[Senate Hearing 108-804]
[From the U.S. Government Publishing Office]
S. Hrg. 108-804
FBI OVERSIGHT: TERRORISM AND OTHER TOPICS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MAY 20, 2004
__________
Serial No. J-108-77
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 35
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 44
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 29
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 237
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 4
prepared statement........................................... 239
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 242
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 38
prepared statement and attachments........................... 258
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 41
WITNESSES
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 6
QUESTIONS AND ANSWERS
Responses of Robert S. Mueller to questions submitted by Senator
Hatch.......................................................... 49
Responses of Robert S. Mueller to questions submitted by Senator
Grassley....................................................... 51
Responses of Robert S. Mueller to questions submitted by Senator
Leahy.......................................................... 56
Responses of Robert S. Mueller to questions submitted by Senator
Kennedy........................................................ 119
Responses of Robert S. Mueller to questions submitted by Senator
Feinstein...................................................... 131
Responses of Robert S. Mueller to questions submitted by Senator
Feingold....................................................... 186
Responses of Robert S. Mueller to questions submitted by Senator
Durbin......................................................... 198
SUBMISSIONS FOR THE RECORD
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
prepared statement............................................. 250
FBI OVERSIGHT: TERRORISM AND OTHER TOPICS
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THURSDAY, MAY 20, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:40 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Grassley, Specter, Kyl, DeWine,
Sessions, Craig, Cornyn, Leahy, Kohl, Feinstein, Feingold,
Schumer and Durbin.
Chairman Hatch. We have got eight here. All we need is two
more and we can finish this markup in a very short period of
time. If and when the Director arrives, we will start with him
until we get ten and I will interrupt to finish whatever we can
on the markup and then go back to the Director. That way, we
will get at least the minimum amount of work done that we have
to get done today.
So if the Director is available, let's get him in here.
Welcome, Mr. Director. We have got nine here. As soon as we
get ten, we will interrupt whatever we are doing and do the
minimum that we can on the markup today. For instance, I would
like to get Jonathan W. Dudas out, and we have got a couple of
other bills that I think we can report, some of these S. Res.
bills.
I will be very brief because, as Senators Leahy and Schumer
have been requesting, we want the Committee to be able to hear
from Director Mueller this morning. After Senator Leahy makes
his opening statement or whatever he cares to make, I want to
consider the nomination of Jon Dudas as soon as we get ten here
to serve as Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent and Trademark
Office. As I understand it, there is no objection to him, but
if there is, we will meet it at that time.
I also understand that we can move three commemoratives,
two relating to World War II veterans and a third recognizing
the Brown v. Board of Education decision, which we ought to all
recognize. I also move that we can move S. 1933, the ENFORCE
Act. We have come a long way on that.
So with that, I will turn to Senator Leahy for any comments
he cares to make at this point.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Mr. Chairman, thank you. I would note that
the agenda does not have the Innocence Protection Act, even
though you and I and Chairman Sensenbrenner and others made a
commitment to the country, to the victims, to others, that we
would move that bill.
I know that Chairman Sensenbrenner moved the bill, and he
moved it in a conservative, Republican-controlled House with an
overwhelming vote. We should try doing the same here. We have
all had to make compromises on it. We have made commitments. He
has fulfilled his promise and it is time for us to fulfill
ours.
I am glad we are starting with the Director. Last time, we
left him cooling his heels for an hour or two. I think that
wasted his time and ours because, our oversight should be the
most important thing we do up here. When it comes to the
Justice Department, we don't do a great deal.
The cicadas come by every 17 years and that seems to be
about the amount of time that passes between visits to us by
the Attorney General. However, Director, I am glad you are
here. I don't want the rhythm of this Committee to be connected
to the 17-year rhythm of the cicadas.
I have been supportive of your efforts to more effectively
concentrate the FBI's resources on the threats and challenges
we face today. At the time of your nomination, I was the
Chairman of the Committee and I worked hard to clear the path
before you. I have done what I can since then to help you
reform and refocus the Bureau.
When I have concerns, as you know, I pick up the phone and
I share them with you privately; you don't read about them
first in the paper. I very much wanted you to succeed when you
began as Director, and I want you to succeed now. That is why I
am going to raise several very serious questions.
We have all seen the photos from Abu Ghraib. Torture is a
crime. It is a crime under the Convention Against Torture, to
which we are a party. It is a crime under our laws. It
undermines our National security. For months, the
administration received warnings that this had been going on. I
was one of the ones who wrote to them and warned them about it.
Very little was done until the press came forward with the
photographs. We were assured that things were fine. We were
given self-serving reassuring statements that turned out to be
false.
We read in one article about an Iraqi prisoner who said
that after 18 days of being hooded and handcuffed, naked,
dowsed with water, threatened with rape and forced to sit in
his own urine, he was ready to confess to anything. When his
interrogators asked him about Osama bin Laden, he replied ``I
am Osama bin Laden, I am in disguise.'' He would have admitted
to being anybody else we asked him about.
The press accounts from last week suggested that the FBI
shied away from participating in or observing certain
interrogations of terrorism suspects. At the same time, it is
clear from the Berg case that the FBI is operating in Iraq. So
we need more information about what the FBI is doing here.
We have been assured in the thousand days since September
11 that big changes are taking place at the FBI. In our
oversight role, this Committee examines actions. We learned
from the hearings on September 11 that there were very serious
problems at the FBI. And we should note for the record what
should be self-evident: you came in only a few days before
September 11. These problems were there long before you
arrived.
The 9/11 Commission dealt the FBI some of the worst
criticism yet, saying that much of the FBI does not work. A lot
of the debate will examine whether the FBI is the right agency
for the job of handling domestic intelligence and counter-
terrorism.
None of us question the professionalism of your agents.
Many of them put their lives on the line everyday. But we worry
that you have not solved some of your most basic problems. Your
information technology systems are hopelessly out of date. The
FBI is not much better off today than it was before 9/11, when
the FBI was unable to do a computer search of its own
investigative files to make critical links and connections.
By all accounts, the Trilogy solution has been a disaster.
I know I had a concern when I went down there and saw the state
of the computer systems at the FBI after we spent hundreds of
millions of dollars. I suspect most small county sheriffs'
departments have better computer systems. We have put $500 or
$600 million into improvements and the FBI system has to
perform better than it does.
I could spend the whole session talking about the foreign
translation program at the FBI. 41,000 hours in backlogged
materials needed to be translated. How do you monitor the
unprecedented 1,727 new FISA wiretaps calling on your
resources? I asked in March of this year for the Chairman to
have a full hearing on this, but we have yet to hear about
that.
We want to hear from the Attorney General. You know, I find
it amazing that on some of the things that the FBI and Justice
Department are supposed to be doing, we hear from General
Sanchez and General Abizaid earlier than we hear from the AG.
So these are my concerns. Regarding the FBI's computer
system, I will mention one more thing: after 9/11, we saw
people listening on a phone, writing down notes, handing them
to somebody to rewrite and then handing them on again to
somebody else to stick in the file; we saw an inability for
agents to even e-mail the photographs of the people for which
we are looking. My 12-year-old neighbor is in better shape.
But that is what you inherited; that is what you inherited
the day you arrived. You were there only a few days before 9/
11. Yet after hundreds and hundreds of millions of dollars
later, I still wonder whether the computer systems are in the
21st century.
I have a lot more questions, Mr. Chairman, but I don't want
to hold you up.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. We will provide time for that.
We have ten here, so I would like to at least get the
minimal things done that we can.
[Whereupon, at 10:49 a.m., the Committee adjourned, to
convene immediately in executive session. The Committee then
reconvened at 10:51 a.m.]
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Now, if I can, I am going to make my
opening remarks here this morning on the FBI Director.
Today, we are conducting an oversight hearing on the FBI's
efforts to combat terrorism, as well as any other issues that
my colleagues care to bring up.
We are going to have to have order.
I would like to welcome FBI Director Robert Mueller, who
will testify before us today. I enjoyed our meeting earlier
this month and I thought it was very productive. As many of you
know, Director Mueller started his job one week prior to 9/11.
And at that time, although the FBI was the subject of intense
criticism and media coverage, Director Mueller was undaunted
and took the job head-on. Over the last 3 years, I think he has
accepted the challenge of transforming the FBI and has made
every effort to help usher the FBI into the 21st century.
The challenges that he has undertaken are ambitious and, of
course, cannot be completed overnight. In an agency that has 56
field offices, over 400 satellite offices, 52 overseas offices,
and employs over 28,000 people, it is impossible to know what
is going on in every place at every moment. Yet, Director
Mueller had made it his business to find out where the trouble
spots are and to take every measure to resolve problems,
investigate any misconduct, and to seek outside expertise, when
necessary, to address these issues.
The FBI's number one priority since 9/11 has been to
protect the American people from another terrorist attack. In
the subsequent 2 years and 8 months, the FBI has succeeded in
that goal. Since September 11, 2001, more than 3,000 Al Qaeda
leaders and foot soldiers have been taken into custody around
the globe. Nearly 200 suspected terrorist associates have been
charged with crimes in the United States, and as many as 100
terrorist attacks or plots have been broken up worldwide.
As we all know, before September 2001 we had communications
challenges between the law enforcement community and the
intelligence community. Sections 203 and 218 of the USA PATRIOT
Act, which are due to expire on December 31, 2005, have been
instrumental in breaking down the artificial wall of non-
communication between the intelligence community and the law
enforcement community.
By facilitating and encouraging increased communication
among Federal agencies, the USA PATRIOT Act has paved the way
for many of the coordination initiatives that Director Mueller
has undertaken. Perhaps the greatest consequence of the tearing
down of the wall is that it has set the stage for a new culture
of cooperation within the Government.
Before 9/11, Federal, State and local agencies tended to
operate individually. It takes time to change long-held
cultural mores and to ensure that everyone is sharing
information as they should. But Director Mueller has taken
several key steps in the right direction. Today, the FBI and
the CIA are integrated at virtually every level of operations.
Under Director Mueller's leadership, the FBI created the
National Joint Terrorism Task Force, which works with the FBI's
newly created Office of Intelligence to coordinate interagency
intelligence-gathering activities and to act as a liaison
between FBI headquarters and local JTTFs.
The FBI is also involved in the Terrorist Threat
Integration Center, which was established last May at the
direction of President Bush. It coordinates strategic analysis
of threats based upon intelligence from the various agencies.
In addition to all this, the FBI sends out weekly intelligence
bulletins to over 1,700 law enforcement agencies and 60 Federal
agencies. So I am looking forward to hearing more about these
areas during this hearing.
These impressive accomplishments notwithstanding, the FBI
still faces some very serious challenges. Let me start by
commending Director Mueller for taking on the herculean task of
modernizing the information technology systems at the FBI, a
project which we all know as Trilogy. It is not an easy task to
update both local and wide-area networks, and to install 30,000
new desktop computers. But you have accomplished that and I
want to congratulate you for having done so.
On another note, I know that the FBI, like most Federal
agencies, is facing the challenge of finding qualified
linguists. While the demand for linguists in various dialects--
Arabic, Farsi, Pashto, Urdu and other Asian and Middle Eastern
languages--continues to be in high demand, I am heartened to
hear that the FBI has added nearly 700 translators since
September 2001.
I am reassured that the FBI has exacting standards, that 65
percent of its linguist applicants are screened out by a series
of qualification tests, and that the FBI has quality control
measures in place to ensure that the translations are accurate
and complete.
Although I recognize that the FBI needs to hire more
translators to meet their growing demand, I appreciate that
you, Director Mueller, have adopted an aggressive recruitment
strategy, advertising in both foreign-language and mainstream
media, and targeting foreign language departments at American
universities, military outplacement posts and local ethnic
communities. I also appreciate that you have prioritized tasks
so that the most significant counter-intelligence assignments
are done first, often within 12 hours. I look forward to
hearing more on this issue.
In the interest of brevity, I will submit the rest of my
remarks for the record.
[The prepared statement of Chairman Hatch appears as a
submission for the record.]
Chairman Hatch. Director Mueller, we will turn to Senator
Leahy for a point and then we will turn to you for any comments
you care to make.
Senator Leahy. You know, there is so much good that has
happened at the FBI under Director Mueller's tenure, but there
is so much left to be done. There are two phases of Trilogy, as
you mentioned, that were completed, I think, in April. So FBI
agents can actually send e-mails to each other. This is not a
thrilling accomplishment in this age. I have got a 6-year-old
grandson who sends me e-mails. This is not something that we
should really say is a great accomplishment that FBI agents can
e-mail each other, $500 to $600 million later.
The automated case system, the same system that was part of
the equation of intelligence and law enforcement failure in
2001, is still the primary IT tool for agents. We are told that
a virtual case file would mean the end of agency reliance on
paper files which seem to get lost, and so on. We should take a
look at the May 2004 report of the National Academy of Sciences
which says that this virtual case file is not designed to, and
it will not meet the FBI's counter-terrorism and counter-
intelligence needs. This is a big agency, and I realize that
there are areas of security that are needed, but this is too
slow.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Let's hear what Director Mueller has to say.
STATEMENT OF ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU
OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Mueller. Good morning. Thank you, Mr. Chairman, and
also thank you, Senator Leahy, and thank you, members of the
Committee for having me here today and giving me an opportunity
to update you on what I believe is substantial progress we have
made in the counter-terrorism and the intelligence arenas, as
well as to advise the Committee on the effectiveness of the USA
PATRIOT Act in the war on terror.
Before I do begin, however, I would like to acknowledge
that none of our successes over the past two-and-a-half years
would have been possible without the extraordinary efforts of
our partners in State, local and municipal law enforcement, as
well as our counterparts from around the world.
In addition, the Muslim-American, the Iraqi-American and
the Arab-American communities have contributed substantially to
any success that we will have had in the war on terror in the
United States. And on behalf of the FBI, I would like to thank
these communities for their assistance, as well as their
ongoing commitment to preventing acts of terrorism. The country
owes them a debt of gratitude.
Mr. Chairman, I would first like to acknowledge that the
progress that the FBI has made in reforming our counter-
terrorism and intelligence programs is due in no small part to
the enactment of the USA PATRIOT Act. For over two-and-a-half
years, the PATRIOT Act has proved extraordinarily beneficial in
the war on terror and it has changed the way we in the FBI, as
well as we in the intelligence community do our work.
Many of our counter-terrorism successes are the direct
result of a number of PATRIOT Act provisions, some of which are
scheduled to sunset at the end of next year. I do believe it is
vital to our National security to keep each of these provisions
intact. Without them, the FBI could be forced back into pre-
September 11 practices, attempting to fight the war on terror
with one hand tied behind our back.
Let me give you several examples that illustrate the
importance of the PATRIOT Act to our counter-terrorism and our
counter-intelligence efforts. First and foremost, the PATRIOT
Act, along with the revision of the Attorney General's
investigative guidelines and the 2002 decision of the foreign
intelligence surveillance court, tore down the wall that stood
between the intelligence officers of the United States and the
criminal investigators who would be responding to the same
terrorist threats.
Prior to September 11, if a court-ordered criminal wiretap
turned up intelligence information, FBI agents working on the
criminal case could not share that information with agents
working on the intelligence case. And as important, if not more
important, the opposite was also true that the information
could not be shared from an intelligence investigation to a
criminal investigation.
This increased ability to share information has disrupted
terrorist operations in their early stages, such as the
Portland 7 cell, and has led to numerous arrests, prosecutions
and convictions in terrorist cases. Because the FBI can now
share information freely with the CIA, with the NSA and with a
host of other Federal, State, local and international partners,
our resources are used more effectively, our investigations are
conducted more efficiently, and American is immeasurably safer
as a result. We just cannot afford to go back to the days when
agents and prosecutors were afraid to share information.
The PATRIOT Act also updated the law to match current
technology. So we no longer have to fight a 21st century battle
with antiquated weapons. Terrorists exploit modern technology
such as the Internet and cell phones to conduct and to conceal
their activities. The PATRIOT Act leveled the playing field,
allowing investigators to adapt to these modern technologies.
Today, court-approved roving wiretaps allow investigators
to conduct electronic surveillance on a particular suspect, not
a particular telephone. This technique has long been used to
investigate crimes such as drug-trafficking and racketeering.
In any world in which it is standard operating procedure for
terrorists to rapidly change locations and to switch cell
phones to evade surveillance, terrorism investigators must have
access to the same tools.
Today, Federal judges have the authority to issue search
warrants that are valid outside the issuing judge's district in
terrorism investigators. In the past, a court could only issue
a search warrant for premises within the same judicial
district, and yet our investigations of terrorist networks
often span multiple districts. The PATRIOT Act also permits
similar search warrants for electronic evidence such as e-mail.
In a final example, Mr. Chairman, the PATRIOT Act expanded
our ability to pursue those who provide material support or
resources to terrorist organizations. Terrorist networks rely
on individuals for fundraising, procurement of weapons and
explosives, training, logistics and recruiting. By
criminalizing the actions of those who would provide, channel
or direct resources to terrorists, the material support
statutes provide an effective tool to intervene at the earliest
possible stage of terrorist planning. This allows the FBI to
arrest terrorists and their supporters before their deadly
plans can be carried out.
As an example, the FBI's San Diego office recently
conducted an investigation in which the subjects of the
investigation negotiated with undercover law enforcement
officials for the sale of heroin and hashish in exchange for
Stinger anti-aircraft missiles. According to the subjects, the
missiles were then to be sold to Al Qaeda.
Following a meeting with undercover agents in Hong Kong to
finalize the purchase, the subjects were arrested by the Hong
Kong police, working in conjunction with our legal attache
overseas, and subsequently they were extradited to San Diego.
Not only does this case highlight the importance of our
overseas partnerships, but also the value of the material
support provisions which allow prosecutors to charge subjects
and to secure guilty pleas and convictions.
Mr. Chairman and members of the Committee, the importance
of the PATRIOT Act as a valuable tool in the war against
terrorism cannot be overstated. It is critical to our present
and our future success. By responsibly using the statutes
provided by Congress, we are better able to investigate and
prevent terrorism and protect innocent lives, while at the same
time protecting civil liberties.
Let me turn just for a minute to the progress the Bureau
has made in strengthening and reforming our counter-terrorism
and intelligence programs, doing so to support its number one
priority, that of preventing another terrorist attack. Today,
the FBI is taking full advantage of our dual role as both a law
enforcement, as well as an intelligence agency. Let me give you
a few examples of the progress we have made.
We have more than doubled the number of counter-terrorism
agents, intelligence analysts and linguists. We expanded our
Terrorism Financing Operations Program, which is dedicated to
identifying, tracking and cutting off terrorist funds.
We created the Counterterrorism Watch at FBI Headquarters
to receive threat information around the clock, to assess the
credibility and urgency of the information, and to task
appropriate FBI divisions to take action.
We expanded the number of Joint Terrorism Task Forces from
34 to 84 nationwide and established, as, Mr. Chairman, you
pointed out, a National Joint Terrorism Task Force at FBI
Headquarters. The task force is to serve as a conduit for
threat information to the local Joint Terrorism Task Forces and
to the 38 participating agencies, including, I might add, the
Capitol Police.
We have created and refined new information-sharing systems
such as the National Alert System that electronically links us
with our State and local law enforcement partners. Lastly, we
have sent approximately 275 FBI executives to the Kellogg
School of Management at Northwestern University to receive
training on executive leadership and strategic change within a
large organization.
Recognizing that a strong, enterprise-wide intelligence
program is critical to our success across all investigations,
we have worked to develop a strong intelligence capability and
to integrate intelligence into every investigation and
operation across the FBI.
We established the Office of Intelligence, under the
direction of Maureen Baginski, our Executive Assistant Director
for Intelligence. Maureen, as most of you know, comes from a
long career at the National Security Agency. The Office of
Intelligence sets unified standards, policies and training for
analysts, those analysts who examine intelligence and ensure
that it is shared with our law enforcement and our intelligence
partners. The Office of Intelligence has already provided over
2,600 intelligence reports and other documents for the
President, the members of the community, and also for Congress.
We established a formal analyst training program and we are
accelerating the hiring and training of analytical personnel
and developing career paths for analysts that are commensurate
with their importance to the mission of the FBI.
We developed and are in the process of executing concepts
of operations governing all aspects of the intelligence
process, from the identification of intelligence requirements
to the methodology for intelligence assessment, to the drafting
and formatting of intelligence products.
We established a requirements process to identify gaps in
what we know, and to develop collection strategies to fill
those gaps. We established Reports Officers positions and Field
Intelligence Groups in every one of our field offices, whose
members review investigative information not only for use in
investigations in that field office, but also to disseminate
that information throughout the FBI and among our law
enforcement and intelligence community partners.
With these changes in place, the Intelligence Program is
established and growing. We are now turning to the last
structural step in our effort to build an intelligence
capacity. In March we authorized new procedures governing the
recruitment, the training, career paths and evaluation of our
special agents, all of which are focused on developing
intelligence expertise among our agent population.
The most far-reaching of these changes will be the new
agent career path, which will guarantee that agents get
experience in intelligence investigation and with intelligence
processes. Under this plan new agents will spend an initial
period of time familiarizing themselves with all aspects of the
Bureau including intelligence collection and analysis, and then
go on to specialize in counterterrorism, intelligence or
another operational program.
The central part of this initiative will be an intelligence
officer certification program that will be available to both
analysts and agents, and that program will be modeled after and
have the same training and experience requirements as the
existing programs in the intelligence community.
All the progress that the FBI has made on its investigative
fronts rests upon a strong foundation of information
technology. Over the past two-and-a-half years the FBI has made
a substantial effort to overhaul our information technology,
and we, I believe, Mr. Chairman, and Senator Leahy, have made
substantial progress.
Mr. Chairman, my prepared statement provides greater detail
on the progress we have made in upgrading our information
technology, and I will not go into the details here. I will
say, however, that we have encountered problems, setbacks
regarding the deployment of our infrastructure known as Full
Site Capability that was due to come on line last October. The
contractor indicated that the contractor would not be able to
provide it by then. We went back and renegotiated, and that
Full Site capacity was completed on April 30th of this year.
We are on track to deliver elements of Virtual Case File
capabilities by the end of this year. We are in negotiations
with our contractor on finishing out that last part of the
Trilogy Project.
And as, Senator Leahy, you have pointed out, the National
Research Council of the National Academy of Sciences released a
report reviewing our program, released it I believe last week
or the week before. We commissioned this review as part of our
ongoing efforts to improve our capabilities to assemble,
analyze and disseminate investigative and operational data,
both internally and externally, with other intelligence and law
enforcement agencies. Many of the report's recommendations have
already been implemented or are a work in progress, and my
understanding is that the Council is looking at those portions
of the recommendations that have been carried out and will be
issuing a supplementary report.
I will again make the point that the FBI has repeatedly
sought outside evaluation and advice throughout its IT
modernization efforts, and we will continue to do so.
Let me conclude, if I might, Mr. Chairman, by saying that
with the tools provided by the PATRIOT Act and with our
counterterrorism, intelligence and information technology
initiatives firmly in place, the FBI is moving steadily
forward, always looking for ways to evolve and improve so that
we remain several steps ahead of our enemies. We are looking at
ways to assess and adjust our resource needs based on threats
in order to ensure that we have the personnel and resources to
fulfill our mission.
Mr. Chairman, let me finish by saying that I appreciate
this Committee's continued support, and I appreciate the
opportunity to be here this morning, and I am happy to answer
any questions you might have.
[The prepared statement of Director Mueller appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Director. I am going to
reserve my 10 minutes and turn to the Democratic Leader on the
Committee first for questions. We are going to have one 10-
minute round with every Senator given 10 minutes if he or she
determines that is essential.
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. Again, I am glad
that we are finally having this hearing. I read the press
reports that make it very clear that the FBI is operating in
Iraq. I think a lot of us on the Committee on both sides would
like to know more about what the FBI is doing in Iraq. I will
send you some written questions which will be basically this:
How many agents do we have in Iraq? How long have they been
there? What is their mission?
The reason I do this, because the Assistant Attorney
General for the Criminal Division was here two weeks ago. He
suggested the Department was not currently investigating the
alleged abuses at Abu Ghraib. I will submit questions to you
about that too. But let me ask you this: Are you now
investigating the abuses at Abu Ghraib Prison?
Mr. Mueller. We are not investigating those abuses. My
understanding is that the military is investigating those
abuses.
Senator Leahy. You have not received any referral from the
Department of Defense involving the nonmilitary contractors?
Mr. Mueller. We have not received a referral.
Senator Leahy. How many FBI agents are in Iraq?
Mr. Mueller. I prefer to provide that information, if I
could, Senator, off the record.
Senator Leahy. All right. On May 13th the New York Times
reported the interrogation methods employed by the CIA are so
severe that senior officials of the Federal Bureau of
Investigation have directed its agents to stay out of many of
the interviews of the high-level detainees. The article also
states that, ``FBI officials have advised the Bureau's
Director, Robert Mueller, that the interrogation techniques
which would be prohibited in criminal cases could compromise
their agents in future criminal cases.''
Did the FBI direct its agents to stay out of the CIA
interviews of high-level detainees because of the brutality of
the interrogation methods being used?
Mr. Mueller. Senator, it is the FBI's policy to prohibit
interrogation by force, threats of force or coercion. Where we
have conducted interviews, we have adhered to that policy.
Senator Leahy. More specifically though, my question was:
did the FBI direct its agents to stay out of CIA interviews
specifically because of the brutality of the interrogation
methods being used? Yes or no.
Mr. Mueller. Our agents--
Senator Leahy. That is what the press reported.
Mr. Mueller. Our agents are under direction to adhere to
the training and the directions that they have had in terms of
how to handle interviews. In the case where we have been
handling interviews, particularly over in Iraq, it has been
done according to our standards and there has been no waiver of
that.
Senator Leahy. I will ask the question for the third time.
Did the FBI direct its agents to stay out of the CIA interviews
of high-level detainees because of the brutality of the
interrogation methods being used? Yes or no?
Mr. Mueller. The FBI has--
Senator Leahy. It has been reported--
Mr. Mueller. If I might, sir, the FBI has directed its
agents to conform to its policies with regard to the handling
of interviews, whether it be here in the United States or
overseas, and to the extent that an agent believes that
interviews were not being conducted according to the standards
of the FBI, that agent was not to participate in those
interviews.
Senator Leahy. Let me ask you just for the fourth time, for
the fourth time. Did the FBI direct its agents to stay out of
the CIA interviews of high-level detainees because of the
brutality of the interrogation methods being used?
Mr. Mueller. No.
Senator Leahy. Thank you.
Mr. Mueller. But I will say that--again, I will go back--
and the way the question is phrased, no, but I want to be
absolutely clear that agents of the FBI were to participate
where they believe that the interrogations would be done
according to the standards that we have set in the FBI.
Senator Leahy. Were they told to anticipate that those
standards would not be followed in CIA--
Mr. Mueller. No. My understanding is that there are
standards that have been established by others legally that may
well be different from the FBI standards, and if that were the
case and there were a departure from the FBI standards, we were
not to participate.
Senator Leahy. What others?
Mr. Mueller. What others?
Senator Leahy. You said that there are some interrogations
that do not follow your standards. What others? By whom?
Mr. Mueller. DOD and CIA.
Senator Leahy. That is basically my question. So it is true
the FBI agents are--
Mr. Mueller. But my saying that, let me add, Senator, that
that does not necessarily mean that those standards were not--
that those standards were unlawful. What I am saying is that
they may not conform to what we--the standard that we use in
conducting investigations in the FBI.
Senator Leahy. Your standards are set out, and agents are
instructed not to take steps that would compromise them in a
criminal case; is that a fair statement?
Mr. Mueller. I think that is part of it, yes. But also, I
mean, for a variety of reasons, our standards relating to
interviews and interrogations are based on our belief on what
is effective, our belief on what is appropriate, our belief
on--and part of the footing of that is, quite obviously, the
fact that we would have to testify in court on standards of
voluntariness and the like. So our standards may well be
different than the standards applied by another entity in the
United States.
Senator Leahy. And have any of your agents encountered
objectionable practices involving the treatment of prisoners in
Iraq, Afghanistan or Guantanamo?
Mr. Mueller. We have conducted investigation to determine
whether or not any of our agents in Iraq were aware or was
aware of the practices that we have seen in the media,
practices between I believe October 1st and December 31st of
2003, and we have interviewed each of the agents that
conducted, may have conducted interviews in the Abu Ghraib
Prison, and none of those witnessed abuses such as we have
seen.
Senator Leahy. Let me ask you this. Is the FBI conducting
any investigations involving handling of prisoners in
Guantanamo?
Mr. Mueller. No.
Senator Leahy. None?
Mr. Mueller. We are not conducting any investigations into
the handling--
Senator Leahy. Have you conducted any?
Mr. Mueller. No.
Senator Leahy. And you are not doing any in Iraq?
Mr. Mueller. We are not.
Senator Leahy. How about Afghanistan?
Mr. Mueller. No, not to my knowledge. We are not conducting
investigations into the handling of prisoners in either of
those three countries. My understanding is that there is a
referral, there has been a referral to Justice by the CIA,
which I think has been made public, of certain issues, but the
investigation has been conducted by the CIA Inspector General.
Senator Leahy. So if they refer a case to Justice, you do
not get involved in an investigation? I mean does it sort of
sit there in Justice or what?
Mr. Mueller. No. I think if there are referrals and Justice
believes that we are the appropriate investigating body, they
would ask us to conduct an investigation.
Senator Leahy. So even though they have had cases referred
to them by the CIA, they have not set them on to you?
Mr. Mueller. My understanding is the investigations had
been conducted to date by the Inspector General's Office.
Senator Leahy. The same New York Times article says the
CIA's coercive interrogation techniques were authorized by a
set of secret rules adopted by the administration after the 9/
11 attacks for the interrogation of high-level al Qaeda
prisoners. The article states that these rules were endorsed by
both the Justice Department and the CIA. Were you or anyone
else at the FBI consulted about these rules?
Mr. Mueller. I do not believe so.
Senator Leahy. Did you or anyone else at the FBI endorse
these rules?
Mr. Mueller. No.
Senator Leahy. You have no FBI investigations of military
contractors regarding the handling of prisoners in any of the
three countries I have talked about?
Mr. Mueller. Not at this time.
Senator Leahy. Have you had?
Mr. Mueller. No.
Senator Leahy. Do you have FBI at Guantanamo?
Mr. Mueller. Yes.
Senator Leahy. Afghanistan?
Mr. Mueller. Yes.
Senator Leahy. And Iraq?
Mr. Mueller. Yes.
Senator Leahy. Can you submit the information on that for
the record?
Mr. Mueller. In terms of numbers?
Senator Leahy. Yes.
Mr. Mueller. Yes. I would like to--not in open record, but
I will absolutely submit it to the Committee, but we prefer to
keep it not as part of the open record.
Senator Leahy. Would you want to do it for the classified
record?
Mr. Mueller. Yes.
Senator Leahy. I understand. We talked about the Trilogy
Program, and we said that it has been updated, consolidated and
so on. But we have spent in the 3 years since 9/11, $581
million, which is over budget, and long delayed. The Attorney
General told Congress the virtual case files are on schedule to
be implemented by December of 2003. You said the same thing in
July 2003 when you testified before us. In December the FBI
told my staff it was delayed until summer. On March 23 of this
year you told the Appropriations Subcommittee the FBI is still
negotiating. Today you indicated the elements would be
completed later this year. What elements and what do you mean
by elements?
Mr. Mueller. Let me go back, Senator. The contracts were
entered into in the summer of 2001. We have had to undertake
the modernization, given contracts were issued and entered into
in 2001 prior to September 11th. There is an assertion that we
have spent far more funds than were earlier anticipated, and
that is true. The reason we have spent far more funds is
because we have changed and adopted the program we need to put
our information technology where it needs to be. We have
completed, as Senator Hatch pointed out, a substantial portion
of the Trilogy Project. We have put in more than 28,000 new
computers. We have put in the local area networks, the wide
area networks, the backdrop, the backbone of our system.
One of the things we have done that was not contemplated
when we entered into the Trilogy Project is, early on,
migrating our databases from the old ATA base, which is the
foundation of ACS to which you refer, migrating that data over
to modernized databases so it can be searched by search
engines. That had not been contemplated prior to September
11th, and we have accomplished that.
The upgrade of our operating systems, which was to be
completed by October, was not completed by October. We had what
I believe to be problems with the contractor in that regard,
and we went back and we negotiated a difficult finalization of
that contract, and that was concluded on April 20th. We are in
negotiations with the last contractor on the last piece of this
program, the Virtual Case File, and my hope and expectation is
that that will be completed by the end of this year.
But I do not believe, to the extent that you did say that
we are not much better off today than we were before, that that
is accurate. I do not believe that is accurate. I think we are
much better off now than we were before.
The last point I would make is that when we entered into
the contracts for the Trilogy Project, it was on a 3-year
timeframe. I had originally, after September 11th, asked to
move it up so that we could move faster. We are at the end of
that 3-year timeframe, so compared to what we anticipated, we
are pretty much online. It was my effort, my hope, my
expectation that I could move up that timeframe some. As it has
turned out, I was unable to do so, but I do believe that when
we are concluded this year, we will have the foundation for the
cutting-edge technology for an organization our size.
Senator Leahy. Thank you, Mr. Chairman. I appreciate your
courtesy.
Chairman Hatch. Thank you, Senator Leahy.
We will turn to Senator Grassley.
Senator Grassley. Director Mueller, I really appreciate
your work that you and your field agents are doing in the fight
against terrorism. I also would like to commend you for the
changes that you are making at the Office of Professional
Responsibility. My staff has been briefed on that. I may have a
few little things to follow up in writing, but I wanted to
acknowledge those changes.
The first question deals with the progress that the FBI is
making in general in terrorism financing, and specifically with
the Saudi Arabian financial activity. I chaired a Finance
hearing yesterday on this issue. My staff has been
investigating the Riggs Bank situation, and the money trail I
think is very alarming. It looks like there are groups and
individuals that have pretty solid links to terrorism who got
money from the Saudi Embassy accounts at Riggs. I am sure that
the FBI agents on this case are working as hard as they can,
but I worry about political pressure may be impeding. Three
points I would like to address, and I would like to give all
three before you answer.
First, have you or senior FBI officials received any
pressure or guidance from other agencies, including CIA, State
Department or the White House to go easy on the case, and if
you ever did, would you report that to Congress?
Second, please tell us in a general sense, because I know
when you are dealing with a specific case you cannot talk about
that case, but what kind of activity or involvement in
terrorism financing is the FBI seeing from Saudi nationals and
Saudi officials?
Third, what kind of coordination and effort is there from
the FBI to dismantle al Qaeda financing as a whole as opposed
to specific cases, especially in conjunction with the Treasury
Department?
Go ahead.
Mr. Mueller. As to the first question on political
pressure, at no point in time have we received pressure from
any other entity in the Government not to pursue every lead
where it takes us. We would reject any pressure. It would not
happen. It would not deter us from seeking out any fact that we
need to further our investigation.
We have seen over a period of time Saudis, Saudi NGOs, NGOs
that are headed by Saudis, contributing to terrorism. I think
that is fairly well known over a period of time. We early on
established a Terrorism Financing Operations Section that has
been, I believe, very successful in integrating with, formerly,
Customs, as well as with the Treasury Department, and
undertaking a wide range of investigations into terrorist
financing, and I might also say this is one of the areas in
which we work exceptionally closely with the Agency and others,
and we have been successful.
Lastly, with regard to the Saudis, before I turn to al
Qaeda, we have had very good cooperation from the Saudi
Government over the last year. We have a fusion cell in Riyadh
looking at terrorism financing, and that has augmented our
capabilities to address this particular problem. Looking at the
financing of al Qaeda overall, I do believe that our efforts to
go into Afghanistan and remove Afghanistan as a sanctuary for
al Qaeda has had tremendous benefits in terms of disrupting
their capabilities to recruit, to train, but also disrupting
their capabilities to organize the financing along the lines
that they were able to organize it prior to September 11th. Al
Qaeda is fragmented. That does not mean that there are not
individuals in this world who are not still providing financing
to al Qaeda, but it is more difficult for them. And the efforts
of not just the FBI but the other agencies in the United
States, as well as our counterparts overseas, has had a
substantial direct impact on the funding of al Qaeda.
Senator Grassley. In regard to your last point, because I
ask in conjunction with the Treasury Department, has the
Treasury Department been involved in those investigations?
Mr. Mueller. Yes.
Senator Grassley. As a conclusion on this point, today
Senator Hatch and I, and Senator Leahy, and Senator Max Baucus,
are sending you a letter asking to see Inspection Division
reports on the FBI's legal attache in Saudi Arabia, and I look
forward to seeing those reports. You do not have to comment on
that now, but we are sending you that letter.
I would also like to, on a second point, figure out why the
FBI is going back in time and classifying some pretty basic
information that is already in the public sector in regard to
classification of information that we have received in Congress
from a whistleblower, Sibel Edmonds. We have, for instance, a
e-mail sent out by the Chairman Office last week saying that
the FBI is classifying 2-year-old information the Committee got
in two previous briefings. Ms. Edmonds worked for the FBI as a
translator, and was fired after she reported problems as part
of the Committee's legitimate oversight. We looked into that.
So I am very alarmed.
The e-mail I have is right here. I am very alarmed with the
after-the-fact classification. On the one hand I think it is
ludicrous because I understand that almost all of this
information is in the public domain and has been very widely
available. On the other hand, this classification is very
serious because it seems like the FBI would be attempting to
put a gag order on Congress. Frankly, it looks like an attempt
to impede legitimate oversight of a serious problem at the FBI,
and that makes it harder for the FBI's problems to get fixed.
The so-called mosaic theory of classification can probably be
applied to just about any information.
I do not think this is really about national security. If
it were, the FBI would have done this a very long time ago, and
in fact, you would be trying to get information back that has
already been given to us about Ms. Edmonds.
The result of this retroactive classification will be a
roadblock in front of Congressional oversight and the victims
of 9/11 because I think that lawyers want to interview Ms.
Edmonds. I think a better solution is for the FBI to face up to
its problems with translation. I understand that there are tens
of thousands of hours of untranslated material from this year
alone, and that is just for Terrorism and Intelligence
Committee. So I have two questions.
First, who is the primary decision maker for
classification? Would it be Justice Department lawyers or
operational people at the FBI? The second part of this is, how
is this classification supposed to have any credibility when it
is 2 years after the fact and all the information, it seems to
me, is in the public domain?
Mr. Mueller. Senator, I understand your concern about this
particular issue. My understanding is that the information was
provided to Congress sometime ago openly, 2 years ago, almost 2
years ago, and that there are other areas of information that
have come out, that put together with that information, may
bear on the national security, which is why that decision was
taken. My understanding is it is a joint decision between the
Bureau and the Department of Justice. I can assure you it is
not in any way an effort to impede legitimate oversight
inasmuch as the information has been provided to Congress some
time back.
I might also add in that context that as I have in each
case of a whistleblower in the past, I have referred the matter
over to the Inspector General, and the Inspector General is
conducting an investigation into all of these allegations. It
certainly is not an effort to in any way interfere with either
Congress's or the Inspector General's investigation, and as I
have in the past, if there are recommendations that come out of
that investigation, I will look at them and for the most part,
as I have in the past, I will adopt them.
Senator Grassley. My last question deals with the Chinese
spy case in Los Angeles. I am not asking you about criminal
case though because I know you are restricted on that. Former
Agent J.J. Smith recently pled guilty to what seems like a
light charge. It does not look like he is going to get much
jail time. There have been some comments in the media about how
this looks like a double standard and that has concerned me
because we have discussed that in previous open hearings of
this Committee. But I would like to focus on something else
separate from the criminal case, and I would ask two questions.
First, can you tell me if any internal FBI misconduct
allegations have been filed against current or former senior
officials in Los Angeles or in headquarters relating to the
Leung, how Leung was handled in other intelligence matters? And
second, are these allegations being investigated by either the
FBI or the Justice Department? I am asking this because I have
received information that the FBI really did not property judge
who was responsible for the problems of the double agent and
who was to blame.
Mr. Mueller. Two things. Immediately after this came to my
attention, I asked for a quick review of individuals who are
still in the chain of command in Los Angeles to determine
whether or not I should take some action immediately. And there
were, I believe, at least one if not more actions taken as a
result of that review.
At the same time though, I asked the Inspector General to
conduct an investigation and the Inspector General has been
conducting an investigation for probably a year now into the
events of what happened out in Los Angeles, and I would await
the conclusion of the Inspector General's report to determine
what further steps should be taken.
Chairman Hatch. Senator, your time is up.
Senator Kohl.
Senator Kohl. Director Mueller, we understand that the
State Department and the FBI are active in providing security
at the Summer Olympics, intended to be in Athens. We have heard
many athletes expressing concerns about their safety, and it
seems that there may be good reasons for them to be concerned.
As you know, Greece is close to many interests hostile to the
United States and the area, and Greece's borders, particularly
those on the Mediterranean Sea are porous. These fears are only
exacerbated by the numerous bombing attacks that have occurred
in Athens over the past year, some of which took place while
you were there in November.
Given the situation and your knowledge of what is being
done there in terms of security, what can you say to the
American athletes who are concerned about their safety?
Mr. Mueller. We are working with the Greek authorities. It
is the responsibility of the Greek authorities to protect the
Olympics. They are confident they have put into place the
mechanisms to do so. We have been and will continue to work
with the Greek authorities. We continue to monitor the progress
with regard to the security of the Olympics. At this point in
time, as I say, we continue to monitor it and see what progress
is being made to assure that these Olympics are free from
attack. I think it is too early for any dispositive judgment as
to the substantial gaps in that security. To the extent that we
have identified them over the last several months, 6 months or
so, the Greek authorities are moving to fill those gaps, but as
I say, we are continuing to monitor the situation there.
Senator Kohl. Is your concern a high-level concern?
Mr. Mueller. Yes.
Senator Kohl. Do you think that there is substantial risk
there?
Mr. Mueller. No. When I say it is a high-level concern, I
think all of us want to make these Olympics the safest possible
Olympics, and I know the Greek authorities want to make these
the safest possible Olympics. They are looking forward to
having the Olympics go off without a hitch and not only
ourselves, but a number of other countries are working with not
only our ambassador, but ambassadors of other countries in
Greece, to ensure that these can be the safest possible
Olympics.
And when I say ``high-level concern,'' it is a concern
because all of us want to make these a safe Olympics and are
willing to do what is necessary to make that happen.
Senator Kohl. Is it safe to say that the level of security
at these Olympics will be perhaps higher than have ever been
seen in an Olympics before?
Mr. Mueller. I think that is probably fair to say.
Senator Kohl. Director Mueller, the last time we saw each
other, we discussed a Terrorist Screening Center. I would like
to say again how important it is to have one central watch list
for terrorists to effectively protect against terrorist attacks
and keep our law enforcement alert to known terrorists. Such a
list should be available to border security personnel, State
and local law enforcement and others who are charged with
protecting our Nation.
You said, in March, that you expected a terrorist watch
list to be fully integrated by this summer. Can you give us an
update on where that is.
Mr. Mueller. It was fully integrated as of March 12th.
There was one integrated list as of March 12th. The next step
in the growth of the Terrorism Screening Center is to make that
list accessible directly on-line from each of the agencies.
Right now, every one of the agencies participating in the
Terrorist Screening Center has communication to their
particular fields, and the names come in, and then it is run
against the list. By the end of this year, what we want to be
able to do with appropriate security, quite obviously, is to
have the centralized list, which we do have, accessible
directly from the field, so that the field does not have to
come in to their counterpart in the Terrorism Screening Center,
but can go electronically right to the list and get the
information that way, and that is the next step of the
evolution of the Terrorist Screening Center.
Senator Kohl. Can you assure us that the FBI does not use
any of the abusive interrogation methods that we have been
reading about in Iraq here in the United States?
Mr. Mueller. Yes.
Senator Kohl. Does the FBI have procedural rules governing
the interrogation of prisoners captured here in the United
States?
Mr. Mueller. Yes.
Senator Kohl. Since September 11th, we have been collecting
more intelligence and terrorist-related investigations.
Terrorist organizations operate in the shadows of our society
and are difficult to detect even when our counterterrorism
people have all of the information in front of them. Their job
is virtually impossible when the information we do have is not
translated in a timely manner. What are you doing at the FBI to
develop a long-term solution whereby the FBI can attract
adequate numbers of qualified translators without compromising
security?
Mr. Mueller. We have put into place Tiger Teams, as we call
them, over the last year, year and a half, to bring on board,
first, recruiting and then bring on board numbers of
translators in the languages where we have been weak in the
past. We are going to continue to do that and augment our
capability by seeking to attract and then hire a number of the
translators in these particularly Middle Eastern languages. We
have more than tripled our numbers of analysts in some of the
more important categories, such as Arabic. Where we had, on
September 11th, 70 Arabic contract linguists and language
specialists, we now are well over 200. Farsi, we had 24, and
the last count I had was 55. Pashtu, we had one. We now have at
least 10, if not more. Urdu, we had 6, and we are up to 21.
And so we have enhanced our capability and the numbers of
linguists, but we are still not where we need to go. We have
put into place a network whereby cuts of intercepted
conversations, for instance, can be pushed around the country
to a language specialist that has a particular skill and that,
in and of itself, will substantially enhance our ability to
have our conversations, our intercepts translated.
The one point I would make is we have had, as in all
things, we have had to do a triage. We have had to prioritize,
and so the priority, quite obviously, is terrorism. To the
extent that we have FISA intercepts or a Title III intercept in
any way relating to terrorism, that is the first priority, and
those conversations, particularly if they relate to ongoing,
perhaps, operations, are done within I would say 12 hours.
There are other investigations where, because we do not
have as many linguists as we would like, that it is not within
12 hours, but we have investigations, for instance, going into
financing of terrorist activity and a variety of terrorist
groups, and it does not have the same immediacy to have that
translated--maybe listened to, but not translated--with the
same immediacy that we have with regard to an ongoing terrorism
investigation, and so we have had to prioritize, and I expect
we will have to continue to prioritize in the future. But we,
along with the community, are working in a number of different
ways to augment our capabilities.
Senator Kohl. Director Mueller, the FBI has been heavily
criticized since 9/11 for not connecting the dots and
preventing those attacks. You have done much to reorganize the
Bureau and to hope that those changes will better enable the
Bureau to detect and disrupt plots. You almost completely
remove the FBI from drug enforcement, and we are told that many
smaller criminal investigations, such as bank robberies, are
being left to State and local officials. So where do you see
the FBI going from here? Do you plan to scale back on the
Bureau's involvement in any other areas of criminal
enforcement?
Mr. Mueller. Let me, if I could, just point out one thing.
We have not completely left the drug enforcement arena. We
still have--and I can get you the figures--a number of agents
who still are focused on enterprise drug investigations. We
participate in OCDETF, Organized Crime Drug Enforcement Task
Forces, around the country. We participate in HIDTA projects
around the country. So we are still operating in the drug
program and will continue to do so.
What we have done is tried to eliminate the overlap between
ourselves and DEA in addressing cartel cases, and by cartel
cases I mean Mexican or Colombian cartel cases where there had
been overlap in the past, and we are doing fewer stand-alone
drug cases, and by fewer I mean cases relating to
methamphetamine, Ecstasy, that do not perhaps relate to
enterprises, but I would expect that we would still stay in the
drug program for a long time to come.
We have had to focus our resources in the bank robbery area
and the small white-collar crime area, and we have done so. I
have given latitude to Special Agents in Charge of the various
divisions to identify particular priorities and to best
maximize that Special-Agent-in-Charge's resources to address
that priority. It may be in one city that bank robberies are a
substantial problem. It may be a problem in Los Angeles and not
Boston or Portland, Maine, or Oregon and not Miami. And
certainly working with State and local on the priorities, we
would work on a Bank Robbery Task Force for a period of time.
And so what we have tried to do is be far more flexible in
addressing the concerns of the local communities than perhaps
we have done in the past, not driven by statistics, but driven
by the threats in particular communities.
As we go forward as a Bureau, I believe we should look for
areas in which we are uniquely situated to address the threats
of the future, and I look to 2010, threats of the future,
international threats, terrorism, trafficking in persons, yes,
trafficking in narcotics, transnational-international white-
collar frauds. And with our 52 field offices, with our coverage
in the United States, we are uniquely able to work with our
counterparts to address that kind of more likely threats in the
future, and so I expect us to continue to maintain a strong
presence at the local level, but be that intersection between
the local level and the international threats that we are going
to increasingly face as we go down this path.
Chairman Hatch. Senator, your time is up.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Director Mueller, in the brief 10-minute time frame, I
would like to ask you about two subjects--one, the Director of
National Intelligence and, secondly, about the PATRIOT Act,
starting with the issue of coordination of intelligence
information. There are many of us, myself included, who still
believe that there ought to be an overall Director of National
Intelligence. I compliment you and others who have moved to
have more coordination now than before, and I tried to get this
as part of the legislation for the Secretary of Homeland
Defense.
If there is a judgment made to go to a Director of National
Intelligence, do you think it would be better lodged in the CIA
with the Secretary of Homeland Defense and the FBI or should
there be a new office created, designated Director of National
Intelligence, or is there some other way that you would
recommend that it be done, if we get to the point of deciding
that that has to be done?
Mr. Mueller. I wrestled with this, and it is not the first
time I have been asked about it. I think you start with some of
the areas where I think we have made substantial strides. The
Terrorist Threat Integration Center accomplishes for analysis,
as opposed to collection, the integration and the all-source
access to information relating to terrorism.
Senator Specter. Director Mueller, I have only got 10
minutes. If you are going to tell me why we do not need one,
that is not my question. My question is, if we decide we do
need one, what is the option you would recommend?
Mr. Mueller. I am not certain I would recommend any of
those options. I think, as I testified before the 9/11
Commission, I think there are pluses and minuses in each of
those options. I will tell you, if there is a decision to
make--one of the reasons I do not have an opinion on a DNI is
because I am not thoroughly familiar with all aspects of
military intelligence versus CIA intelligence. I just have not
been exposed to that.
Senator Specter. Well, would you do this for the
Subcommittee or for the Committee, at least for me. Would you
think about it and give us your opinion? Because of all of
those who have to make a judgment, none of us has as much
knowledge as we would like to have, and I would say you are a
high-level expert, and your opinion would be very, very
weighty.
Let me move on now to the PATRIOT Act and start by agreeing
with you about the importance of tearing down the wall so that
when information was obtained under the Foreign Intelligence
Surveillance Act and could have been used for a criminal
prosecution, the prohibition was not sound at all, and we did
make that important change. And I know that has liberated you a
great deal.
I believe that legislation in this field is necessary. I
was concerned that the act was adopted without hearings in this
Committee and rather hurriedly on the floor of the United
States Senate one Thursday night which I expressed at that
time. And in order to give the leverage to law enforcement to
be able to use the PATRIOT Act, there has to be confidence that
civil liberties are being protected at the same time.
And because I only have 10 minutes, I want to give you a
more lengthy preamble than I would like to do. I ordinarily
like to ask one question at a time, but I cannot do that in 10
minutes.
The provisions with respect to an order for books, records,
papers, documents, et cetera, has been referred to as an
administrative subpoena, and I am told that that does not
require probable cause, and there has been understandably
concern expressed about going after library books, although
there has been some report that no effort has been made to do
that, but just the potential is problemsome. But if the library
books related to how to make a bomb by an individual who had
other indicia of the appearances or evidence or probable cause
for being a terrorist, I could understand that.
Let me shift now to the delayed notice provisions, where
the language is that if the Court has reason to believe, which
is a different standard than probable cause, I would be
interested in your views as to what the difference is. And on
the delayed notice provision, there are five reasons for the
delayed notice. Four of them appear to be specific and sound.
The fifth is a catch-all ``otherwise seriously jeopardizing an
investigation or unduly delaying a trial.'' Where I come to the
question part, it is whether you can get along without that
catch-all provision, which causes some serious concern.
And coming back for just a moment to the order requiring
the books, et cetera, the PATRIOT Act just says that there
shall be a specification that the records concerned are sought
to protect against international terrorism or clandestine
intelligence activities. It does not have, within the PATRIOT
Act itself, the language which is in the Foreign Intelligence
Surveillance Act, where there is requirement of facts submitted
by the applicant showing that there is probable cause to
believe, and then it says, ``for the standards.''
And the questions I have for you are, where you have an
administrative subpoena, if, in fact, that is what it is for
books, et cetera, where there is a law enforcement official
looking for that information, could that individual not specify
why the information is sought, which really comes to the level
of probable cause. When we have had probable cause imposed upon
the States in Mapp v. Ohio, a very different change for law
enforcement, the necessity arose to educate police officers as
to specifying why they wanted to go after a certain record or
document or search.
So the questions are, number one, if the FBI is looking for
an order on books, records, is it too much to ask the agent to
spell out why that is being sought, perhaps not to rise to the
level of probable cause, but at least some reason to give it?
And is there a different standard, under delayed notice, on
reason to believe? And could you do without the catch-all on
Item 5?
Mr. Mueller. Let me go back. One comment you made is that
the PATRIOT Act was rushed. I know this Committee had a hearing
previously in which it was brought up that Patrick Fitzgerald,
the U.S. attorney in New York, was quoted as saying people say
the PATRIOT Act was rushed from his perspective, and he was the
one that was handling the al Qaeda cases in New York, and he
said the PATRIOT Act was not rushed. It was 10 years too late.
And I just wanted to get that on the record that there is a
belief that what the PATRIOT Act has done in breaking down the
walls has been tremendously helpful to us.
Senator Specter. Mr. Director, I believe with you that
there is plenty of time to legislate, but there was plenty of
time to have hearings before the PATRIOT Act went to the floor.
We do not overdo the work week here in the United States
Senate. So there is plenty of time to do it if we do it.
Mr. Mueller. Going to the issue of the delayed notice
first. I do believe that it is a lesser standard than probable
cause because it is delayed if the Court finds reasonable
cause, which is less than probable cause, I believe, and it is
a lesser standard, but I think it is appropriate, when you are
going before a judge and saying that, for this set of
circumstances, we want to delay a notice for 30 days or 60 days
or 90 days.
Senator Specter. Why should there be a lesser standard?
Mr. Mueller. You have it before a judge, and probable cause
in that circumstance, it is not a search. It is a delay of a
notice. And I do not believe that you need to go to the higher
level where you are asking a judge just to delay notice for a
30- or a 60- or a 90-day period, and I do believe--
Senator Specter. How about going after the books?
Mr. Mueller. In terms of going after books, I believe a
standard of relevance is appropriate, so that the Court can
look at the rationale, but not necessarily probable cause. We
do not require, as you know probably far better than I do, that
in a criminal context, a grand jury subpoena for the same
materials requires a much lesser standard than probable cause.
It is relevance to an investigation. I think that same standard
should be applied when we are addressing terrorism.
Senator Specter. But even that standard is not in the
PATRIOT Act.
Mr. Mueller. No, it is not. It is in the criminal code.
Chairman Hatch. Senator, your time is up.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you for being here, Director Mueller. As I have said
before, you have always been a straight-shooter and answered
the questions directly, and I, for one, really appreciate that.
I do want to, along the line of Senator Specter's
questions, bring to your attention that on March 23rd, I wrote
a letter to Attorney General Ashcroft and Director Tenet, and
in that letter I indicated that I was increasingly concerned
about the confrontational tone of discussions about the PATRIOT
Act and the 16 provisions among the 156 which are set to expire
in 2005. And I said it was my hope that we can carefully
consider and thoroughly evaluate these in a timely fashion. And
I wrote to him asking for his assistance that he ensures a
critical and comprehensive review of the implementation, value
and importance of each of the 16 provisions. I received no
response.
I wrote a second letter the next month on April 28th with a
copy of my prior letter. I received no response to that. Now, I
am a supporter of the PATRIOT Act, but if I cannot get from the
Department of Justice what I ask for with respect to a careful
and comprehensive evaluation of each of those provisions, I
will be hard pressed not to support the reauthorization, and I
just want to let you know that.
And I will give you, before you leave today, copies of
those letters. Perhaps you can use your influence and see that
I get a response.
Let me put on my Intelligence Committee hat for a moment.
In 2002, we passed, in the intelligence authorization bill, a
section known as 321, and that essentially required the DCI, in
its capacity as the head of the intelligence community, to
develop standards and qualifications for those engaged in
intelligence activities at the 15 departments.
And the report that we published went on to say, ``The
Committee,'' the Intelligence Committee, ``has become concerned
that, particularly in the area of analysis, elements of the
intelligence community are denominating individuals as analysts
or intelligence analysts without adherence to a meaningful and
common definition of the word. Since September 11th, the
Committee has been struck by the ever-growing number of
individuals who are intelligence analysts, particularly in the
area of terrorism. It is the Committee's intention to require
the Director,'' that is the DCI, ``to ensure that individuals
performing analytic or other intelligence functions meet clear
and rational minimum standards for performing those jobs.''
My first question is has the DCI provided you with the
communitywide standards and practices required by law?
Mr. Mueller. I know we are putting--I am not certain of
exactly the way the import of that law has been transmitted to
each of the agencies that fall within the DCI.
Senator Feinstein. I am talking about you, Director
Mueller.
Mr. Mueller. Yes.
Senator Feinstein. It seems to me these standards should go
Director-to-Director not through lower echelons. My question,
and the intelligence authorization bill is very specific, have
you been provided with communitywide standards for the hiring
of intelligence analysts?
Mr. Mueller. I do not believe so. We have established our
own, in conjunction with the rest of the intelligence
community.
Senator Feinstein. So you would not know how many FBI
analysts meet those standards.
Mr. Mueller. We have been doing an assessment. I would have
to get back to you on that.
Senator Feinstein. I would appreciate that, if I may.
Mr. Mueller. Yes.
Senator Feinstein. I want to just follow up on a couple of
things. What responsibility does an FBI agent serving in Iraq,
Afghanistan or, for that matter, any other place have to report
conduct such as we have seen at the prisons, and it is not the
only one prison, but in other prisons, to report conduct that
may violate United States laws?
Mr. Mueller. It is to report it and to report it up the
chain.
Senator Feinstein. Have you received any reports?
Mr. Mueller. From Abu Ghraib, no.
Senator Feinstein. From any other prison or detention or
interrogation facility?
Mr. Mueller. We have, upon occasion, seen an area where we
may disagree with the handling of a particular interview, and
where we have, my understanding is--and we are still
investigating--where we have seen that, we have brought it to
the attention of the authorities who are responsible for that
particular individual.
Senator Feinstein. You mentioned in response to Senator
Leahy that you had questions about the effectiveness of
coercive interrogation. Can you explain that a little bit
further?
Mr. Mueller. I think there may be various bodies of opinion
as to what is the most effective way to obtain information.
There are certainly differing points of views. One of the
points of views in the FBI is that developing a rapport may be
as effective or more effective than other ways. That does not
necessarily mean that our particular view, in a particular
circumstance, is right. But as I expressed to Senator Leahy, in
the course of FBI interviews, there are standards that FBI
agents are to apply.
Senator Feinstein. In April of this year--
Mr. Mueller. May I add one other thing, also? And that is
one of the things I do think it is important to understand is
that our standards are developed with the understanding that,
for the most part over the years, we have--and will continue--
to conduct interviews within the United States--within the
United States--under the Constitution, understanding that our
mission is somewhat different than the mission of the
Department of Defense and the CIA overseas. And so our
standards we adhere to within the United States because that is
our principal mission.
Now, in the case where we also are overseas, we ask our
agents to adhere to exactly the same standards, and there have
been no waivers of those standards.
Senator Feinstein. Well, let me just say this: I admire you
for taking the position that your agents are not going to
participate where those standards are not present. So I thank
you for that.
In April of this year, the FBI issued an intelligence
report entitled ``Threat Assessment, Los Angeles.'' I have
reviewed the report carefully, and while the details are
classified and I will not go into them, I wrote to you earlier
this month to express my concern, saying in a letter dated May
3rd that, although titled ``Threat Assessment,'' the report
contains little intelligence analysis; rather, it is a
combination of older intelligence data and random comments on
ongoing investigations.
In essence--and this is a problem, I think, with your
agency--rather than analyze the implications of the data you
have, the report counts the number of open investigations. In
my view, counting investigations is a valuable law enforcement
tool, but it is not a substitute for analysis.
How is the FBI going to address this problem and acquire
the skills that are necessary to do real intelligence analysis?
Wouldn't an assessment of the threat to Los Angeles be
primarily based on foreign intelligence collected overseas with
the information from your investigations being added data?
Mr. Mueller. I think that is a valid criticism, and too
often in the past I think what we have done is look at the
number of cases, and that does not substitute for the analysis
that you describe. And I would think a thorough analysis would
include not only information from overseas and not only the
number of cases we have, but also input from our sources in
that area, whatever sources contribute to that, and give an
overall assessment.
I think you will be seeing one relatively shortly, and
throughout the Bureau, we are gaining that capability not only
by hiring analysts who have that capability, but through the
College of Analytical Studies and from our intersection with
both TTIC, as well as the CIA, as well as also the NSA.
We have put out a number of, I think, very good
assessments. The assessment we did on the national threat
domestically over the last year I think has been a top-quality
product. And as we continue to grow our capabilities there, I
think you will see the quality of the product will be much
improved as we gain the capacity.
I will tell you that we have put in each of our offices a
field intelligence group with reports officers, with persons in
those intelligence groups who understand how to put together an
assessment. That is not a capability that we have had in the
past, and we are building it. We are not where we want to be,
but we are building it and we are building it as fast as we
can.
Chairman Hatch. Senator, your time is up.
Senator Feinstein. Thank you. Thank you very much.
Chairman Hatch. Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Mr. Director, thank you for joining us. I know that you
have expanded the Trilogy information technology program as a
result of the Webster report on Hanssen, September 11th, and
other issues. As a result, the FBI was allowed to reprogram
certain funds to address this expanded focus. Let me ask you a
couple specific questions.
After redirecting these funds, do you currently have enough
money to complete Trilogy? What will be the total cost of
Trilogy? How much money do you have left to spend on the
program? And when will Trilogy be completed?
Mr. Mueller. I am not certain I have answers today on each
one of those questions. I believe we do have sufficient money.
Let me check one thing.
[Pause.]
Mr. Mueller. I believe the total cost, as I pointed out
before--but we have had some enhancements that we have included
in that--will be close to $560 million, and the last piece of
Trilogy, that is, the Virtual Case File, my expectation is that
it will be in by the end of the year.
Senator DeWine. End of this year?
Mr. Mueller. This year.
Senator DeWine. I understand that the FBI commissioned the
National Academy of Science to evaluate the Trilogy plan. They
were fairly critical. However, I also understand that many of
these criticisms are for issues the FBI may have already
addressed. The NAS does not dispute that possibility, but
indicates they have been unable to determine the FBI's progress
because the FBI has not been forthcoming on these issues. That
is what they say.
Can you address these concerns?
Mr. Mueller. Well, I do think we have been forthcoming on
the issues. One of the things about the report is that it was
done 6 months ago, and there have been substantial changes in
terms of the development of an enterprise architecture, the
appointment of a new chief information officer, different
mechanisms to assure higher-level input into the project, all
of which were recommendations that were in the report as it was
drafted 6 months ago.
The panel is coming back together to evaluate the progress
that has been made since they last drafted the report, and my
expectation is that there will be acknowledgment of that in the
next several weeks, in a supplemental or an addendum to the
report.
Senator DeWine. So we should wait for that?
Mr. Mueller. Yes, sir. On the other hand, we would be happy
to brief, as we have others, where we are on our information
technology, the good and the bad. And there have been some
tremendous bright spots; there have been a number of--a
relatively few bumps in the road, but there have been bumps in
the road.
Senator DeWine. You and I have discussed that before. I
appreciate that.
Let me switch gears here a minute. Once September 11th
happened, the FBI, as you have testified in front of this
Committee on several occasions in the past, fundamentally
shifted gears, and you moved from a reactive agency to a
proactive agency, and you moved from an agency that dealt with
many, many different things to an agency that has focused to a
great extent today on terrorism.
Every time you are here, Mr. Director, I ask you this
question, and I am going to keep asking you this question
because I think it is important for the American people to
understand the answer. And I suspect the answer will continue
to change a little bit.
What is it that the FBI is not doing today that you were
doing in the past? What is not getting done now because of this
change in direction? You are doing more. You are doing more in
the area of terrorism, fundamentally more. You do have some
more resources that we have given you.
Mr. Mueller. Yes.
Senator DeWine. But that means some things still are not
getting done or are not getting done as well. Candidly, tell us
about that.
Mr. Mueller. We are not doing--
Senator DeWine. The American people need to know that.
Mr. Mueller. Yes. We are not doing as many drug cases. I
think that is--to the extent that there is some impact, I think
it is probably more in middle America because of the
predominance of methamphetamine as a drug of abuse. And we have
better coverage in most of middle America than the Drug
Enforcement Administration does, and so that has fallen to
State and local law enforcement. So we are not doing as many
drug cases. We are not doing as many cartel cases. But I do
believe that the slack on the cartel cases has been picked up
principally by DEA.
We are not doing as many bank robberies. We are not doing
the smaller white-collar criminal cases, the bank embezzlements
under a couple hundred thousand. I hate to say it here, but we
are not doing as many smaller white-collar crime cases as we
were doing before. We are relying more--and when I say ``we,''
I would say law enforcement is relying more on the Inspectors
General to investigate fraud and abuse against the Government.
Those are some of the areas in which we are doing far less
of than we had done in the past. But as we continue to stress
that our principal priority is addressing terrorism, Congress
and the administration have given us additional resources in
terms of agents and analysts in counterterrorism that have then
freed up agents who had been redirected from those other
programs to go back to some of these criminal programs.
But in the future, my belief is our three principal
priorities--counterterrorism, counterintelligence, and cyber--
will continue to draw additional resources from some of the
other traditional areas that we have handled.
Senator DeWine. And the reality is that what the FBI always
brought to the table was the ability to handle the complex
case, the long-term investigations. And when you hand those
off, by necessity now, to local law enforcement, that means
somebody has got to pick up long-term investigations. And
sometimes that is difficult, frankly, for local law enforcement
to do, and that is just a fact.
Mr. Mueller. It is, and--
Senator DeWine. That is a fact. That is where we are.
Mr. Mueller. It is. One of the things I stress to each of
the Special Agents in Charge is that when you sit down with
your local police chief, there may be a gang problem, there may
be a particular drug problem, and there is no reason why we
can't bring the capabilities we have to bear on that problem
for a period of time until it is addressed. But we should not
stay in task forces beyond the time that we can contribute. And
we ought to be more flexible in addressing those particular
needs of State and local law enforcement with some
particularity as opposed to trying to do it with a broad brush.
Senator DeWine. Let me move to one final question, and that
has to do with the whole FISA process and changes that have
taken place there. How are we doing there? Do we need to make
any change in the FISA law, in your opinion? How are we doing?
And do we need to make any changes?
Mr. Mueller. Well, there is the Senator Kyl--I think it is
the Kyl-Schumer statute that is still pending that I think
would be of substantial benefit were we to have that passed. I
would have to get back to you on that. I know that lone
terrorist is one of the issues--
Chairman Hatch. That is the lone wolf--
Mr. Mueller. That is the lone-wolf piece of legislation.
Senator DeWine. Right, and we hope to give that to you.
Mr. Mueller. And I have to get back to you, again, and look
at that. It is not right on my mind at this point.
Senator DeWine. Could you take that then as something that
you will get back to us in writing on?
Mr. Mueller. Absolutely.
Senator DeWine. We would appreciate that.
Mr. Mueller. If you can excuse me just a second.
[Pause.]
Mr. Mueller. Specifically with the FISA statute, that is
right. I have to get back to you on that.
Senator DeWine. What is your analysis, Mr. Director, of how
FISA is working mechanically now?
Mr. Mueller. It is working--
Senator DeWine. The flow, because I do not want to in an
open hearing get into too many details. But--
Mr. Mueller. Let me just say there are two components to
it, and that--
Senator DeWine. I have some concerns.
Mr. Mueller. We still have concerns, and we are addressing
it with the Department of Justice. And I can tell you one
thing: the quality of work is as it has been in the past. We
have had to prioritize in ways that we have not in the past.
And we have had to add additional persons, and part of the
challenge is both from information technology as well as the
training and augmentation of the FISA staff, whether it would
be in the FBI or in DOJ. We have recently embarked on a task
force concept that I think will do much to ameliorate the
problem. But there is still frustration out there in the field
in certain areas where, because we have had to prioritize, we
cannot get to certain requests for FISAs as fast as perhaps we
would have in the past.
Senator DeWine. My time is almost over. Let me just say
that that is something that, Mr. Chairman, I think this
Committee should spend a little more time looking at. When the
Director of the FBI comes into this hearing--and we are in a
open hearing and cannot go into any great detail. But it is
clear there is a frustration level here with the Director, and
it is clear there is a frustration level with people in the
field. And when he is talking about making priorities, that
tells me once again that things are not getting done out there.
And we are going to be looking up, Mr. Chairman, in a year or
two from now, and we are going to be looking back at things
that did not get done because of some mechanical problems out
there that should have been fixed. And something is wrong out
there.
Chairman Hatch. I agree.
Senator DeWine. There is just a problem here.
Chairman Hatch. Senator, I think that is a good point.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Director Mueller, I appreciate working with you, I enjoy
working with you, and I admire the challenges you have and the
way you are meeting them. So it does pain me to hear you using
the same approach that almost everyone else in the
administration uses to defend USA PATRIOT Act. I have heard the
President do it; I heard the Attorney General do it.
You say the bill has to be reenacted in exactly the same
form. Then you cite a bunch of provisions, Mr. Mueller, that
nobody objects to. It is a bait-and-switch. Nobody is against
taking down the wall. Nobody wants to put the wall back up.
Nobody does. I never did. When I voted against the bill, I
never suggested--in fact, that was one of the provisions I was
enthusiastic about.
Then you cite the idea on the roving wiretaps. Everybody in
this Congress wants us to be able to get at the other
telephones. No one suggests that you should only be able to get
at one telephone in an era of cell phones. It is simply not
anything that anyone has proposed that I know of. Nobody
opposed the idea of nationwide search warrants, the sort of
thing you mention.
And here is the problem. The problem is that you suggest to
the American people that somehow these provisions are in
dispute, that you, I am sure, properly have indicated have been
helpful. But the provisions that we are concerned about--and
Senator Specter actually mentioned some of them--do have
problems with the drafting.
Now, you may be right that some of these provisions took 10
years to get them to us, but I assure you that our part in the
process, which I think is still important, was extremely
rushed, and the language was not carefully reviewed.
For example, you take the sneak-and-peek searches. Senator
Specter mentioned this. The PATRIOT Act could allow delayed
notice of a search for potentially an indefinite period of
time. In other words, instead of a judicial review and
monitoring on a 7-day basis to make sure that it is still
needed, it is indefinite. Now, that is not something that you
have shown any evidence to suggest is necessary in order to
protect us from terrorism.
It also has the catch-all provision that Senator Specter
mentioned that allows delayed notice of a search if it would
``seriously jeopardize an investigation or unduly delay a
trial.'' Well, that is just too broad without a specific
connection to terrorism.
So the point here that I want to make--and the same goes
for Section 215. You started talking about a relevance standard
regarding the library records. There is no relevance standard
for Section 215. It simply says if you, the FBI, say you seek
the information in connection with the investigation, the judge
is required to give you the order. And I have heard the
President and the Attorney General all suggest that somehow
there is genuine judicial review there.
So the point here is that I don't think you even really
want the USA PATRIOT Act passed exactly intact again. There is
a necessary process that many members of this Committee are
engaged in on both sides of the aisle--Senator Craig, Senator
Specter, Senator Durbin, myself, and others--where we want to
fix the USA PATRIOT Act. And the problem is the approach you
are taking enhances the view of many people in this country
that you are not trying to fix it, that you are just defending
it at all costs. And I think that is a mistake. I think that is
a mistake for the Constitution. I think that is a mistake for
what you are trying to do.
Let's give the American people an opportunity to believe
that you and this administration have a concern about some
problems with the powers, and let's fix them so there can be
confidence as we all go forward to fight terrorism.
In that spirit, I thought until today--and I certainly hope
after your answer I feel again--that you believe there is a
need for dialogue about these issues. I was pleased when you
agreed to speak apparently at an ACLU conference about the
PATRIOT Act. Earlier this week, William Safire wrote a column
about his concerns with data mining and made a point about
balancing security with liberty that I believe also applies to
the debate in the PATRIOT Act. He warned that, ``In obtaining
actionable anti-terror intelligence, there is a connection
between, one, today's concern for protecting a prisoner's right
to humane treatment and, two, tomorrow's concern about
protecting a free people's right to keep the government from
poking into the most intimate details of their lives. Must we
wait until intrusive general searches mushroom into scandal,
weakening our ability to collect information that saves
lives?''
So, Mr. Director, do the American people have to wait until
a scandal occurs? Or wouldn't you agree that the administration
should be taking concrete steps now to address the legitimate
concerns that have been raised on both sides of the aisle about
the language of the PATRIOT Act? And are you willing to sit
down with a group of us who are cosponsors of the SAFE Act to
talk about it?
Mr. Mueller. Well, Senator, you started off by saying that
the roving part of the statute is not at issue, but part of the
SAFE Act would modify that part.
Senator Feingold. I didn't say that, Mr. Director. I said
that the issue that you brought up of being able to get at
multiple telephones is not at issue.
Mr. Mueller. Okay.
Senator Feingold. So this is what this is all about. You
cannot just say that making one criticism of one part of the
provision means that we think the whole thing should be thrown
out. That is not our position. That is not what we are trying
to do. We want to fix it, Mr. Director.
Mr. Mueller. And I would acknowledge that a debate is
appropriate. I would be happy to sit down with you or any
Senator here to discuss what changes are appropriate. But what
my concern is about is the heart of the PATRIOT Act. The heart
of the PATRIOT Act. And I look at some of the modifications in
the SAFE Act, and I would disagree with you and I disagree
adamantly in terms of taking out the last provision, (e), where
the judge--you call it sneak-and-peek, but delayed
notification, where a judge can delay notification because, as
it is in the PATRIOT Act, it would seriously jeopardize an
investigation. And for most times in which this has been
approved previously by judges, it has been under that standard
because that is what most concerns us.
I am happy for the debate. I am glad to sit down with you
or any of the other Senators to debate the provisions. But in
my mind, what has not been acknowledged--and I wish it were
acknowledged--is that the PATRIOT Act has made us safer as a
whole.
Senator Feingold. I want to say to you that I have never
said that certain provisions of the PATRIOT Act don't make us
safer, and that is not the debate. I only raised in my
opposition to it a handful of provisions that I think are
terribly important. But let's just agree that there are many
provisions, all the way from being able to get voice mails
because you could get the regular conversations of people, the
border guards for Canada. That is not helpful to the debate in
our country to suggest that those things are not important.
What I think you just did is helpful. Let's get down to the
actual language. Is there a way in which we could both agree on
that language, maybe make it tighter and make it less of a
catch-all that would still address the concerns you have? And I
do appreciate the fact that you are willing to meet with us and
talk about those.
Let me switch to the questions that the Ranking Member
asked a bit about Iraq. Could you please tell us where the
agents and translators and other employees were assigned before
they were sent to Iraq? Were they working here on stateside
issues relating to terrorism, or were they pulled off of active
investigations or diverted from assisting in other matters?
Mr. Mueller. They will have come from offices around the
country.
Senator Feingold. They were from here?
Mr. Mueller. From the United States.
Senator Feingold. Were they already working on terrorism-
related issues?
Mr. Mueller. Some of them were. Some of them may not have
been.
Senator Feingold. Well, the President said, correctly, that
the fight against terrorism is not a war against Islam or the
Arab world, and I appreciate your references to this today. I
feel very strongly that the message should be sent repeatedly
to the world as well as to Americans here at home. I am
concerned that there are still some in this country who have
misinterpreted this fight against terrorism and this conflict
in Iraq as a war against Muslims or Arabs.
Last week, the American-Arab Anti-Discrimination Committee
sent you a letter asking you to issue a public statement to
quell the public fears about hate crimes against Arab and
Muslim Americans in light of the recent events in Iraq. Mr.
Director, as you know, protecting civil rights is one of the
FBI's top priorities. What can you say today to the public to
remind them that we are not engaged in a war against Islam or
the Arab people? And what you say to reassure Arab and Muslim
Americans that the FBI is, of course, committed to protecting
their civil rights?
Mr. Mueller. Well, as I said at the outset, the war on
terror in the United States has to be undertaken by all of us,
and for the most part, it requires us to be alert, vigilant to
persons in our communities that might want to either support or
undertake terrorist acts. And all of us together have to
understand the responsibility, and the Muslim American and the
Arab American communities have understood that and work closely
with us.
Each one of our SACs, Special Agents in Charge, has gone
out since September 11th and developed, I think, good, close
working relationships with members of these communities, and we
will continue to do so. It is tremendously important.
On the other side of the line is the assaults that have
occurred on members of the Arab American and Muslim American
community that are especially heinous in the light of what
happened on September 11th, and since September 11th, we have
initiated 532 hate crime investigations where the victims were
either Arab, Muslim, or Sikh. And out of those investigations,
Federal charges have been brought against 18 subjects and local
charges against 178 individuals.
So, on the one hand, we appreciate and we thank and hope to
continue to work with the members of the Muslim American and
Arab American communities who, as I have always said, are as
patriotic if not more patriotic than most perhaps in this room.
And, on the other hand, to the extent that there are those
who don't see that, don't understand it, and undertake hate
crimes, we will be there, we will be investigating, and charges
will be brought, and you will be doing time in jail.
Chairman Hatch. Senator, your time is up.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Hatch. But just to clarify before I turn to
Senator Cornyn, 16 provisions of the PATRIOT Act are due to
expire on December 31, 2005. Among the provisions that are
subject to expiration are Sections 201 and 202, which add
terrorist offenses and computer fraud or abuse as predicates to
obtaining wiretaps; Section 203 and 218, which enable law
enforcement to share counterintelligence information with the
intelligence community; Section 206, which permits roving
wiretaps; Section 209, which permits law enforcement officials
to obtain voice mail through a search warrant rather than a
wiretap; Section 220, which authorizes nationwide issuances of
search warrants for wire or electronic communications and
electronic storage and others.
If these provisions expire--and I am not saying the
distinguished Senator from Wisconsin has been against all of
these provisions--
Senator Feingold. Mr. Chairman, that is simply untrue.
Chairman Hatch. I said I am not saying that you have said
that you are against these provisions, all of these provisions.
Senator Feingold. I just really--
Chairman Hatch. What did I say--
Senator Feingold. Mr. Chairman, I want to be clear that I
have not taken the position that all of these provisions should
be--
Chairman Hatch. That is what I just got through saying,
that you are not against all of these provisions, and that is
what I thought I made clear. But you have been against some of
them. And the critics have been against--I am just pointing out
16 very important provisions are going to expire, and that is
all I wanted to point out. I find no fault with you wanting to
have a dialogue and criticize. In fact, I do think we are going
to have to have a hearing on the SAFE Act so that you can get
that out in the open, which you would like to do, and, of
course, have our law enforcement people tell us whether it is
doable the way the SAFE Act wants it done or not doable the way
the SAFE Act wants it done.
But one other thing. Anybody who thinks that the PATRIOT
Act was done in haste didn't sit through the 18-hour days for 2
weeks, and years before, because it was the Hatch-Dole
Antiterrorism and Effective Death Penalty Act where we debated
some of those provisions before and could not get them in. I
mean, this has been going on for years on this Committee, not
just the approximately 18 days that it took day and night--you
know, 18-hour days to do the PATRIOT Act. Those provisions we
have debated for years, ever since I have been on this
Committee. So it is not something that was not well thought out
or was not thought through. And the one thing that I think has
to be said is that in the five hearings that we have held on
this Committee so far, there has not been one--not one--
effective criticism. The Senator from California made that
point.
And, you know, we hear a lot of screaming in the media and
a lot of criticism, but not one that has shown one misuse of
the PATRIOT Act or one abuse of the PATRIOT Act. And I think
that needs to be said.
Did you want to say something?
Senator Leahy. Mr. Chairman, I would simply make this note
taken from a somewhat different view. I was there when the
PATRIOT Act--
Chairman Hatch. So was I.
Senator Leahy. --was written, and I recall the first draft
that came up from the Attorney General. You and others
suggested we pass it that day. Some of us suggested we read it.
Chairman Hatch. I don't think I suggested that we pass it
that day. That is not true.
Senator Leahy. We will let the record--
Chairman Hatch. We worked the full time with your staff,
and you know it.
Senator Leahy. But be that as it may, after we read it, a
number of changes were made to it by both Republicans and
Democrats.
The point is that one of the major things put in it was the
provision that has been referred to here, the sunset provision
for December 31, 2005. This provision was authored by then-
Republican Majority Leader Dick Armey of the House and myself.
Now, we are not normally seen as ideological soul mates, but we
authored it because these provisions were extensive and new,
and we assumed that there would be real oversight on them. Part
of the frustration with the Department of Justice is that a
number of Senators on this Committee, both Republicans and
Democrats, have written a number of letters about how some of
those provisions were used--written to the Attorney General--
and yet it does not respond or responds inadequately. I have
stated before I think there is some huge room down at the
Department of Justice where all these letters go.
But the reason they are there is to have real oversight. It
is not a question of finding criticism. If you can't even
answer the questions that were asked, nobody knows whether
there is anything there to criticize or not, whether it is on
FISA or anything else. Congressman Armey and I have written a
letter jointly on the same question. He and I may or may not
agree on every part of it. Senator Craig and I have written on
this. We may not agree on every part of it whether it should go
forward or not. We do not want to see ourselves in a Ruby
Ridge-type situation. We do not want to see ourselves in any
kind of a situation where we do not know the answers.
That is why the provisions are in there. That is why they
will not be renewed, unless and until there is real oversight,
which means, among other things, having the AG actually answer
the questions.
Chairman Hatch. Before I turn to Senator Cornyn, let me
just make the record clear, because in the FBI's report to the
9/11 Commission, it indicates that a number of outside entities
and individuals have studied the FBI's operations since
September 11, 2001, and they have found no indication that the
FBI has conducted operations with less than full regard for
civil liberties. None.
For example, the DOJ Inspector General has issued three
consecutive reports indicating that his office had received no
complaints for each 6-month period alleging a misconduct by DOJ
employees related to the use of any substantive provision of
the USA PATRIOT Act.
Now, all I am saying is we are having an effective debate
on this Committee. We are holding hearings. We are giving
people from the left to the right an opportunity to criticize.
To date, I have not heard one substantive criticism other than
some would like to change one or more aspects of the PATRIOT
Act.
I would suggest to everybody, listen to the Director of the
FBI who has to live with those provisions and who has to
protect us, along with his organization of 28,000 people. And I
think if you do, we will have very few changes in the PATRIOT
Act. But that does not mean we cannot make it better. If we
can, I am going to do everything I can to do it.
Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Director Mueller, thank you, and I admire you and the great
work you are doing at the FBI. Of course, the debate we are
having here now is one that we have had since the beginning of
this country, the proper balance between security and liberty.
And I think it is good that we have the debate. This is the
right place to have it. But you shouldn't not have a debate in
the FBI about executing the laws that are passed by Congress,
and I appreciate the diligence with which the FBI is executing
those laws and making us safer.
But I do take a different view than Senator Feingold
expressed. I admire his sincerity and his conviction and his
consistency, but I simply disagree. I think I for one will
support an effort to strike the sunset provision in the PATRIOT
Act because I think it ought to be made permanent, because I
agree with you that it has made America safer.
But what I worry about is not people in Congress or
elsewhere making good decisions about that balance between
security and liberty based on good information or the facts. I
worry about the facts being misrepresented or people being
scared into making emotional decisions about what the PATRIOT
Act does or does not do. And what I am referring to
specifically is a campaign that has resulted in, I believe it
is 287 different cities, city councils, municipal governments
who have passed resolutions opposing--maybe ``condemning'' is
too strong a word, but opposing the PATRIOT Act, including
three in my State.
Then I happened to receive a solicitation for funds from
the American Civil Liberties Union. I am not sure exactly how
they got my address, but I did, and the primary thrust of that
solicitation was that I needed to send the ACLU money to
protect the country, protect myself against the Government's
use of the PATRIOT Act to somehow strip me of my civil
liberties.
Of course, scare tactics are common. It is a way to
motivate people to act. But it is not honest; it is not
appropriate. And I think that the PATRIOT Act has made America
safer.
I am amazed that we are having this debate, but, again, the
debate is good. But after the 9/11 Commission hearings where
you and the Attorney General and others talked about the
importance of the PATRIOT Act's elimination or at least
bringing down the wall that separated the law enforcement and
intelligence-gathering agencies from information sharing and
how important that has been. And it is amazing how you can see
the public rhetoric and the public opinion kind of turn on a
dime. It was as a result of that hearing which I think educated
the American people about the good things the PATRIOT Act has
done to make us safer. Indeed, I guess the best evidence of
that is we have not, thank God, had another terrorist attack on
our own soil since 9/11.
But let me ask you specifically about two things. One has
to do with the material support provision of the PATRIOT Act.
As you know, the Ninth Circuit has upheld a facial challenge to
that provision of the PATRIOT Act, and other courts, of course,
have rejected such constitutional challenges. And, of course,
this material support provision of the PATRIOT Act actually
precedes the PATRIOT Act. It had been applied and criticized
since the Clinton administration.
But could you tell us the importance of retaining that
provision or something very close to it in terms of the FBI's
efforts to combat terrorism?
Mr. Mueller. The material support statute is--I wouldn't
say instrumental, but exceptionally necessary in order to
prevent terrorist attacks. And the reason is because you cannot
always hope to catch the terrorist with the dynamite in their
hands going to the place where they want to undertake the
attack. And you cannot wait until the person has the device
together and wants to use it. You have to address terrorism by
looking at the financing. You have to address terrorism by
looking at the recruiting. You have to address terrorism by
looking at the organization. You have to address terrorism by
looking at the travel. And if you find persons who are
supporting in one way acts of terrorism, then you need a
mechanism to address that and to arrest them and charge them,
give them their full rights under the Constitution, but address
it.
One of the great problems in addressing terrorism is, you
would say, it is somewhat of an inchoate crime. It is some
place between somebody thinking up a terrorist act and actually
accomplishing it. And it is between the thinking up of a
terrorist act and having somebody accomplish it where we have
to gather the intelligence to identify that person or persons
and we have to make certain that they do not accomplish that
terrorist act.
The other point about material support is that if one
person commits a crime--it is like the conspiracy statute. One
person commits a crime. The crime does not have the full force
and effect as if you have a number of persons conspiring
together to commit that crime. In order to be effective in 9/
11, the persons who undertook that had to be financed; they had
to have travel documents; they had to have persons helping them
in order to commit that final act on September 11th. And the
material support statutes enable us to address that type of
participant substantially before that terrorist act is on its
way to complete. So it is very important.
Senator Cornyn. Not just the person that detonates the
bomb, but the people who made that possible.
Mr. Mueller. Who financed it, may have provided false
identities, any number of ways that one can support a terrorist
act.
Senator Cornyn. I have just one other question or area that
I am just curious about. I know Senator Specter and others have
talked--there have been proposals for a Director of National
Intelligence. But I must say that in our effort to promote
information sharing, particularly not just at the Federal level
but at the State and local levels--and I do appreciate your
emphasis on that in your opening statement because I do think
that is critical. I worry that our intelligence community is
sort of like the layers of an onion, it seems like. And I
really don't understand--and maybe there are people smarter
than I am who can explain it to me--why we would just want to
add another layer to that onion when it comes to the
intelligence community, how that would actually promote
information sharing in a way that would make us safer.
Would you just comment on your views on that generally?
Mr. Mueller. Well, again, I am Director of the FBI, not
Director of CIA, but there is a belief--and George Tenet would
articulate it--that in order to be effective, you have to be
close to those who are doing the analysis, those who are doing
the collection of the intelligence. And to the extent that you
have someone that is divorced from that, you lose that
effectiveness.
We have put into place mechanisms to enhance our analytical
capability across all of our organization when it comes to
terrorism. We have another mechanism--well, we have two
mechanisms. One is the National Security Council and the
Homeland Security Council. So to the extent that one needs
operational coordination in any area, either the National
Security Council or the Homeland Security Council does that
coordination.
What I am less familiar with, do not understand fully, is
the budget process in the intelligence community and how better
coordination of that budget process might enhance the
coordination of our intelligence across the Government. And
there I just do not feel that I have sufficient information to
provide much input.
Senator Cornyn. Let me just in quick follow-up, we, of
course, have become familiar with the concept of jointness when
it comes to fighting wars, joint training, joint operations. We
have seen it in Afghanistan and Iraq between the various
military branches.
Is it too simplistic to think that perhaps in intelligence
gathering and analysis and dissemination we could conceive of
the intelligence community's job is to act jointly? Is that the
goal?
Mr. Mueller. We have got to, regardless of whether there is
a DNI. It will only be effective if we are working in a
coordinated way between the Federal agencies, whether it be
FBI, Department of Homeland Security, CIA, NSA, DOD, DIA. In
order to be effective, we have to have an intersection of
intelligence with State and local law enforcement. In order to
be effective, we have to work with our counterparts overseas,
whether they be law enforcement or intelligence counterparts.
And there has to be a sharing of information amongst all of
these various players in ways that we have not in the past.
Senator Cornyn. Thank you, Director Mueller.
Thank you, Mr. Chairman.
Chairman Hatch. Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman.
First, Mr. Chairman, let me thank you for holding this
hearing in the morning, as I had requested. I appreciate that
very much, and I want to thank the Director not only for being
here but for the time he spent with me last week going over the
progress FBI has made on computers. And I will have more to say
about that at another time.
Today I want to talk a little bit about something that
bothers me a great deal, and it will lead to a question to you,
Mr. Director. Today, for the second time in as many weeks,
there is evidence that a civilian contractor serving a senior
position in the Iraqi prison system has a troubling history and
a checkered record when it comes to prisoner abuse.
Last week, we learned that Lane McCotter, who was ousted
from the Utah corrections system when a schizophrenic inmate
died after being strapped naked to a chair for 16 hours, that
is a practice that McCotter defended and affirmatively
endorsed. McCotter then went on to serve as an executive in a
private prison company that was under investigation for denying
prisoners access to medical treatment and violating other civil
rights. And at that point, after that checkered past, to be
kind, Attorney General Ashcroft appointed him to help rebuild
Iraq's prison system.
McCotter ended up being posted at Abu Ghraib where among
his duties was the training of guards. This is a picture of
McCotter along with Wolfowitz and Gary DeLand, and in the back
is General Karpinski at Abu Ghraib.
So his appointment raised serious questions, including
whether he had anything to do with the Abu Ghraib crimes. And I
ask Attorney General Ashcroft what was being done to
investigate the role of civilian contractors in the Iraqi
prison scandal. I am still awaiting a response.
Now, today we learned--or I just learned this week that
there is another leader of the prisons in Iraq with a similarly
troubling past. So it makes the questions we have asked the
Attorney General even more urgent. While running Connecticut's
prison system, John Armstrong, here pictured in Iraq, made a
practice of shipping even low-level offenders to a supermax
facility in Virginia. It was notorious, this facility, for its
use of excessive force. It ranges from the unjustified use of
stun guns shooting 50,000 volts through prisoners--these are
low-level--to locking inmates in five-point restraints for such
lengthy periods that they were routinely forced to defecate on
themselves.
Even after advocates objected and asked Armstrong to
reconsider, he persisted in sending Connecticut prisoners to
this jail where they were subject to treatment many have
described as torture. Armstrong resigned as a result of the
chorus of criticism over this decision.
But that was not all. When Armstrong resigned, he was under
a cloud of credible allegations that he tolerated and
personally engaged in sexual harassment of female employees
under his command. One of the women who sued and claimed
Armstrong had harassed her personally received a settlement of
a quarter of a million dollars. And despite this record,
Armstrong was tapped to serve as the deputy director of
operations for the prison system in Iraq.
One official with a history of prisoner abuses raises an
eyebrow, but two means we are really beginning to have a
problem. Why would we send officials with such disturbing
records to handle such a sensitive mission? That is beyond me.
It cries out for explanation. Obviously, we have an obligation
to ensure that all of those responsible are brought to justice,
and we have a duty to guarantee that a handful of privates do
not take the fall if they were directed by others. They should
be disciplined appropriately, but when you read, for instance,
what Sivits did today, that is, he was required or asked to
escort prisoners to a certain place, he did not participate in
what was going on--he saw it and did not report it to higher-
ups--obviously, that is not sufficient.
This is unfair, and what bugs me the most, as somebody who
really cares about our troops--I have traveled from one end of
the State to the other and watched our troops go off to Iraq. I
see them saying goodbye to their families, and they do it with
a sense of duty, honor. And now wherever an American soldier
walks overseas, these pictures come to other people's mind. It
is unfair to them.
So we have got to get to the bottom of this, and if we are
sending abusers, habitual abuses of what is normally conceded
as rights, and putting them in charge of the prisons where we
learned the abuses are now occurring, we need to know why it is
happening and what is being done about it. We need to know if
these men or others committed crimes in Iraq and whether they
will be brought to justice.
As you know, if the FBI does not investigate and DOJ does
not prosecute the civilians who committed these crimes, no one
will. From what I understand, DOD may be saying it will
investigate the crimes by civilian contractors and pass them
along to the Department of Justice. That seems to me to be an
unacceptable solution, Mr. Director. The DOD investigators know
how to go after military crimes. That is their expertise.
Civilian crimes, to be prosecuted in civilian courts, are a
whole different story. We need professional prosecutors and
criminal investigators on the job. We need them now. I would
like to see us find out who did this, punish them
appropriately, and move on. I say that as somebody who has been
a supporter of the President's policies in Iraq, or at least
supported the war and the money to go to the troops.
So the first question I have for you: Does it make any
sense to have the DOD investigate civilians who cannot be
prosecuted in military courts? Why shouldn't the FBI be doing
this type of investigation?
Mr. Mueller. Well, with all due respect, Senator, that was
a lengthy statement before the question, and I do think it is a
little bit unfair because you know that I cannot respond to the
assertions you make, either about these individuals--
Senator Schumer. I am not asking that.
Mr. Mueller. I know, but I do think it is unfair knowing
that I cannot respond and defend either the individuals--
Senator Schumer. I am not asking you to do that. I am
asking--
Mr. Mueller. --or the Attorney General. And I would be
happy to answer the question, but I do want to say that you and
I know that I was not at all aware of this, what you are
portraying today, that--
Senator Schumer. Well, the first one has been public for a
week, McCotter.
Mr. Mueller. In any event, I know that the Department of
Justice is having discussions with DOD as to the jurisdiction.
I do not know what the result of those discussions will be.
Senator Schumer. Here is what I want to bring out, and if I
had gotten answers from the Attorney General, I would not be
asking you these questions. But I am not asking you to comment
on any individual case, obviously. The first one has been
public for a week. It has been in lots of different newspapers
and stuff. The second one we just came across today.
But if there are civilian contractors who may have broken
the law, whoever they may be, does it make any sense to have
DOD do the investigation? That is what I cannot figure out.
They don't have jurisdiction.
Mr. Mueller. Well, my understanding is they may have
jurisdiction. That is being worked out. I do not know the basis
on which they would have jurisdiction, and as in any
investigation, it would be dependent on who you have to
investigate. The general who investigated the abuses at Abu
Ghraib did a superior job, and I think most persons in the
Senate have said so.
Senator Schumer. Right.
Mr. Mueller. And so, again, it is where the jurisdiction
lies and who is doing the investigation, and I do believe that,
as happened in the investigation of Abu Ghraib, a general or a
person in the DOD can undertake a full, comprehensive
investigation. But it really depends on where the jurisdiction
lies, and that is being discussed.
Senator Schumer. Let's just take a hypothetical. A civilian
appointee is involved in the prisons, gave the order to do
things that violate the law to Iraqi prisoners. Why wouldn't we
have the FBI do the investigation? Is there any doubt that DOD
cannot discipline people who are not under military command?
Mr. Mueller. Again, I would have to refer you to the
Department on the jurisdictional issues, which they are working
on now. My understanding is that there may be a basis upon
which these individuals could be tried by the military, but I
am not familiar with the arguments. And, again, I think it is
still up in the air.
Senator Schumer. So you--okay. I will ask, Mr. Chairman,
that I get an answer in writing from the Director if I am not
going to get one from the Attorney General about whether DOD
has jurisdiction. And if not--
Mr. Mueller. I think there will be--I do believe there will
be an answer. I am not certain that the answer has been fully
clarified as yet. And I am not certain of the rationale or the
reasons why we do not have--why there is no answer currently.
I can tell you, if requested, I believe we would be
available to quite obviously investigate, but, again, it gets
down to jurisdiction.
Senator Schumer. And all things being equal, if the DOD did
not have jurisdiction to actually prosecute these folks, then
wouldn't it make sense for the FBI to do the investigation
rather than DOD and then turn over the information to--
Mr. Mueller. Yes.
Senator Schumer. Thank you.
Chairman Hatch. Your time is up.
Senator Sessions, will be--unless Senator Durbin comes
back--our last one.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
On the question of the issue that Senator Schumer raised,
Senator Schumer, I think all on this Committee supported the
legislation that I offered in 2000 that became law to make
contractors of DOD subject to criminal prosecution by the
Department of Justice. I think the Act probably contemplated
investigations being done by DOD in the field, but it also, I
think, would probably allow FBI to investigate in the field.
The ultimate prosecution would be by the Department of Justice.
And I certainly have no concern or doubt that DOD can
investigate it. I am familiar with the military legal system,
the JAG officers and their abilities, and they are first-rate.
I don't see any conflict of interest. The military is very
upset about what happened in Abu Ghraib prison, and they want
something done about it. So I think we will see that everybody
that is guilty prosecuted.
I am glad that we had that statute passed. Without it, we
would not have been able to prosecute. I do not believe these
contractors could be prosecuted except perhaps in Iraq without
this statute that we just passed a few years ago.
I think the contractors are not appointed by the Attorney
General; however, I think they are appointed by the Department
of Defense and those agencies. So I really do not think that
Attorney General Ashcroft needs to take the blame for that. But
I may be wrong.
Senator Schumer. Just if I could, McCotter was appointed by
DOJ.
Senator Sessions. By DOD?
Senator Schumer. DOJ.
Senator Sessions. I have been asked a number of times,
well, what about contractors? And I think the right approach is
this: We need contractors. We need people who may be retired
FBI agents who are willing to go to Iraq and help do the
interviews and investigations. We need people who know how to
run prisons that can help us in wartime run a prison. A young
19-year-old MP does not know the ins and outs of bringing up a
prison and bringing it to operation. But we do need to monitor.
And I think backgrounds are important. Senator Schumer, I think
you raise an important there. And, in addition to that, they
need to be monitored in the field, and somebody needs to be in
charge of them. That is one of the conclusions I reached about
this prison system. We have yet to see--I think we will see who
they are responsible to and who actually had control over them.
But they have got to be disciplined just like any other
official.
With regard to the PATRIOT Act, we have had a chorus of
people going around saying all our liberties are threatened by
the PATRIOT Act, as Senator Cornyn noted. So, first of all, we
need to defend the Act. It is critical and valuable to us. The
core parts of it are just absolutely essential. And I was
pleased to see that Senator Feingold, who is a fine civil
libertarian, agrees with the roving wiretaps and some of the
other key provisions in there.
With regard to those issues that are somewhat in dispute,
that are complained of, I think they are very small. But the
sneak-and-peek is not a small issue. Do you agree?
Mr. Mueller. Absolutely. It is a very important issue.
Senator Sessions. Now, you--
Mr. Mueller. And they call it sneak-and-peek, and that is
the wrong--it is delayed notification. Delayed notification.
Delayed notification. They get these names, if you will pardon
me just for a second, that are pejorative, that undercut the
understanding of the public and exactly what is happening. And
it is not that anybody goes in and sneaks and peeks. In fact,
you get a court order to do a search. You do the search. And
what you want it to do is delay the notification as you
continue the investigation.
Senator Sessions. Exactly correct. So you have to have a
search warrant submitted to a Federal judge with probable cause
evidence that there is evidence of a crime inside the house or
residence you want to search, and you can get those, and we
have been doing those in America for hundreds of years, I
suppose. Is that right?
Mr. Mueller. That is correct.
Senator Sessions. They are done every day all over America.
We see on television people raid a drug house or these law-and-
order shows, they are always getting search warrants and judges
approve them, and they go in and do their search.
Now, the difference here is simply that when you are
dealing with a terrorist organization, the issue may be a life-
and-death question. Is that right?
Mr. Mueller. Correct.
Senator Sessions. And you want to maybe find out if there
are pieces of a bomb being assembled in that house. And it may
be important to protecting thousands of American citizens that
we do not tell the bad guys, the terrorists, that very moment
that we know and we are on to them; and that you would have the
legal power to do the search, and you simply would not announce
to the people searched that day that the search occurred. Isn't
that what it is all about?
Mr. Mueller. That is it. Simply, that is what it is.
Senator Sessions. I just think that is a critically
valuable tool in terrorism investigations, and one of the
things that happens is, as a former prosector myself, if you do
the search too quickly, you tell everybody in the organization
you are on to them. They know you are on to the bad guys. And
you do not want to do that sometimes. Sometimes that is
critical that you not, and these kinds of delayed notifications
were in place in the law even before the PATRIOT Act, were they
not?
Mr. Mueller. They were, and they were used in a number of
different investigations, for instance, narcotics
investigations where you do an investigation, an informant says
there is in a locker some place an amount of cocaine. You do
not want that cocaine to hit the street, but you have not
completed the investigation. You get a search warrant, you go
in, and you replace it with a white substance so it does not
hit the street and you continue the investigation. And it has
happened any number of time.
Senator Sessions. But even then, you have to ask a judge to
allow you not to notify immediately. Isn't that right?
Mr. Mueller. Yes, sir.
Senator Sessions. A judge would have to approve your
decision not to notify.
Mr. Mueller. Yes.
Senator Sessions. I do not understand the library. I mean,
you can subpoena my bank records, my medical records, my
telephone records. It is done every day in America by the
thousands, every day. To say you cannot subpoena whether you
checked out a book on bomb making from the library to me is
breathtaking in its lack of understanding of the way the
criminal justice system works. I do not see that librarians
deserve a special protection here like priest and penitent.
Senator Sessions. Is there anything in the library of
standards that you are aware of that represents an expansion or
some sort of threat to liberty?
Mr. Mueller. No. As I think you are aware, being a former
prosecutor, in criminal investigations, a grand jury subpoena
is allowable certainly to any number of institutions, including
libraries, and the standard is basically a relevance standard.
And so it is not new.
The one example is Kaczynski, who was the Unabomber, wrote
manifestos. In those manifestos he had excerpts from books that
were difficult to get. We were able, with the help of the
library, to identify he was the person who had utilized those
books and put together the fact that he had taken pieces from
these books to put in his manifestos as he drafted, edited and
submitted those manifestos while he was committing a series of
bomb attacks throughout the United States.
Chairman Hatch. If the Senator will yield, it is new, with
regard to the PATRIOT Act, in bringing the laws against
domestic terrorism up to speed with other laws.
Mr. Mueller. Right.
Senator Sessions. You are right, Mr. Chairman. That is the
fundamental point of it.
Mr. Mueller. Thank you very much.
Senator Sessions. Director Mueller, you are a professional.
We are so glad you are here at this time in history. I have
followed your career when we were United States attorneys, and
I have seen you in the Department of Justice. I think there are
few people in America that have tried as many cases, who has
been involved in as many investigations, long before you
reached the august position you are in today, as a grassroots
prosecutor, working with FBI agents, DEA agents, intelligence
agents, and you are a professional. You were always known to be
a professional. You were appointed United States attorney under
the Clinton administration and under the Bush or Reagan
administrations. You have a bipartisan reputation, and we are
glad you are there.
Now, one thing I am concerned about, as we go forward with
the entry-exit visas into America, the biometrics that are
being discussed to bring some ability to make this system work.
It seems to me that the United States, and most other nations
of the world--
Chairman Hatch. Senator, your time is up, but if you would
like to finish that one sentence, that would be fine, and then
we will go to--
Senator Sessions. It seems to me that we need a system that
stays consistent with our investment, which is fingerprinting.
That has proven to work. We have got a system designed based on
that. Should we not, as we expand our ability, make sure that
the fingerprint utilization and computer system works for us
with regard to entries and exits from America?
Mr. Mueller. Yes, it has got to be. There has got to be
interoperability and expansion of the system ourselves, working
together with the Department of Homeland Security, to be on the
cutting edge of the use of fingerprints and all of its various
manifestations.
Senator Sessions. Thank you. It is utilized in every police
department in America today, and it works extraordinarily well.
Chairman Hatch. Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman. Director
Mueller, thanks for being here, and thanks for being so
accessible and so candid in your answers, both before the
Committee and in person.
Mr. Chairman, I might also note that this is a sad
anniversary. It is almost 14 months now since the Attorney
General has appeared before this Committee. I know he is a busy
man and has extraordinary responsibilities, but so do Secretary
Rumsfeld and Secretary Powell, and they have made themselves
available before the appropriate authorizing committees time
and time and time again.
I am troubled that, at this moment of national security
being a major issue and concerns about constitutional
liberties, that this Committee cannot possibly perform its
constitutional responsibility if the Attorney General continues
to refuse to come before us. I would hope that you would appeal
to him, personally.
Chairman Hatch. Senator, he is going to come in June.
Senator Durbin. Come in June, so it will only be 15, 16
months since last we saw him. I hope that when he comes, it is
not another hurried appearance, where those of us at the end of
the table are told he has to be off to a noon meeting. That has
happened before, and I hope it does not happen again.
I would like to ask if--
Chairman Hatch. Just so the record is clear, he was going
to come at the end of March or in March, but then he got very
sick--
Senator Durbin. I am perfectly aware of the medical
problems he faced.
Chairman Hatch. We will get him in here.
Senator Durbin. It will be great to see him. It has been a
long time.
Let me ask you this, Director Mueller. Can you clarify
something about Nicholas Berg? I am troubled by the press
reports that have been out about him, and what a tragedy that
this would happen to any person and be publicized in a fashion
so that the world and his family would know these barbaric
circumstances that led to his death. It should be condemned by
everyone.
But tell me about this man. Was he detained in Iraq when he
tried to leave because he was under investigation or there was
some suspicion he had done something wrong?
Mr. Mueller. My understanding is that he had been detained
by Iraqi police officers. The circumstances under which they
detained him, I am not sure are totally clear. He was detained.
He came to our attention. We did an indices check and
determined that he had had some tangential association with
Moussaoui, whom I believe you know was arrested shortly before
September 11th, which warranted us doing follow-up interviews.
And we did follow-up interviews with Mr. Berg, found that he
had, as far as we were concerned, no association with
terrorism. He was then released.
At the time of his release, he was spoken to by, I believe,
individuals of the CPA, and I believe our agents as well, who
urged him to leave. And my understanding is that CPA also
indicated that if he did not have the wherewithal to leave,
they would supply it to him. He turned them down, went to a
hotel. I also believe that there was a request made by CPA
authorities that they be able to alert his family, and my
understanding, and I would have to check on this, is that he
declined that that be done, and then he became missing from his
hotel. It is indeed a tragedy, but those are the circumstances,
to the best of my knowledge.
Senator Durbin. Well, and of course it has been publicized
that his family went to Federal Court in Philadelphia, if I am
not mistaken, trying to force his release from detention so
that he could leave the country. So it appears that there is
some conflict as to his intentions and what actually occurred.
But I think you have made it clear for the record, and I
hope it is unequivocal, that there has never been any suspicion
of any wrongdoing or illegal activity on his part.
Mr. Mueller. No. As I said before, he was a person we
interviewed in the wake of September 11th, and the interview
indicated that he was not associated in any way with
terrorists, and that was again confirmed when we interviewed
him in Iraq.
Senator Durbin. Was he at any time working with a U.S.
agency for intelligence or any agency that you are aware of to
try to gather intelligence?
Mr. Mueller. Not to my knowledge. My understanding was he
was in Iraq to try to develop his own private business that was
related to cell phone towers, I believe.
Senator Durbin. Those are the press reports. And I also
would like to switch, if I could, to an issue that has been
discussed over and over here, and that is the PATRIOT Act,
which I voted for and most members did, but I am also co-
sponsoring with Senator Craig the SAFE Act not in an attempt to
eliminate the PATRIOT Act, but rather, in specific instances,
to require what we consider to be necessary safeguards within
that Act.
I will concede that a lot of work went into it, but I think
most Senators will agree that an act of this historic moment
moved through in record time. It was in light of our concern
about the threat of terrorism. We tried to be responsive. We
put in a safeguard to say that we would revisit some of these
issues. We put sunsets on the provisions to make sure that they
were wise in their conception and being used in a fair and
judicious fashion.
I am concerned, though, as I look at the provisions in the
act, that we have just made some statements here at the hearing
that I do not think accurately reflect the changes in the law
that are included in this PATRIOT Act. This Section 213, the
delayed notification, sneak-and-peek, depending on your
personal feelings on this, clearly puts a standard of
reasonable period into the law as to how long you can proceed
without notification.
The court cases, as you are well aware, said 7 days, and
after 7 days, at that point, the Government has a burden to
come forward and explain why they are delaying the
notification. But this provision, and this is in existing law--
the 7-day notification--but in the PATRIOT Act what we are
dealing with here is virtually indefinite in terms of
notification.
What we have tried to do--what Senator Craig and I have
tried to do--is to provide specific exceptions for
circumstances that have been described here. We have said that
we would continue to delay notification of a warrant if there
was any possibility that notification would endanger a life or
physical safety, result in flight from prosecution or a
destruction of or tampering with evidence. Now, I think that
creates a reasonable model, a reasonable standard, which says
that if you cannot establish one of those elements, then at
some point notification must be given.
What exception do you think we have missed here in this
providing for notification that you think would somehow
jeopardize your work?
Mr. Mueller. Well, every investigation is different. There
are some investigations where delay of, yes, 24 hours would be
sufficient. There are some investigations where delays of 30 or
60 days might be entirely appropriate if it is a large
investigation. What the PATRIOT Act, I think, appropriately
does is leave the duration up to the judge to decide on the
facts that are presented when the judge issues the order, and I
have not found judges reluctant to act and set parameters based
on what the prosecutors and the agents show them.
In terms of the changes to the PATRIOT Act that is proposed
by the SAFE Act, the elimination of ``seriously jeopardizing an
investigation'', I think, would adversely affect our ability to
set a set of circumstances before a judge which shows that the
delay is necessitated by the unique circumstances of
investigation.
What I believe the SAFE Act does is leave in some more
narrowly defined bases for obtaining the delayed notification,
but there are a number of circumstances that come up in an
investigation which I don't think you can necessarily cubby-
hole, but that a judge looking at it can say, okay, this is
going to seriously jeopardize an investigation, and therefore I
ought to delay the notification for 60 or 90 days.
Senator Durbin. Director, I think that, though I may not
agree with the specific language, I think that is a good-faith
suggestion.
Mr. Chairman, you have suggested a hearing on the SAFE Act,
and when we get into it, I think, if we are going to try to
establish standards that meet your goals and ours, we are I
think going to tighten it without eliminating the expansion of
Government authority to go after terrorism. I would like to
work with the Chairman and the Director to come up with that
language. I think that is important, and maybe we can reach
that goal. I hope that we can in the course of what we are
setting out to do.
I would also just like to make one comment before I close,
and you have been very patient, Mr. Director, as has the
Chairman, waiting for those of us in lowly status to have our
moment, but let me just say that many have said here we just
have not heard any complaints about this PATRIOT Act. Well, I
do not think that that is an appropriate standard when it comes
to protecting our freedoms in this country. Much of the work
being done under the PATRIOT Act will be done without the
knowledge of the person who may be having their rights
violated, and so they may not even have knowledge that this is
going on when they are the subject of investigations or
wiretaps or searches under the PATRIOT Act.
So I would hope that we can still establish, as a standard,
that there are very, very efficient ways for this Government to
collect information which clearly violate the Constitution, and
we have to find a way to draw a line to preserve security in
this society while still maintaining our mutual oath to uphold
the Constitution.
Chairman Hatch. Thank you, Senator. Your time is up.
I have not used my time, nor do I intend to, but let me
just say that I think the PATRIOT Act is one of the most
misunderstood acts of legislation I have ever seen. The media,
and the public, and many of the pundits have focused on
hypothetical abuses. But as my dear friend from California,
Senator Feinstein, has mentioned at a prior hearing, not even
the ACLU has been able to cite a single instance of actual
abuse, and they watch things very carefully, and I commend them
for doing so because they serve this country well when they do
that.
I held a Senate hearing in Utah in April, and we invited a
plethora of critics of the PATRIOT Act, yet not one single one
of them could cite even one example of actual abuse, not the
ACLU, not the League of Women Voters, not the Conservative
Caucus, not the Eagle Forum, not the Libertarian Party. They
were all there. They were all hypothetical: Oh, what if--what
if this happened or that happened.
But my big ``what if'' is what if we do not have the tools
to prevent terrorism in this country in the future? That is why
the PATRIOT Act is so important. Now, we will have further
hearings on this, and I do intend to have a hearing on the SAFE
Act. I think my colleagues feel that that is something that
should be done, and Senator Leahy and I will hold that hearing.
But I just want to thank you. I know you have got to go,
and I know we have kept you beyond the 1 o'clock time that I
said I would try to keep it in, and I have appreciated your
patience and your kindness in spending this amount of time with
us, and it has been very beneficial and fruitful for the
Committee and I think for the public at large who may see this
on C-SPAN.
With that, then, Senator?
Senator Leahy. I also want to join with you, Mr. Chairman,
in doing that and thanking the Director. He has been here. He
has answered a whole lot of questions. This has been a good
hearing. Normally, in the role of Ranking Member, I could ask
my questions and leave. I have stayed here for it because I
found the answers and the questions, on both sides of the
aisle, to be very informative, very worthwhile. I appreciate
the information.
I might just add a personal point of view. I know you quite
well, I believe. You are former law enforcement, former Marine.
I can imagine you felt like a former Marine who is near and
dear to me, how he felt when he saw the pictures of the
prisoners. And I think, as I am sure you do, the 138,000
American men and women over there in the uniform who are
carrying out their duties every day, doing exactly what they
should do and put in increased danger, to say nothing about
your own agents, and contractors.
So I thank you for being here. And, Mr. Chairman, I thank
you, and I applaud you for this hearing.
Chairman Hatch. Well, thank you. And I just want to thank
the FBI. The American people need to know the tremendous job
that you folks are doing for our country. I mean, you are just
under pressure all of the time. Most of the agents are
underpaid for the risks they take and the pain that they go
through for all of us.
I know that a person like you could go out into the private
sector and make a fortune, but you have chosen to serve in
public service, and sometimes you have to take abuse for doing
that, that you really should not have had to take. And to be
honest with you, I have really appreciated you being here
today, and I appreciate the service that you are giving.
Now, I will keep the record open for any written questions
that any member of the Committee would care to send, and I hope
that you and your staff will answer those as soon as possible.
Mr. Mueller. Thank you, Mr. Chairman.
Chairman Hatch. Just do not let anybody believe for a
second that our FBI is not doing the very best it can, and I do
not know where we would be without folks like you and the good
public servants who serve us through the FBI.
Thank you for the time. Sorry to keep you so long.
Mr. Mueller. Thank you.
Chairman Hatch. With that, we will recess until further
notice.
[Whereupon, at 1:28 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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