand. You are the applicants, and when 
you make the application, is it your practice to request things 
that themselves are not relevant to the investigation? In other 
words, do you confine your requests to those things that are 
related to an investigation, or are they broader than that?
    Mr. Mueller. Well, in the 215 context, the application to 
the Court and the Court's finding defines relevance in that 
particular context, and as we have talked about and as has been 
discussed for the last two weeks. And so I would have to direct 
you to the orders and the--I know that they are not published, 
but the fact that the FISA Court has ruled that the gathering 
of the metadata satisfies the relevance definition within the 
FISA statute.
    Senator Lee. Right, right. And so with that understanding 
that you necessarily do cover a lot of data that is itself not 
closely tied to an investigation, you can understand why a lot 
of people would be concerned and why they would also have 
additional concerns about the fact that we have got not only 
secret data-gathering activities going on but also that they 
are undertaken pursuant to secret law, secret orders that the 
American people cannot have access to.
    But if, as we have been told, it is necessary for the 
government to collect and store really vast quantities of 
information, including information on Americans that is itself 
unrelated to foreign intelligence or terrorism investigations, 
then----
    Mr. Mueller. If I may interrupt, are you talking about the 
metadata?
    Senator Lee. Yes.
    Mr. Mueller. The telephone numbers? I want to make certain 
we are talking about that, not content.
    Senator Lee. Yes. Yes, for now we are talking about the 
metadata. A lot of people have concerns about what, if any, 
limiting principles there are that would prevent the government 
from ultimately storing all information about all Americans, 
meaning just collecting more and more of this metadata and 
holding it for very long periods of time or perhaps at some 
point in perpetuity.
    Does the Department of Justice or does the FBI have a view 
on the constitutionality of gathering information on Americans 
and storing it so long as it does not perform queries on that 
information?
    Mr. Mueller. I think I understand the broader question. I 
would say that the Justice Department believes that the program 
in place, 215 program, that has been upheld by the FISA Court 
is certainly constitutional. I would limit it to that set of 
facts because they are a discrete set of facts that with the 
attendant protections on privacy, that I think the Department 
of Justice as well as the FISA court believe absolutely it is 
constitutional.
    Senator Lee. And at some point, do you sympathize with 
those who would say even if this is metadata, the fact that you 
can collect that quantity of metadata, store it for a long 
period of time, and the fact that it can later be searched 
causes--brings about a certain intrusion on privacy, even if it 
is a privacy intrusion perhaps not cognizable in court?
    Mr. Mueller. Well, as you well know better than most, in 
Smith v. Maryland it is not protected by the Fourth Amendment. 
So, yes, sir, without a question about privacy concerns, but I 
would say they are de minimis privacy concerns compared to just 
about every other intrusion, as you get more predication in an 
investigation. In fact, it is at the bottom level. Do I think 
that it would be concerning to people to know that there is a 
database? Absolutely, which is why I do believe that it is 
important that this is upheld by not just the Department of 
Justice, not necessarily just by the Inspectors General, but 
also by the FISA Court and Congress.
    Senator Lee. Okay. And, you know, I think it is important 
to remember also that the precedent you cited is, of course, 
decades old and it did not deal with the sheer volume of 
metadata that we are now talking about. The technologies that 
are at issue now did not exist then, certainly were not even 
contemplated then. And the more you aggregate large quantities 
of metadata, potentially on every single American citizen, and 
you give someone within the executive branch of government the 
power to search all of that, you do give them a pretty broad 
view into the lives of the American people. The more data you 
get, the more you add to that metadata, even if any one of 
those data points might be itself constitutionally 
insignificant, don't you think you start to approximate a point 
at which you start to breach a reasonable expectation of 
privacy?
    Mr. Mueller. I certainly believe that there quite probably 
is a scale, yes, but it was the same dialogue we had 20, 30 
years ago about telephone toll records which triggered the 
Smith v. Maryland case. And it is the same debate, albeit with 
metadata as opposed to telephone toll records, but you have 
pretty much the same piece of data in both cases. So I would 
argue that Smith, even though it is not exactly the same as a 
telephone toll record, the proposition that was espoused by the 
Supreme Court in Smith v. Maryland, is applicable today. The 
comparable----
    Senator Lee. Did we have----
    Mr. Mueller. The comparable data, let me just put it that 
way.
    Senator Lee. Right. Did we have the capacity to gather, 
analyze, and store in perpetuity that kind of metadata on every 
single American citizen at that point?
    Mr. Mueller. It would have been tremendously burdensome to 
do so at that point. You could do it, but it would be wholly 
ineffective. One of the differences today compared to 20 years 
ago is it was in the telephone company's interest to maintain 
telephone toll data because their billing was based on 
telephone toll data. Today that is no longer the case. In fact, 
the telephone companies see it as a burden, a storage burden, 
and, consequently, that information that was there in the 
telephone companies 20 years ago may well not be there today 
absent 215.
    Senator Lee. Okay. Thank you very much, Director Mueller. I 
see my time has expired. Thank you. And thank you, Mr. 
Chairman.
    Senator Whitehouse. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman.
    I join my colleagues in thanking you, Director Mueller, for 
your service, and I extend my aloha to you in your future 
endeavors.
    I appreciate the fact that this kind of data that is 
collected, particularly under Section 215, could be helpful in 
connecting the dots. And, yes, it is hard to figure out which 
dot might be the critical dot that helps you to foil a plot. So 
I have a question about, to the best of your knowledge, what 
are the costs of collecting and storing data gathered under 
Sections 215 and 702 of both your agency as well as NSA?
    Mr. Mueller. I would think you would have to turn to NSA to 
respond to that question. I am not familiar with what it costs.
    Senator Hirono. What about to your department, to the FBI?
    Mr. Mueller. We do not do the storage. NSA stores the 215 
data.
    Senator Hirono. What about the collecting part?
    Mr. Mueller. The collecting?
    Senator Hirono. Yes, collecting of the data.
    Mr. Mueller. It goes directly to NSA. The order directs 
that the data go to NSA.
    Senator Hirono. So while you are the applicant for the 
collection of this data, it is NSA that I should ask about what 
the costs attendant to the data collection are.
    Mr. Mueller. Yes.
    Senator Hirono. Do you know how long the data collected 
under 215 is kept?
    Mr. Mueller. Five years.
    Senator Hirono. Just five years? Do you think it should be 
longer?
    Mr. Mueller. No.
    Senator Hirono. Okay.
    Mr. Mueller. I also do not think it should be shorter.
    Senator Hirono. Okay. Now, part of your department--FBI's 
purview is prosecutions in Indian country, and you talked about 
that briefly in your testimony. And the Department of Justice 
recently issued a report on investigations and prosecutions in 
Indian country during 2011 and 2012, and this is a report 
mandated by the Tribal Law and Order Act of 2010. And it seems 
that while there has been a noticeable increase in the number 
of violent crimes prosecuted, those new figures do not reflect 
that one-third of all reported Indian country crimes were 
closed administratively by the FBI before they ever reached the 
formal referral stage. Moreover, approximately 80 percent of 
those investigations that were administratively closed were 
violent crime related.
    Can you shed some light on the reasons why so many FBI 
Indian country investigations are closed before referral to DOJ 
and specifically ways in which your department can better 
address and investigate violent crime in Indian country, which 
is still a very big problem?
    Mr. Mueller. Well, I think we all understand it is a very 
big problem, and I know the Department of Justice, in 
particular the Attorney General and the Deputy Attorney 
General, this is one of their substantial priorities, which is 
why you see an increase of prosecutions in Indian country.
    I will have to get back to you on the figures relating to 
administrative closures. I am not certain if there has been an 
uptick in the number of administrative closures, why that is 
there. It may be consistent with the fact that we have done 
additional prosecutions. With additional prosecutions, there is 
additional scrutiny of the underlying case which has resulted 
in administrative closures. But I would be just speculating. I 
would have to get back to you after looking at the issue.
    Senator Hirono. Yes, considering that this is a major issue 
in Indian country and to realize that in this report so many of 
these cases are closed, I am curious to know why. So could you 
provide that information to our Committee?
    Mr. Mueller. Yes.
    Senator Hirono. Senator Feinstein had a concern about the 
use of drones, and particularly with regard to the use of 
drones by the private sector. Do we have any special or 
specific legislation governing the use of drones by the private 
sector?
    Mr. Mueller. I am not aware of any.
    Senator Hirono. Do you think that we should be thinking 
about federal legislation to protect individuals' privacy with 
regard to the use of drones by the private sector?
    Mr. Mueller. I think there are a number of issues relating 
to drones that are going to have to be debated in the future as 
they become more omnipresent, not the least of which is the 
drones in airspace and the concerns you have on that, but also 
the threat on privacy. We already have to a certain extent a 
body of law that relates to aerial surveillance and privacy 
relating to helicopters and small aircraft and the like, which 
I think could well be adapted to the use of drones. But it is 
still in nascent stages, the debate, but it is worthy of debate 
and perhaps legislation down the road.
    Senator Hirono. Especially as the hearing that we had in 
one of our committees--I think it was this one--where these 
drones can be very, very tiny but store a lot of data and there 
could be cameras on it. I think this is a burgeoning concern 
for many of us.
    With regard to the data that is collected under Section 
215, in particular the millions and millions of pieces of 
information collected, NSA indicated that there were 300 
queries that were made with regard to this data, and they have 
to forward those queries to you, and 10 to 12 cases were 
referred to you?
    Mr. Mueller. They will refer them to us when they have a 
U.S. number that comes out of their query.
    Senator Hirono. I think as a lay person, I am having some 
difficulty understanding what the process is, what NSA does 
with all this information, where you come in. There is some 
nexus between the NSA looking at this data, 300 queries, and 
then forwarding to you, say, 10 to 12 cases where they see some 
further investigation needs to occur. So what happens to all 
these other cases that--other numbers that were queried by NSA?
    Mr. Mueller. Well, when you are talking about 10 or 12 
cases, these are cases where the identification of a number led 
to a terrorist case or corroborated other information we had in 
a terrorist case. But if you have NSA on a number in Yemen, for 
instance, and they want to know who from the United States is 
in contact with that number, you have got that number in Yemen, 
they take that number in Yemen and they run it against the 
database of numbers to see whether there is any number in the 
United States that is contacting that number in Yemen. And when 
that number comes out--we mentioned a couple of examples here--
in, say, San Diego, they will refer it to us and say that there 
is a number in San Diego that is in contact with this number in 
Yemen which is terrorist related. We then go get a National 
Security Letter or other paper to determine who has that 
number, who is the subscriber to that number. And once we get 
the subscriber to that number, then we will build the 
investigation.
    That is, in simplified form, what the process is about. But 
absent that capability, we would never identify that person in 
San Diego who is in contact with a terrorist group in Yemen, 
and that is what we did not pick up in 2001 where the 
intelligence community was on a number in Yemen and this 
individual, al-Mihdhar, ended up being in the United States, 
and had we had that program in place, we might well have picked 
up al-Mihdhar.
    Senator Hirono. So, in your view, in spite of the fact that 
there are literally billions of pieces of information collected 
and, in your view, the dot-connecting possibilities justify 
this kind of breadth of data collection?
    Mr. Mueller. Given all the precautions, given all of the 
constraints on the program, given the oversight of the program, 
yes. But it is the program as a whole, not just the fact of the 
accumulation of the records, but how it is handled and what 
kind of information comes from it.
    I was asked earlier today, Why did we miss Boston? Why did 
we miss Fort Hood? There can be one piece of information that 
comes out of it that would prevent the attack. People will say 
that we were not sufficiently attentive to al-Awlaki email 
traffic; had we been, we would have stopped Fort Hood.
    So to the extent that this provides dots for us to connect, 
it is very useful. You never know which dot is going to be the 
one that breaks the case. And to the extent that you remove the 
dots from the playing field, we just do not have those dots to 
connect.
    Senator Hirono. I certainly understand that.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Flake.
    Senator Flake. Thank you, and I want to echo the sentiments 
of my colleagues in thanking you for your long and dedicated 
service. I was fortunate to be on the Judiciary Committee in 
the House, and we had interactions there, and I have enjoyed 
the association we have had, and your candor always here, and I 
appreciate that.
    I feel kind of like--well, I grew up with 10 brothers and 
sisters, and when the dessert plate is passed around and you 
are the last one and all the dessert is gone, and in this case 
all the questions have been asked and, to your credit, 
answered. I had some questions with regard to the information 
being held and how long, but you have pretty much answered 
those. But there was one thing that I still wanted to ask. This 
215 has been around since 2001 in some fashion?
    Mr. Mueller. Probably 2001, 2002, but in this fashion since 
I think 2007.
    Senator Flake. Okay. How has the legal interpretation, 
internal interpretation--you rely on your own memos that you 
produce to interpret 215 and what you are able to ask and what 
kind of standard is applied. Has that changed over time since 
2007 or perhaps before?
    Mr. Mueller. Well, prior to 2007--I am not certain what 
year it happened, but it was placed within the FISA Court, I 
think, beginning in 2007. And while, yes, the Justice 
Department has made application to the FISA Court, the FISA 
Court has interpreted 215 to allow this program. So it is not 
just the Justice Department opining on what it thinks 215 
means. It is the FISA Court that has issued opinions saying 
this is the appropriate interpretation of 215.
    Senator Flake. All right. One question on the holding of 
data. You hold it for five years, and if it has not been 
queried or minimized during that period, then you get rid of 
it.
    Mr. Mueller. Yes.
    Senator Flake. But that----
    Mr. Mueller. NSA holds it.
    Senator Flake. NSA, yes. But that which has been queried 
and then duly minimized where appropriate, I assume that can be 
queried again and again during that five-year period. You say 
last year it was queried 300 times. It is the same information 
basically that--or the same database, the same metadata that is 
queried again and again.
    Mr. Mueller. But the database is refreshed each day, so 
that which is five years old is dismissed from the database, 
and the database picks up new numbers.
    Senator Flake. All right. So it is just a rolling five-year 
period.
    Mr. Mueller. Yes.
    Senator Flake. Anything older than five years----
    Mr. Mueller. Yes, which enables us to go back--you may have 
a number called in--for instance, al-Mihdhar out of San Diego 
made the call to the Yemen telephone number back in, I think, 
earlier in 2000. And so you needed that number in that database 
from a year before in order to tie in that particular number to 
the terrorist number in Yemen. And so it gives us that database 
for a period of time, which has the relevant information in it.
    If you go to one of the providers, they may keep it for six 
months, may keep the data for 12 months, 16 months or 18 
months, something along those lines. And so you would not be 
able to get the same data from the telephone carriers because 
they have no data retention responsibilities as you would get 
when we have that five-year database.
    Senator Flake. All right. Well, thank you. Just in 
conclusion, your service will end sometime in September?
    Mr. Mueller. Yes.
    Senator Flake. What advice would you give to this body in 
terms of what changes are needed moving forward in how we 
handle situations like this? Obviously, this came as a shock to 
most of the country that this kind of data was being collected 
in terms of--and you have concerns, and I share them, about too 
much information being out there. But what is the proper 
balance for this body to inform or to keep the citizens aware 
enough that their rights and their civil liberties are 
protected, but that we are also giving the appropriate federal 
agencies the tools that they need to thwart attacks? Is there 
any advice that you would give that you have not given before?
    Mr. Mueller. No, I would--the only thing I would say is 
that there are levels of transparency in this particular case 
where it is not necessarily always the case, it was not only 
Department of Justice, not only the Inspectors General--and we 
have had Inspector General reports on these particular 
programs--but the FISA Court and Congress and various 
committees in Congress. And to the extent that each of those 
entities is brought into the loop and knows and understands, is 
able to question to a certain extent assuring that these 
entities have coverage, the American public has to put some 
faith in these institutions. You are always going to have those 
areas of--classified areas where it does not make any 
difference whether it is the cyber arena or the military arena 
or the intelligence arena like this, that disclosing our 
secrets will make us that much more vulnerable. There is always 
going to be a level of frustration.
    The only other thing I would say is that there are going to 
be additional terrorist attacks. One of the most debilitating 
things for those of us in this particular--in our positions is 
to try your darnedest to prevent it but there be an attack, and 
then you are immediately attacked for why didn't you do more. 
And we always believe, regardless of the attack, that it is 
incumbent upon us and others to go back and do a scrub and see 
what we could have done better. But the tone of how you do that 
and the way that you do it would be helpful to those of us who 
worry about this day and night.
    Senator Flake. Thank you. And thank you for your service.
    Senator Whitehouse. Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Director Mueller, thank you so much for your service. I 
have enjoyed working with you over the years. I recall in 
particular when you arrived at the FBI after 9/11 and I took 
note of the fact that the computer system at the premier 
investigative agency for law enforcement in the United States 
of America on 9/11 was as archaic as anything anyone could 
imagine. The computer system you inherited at the FBI had no 
access to the Internet, had no word search capability, and was 
unable to transmit materials and documents. The photographs of 
the suspected terrorists on 9/11 were sent to the FBI offices 
across America by overnight mail because they could not be sent 
by the computer system that you inherited.
    We had many conversations, some attempts, some missteps. 
Tell me today, where are we 12 years later in terms of the 
computer system of your agency?
    Mr. Mueller. One of the reasons for staying the last couple 
years was to get over the hump in terms of the computer 
systems. We have this computer system called Sentinel that has 
been operative for the last two years. It is cutting edge in 
terms of case management. Many of our other programs we are not 
only upgrading but are not incorporating in a much more 
effective network. But I will tell you, one of the most 
frustrating aspects of this job is trying to adapt new 
technology in an institution that has unique business practices 
and to try to modify those business practices at the same 
time--and upgrade those business practices at the same time you 
are trying to adapt to new technology, particularly with the 
contracting mechanisms within the Federal Government where, if 
you have a five-year contract, things are going to change, new 
technologies are going to come along. And the fact of the 
matter is there is very little room in those contracts for any 
ability to change to adapt to the times.
    But if you had seen--I vividly remember being in our 
intelligence--what we call SIOC--intelligence operations room 
on September 11th and the paper stacked up, and in Boston we 
were back in the same place, and there is not a piece of paper 
to be seen. And also to the credit of the Bureau, the ability 
to identify those two individuals in Boston within 48 hours 
after it occurred, utilizing the various technologies in our 
laboratory as well as up there is, I think, testimony to the 
fact--testament to the fact that we have come a long way. Still 
a ways to go, but we have come a long way.
    Senator Durbin. Well, let me just say for the record, in 
addition to bringing integrity to the position, which you have, 
in addition to helping keep America safe with an extraordinary 
degree of success, I think your legacy is going to include 
this, that the information technology available in your 
department is now meeting 21st century standards, where when 
you inherited it, it was, as you say, a creation of ``unique 
business practices.'' I think you are being very kind in that 
characterization.
    Mr. Mueller. Can I just add one thing? We are okay today, 
but as you well know, technology costs money. And with 
sequestration, I will put in another plug; this is an issue 
that all too often gets overlooked and perhaps cut, and it 
should not be because you cannot run an institution like ours 
unless you stay current with the latest technology.
    Senator Durbin. Sequestration, the way it has been 
characterized, the way it has been implemented, is a pervasive 
problem. I met yesterday with Director Clapper, and he talked 
about the impact of sequestration on doing checks on employees 
for security clearances. We have had to reduce the number of 
checks of those current employees when it comes to security. 
And now we are dealing with one former contractual employee who 
has disclosed things which were very important to our national 
security.
    Speaking of that issue, on Section 215, which you have been 
queried about quite a bit, I have offered an amendment over the 
years to try to limit the metadata collection in terms of 
specific suspicion. That was the original standard. It 
eventually was changed with FISA Act reauthorization.
    But yesterday the Department of Justice--I hope you are 
aware of--released publicly, according to reports we have, the 
standards for searching the database of phone records when 
there is ``reasonable suspicion'' based on specific and 
articulated facts that the information sought is ``associated 
with a specific foreign terrorist organization.'' The standard 
that they released yesterday, which they are now going to use, 
is actually stricter than the standard that I have been 
proposing over the years for the limitations on 215.
    Can Section 215, do you believe, be revised to require 
connection to a suspected terrorist without affecting the 
ability to obtain useful information?
    Mr. Mueller. I am a little bit confused because what we 
call the ``selector,'' the telephone number that is run against 
the database, has to be identified as being--how do I say it?--
meeting the reasonable suspicion standard with regard to 
terrorist attacks, that particular phone number, that is an 
appropriate standard for that particular phone number, because 
you cannot pick a phone number out of the blue or for some 
other thing. You have to have it tied into terrorism, and then 
it is pushed against the database.
    Now, I do not know whether your standard as you were 
supporting it is the standard you apply to collection of the 
records or the standard you apply to identifying the selector 
against the--what you are going to use--what you are going to 
put against the database. So if you----
    Senator Durbin. Our standard is on the collection of the 
records.
    Mr. Mueller. See, I think that is a little bit different. 
The standard we are talking about here is the identification of 
the selector that you are going to run against that database of 
records.
    Senator Durbin. So if the provider, if the telephone 
provider, for example, were to retain the records for five 
years and you would have access, through our government 
agencies and through our processes, to access those records for 
government purposes if there is a suspicion, would that meet 
the needs of collecting the information to keep us safe?
    Mr. Mueller. Not in the same way the program does now for 
several reasons. First of all, you would have to go to a number 
of telephone companies. You would have to get legal process and 
go to a number of telephone companies. Then you have to hope 
that those telephone companies have some records retention 
capability. I can assure you it is not going to be five years.
    Senator Durbin. Not today.
    Mr. Mueller. Not today.
    Senator Durbin. It could be required of them, though.
    Mr. Mueller. It could be. It could be. I am not saying it 
could not be done, but you are asking me if there is a 
distinction between the program run today and how you propose 
to perhaps amend it. And there are some downsides. You know, 
the balance is for Congress to decide, but there are downsides 
in terms of the time it would take to serve it, the time it 
would take for them to get it, and in every one of these cases, 
time is of the essence. You do not want to have to delay six 
months or a year to get the information to prevent the next 
terrorist attack.
    Senator Durbin. You have been very patient with your time, 
and I thank you for your service, Director Mueller.
    Mr. Mueller. Thank you.
    Senator Durbin. I wish you the best.
    Mr. Mueller. Thank you.
    Senator Whitehouse. So I am last, Director.
    Mr. Mueller. Happily so. Happily so.
    Senator Whitehouse. Good to see you. There are three topics 
I want to touch on.
    The first has to do with the investigation into the conduct 
of the IRS. The background to this is that the tax laws allow 
you to form up as a charity under Section 501(c)(3), but if you 
want to lobby, you have got to form up under 501(c)(4). And 
then if you actually want to electioneer, you have got to form 
a so-called super PAC.
    The difference between a 501(c)(4) and a super PAC, as you 
know, is that a super PAC is required to disclose its donors. 
So what developed was a pattern of folks filing as a 501(c)(4) 
but then going out and electioneering as if they were a super 
PAC. And the problem with doing that is that there is a place 
on the form, when you file for a 501(c)(4), that requires you 
to assert and aver under oath that you will not seek to 
influence elections and so forth.
    So there appears to me--we had a hearing on this in the 
Committee--to be almost a lay-up case for 18 U.S.C. 1001 false 
statement violations based on what appear on their surface--
again, this requires investigation before you can make any 
final determination, but it appears on the surface that these 
are flagrantly false statements made under oath to a government 
agency for the purpose of misrepresenting the intentions of 
those forming the 501(c)(4).
    That never comes to the FBI because there is an agreement 
between the Department of Justice and the IRS that unless the 
IRS has put a case together and forwarded it, we are not going 
to look at it. And I think the 501(c)(4) applicants were taking 
advantage of that, and the IRS was feeling a bit intimidated 
because there were some very powerful people in this country on 
both sides of the aisle behind the problem, behind the 
501(c)(4) problem.
    So I hope that as you are looking at the IRS question, part 
of what you are looking at is whether or not something that, as 
you and I both know, is really a plain vanilla prosecution, a 
false statement case, is something that the FBI should turn 
away from because the IRS has not yet referred it when it is 
kind of out in the plain light of day. And I hope that you will 
consider that question as the IRS investigation moves forward.
    It may not be the kind of question that leads to a charge. 
It may not be purely investigative. But I think it is an 
important policy question, and I think it is important for the 
American people to know that when people are doing something 
that appears on its face--again, subject to rigorous 
investigation and proof, but appears on its face to be a 
flagrant false statement, the answer from the government, 
``Yes, but it was not referred to us in the right way,'' is not 
a very convincing answer to what appears to be a fairly blatant 
criminal act--not a very major one, but a very blatant one.
    So I would like to ask your comment on that, if that is 
something that you will consider as part of your look at this.
    Mr. Mueller. I am not familiar with any such agreement. I 
will have to look at that and discuss it and see what----
    Senator Whitehouse. Okay. We will make that a question for 
the record, and you can get back to me later.
    Mr. Mueller. Fine.
    Senator Whitehouse. Now, the second is we met recently with 
some of your folks, some of the Department of Justice folks, in 
the Office of Management and Budget to try to figure out how 
our prosecutorial and investigative law enforcement resources 
should be structured to focus on the cyber problem. And in the 
time that I have been in the Senate, six years now, I have 
watched that administrative structure morph really almost every 
year to something new, something different. And I have been out 
to NCIJTF and some of your facilities, and I applaud and am 
impressed by how hard the FBI works to keep track of who is 
coming in the doors and windows attacking our country and our 
companies and trying to get those alerts out as quickly as they 
can to the companies that are being attacked and having their 
intellectual property stolen. But it has not resulted in a lot 
of prosecutions, and as best I know, there is not a single case 
that has ever been prosecuted of a pure industrial espionage, 
cybersecurity attack from outside the country on an American 
company.
    There has always been something involved, a CD that got 
stuck in somebody's pocket, but the pure hack, I am not aware 
of a case that has been made yet, and that is a question I ask 
pretty frequently.
    I think this is a boom area. I am delighted and pleased 
that the administration in a time when most other parts of the 
government are being asked to cut, is actually investing more 
in cybersecurity at the FBI, at the Department of Justice, at 
the NSA, at the Department of Defense, and at other places, 
because it is a huge vulnerability, I believe. And I know you 
are on your way out, but I hope that one of your departing 
messages to the Bureau will be we need to keep looking forward 
to see what our structure should be to take on this threat in 
the years ahead. I do not think we are there yet. I think we 
have made immense progress. I think we are in a state of 
constant flux as we try to adapt to the problem. But when you 
look at a problem that is described by very senior officials as 
us being on the losing end of the biggest transfer of wealth by 
illicit means in human history, basically because the Chinese 
are raiding our corporations and stealing our intellectual 
property in a nutshell, that is a pretty serious problem set. 
And it is only going to get worse because it has its 
transnational sabotage and its multinational criminal 
components as well. And I hope that you guys have an open mind 
and have somebody detailed to looking forward and saying, 
``What does this look like down the road? How should this be 
structured so we are really after it?''
    When we had the drug problem, we started a DEA to handle 
it. What is the structure this should look like down the road? 
And I know it is such a mad scramble right now and you are 
working so hard and people are doing such a great job. It is 
hard to kind of pop your head up out of the day-to-day fight 
and plan ahead, but I think that would be a good legacy for you 
to leave, that that was a look forward and let us see what this 
thing should be like five, 10 years from now.
    Mr. Mueller. I would venture to say anybody in the Bureau 
knows the focus has been over the last year on cyber in a 
variety of ways, and we have to put our own house in order 
first.
    Senator Whitehouse. Yes.
    Mr. Mueller. And we are doing that. We are not there yet, 
but we have to adapt over the next several years, an 
organization that lends itself to addressing itself with more 
specificity to particularized threats that have been 
prioritized, of which cyber will be a substantial one. We now 
have entities, counterintelligence and cyber, because they are 
like that. And our organizational structure has morphed into a 
threat-based organizational structure as opposed to a program 
organizational structure. And we have got to continue to do 
that.
    One of the focal points outside the FBI, though, is the 
NCIJTF, my firm belief that for us to be successful, we have to 
have people at the table right at the outset, and determine 
whether it is national security or criminal or what have you, 
but you need all of the facts, all of the information on the 
table, regardless of the classification side, because there may 
be something up there that will help you on a criminal matter 
down below, but have everybody in--the relevant players in the 
government working at NCIJTF or some comparable facility.
    And then last, with the private sector. Once we have our 
act together administratively and have--my own belief is 
generally collocation with the exception of NSA because of what 
they have got, but the rest of us to be relatively collocated, 
then in my mind you need the partnerships in the private sector 
to come together and equip themselves to share information and 
then set up conduits between the private sector and the Federal 
Government that will assure privacy but also enable us to share 
information in ways that we have not been able to or had to in 
the past.
    So I think we are moving toward that structure, but we have 
a way to go, and I can tell you with my successor, we will have 
some discussions on this.
    Senator Whitehouse. Good. The last point, we have addressed 
it a little bit, but I would like to make the point that I do 
think that we overclassify. It is much easier to classify than 
it is to declassify. There are a whole variety of reasons--some 
good and some not so good--for classifying programs and 
classifying materials. But it seems to me that a lot of the 
stuff that has been said about the NSA programs and about the 
FBI's support of them could easily have been said beforehand 
without compromising those programs in any significant respect, 
particularly the multiple checks and balances, the number of 
guards at the door to the vault before anybody can get any kind 
of information, both Houses of Congress being briefed in on 
programs like this, Inspectors General being independently 
accountable to review programs like these, the internal 
oversight of the executive branch, apart from the independent 
Inspectors General, and the rigor and frequency of the audit 
that is done for those programs, the fact that regular line 
United States district court judges are brought in on detail to 
serve on the FISA Court, and they have to in various ways sign 
off on these programs. You have as strong an array of 
protections under our system of separated government as one 
could possibly create, I believe. I do not know that a single 
stone has been left unturned in terms of putting eyeballs onto 
making sure that these programs were carefully used and never 
abused.
    So that kind of story, I think, is one that does not hurt 
us to get out first. Before this incident, people knew that 
there were ways in which we were protecting ourselves, and we 
could have said generally that, without getting into the 
details of any of these programs, when we look into programs 
that affect Americans' privacy, we go all in on making sure 
that there are not short cuts, making sure that only qualified 
people get it.
    And so I think the lesson from this going forward is that 
as much as there is a public interest in classification of a 
lot of this information, there is also a public interest in 
declassifying it. And in some cases, I would contend that 
declassification has exactly zero national security risks 
associated with it. It just kind of got swept up with a bunch 
of other stuff because the program is classified. And we depend 
on you to do this because Senators are not declassifiers. The 
only way that the Senate Intelligence Committee can declassify 
anything is so complicated that it has never been used in the 
history of the Senate Intelligence Committee.
    So I would urge you to--I am speaking through you now, I 
think, to a whole lot of other people as well. But I do think 
that a more persistent focus on what could be declassified and 
what would help for these foreseeable events of disclosure 
would be a good policy to pursue.
    Your thoughts?
    Mr. Mueller. I understand your sentiments. I do believe 
there is a price to be paid. We tend to think that people know 
and understand the Internet around the world. But you have 
persons who want to undertake terrorist attacks that do not 
have a full understanding of the Internet. And to the extent 
that you expose programs like this, we are educating them. We 
are educating them about how the Internet works actually 
worldwide. We are educating them as to what our capabilities 
are, and the brighter and the smarter of them will be educated 
and find other ways to communicate, and we will not pick up 
communications we want.
    Now, that is not to say that the scale should not be on the 
other side. It is much easier to explain to the public when you 
do not have the restrictions, quite obviously, of 
classification. All I am saying is I do think there is a price 
to be paid. Not always. There are occasions where we can 
declassify things. But I would not underestimate the price to 
be paid by a substantial--let me just put it, substantial 
disclosures.
    Senator Whitehouse. Yes, I agree. I think we have to be 
very sensitive to that, and we have to be particularly 
sensitive to that when we are talking about the operating 
mechanics of a particular program. But when we are telling the 
American people--we are not going to raise the question of what 
we are doing, but we want you to know that when, as, and if we 
do anything, here are the kind of procedures we use. You would 
never tell anybody about an ongoing investigation. But we tell 
everybody about the warrant requirement, about minimization, 
about the things that protect Americans' security. And that 
process is also classified when it comes to these NSA programs.
    Mr. Mueller. Good point. I got you.
    Senator Whitehouse. That is where I think we can make some 
ground.
    This is, I think, the end of your last appearance before 
this Committee, so let me thank you very much. You have been a 
terrific Director of the Federal Bureau of Investigation. 
Before that you were a terrific member of the Department of 
Justice and a terrific United States Attorney. You have made an 
awful lot of people proud, sir, and we are very glad to have 
had the chance to work with you.
    Mr. Mueller. Well, thank you for that, but it is the men 
and women of the FBI that make the place run, as you and I both 
know, having been in comparable positions. But thank you.
    Senator Whitehouse. Well said. Thank you.
    For the record, the record will remain open for a period of 
one week if anyone wants to add to the record.
    [Whereupon, at 12:22 p.m., the Committee was adjourned.]



                            A P P E N D I X

              Additional Material Submitted for the Record

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              Prepared Statement of Chairman Patrick Leahy

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  Prepared Statement of Hon. Robert S. Mueller III, Director, Federal 
  Bureau of Investigation, U.S. Department of Justice, Washington, DC

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 Questions submitted by Senator Sheldon Whitehouse for Hon. Robert S. 
                              Mueller III

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 Questions submitted by Senator Charles E. Grassley for Hon. Robert S. 
                              Mueller III

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   Questions submitted by Senator Orrin G. Hatch for Hon. Robert S. 
                              Mueller III

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   Responses of Hon. Robert S. Mueller III to questions submitted by 
                Senators Whitehouse, Grassley, and Hatch

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