[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12854-12857]
[From the U.S. Government Publishing Office, www.gpo.gov]



                      NOMINATION OF ROBERT MUELLER

  Mr. SPECTER. Mr. President, I have sought recognition this morning to 
comment about the confirmation hearings which are scheduled later this 
month for Mr. Robert Mueller to be Director of the Federal Bureau of 
Investigation. That position arguably is as important as any position 
in the United States of America, perhaps even the most powerful 
position.
  The statutory 10-year term is 2 years longer than the maximum a 
President may serve under the Constitution. The Director of the FBI has 
power over the largest investigative organization in the world, global 
in its exposure.
  There are an enormous number of problems which have befallen the 
agency in recent years. The confirmation hearing will provide a unique 
opportunity for oversight for the U.S. Senate to seek to establish 
standards as to what the FBI should be doing in cooperating with 
congressional oversight.
  The FBI is a well-respected organization. I have had very extensive 
opportunities to work with the FBI. After graduation from college, I 
was in the Air Force Office of Special Investigations for 2 years and 
had training from the FBI. The commanding officer of the OSI was a 
former top aide to Director J. Edgar Hoover. I worked with the FBI on 
the prosecution of the Philadelphia Teamsters, an investigation which 
was conducted by the McClellan committee, with then-general counsel, 
Robert Kennedy, and saw their very fine work. Then, as Assistant 
Counsel to the Warren Commission, I worked with the FBI; then as 
district attorney of Philadelphia and for the last 20 years extensively 
on the Judiciary Committee.
  I have great respect for the Federal Bureau of Investigation. At the 
same time, my experience has shown me that there is an over concern by 
the personnel of the FBI with their so-called institutional image and 
that there cannot be a concession of any problems, which is really 
indispensable if problems are to be corrected.
  (Disturbance in the visitors' galleries.)
  The ACTING PRESIDENT pro tempore. Will the Sergeant at Arms restore 
order in the galleries.
  Mr. SPECTER. We have a nominee who has been put forward by the 
President who has very impressive credentials: United States Attorney 
in Boston, United States Attorney in San Francisco, 3 years as 
Assistant Attorney General in the Justice Department, where I had 
contacts and saw his impressive work.
  He will be succeeding a man, Director Louis Freeh, who came to the 
Bureau with extraordinary credentials and overall did a good job, 
although he presided over the Bureau at a time when there were many 
institutional failures.
  I analogize Director Freeh to the little boy on the Netherlands dike 
running around putting his finger in all the holes to try to stop the 
water from coming through. With so many holes and so many problems, it 
was not possible.
  I believe similarly that the Congress, including the Senate and the 
Senate Judiciary Committee, has not been sufficiently active on 
oversight. These hearings will give us an opportunity to set standards 
as to what the FBI

[[Page 12855]]

should be doing in response to oversight activities by the Senate 
Judiciary Committee.
  I had an opportunity to talk for the better part of an hour yesterday 
to FBI Director-designee Mueller and went over quite a number of issues 
that I intend to ask him in the public forum.
  I comment about these today because the Senate ought to be preparing 
for this hearing with unique care for this very important position.
  One of the matters I intend to discuss with Mr. Mueller in the 
confirmation hearings is the failure of the FBI to turn over for 
congressional Senate oversight a memorandum dated December 9, 1996, 
which was written at a time when there was a question as to whether 
Attorney General Reno was going to be reappointed by President Clinton. 
At that time, the campaign finance investigation was just being 
started. There was a conversation by a top FBI official Esposito, with 
a top Department of Justice official Lee Radek, and FBI Director Freeh 
wrote this memorandum to the file to Mr. Esposito actually. Referring 
to a meeting that he had with the Attorney General on December 6, 
Director Freeh wrote this memo December 9:

       I also advised the Attorney General of Lee Radek's comment 
     to you that there was a lot of ``pressure'' on him and the 
     Public Integrity Section regarding this case because the 
     ``Attorney General's job might hang in the balance'' (or 
     words to that effect).

  This memorandum did not come to the attention of the Judiciary 
Committee until April of 2000, some 3\1/2\ years later, when, in my 
capacity as chairman of the subcommittee on Department of Justice 
oversight, a subpoena was issued for all of the FBI records and 
writings relating to the campaign finance investigation. When this memo 
was discovered, Director Freeh was questioned as to why he hadn't 
turned it over for Judiciary Committee oversight, because it was the 
view of many that it absolutely should have been done.
  Director Freeh defended his inaction on the ground that it would have 
compromised his relationship with Attorney General Reno. But 
notwithstanding that fact, it is my view that this is the sort of 
oversight the Judiciary Committee must undertake. This will be the 
subject of my questioning of Mr. Mueller during the confirmation 
hearing.
  Director Freeh declined to appear voluntarily before the Judiciary 
Committee or the subcommittee to comment about this memorandum, and the 
committee decided not to issue a subpoena, which I thought should have 
been done.
  It is my view that when a matter of this importance comes to light 
there ought to be a public inquiry as to what happened between the 
Attorney General and the Director of the FBI. It takes a congressional 
committee to get to the bottom of that. When Attorney General Reno 
testified, she said, ``I don't recall that, but if that had come to my 
attention, I certainly would have done something about it.'' In my 
view, anybody who is going to be confirmed for FBI Director has to have 
a commitment to making this sort of information available to Senate 
oversight.
  Another matter which I intend to question Mr. Mueller about is the 
insistence of the FBI on not cooperating with Senate oversight where 
there is a pending criminal investigation. Now, I understand the 
sensitivity of a pending criminal investigation, having some experience 
as a prosecutor myself, but the case law is plain that congressional 
oversight is so fundamental and so important that it may proceed even 
as to pending criminal investigations. But that has not been honored by 
the Department of Justice or by the FBI. And in the case involving Dr. 
Wen Ho Lee, the subcommittee on the Department of Justice oversight was 
stymied at every turn by the FBI refusing to make available 
information, citing a pending criminal investigation.
  Now, the chairman of the committee and the ranking member, or 
chairman and the ranking member of the subcommittee, have standing, it 
seems to me, on a discrete inquiry, carefully controlled, where the 
prosecution would not be compromised. That is the role of oversight. 
But when Wen Ho Lee was indicted on December 11, 1999, immediately, the 
FBI used that as a reason to resist any further Senate oversight. And 
there was a real question of why the FBI and the Department of Justice 
allowed Dr. Lee to remain at large after a search of his premises in 
April of 1999 was conducted, and then he was at liberty, at large, 
until December when an arrest warrant was issued. Suddenly, he became 
more problematic than public enemy No. 1, when he was put in manacles 
and solitary confinement, in a situation which had all the earmarks of 
an effort at the top of the Justice Department and FBI to coerce a 
guilty plea.
  After the guilty plea was entered, Judiciary Committee oversight had 
been further stymied by the refusal of the FBI to allow access to what 
was going on because Dr. Lee was still being debriefed. Here again, I 
believe the Judiciary Committee is entitled to a commitment that 
oversight will be respected, and the case law will be respected, and 
that there may be oversight even on pending criminal investigations.
  In the case of Hanssen, who has just entered a guilty plea on an 
arrangement to be spared the death penalty, raises some very 
fundamental questions that need to be answered as to procedures in the 
Federal Bureau of Investigation. Although this matter did not come to 
light until very recently, in August of 1986, Hanssen's voice was 
recorded by an FBI wiretap on his Soviet contact's telephone. In 1992, 
Hanssen improperly accessed his supervisor's computer. In 1997, Hanssen 
began to search the FBI computerized case database for his name, his 
home address, and for terms referring to espionage activities.
  A question arises, what steps have been taken by the FBI to detect a 
spy such as Hanssen? There was a very probing report issued by the 
inspector general of the CIA after Aldrich Ames was detected as a spy, 
and the inspector general of the CIA, Fred Hitz, wrote this in the 
report:

       We have no reason to believe that the directors of Central 
     Intelligence who served during the relevant period were aware 
     of the deficiencies described in this report.

  That relates to Aldrich Ames.

       But directors of Central Intelligence are obligated to 
     ensure that they are knowledgeable of significant 
     developments relating to crucial agency missions. Sensitive 
     human source reporting on the Soviet Union and Russia during 
     and after the Cold War clearly was such a mission, and 
     certain directors of Central Intelligence must therefore be 
     held accountable for serious shortcomings in that reporting.

  Now, what that does essentially is to say that the Directors are at 
fault, even though they didn't know about Aldrich Ames, or have reason 
to know about Aldrich Ames, because the presence of spies in the 
Central Intelligence Agency so threatens national security that the 
Directors have an obligation to find out about it. If you make it an 
absolute responsibility, that, according to the CIA inspector general, 
would put the pressure on the Directors to find out about it.
  The three Directors of the Central Intelligence Agency who were in 
office during the time Aldrich Ames functioned--Judge Webster, Gates, 
and Woolsey--responded with a very hot letter denying responsibility 
and saying that the standard set by the CIA inspector general was too 
high. Well, this is a subject I have discussed preliminarily with Mr. 
Mueller and intend to ask him about.
  It is a very tough standard to say that a public official is liable 
for matters that he didn't know about or didn't have reason to know 
about. But if our Nation's secrets are to be guarded, and if we are to 
be secure from spies such as Ames and Hanssen, this is a matter that we 
are going to have to determine as to what is the appropriate standard.
  When I talked to Mr. Mueller, I didn't ask him for a response, but 
this is another subject that will be probed during the course of the 
confirmation hearings. The issues of management in the FBI are just 
gigantic; they are enormous. We have seen repeated failures by the 
Federal Bureau of Investigation to come forward with documents in a 
timely manner. In the

[[Page 12856]]

McVeigh case, for example, the FBI had reason to know as early as 
January of this year that all of the documents relating to McVeigh had 
not been turned over to McVeigh's lawyers. Yet those documents were not 
made available until May. And then there was the issue about the 
fairness to McVeigh. No doubt he was guilty; he had confessed to the 
most horrendous crime in American history, where 168 people were killed 
in a Federal building in Oklahoma City--women, children, men, going 
there for official business, blameless, and it was done in a cold, 
calculated way.
  There was no doubt as to guilt or as to the justification for the 
death sentence which was imposed, but there was an obligation on the 
part of the prosecution to turn over all the papers. There may have 
been something which bore on sentencing. Here you had a 5-month delay 
where the Federal Bureau of Investigation had reason to know that all 
those documents were not turned over.
  The question is: What is to be done in the management of the Federal 
Bureau of Investigation to avoid this sort of an error? In an age of 
computerization and mechanization, we search for an answer and really 
must find a way that the FBI will correct these kinds of problems.
  A similar issue was confronted in the Waco matter. It was an incident 
which occurred on April 19, 1993, where the compound was attacked and 
where so many people lost their lives in one of the most controversial 
incidents in American history, but it was not until August of 1999 that 
the FBI suddenly found a whole ream of records. Here again, management 
responsibilities require something much, much better than that.
  The incident at Waco is really a very sad chapter in American history 
for many reasons: The confrontation, the deaths, the failure of 
congressional oversight, the failure of candid disclosure by the 
officials who were in charge.
  On April 28 of 1993, Attorney General Reno and then FBI Director 
William Sessions testified before Congress that no pyrotechnic tear gas 
rounds were used at Waco. The hostage rescue team commander, Richard 
Rogers, who was present for their testimony but who did not testify, 
did not correct them.
  Regrettably, that is an occurrence which has happened too often where 
there is a concern about the FBI institutional image which blinds 
people who ought to be coming forward and who ought to be making a 
disclosure as to what the facts were when there is congressional 
oversight and you have critical testimony by the Attorney General of 
the United States and by the Director of the FBI.
  When Mr. Mueller and I talked yesterday, we discussed at some length 
the culture of the Federal Bureau of Investigation and the difficulties 
of even the Director finding out what is going on in the FBI. That is a 
challenging task which Robert Mueller is going to have to confront.
  In the context of what has happened with Wen Ho Lee, Waco, McVeigh, 
Hanssen, and the campaign finance investigation, these are issues which 
need to be very thoroughly explored in the confirmation hearing, and we 
ought to come to some common understanding between those of us who have 
oversight responsibilities on the Judiciary Committee and the Director 
of the FBI as to what his standard will be and what we think the 
standard should be so that we can come to a meeting of the minds or so 
that we may not confirm a Director who does not measure up to what 
Congress thinks is required as a matter of legitimate oversight.
  At the same time, as I suggested before, Congress has not done its 
job on oversight. We had the incident at Waco on April 19 of 1993. In 
my view, there should have been a prompt, detailed, piercing oversight 
investigation of what went on there. It was not until former Senator 
Danforth undertook that investigation in 1999 that anything really was 
done.
  Who can say as to the bombing of the Oklahoma City Federal building 2 
years to the day after the Waco incident, when the Oklahoma City 
bombing occurred on April 19, 1995, whether that was related to the 
Waco incident or whether it might have been prevented had there been 
vigorous congressional oversight?
  In 1995, I served as the chairman of the Subcommittee on Terrorism 
and moved to have oversight hearings at that time on both Waco and Ruby 
Ridge because I thought a great deal more needed to be done. Finally, 
the subcommittee was permitted to have oversight as to Ruby Ridge.
  That was an incident where Randy Weaver was on the mountain and 
refused to come down. There was a veritable army which approached him 
and had a firefight, and a U.S. marshal was killed in the process.
  The oversight in which the Terrorism Subcommittee got to the bottom 
of the matter, and to the credit of FBI Director Louis Freeh, the FBI 
changed the rules of engagement related to the use of deadly force in 
what was a very important matter.
  When we finished the hearings, Mr. Weaver said in the hearing room, 
had he known there was going to be this kind of congressional 
oversight, he would have come down from the mountain if he had believed 
there would be an inquiry and an appropriate resolution.
  It was at that time that militia were springing up in some 40 States 
across the United States. If Congress exercises appropriate oversight, 
it is my view that will do a great deal to quell public unrest and 
public doubts as to what is happening with Federal action in a place 
such as Ruby Ridge and Federal action in a place such as Waco.
  In summary, these are matters which are of the utmost importance when 
we will be confirming the next Director of the FBI, an occurrence which 
happens only once every 10 years because it is a 10-year turn, although 
a Director may leave earlier. Louis Freeh is leaving after 8 years, a 
term of office longer than the maximum a President may serve under the 
Constitution. The Justices of the Supreme Court have enormous power on 
5-4 decisions establishing the law of the land, but there are four 
others who go with the one deciding vote.
  The FBI, with all of its power--most of what it does is necessarily 
confidential and secret--requires that there be very profound changes 
in FBI management on the items which have been mentioned and an 
attitude that will not emphasize the institutional image to the 
sacrifice of not having appropriate congressional oversight, not having 
appropriate congressional disclosure of the memorandum referred to, 
having appropriate congressional disclosure when a matter is pending, 
even if it is a criminal matter.
  Mr. President, I ask unanimous consent that the full text of the 
memorandum from Director Freeh, dated December 9, 1996, be printed in 
the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 December 9, 1996.
     To: Mr. Esposito.
     From: Director, FBI.
     Subject: Democratic National Campaign Matter.

                               Memorandum

       As I related to you this morning, I met with the Attorney 
     General on Friday, 12/6/96, to discuss the above-captioned 
     matter.
       I stated that DOJ had not yet referred the matter to the 
     FBI to conduct a full, criminal investigation. It was my 
     recommendation that this referral take place as soon as 
     possible.
       I also told the Attorney General that since she had 
     declined to refer the matter to an Independent Counsel it was 
     my recommendation that she select a first rate DOJ legal team 
     from outside Main Justice to conduct the inquiry. In fact, I 
     said that these prosecutors should be ``junk-yard dogs'' and 
     that in my view, PIS was not capable of conducting the 
     thorough, aggressive kind of investigation which was 
     required.
       I also advised the Attorney General of Lee Radek's comment 
     to you that there was a lot of ``pressure'' on him and PIS 
     regarding this case because the ``Attorney General's job 
     might hang in the balance'' (or words to that effect). I 
     stated that those comments would be enough for me to take him 
     and the Criminal Division off the case completely.
       I also stated that it didn't make sense for PIS to call the 
     FBI the ``lead agency'' in this matter while operating a 
     ``task force'' with DOC IGs who were conducting interviews of

[[Page 12857]]

     key witnesses without the knowledge or participation of the 
     FBI.
       I strongly recommend that the FBI and hand-picked DOJ 
     attorneys from outside Main Justice run this case as we would 
     any matter of such importance and complexity.
       We left the conversation on Friday with arrangements to 
     discuss the matter again on Monday. The Attorney General and 
     I spoke today and she asked for a meeting to discuss the 
     ``investigative team'' and hear our recommendations. The 
     meeting is now scheduled for Wednesday, 12/11/96, which you 
     and Bob Litt will also attend.
       I intend to repeat my recommendations from Friday's 
     meeting. We should present all of our recommendations for 
     setting up the investigation--both AUSAs and other resources. 
     You and I should also discuss and consider whether on the 
     basis of all the facts and circumstances--including Huang's 
     recently released letters to the President as well as Radek's 
     comments--whether I should recommend that the Attorney 
     General reconsider referral to an Independent Counsel.
       It was unfortunate that DOJ declined to allow the FBI to 
     play any role in the Independent Counsel referral 
     deliberations. I agree with you that based on the DOJ's 
     experience with the Cisneros matter--which was only referred 
     to an Independent Counsel because the FBI and I intervened 
     directly with the Attorney General--it was decided to exclude 
     us from this decision-making process.
       Nevertheless, based on information recently reviewed from 
     PIS/DOC, we should determine whether or not an Independent 
     Counsel referral should be made at this time. If so, I will 
     make the recommendation to the Attorney General.

  Mr. SPECTER. Mr. President, I ask unanimous consent that an extract 
of a report from CIA Inspector General Frederick Hitz be printed in the 
Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       We have no reason to believe that the DCIs who served 
     during the relevant period were aware of the deficiencies 
     described in this report. But DCIs are obligated to ensure 
     that they are knowledgeable of significant developments 
     related to crucial Agency missions. Sensitive human source 
     reporting on the Soviet Union and Russia during and after the 
     Cold War clearly was such a mission, and certain DCIs must 
     therefore be held accountable for serious shortcomings in 
     that reporting.

  Mr. SPECTER. I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.

                          ____________________