[Senate Hearing 109-921]
[From the U.S. Government Publishing Office]
S. Hrg. 109-921
FBI OVERSIGHT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
DECEMBER 6, 2006
__________
Serial No. J-109-122
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa 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
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, 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
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 295
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement............................................. 293
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESS
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 6
QUESTIONS AND ANSWERS
Responses of Robert S. Mueller III to questions submitted by
Senators Specter, Grassley, Sessions, Leahy, Kennedy, Biden,
Feinstein, Feingold, Schumer and Durbin........................ 38
SUBMISSIONS FOR THE RECORD
Burlington Free Press, Burlington, Vermont:
Anonymous, November 8, 2006.................................. 286
Adam Silverman, November 10, 2006............................ 290
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
prepared statement and charts.................................. 299
FBI OVERSIGHT
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TUESDAY, DECEMBER 6, 2006
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 9:33 a.m., in
room 226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Grassley, Kyl, Sessions Cornyn,
Leahy, Kohl, Feinstein, and Feingold.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed with the oversight
hearing.
We welcome the distinguished Director of the Federal Bureau
of Investigation. We have been trying to schedule this session
since the arrests were made of terrorists in Great Britain in
August.
The issues raised by those arrests and the continuing
threat of terrorism constitute an enormous problem for the
United States. I think it continues to be our number-one
problem, to protect the homeland from terrorist attacks.
In that light, we are very concerned about the success on
the interfacing of the various intelligence agencies in the
United States. I think there is very forceful evidence that,
had there been appropriate communication between the FBI and
the CIA, 9/11 might well have been prevented.
Now we have a more complicated intelligence field, with the
Director of National Intelligence added to the mix with FBI,
CIA and the Department of Homeland Security, and we are very
anxious to see exactly how things are working out.
There are continuing suggestions that the United States
would be better served if the Nation had a counterintelligence
unit, like in the mold of Britain's MI-5, and there is constant
analysis as to whether there might be a better way to organize
the FBI, and that is a subject we will be looking into.
On November 9, less than a month ago, Dame Eliza
Manningham-Buller, the Director-General of MI-5, gave a
detailed account of the terrorist threat facing Britain. She
revealed that MI-5 was currently investigating ``some 200
groupings or networks, totaling over 1,600 identified
individuals'' believed to be involved in nearly 30 plots to
attack Britain. We would be interested in a similar accounting
by Director Mueller.
We are interested to know how the administration's
Terrorist Surveillance Program is working. That program,
disclosed almost a year ago on December 17, 2005 by the New
York Times, has been a source of considerable attention by this
Committee with our effort to structure some legislation and
procedures which would have the traditional safeguards of a
warrant where probable cause is established before there is
wire tapping, before there is a search and seizure. That is a
work in process.
Regrettably, the Judiciary Committee has never been briefed
on the Terrorist Surveillance Program, and we should have been.
It is very difficult for us to conduct oversight when we deal
with Director Negroponte of National Intelligence.
I talked to Mr. Negroponte, tried to get him to come to a
hearing here. He agreed, and then for some reason it was not
carried out, just as we worked with Secretary Michael Chertoff.
But we do have oversight authority with the FBI, and we do
want to know how well the Terrorist Surveillance Program is
working so that we can make an evaluation as best we can on
limited information. Since, as I say, we are not privy to being
briefed as to the success of the program contrasted with the
invasion of privacy, our committee cannot make an evaluation.
Some of that may have to be conducted in a closed session and
we are prepared to do that to get at those facts.
We want to know how successful the FBI has been in
thwarting terrorist attacks. There are periodic reports in the
media, but we do not have really a good handle on that. We need
the details on how the Patriot Act is working; there again
exists a delicate balance between our needs for effective law
enforcement and protection of civil rights.
We will be inquiring into what is happening with the
technology, inquiring into a briefing by Congress on the
anthrax case. The FBI has had a hand in making arrests, later
turned over to the CIA, in a complex series of transactions
involving Rendition.
I have requested of the Department of Justice that two
reports be made available to this committee, as has Senator
Leahy in a separate letter, regarding interrogation methods. We
will be pursuing that with you.
Your role is not as extensive, but the FBI was involved in
the arrest of Mahir Arrar, a Syrian-born Canadian citizen,
where Canada has issued a detailed report saying that there was
an inappropriate action by the United States.
We are also concerned, and the oversight with you again is
not as extensive as with the Department of Justice, as to what
is happening in the Maggi Kahn case, where the allegation is
made that in interrogation procedures, that there was torture.
The Department of Justice is taking the position that they
cannot countenance a disclosure of the interrogation techniques
because al Qaeda might learn from those techniques how to
prepare their agents to withstand those techniques, which is,
in my view, an untenable position.
If someone is challenging what has happened and makes a
case that the line has been passed, how can we deal with it if
he is foreclosed from testifying as to what has happened?
So, these are a very, very wide range of subjects. Senator
Leahy and I were discussing with the Director for a few minutes
in the anteroom the failure of the Director to submit questions
for the record from our May hearing.
As disclosed, the Director made a prompt submission of
those to the Department of Justice and they have not been
approved or disapproved. They have simply not come forward.
That is just not tenable and makes a major restriction and
restraint on this oversight hearing when we do not have those
written responses to prepare for.
But we appreciate the work you have done, Director Mueller.
We appreciate your availability when we called. We appreciate
sitting down on an informal basis. But there is no substitute
for these formal oversight hearings where it is on the record
and the American people can have some insights as to what is
happening on the very important job you have on protecting
security, and also balancing civil rights.
I now yield to the distinguished Ranking Member.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
On this last point, I met with Attorney General Gonzales
last week, along with Bruce Cohen, the Chief Counsel, and Ed
Pagano, my Chief of Staff, and I raised this issue, that the
Department of Justice is doing a disservice to the Director of
the FBI in not clearing these answers quicker.
We might get frustrated at not getting the answers, but I
pointed out to the Attorney General that the frustration is
with Justice when it takes that long to clear answers you have
given them.
I said that the alternative is going to be that when he
comes up here next year, is that the hearing will go on much,
much longer if we think we cannot get the answers to these
questions.
I mean, the other alternative is, we are here into the
evening, asking the questions right here. We submit the
questions as a courtesy and service to you and to the
Department, and they are not helping.
But having said that, I am glad we are doing this. Again, I
commend the Bureau's skilled workforce, the agents,
technicians, the men and women on the front line behind the
scenes that work year after year to protect our communities.
I also am well aware that, as the elected representatives,
we have a solemn duty to conduct meaningful oversight. It is a
valuable tool to make the FBI as good as the American people
need it to be in countering terrorism, but also in
strengthening law enforcement.
Now, I take this responsibility seriously, as does the
Chairman. For this reason, oversight of the FBI and the
Department of Justice will again be one of my highest
priorities as Chairman of the Senate Judiciary Committee during
the next Congress as it was when I last had the privilege of
chairing this committee.
The recent revelation that the Bush administration, since
9/11, has been compiling secret dossiers on millions of
unwitting, totally law-abiding Americans who travel across our
borders highlights the importance of diligent oversight.
It is incredible that the administration is willing to
share the sensitive information that they pick up on law-
abiding, innocent Americans. They want to share it with foreign
governments, and even private employers, while refusing to
allow the citizens it is gathered on to see or challenge the
so-called terror score they have assigned them based on their
travel habits and schedules.
You might be the most law-abiding person in the world, and
all of a sudden they do not get a job. They have no idea why
they did not get the job, and it is because this government has
compiled a secret dossier on them and made a mistake somewhere
on it.
Lord knows, with the poor track record of some of the
departments in this administration with keeping secret the data
they have, like the Veterans Administration and others, it is
worrisome. If it is done poorly or without proper safeguards
and oversight, data banks do not make us safer, they just
further erode Americans' privacy.
The administration has gone to unprecedented lengths to
hide its own activities from the public, while at the same time
collecting an unprecedented amount of data on private citizens.
I think data banks like this are due for meaningful oversight,
and I can assure you we are going to have it.
One of the greatest challenges facing the FBI today is
striking a successful balance between fulfilling its core
counterterrorism missions while respecting and preserving the
democratic principles and freedoms that have made America such
a great, great, and very resilient Nation.
Now, I have repeatedly sought, for the last couple of
years, answers from not only the FBI, but others, regarding
reported, and in some instances documented, cases of abuse of
detainees in U.S. custody. Just recently, I wrote to the
Attorney General about press reports after years of denials.
After years of denials, the Central Intelligence Agency now
admits the existence of additional classified documents
detailing the Bush administration's interrogation and detention
policy for terrorism suspects, something that the Chairman has
already alluded to.
When the Director appeared before this Committee in May of
2004, I asked him if FBI agents had witnessed objectionable
interrogation practices in Iraq, Afghanistan, or Guantanamo
Bay. He gave a purposely narrow answer, saying no FBI agent
witnessed abuses in Iraq.
Well, documents released by the FBI in December of 2004
made clear the FBI agents witnessed abusive treatment of
prisoners at least at Guantanamo Bay, and the Director's own
answers to subsequent questions have shed some more light on
the subject.
Now, the Congress and the American people deserve to learn
the relevant facts about the Bush administration's
interrogation policies and practices. I hope the Director will
continue moving away from the Bush administration's policy of
secrecy and concealment on this issue toward the responsiveness
the American people deserve.
In private conversation with the Director, I pointed out
that I was gratified to see in some of the publicized instances
where the CIA was using techniques that we would not agree to
as Americans, that the FBI agents said that this was not
acceptable to them and made it very clear it was not acceptable
to them.
It troubles me deeply, though, that 5 years after 9/11 that
the FBI is still not as strong as it should be. The FBI lags
far behind when it comes to the number of agents who are
proficient in Arabic.
The Washington Post reports only 33 FBI agents have at
least a limited proficiency in Arabic, and only 1 percent of
FBI agents have any familiarity with the language at all. The
FBI is supposed to be a world-class intelligence agency, and
this is a very significant part--especially now--of the world.
I am worried about the FBI's new paperless case management
system, Sentinel. We are told that it was going to cost
American taxpayers $425 million, but still will not be
operational until 2009.
On Monday, the Department of Justice's Office of Inspector
General issued a report finding that the FBI would need an
additional $56.7 million just to pay for Phase II of Sentinel,
and there are serious concerns about the impact this will have
on the FBI's non-IT programs. So, we cannot afford another
fiasco like Trilogy.
Last, on a positive note, since 9/11 the FBI has made
significant strides to adjust to the threats and challenges of
our time. The Director who came in just days before 9/11 and
was handed probably the worst challenge of any Director in the
history of this country, in the history of the FBI, has worked
hard. There are hard-working men and women in the FBI who work
very, very hard to adjust to an entirely new world.
There is work to be done. I think if the Bureau makes
mistakes, they should acknowledge it, learn from them, move
forward, and know that we are in a new century, a new world,
and those will be the areas that I will be looking into as we
go forward.
Mr. Chairman, thank you for the additional time.
Chairman Specter. Thank you very much, Senator Leahy.
[The prepard statement of Senator Leahy appears as a
submission for the record.]
We, on occasion, turn to other members for opening
statements. We have such a good turnout for you, Mr. Director,
that I am reluctant to spend too much time on it. But if
anybody has anything special that they would like to say on the
panel, we would entertain it at this time. [No response]. I see
everybody is anxious to hear your testimony, Director Mueller.
We appreciate your being with us today. The Director brings
an outstanding resume to this position. He has been the
Director of the FBI since September 4, 2001 just one week prior
to 9/11.
He has a unique position, in that he has tenure. He has a
tenured term of office, so it is longer than the presidential
appointment, which gives him quite a degree of independence,
which is very, very important.
Director Mueller has an outstanding academic background. He
is a graduate of Princeton, has a masters in International
Relations at New York University, and a law degree from the
University of Virginia. He has served as the leader of a rifle
platoon in the Marine Corps in the Vietnam war, and is a
decorated veteran.
He has a unique record as a prosecuting attorney, having
been an Assistant U.S. Attorney, then the Assistant Attorney
General in charge of the Criminal Division, a very prominent
position in the Department of Justice.
Then after being with a prestigious Boston law firm, he
came back to be litigator in the Homicide Section of the
District of Columbia's U.S. Attorney's Office, which is quite a
line of activity; real devotion to being a prosecuting
attorney.
As those of us who have been Assistant Prosecutors know,
that is the best job, better than being the U.S. Attorney,
which he later was in San Francisco. He now comes to this
position, where he has served with real distinction.
We welcome you here, Director Mueller, and look forward to
your testimony.
STATEMENT OF ROBERT S. MUELLER III, DIRECTOR, FEDERAL BUREAU OF
INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Director Mueller. Thank you, Mr. Chairman. If I may, my
remarks today will be 10 minutes at the most.
Chairman Specter. Take whatever time you need.
Director Mueller. Thank you.
Good morning to the Senators who are here. Senator Leahy
was here. I look forward to working with you, Senator Leahy. I
would like to start by acknowledging and thanking you, Mr.
Chairman, for your leadership of this Committee over the last 2
years and, of course, I look forward to continuing to work with
you in the new year.
I have submitted, Mr. Chairman, a formal statement which
provides substantial detail about the transformation and the
accomplishments of the FBI in the 5 years since the terrorist
attacks of September 11.
Chairman Specter. That will be made a part of the record.
[The prepared statement of Director Mueller appears as a
submission for the record.]
Director Mueller. Thank you. Thank you, sir. As reflected
in that statement, each branch of the FBI--the National
Security, the Criminal Investigations, Science and Technology,
Office of Chief Information Office, and Human Resources
branches--has demonstrated the ability and the willingness to
embrace change for a better, stronger, and more effective FBI.
The accomplishments set forth in my statement include
terrorist acts that have been thwarted, espionage activities
intercepted, cyber intrusions detected, corrupt government
officials convicted, violent gangs dismantled, and corporate
fraud uncovered.
Examples of our counterterrorism efforts include: in
Lackawanna, New York, six individuals arrested and pleading
guilty to providing material support to al Qaeda after
undergoing weapons training in an al Qaeda camp in Afghanistan;
an Ohio truck driver, Lyman Farris, admitting to casing a New
York City bridge for al Qaeda, and researching and providing
information regarding the tools necessary for possible attacks
on U.S. targets; and in New York as well, Mohammed Babbar
pleading guilty to providing material support to a foreign
terrorist organization; and last, more recently, in Torrence,
California, four men indicted last year, charged with plotting
to attack U.S. military recruiting facilities and synagogues in
the Los Angeles area.
While fighting terrorism, we continue to fulfill our crime-
fighting mission as well. Public corruption is the top criminal
priority for the FBI. Over the last two years, our
investigations have led to the conviction of over 1,000
government employees involved in corrupt activities, to include
177 Federal officials, 158 State officials, 360 local
officials, and more than 365 police officers.
In addition to public corruption, we continued to
investigate, disrupt, and dismantle violent gangs, to
investigate and combat world proliferation of child pornography
and sexual exploitation of children facilitated by the
Internet, and to root out fraudulent accounting schemes and
other financial crimes perpetrated by corporate executives, as
evidenced by the recent convictions of senior management of the
Enron Corporation.
These accomplishments are by no means exhaustive, but the
do provide a vivid illustration of the extraordinary work d1
day in and day out across all of the FBI programs by the men
and women of the FBI.
Along with my longer statement, I have provided the
Committee with a time line setting forth milestones in the
FBI's national security efforts. I have also provided an
organizational chart that reflects the most recent changes to
FBI executive management structure.
The recent creation of an Associate Deputy Director and a
Chief Human Capital Officer are positions within the FBI that
have improved the administrative functions of the Bureau.
In addition, we have established a Weapons of Mass
Destruction, or WMD, mission or directorate.
The directorate's mission is to prevent and disrupt the
acquisition of WMD capabilities for use against the U.S.
homeland by terrorists or other adversaries, including nation
states.
More than 5 years have now passed since the terrorist
attacks of September 11, and I do believe that the FBI is
effectively organized and strategically focused to fulfill our
mission as both a law enforcement and a domestic intelligence
agency.
I believe that our successes, some of which I have just
described, are the best evidence of our capabilities in both
arenas. In addition, we are ever mindful that our duty is to
protect the Nation, while at the same time preserving civil
liberties.
As the Committee knows, independent reviews of the FBI's
national security programs have found that it is the FBI's
adherence to the constitution and the rule of law that make it
the appropriate agency to handle intelligence collection in
this country.
In a report issued July of 2004, the 9/11 Commission
expressed concern that abuses of civil liberties could occur in
a new domestic intelligence agency if one were to be created.
In addition, the 9/11 Commission recognized the value of
integrating, not segregating, law enforcement and domestic
intelligence.
The Commission noted that, because the FBI can have agents
working criminal matters and agents working intelligence
investigations concerning the same international terrorism
target, the full range of investigative tools can be used
against a suspected terrorist.
Nearly a year later, the Commission on Weapons of Mass
Destruction also examined the FBI's dual role. In its report in
2005, the Commission noted that the FBI's hybrid nature is one
of its strengths.
In today's world of transnational threats, the line between
criminal activity and national security information is
increasingly blurred, as is well illustrated by the use of
illegal drug proceeds to fund terrorist activity.
And, like the 9/11 Commission, the WMD Commission urged
continued coordination between the FBI's national security and
criminal programs to help ensure continued attention to civil
liberties.
Mr. Chairman, although maintaining criminal justice and
national security capabilities within the FBI is the most
effective approach to protecting this Nation, we also recognize
the importance of adopting best practices from other agencies.
Indeed, we established our Directorate of Intelligence, and
as we did so a high-level executive from Britain's MI-5 was
detailed to us for a substantial period of time to advise us as
we sought to improve and enhance our domestic intelligence
program. We have found his insights and suggestions to be
invaluable as we have grown.
Prior to the terrorist attacks in 2001, as you have alluded
to, Mr. Chairman, various walls existed, real and perceived.
They no longer exist today. Legal walls that prevented the
integration of intelligence and the criminal tools in terrorism
investigations were broken down by provisions of the U.S.
Patriot Act, for which credit is due to this committee, and the
Foreign Intelligence Surveillance Court.
Yet, we cannot overlook the importance of the breakdown of
cultural walls that hampered coordination between the FBI,
other members of the intelligence community, and our 800,000
partners in State and local law enforcement.
Since September 11, we have increased the number of Joint
Terrorism Task Forces from 35 to over 100. We have established
the National Joint Terrorism Task Force with 40 member
agencies.
We have established the Office of Law Enforcement
Coordination, led by a former police chief, to facilitate
information sharing and coordination between the FBI and our
State and local partners. We have personnel assigned to the
interagency National Counterterrorism Center.
We have established the Terrorist Screening Center;
established the Foreign Terrorist Tracking Task Force;
established the Terrorist Explosive Device Analysis Center;
established six regional computer forensics laboratories;
established the National Gang Intelligence Center; and
established 13 new legal attache offices in places such as
Baghdad, Beijing, and Kabul. Finally, we are participating in
the development of State and Regional Intelligence Fusion
Centers along with our partners at DHS.
The sum result of each of these initiatives is that the
FBI's approach to our partners has shifted from providing
information on a need-to-know basis to a need-to-share basis.
We are well aware that our partnerships with other Federal
agencies, State and local police, and our international allies
have been the key to our effective response to terrorism.
In addition to the enhancements to our coordination and
cooperation with our partners, we have improved our internal
capabilities as well. For example, since September 11 we have
increased the number of language analysts by 82 percent.
We have doubled the number of intelligence analysts from
over 1,000 to over 2,000. Since September 11, we have
disseminated over 20,000 intelligence information reports, over
800 intelligence assessments, and 400 intelligence bulletins.
We have increased from 30 percent to 100 percent the number
of field offices with secure, top-secret space known as SCIFs.
We have deployed nearly 30,000 new desktop computers, as well
as high-speed, secured networks to enable personnel around the
country to share data, including audio, video, and image files.
Mr. Chairman, I hope that my remarks this morning, as well
as the documents I have provided the subcommittee, adequately
portray some of the progress of the Bureau during the past 5
years.
Before I take the committee's questions, I would like to
take a moment to address the concerns that have been raised by
Senator Leahy about the funding for the FBI's information
technology project known as Sentinel.
In short, there are no cost overruns and there are no
budget shortfalls. The total projected cost of $425 million for
all four phases of Sentinel has not changed. The recent report
of the Office of Inspector General highlights the fact that the
President's budget request includes $100 million of the $157
million needed to fund Phase II of Sentinel.
We have negotiated this request for money with the
administration and set aside from our existing resources $57
million that was not included in the President's request. We
work closely with our appropriations committees to identify
those funds and have ensured that our operational programs are
not negatively impacted.
As this Committee has been briefed, the Sentinel project is
on budget, with Phase I scheduled to be delivered in spring of
2007 as projected.
In closing, Mr. Chairman, I would like to remind each
member of this Committee of my standing invitation for each of
you to visit FBI Headquarters and be fully briefed on whatever
aspects of the FBI you would wish to be briefed on, or to visit
our FBI offices in each of your States to observe our
transformation for yourselves.
It is the dedicated men and women of the FBI who have made
our transformation possible, and we, indeed, together, are
proud of the progress, but understand that we still have a ways
to go.
Again, I thank you for the opportunity to be here today. I
am happy to answer any questions that you might have, Mr.
Chairman.
Chairman Specter. Thank you very much, Director Mueller.
We will now proceed with 5-minute rounds by the members. We
will have more than one round and see how it goes, but I know
there will be a great many questions.
Mr. Director, I begin with the Terrorist Surveillance
Program disclosed on December 16 of last year. It caused a
great deal of concern about intrusion on privacy, without the
traditional court authorization.
What assurances can you provide to this Committee and the
American people that the program is worthwhile? Have arrests
been made? Have terrorist cells been broken up? Be as specific
as you can to tell us what the program has achieved.
Director Mueller. I am not going to be able to satisfy,
here, your desire for specificity. I can tell you that that
program--
Chairman Specter. Well, would a closed session enable you
to be more responsive to that question?
Director Mueller. Well, the program is classified. It is
compartmented. I can tell you that we have given a full
briefing to the Intelligence Committee that is responsive to
the questions you are asking.
Chairman Specter. We are very interested in that, Director
Mueller, but not as interested as a full briefing to this
committee.
When we asked the Director of the CIA for a briefing, he
tells us he reports to the Intelligence Committee. So, I am not
too anxious to hear that you report to the Intelligence
Committee. I am anxious to hear your report to this Committee
because this Committee has oversight jurisdiction over the FBI.
Director Mueller. I understand that, Mr. Chairman. Whatever
briefing we give on the specifics of that program would have to
be classified, and it is compartmented. I would be happy to, if
given approval to give such a briefing, give you the same
briefing that we have given to the Intelligence Committee, but
I am not the person who makes the decision on that briefing.
Chairman Specter. So a closed session would not do any
good.
Director Mueller. All I can tell you, sir, is that the
information is classified. It is compartmented. If given the
permission to provide such a briefing, as we have briefed the
Intelligence Committee, we are happy to do so, sir.
Chairman Specter. Well, my question is not too complicated.
A closed session would not do any good.
Director Mueller. The program is classified, sir.
Chairman Specter. Well, I will not repeat the question.
Senator Leahy said he might. That means he will.
Well, we are going to pursue that, Director Mueller. That
is not what I view as a satisfactory response by the
administration. I understand that is the best response you can
make, but it would do no good to go into closed session when
you start talking about being compartmentalized. But this
committee's oversight functions cannot be carried out with that
kind of response by the administration.
Moving on, the Patriot Act was worked out, after very
extensive negotiations, between this Committee and the
administration. Then the President issued a signing statement
saying that the President would respond to the reporting
requirements as the President saw fit, in line with his
constitutional responsibilities.
I believe that that is an unconstitutional response because
the Constitution says Congress passes laws and submits them to
the President for a signature or a veto, especially in the
context where we have negotiated it, and where there has been a
give and take between the administration and the Congress as to
what the Patriot Act ought to consist of.
But the question that I have for you is, have the reporting
requirements of the Patriot Act been fulfilled or has the
executive branch withheld information based on their contention
of inherent Article 2 power?
Director Mueller. I have no reason to believe that we are
not fulfilling the requirements of the Patriot Act with regard
to reporting. I have heard nothing with regard to not providing
that information, as is required under the Patriot Act,
regardless of the basis upon which that might be done.
Chairman Specter. Well, that, Director Mueller, is an
answer in the negative. You do not have any reason to believe
that.
Do you have reason to believe that the Patriot Act has been
fully complied with on the reporting requirements?
Director Mueller. Yes. Well, I would say I have not looked
at the reporting requirements and not, myself, looked and seen
what has been filed. I would be happy to do that. I have every
reason to believe that, yes, we are putting together the
information and providing the reporting as requested.
Chairman Specter. Well, we would appreciate it if you would
look at them and give us your assurances on that question.
Director Mueller. All right.
Chairman Specter. Before my red light goes on, I have one
further question. That is, there was an extensive study made as
to what intelligence analysts are doing. This goes to the issue
as to whether the FBI is really moving into the intelligence
field. The analysts are allegedly spending only half their time
on analysis and not really working through the
counterintelligence phase. Is that true?
Director Mueller. No, I do not believe that is true. I
think that was true at the outset, certainly right after
September 11. I think we have grown substantially, both in the
number of analysts and the quality of the analysts that we have
hired.
Chairman Specter. Director Mueller, you were right in the
midst of finishing the answer to the question as to whether
your analysts are really full-time on the job.
Director Mueller. I would say, again, Mr. Chairman, there
will be anecdotes where there is an analyst here and an analyst
there who is not, but we have, since September 11, established
field intelligence groups in every one of our 56 field offices
to which the analysts are assigned.
We understand the necessity of having analysts be somewhat
detached so they can do the analytical work that is necessary,
and I believe we are effectively utilizing analysts at this
point in time. I do believe that studies have been done by
others who would support that.
That does not mean that we do not have additional work to
be done, but we have come a long way since September 11 and we
are using analysts the way analysts are meant to be used.
Chairman Specter. Director Mueller, check on the Department
of Justice survey of last year of more than 800 FBI analysts,
two-thirds of those employed with the FBI. The study found
that, on average, the analysts were spending only half-time
actually doing analytical work. Would you check on that and
supplement your answer?
Director Mueller. I will check on that. Yes.
Chairman Specter. Thank you.
Director Mueller. Thank you, sir.
Chairman Specter. Senator Leahy?
Senator Leahy. Thank you.
Director Mueller. I am sorry. Senator Specter, can I
respond to one other thing that I learned while the lights were
out?
Chairman Specter. Yes, of course you may.
Director Mueller. That is, in terms of the reporting
requirements under the Patriot Act, we are up to date on our
reporting requirements under the Patriot Act. In other words,
in response to your question as to, were we withholding
information as a result of the signing statement of the
President, I am saying, as far as the FBI is concerned, in our
reporting requirements, we are fulfilling each one of our
reporting requirements that are required by the Patriot Act.
Chairman Specter. You are giving your assurance as Director
that the reporting requirements of the Patriot Act are being
complied with, and the President or the executive branch has
not exercised any of the limitations included in the signing
statement to withhold information?
Director Mueller. Not as to the FBI. I can speak as to the
FBI only.
Chairman Specter. And they have not gone through the
Department of Justice, like the response to written questions
delayed until last week, before responding to my inquiries?
Director Mueller. Well, they do go through the Department
of Justice. Excuse me just one second.
[Pause]
We would have to check with Department of Justice and make
certain they are out of the Department of Justice and to the
committee, but we have fulfilled our reporting requirements.
Now, you make a good point in terms of, it does go through
the Department of Justice, and I would have to check to make
certain that they have been forwarded by the Department of
Justice.
Chairman Specter. Is your coordination with the CIA as good
as your coordination with the Department of Justice?
Director Mueller. They are both equally good, Mr. Chairman.
Chairman Specter. I cannot hear you.
Director Mueller. They are both equally good. We have very
good relationships both with the CIA, as well as the with the
Department of Justice.
Chairman Specter. Equally good and equally bad.
Senator Leahy?
Director Mueller. I would characterize the relationships as
exceptionally positive and mutually supportive.
Chairman Specter. I raise it in a serious vein because your
communications with the Department of Justice do not appear to
be too good. You submit answers to questions in July, we get
the responses on November 30, 7 months later. We are talking
about reporting requirements. You cannot be sure as to what
happened after you report through the Department of Justice.
That raises a very serious question as to communications.
There are a lot more reasons to have difficulties communicating
with the CIA than with the Attorney General. So, check it out
and let us know.
Director Mueller. I will check it out, Mr. Chairman. I will
do that.
Chairman Specter. Yes.
Senator Leahy?
Senator Leahy. Would you please make it a point to have
somebody get back to both Senator Specter and myself and tell
us, on the reporting, whether it ever got out of the DOJ?
Director Mueller. We will check on that.
Senator Leahy. Thank you.
I do not think I am unique in saying--not a unique
American--that I am shocked at the revelation that, since 9/11,
the U.S. Government has been secretly assigning terror scores
to millions of law-abiding Americans who cross our borders.
Like so many other millions of Americans, I cross our border
quite often, sometimes driving an hour from my home in Vermont
into Canada.
Now, data mining technologies have a place in our security
regimen. I am not denying that. But the Department of Homeland
Security's Automated Targeting System, ATS, shows what some of
the dangers can be in just blanket surveillance of law-abiding
Americans.
There have been press reports that the Department of
Homeland Security shares information contained in this database
with the FBI and others. If you do this without proper
safeguards and oversight, then it does not make us more secure,
it just erodes our liberties. We will ask further questions
next year.
Can you please explain to the American people why the
administration is secretly compiling dossier's of people's
travel habits and then assigning terror scores to them? For
example, when I drive across the Canadian border to visit
relatives.
Director Mueller. Well, Senator, I am not familiar with the
program, therefore, I am not in a position to describe it and
to be able to report on it. It is a DHS program. We may well
get information from that program.
Senator Leahy. I want to back up. You mean, they are
assigning terror scores to every single American, law-abiding
though they may be, and they are not passing those on to the
FBI?
Director Mueller. I am not certain what information they
are passing on, Senator Leahy, and I would have to get back to
you on that. My understanding is, from the same reports you
have, DHS uses this at the borders. And they may well pass on
information to us, but I am not familiar with the conduit of
that information or the basis for developing the scores, and I
would have to get back to you on that.
Senator Leahy. Are you aware of a legal authority for this
program?
Director Mueller. I am not. I do not know what the legal
authority is.
Senator Leahy. Thank you.
During the May 2 oversight hearing, you testified about the
Investigative Data Warehouse, IDW.
Director Mueller. Yes.
Senator Leahy. This was put up after 9/11. It now contains
over half a billion FBI and other agency documents, with nearly
12,000 users, Federal, State, local law enforcement who can
access this through the FBI network.
Now, like you, I have long advocated to use technology in
the FBI to carry out your programs. But I am worried, partly
because I read about the ATS program and their data mining.
Does this have adequate security? Does the IDW database share
information or otherwise interface with the ATS data mining
program?
Director Mueller. The ATS data mining program? I am not
familiar with what you are referring to, sir.
Senator Leahy. We were just talking about the ATS.
Director Mueller. Do you mean DHS?
Senator Leahy. What DHS calls ATS. I realize we are using
acronyms. This is the one that checks on everybody crossing our
borders. You have the Department of Homeland Security's
Automated Targeting System. Does your database interface with
that?
Director Mueller. I do not believe so, but again, I would
have to go back and check. I do not believe so.
Senator Leahy. Well, this is very important to me. I wish
you could get back to me in the next few days and let me know
directly.
Director Mueller. I will do so. I will do so.
Senator Leahy. Because there are also Federal privacy laws
here.
Has the Bureau filed a notice in the Federal Register about
a program publicly released, a privacy impact statement, for
IDW?
Director Mueller. I know we have a privacy statement. I
would have to check as to whether it has been publicly
disclosed. We adhere to the requirements of the Privacy Act.
Again, I would encourage you and your staff to visit us and
we would be very willing to give you a full briefing on what
IDW is, what the records are in IDW, and the intersection the
IDW has with other such databases.
Senator Leahy. Yes. Because I am not sure I am getting the
answers here, and I am not sure you are prepared to give the
answers, partly because, as you said, you are not sure just
what goes back and forth there.
I really think this is extremely important, because if we
are having database after database after database with things
that talk about Americans, and then we see what happens when
there are mistakes--sometimes getting in airplanes, Senator
Kennedy, the second most senior member of the U.S. Senate, has
been stopped several times boarding a flight that he has been
taking for 40 years back home to Massachusetts because he is on
some terrorist watch list.
Congressman John Lewis, who faced enough problems during
the civil rights era, has been stopped. A one-year-old child
has been stopped because the child mistakenly gets on and the
parents are not allowed on until they get a passport for the
child.
Nuns have been stopped. Having gone to Catholic school, I
can sometimes understand, but not at this level. Maybe there
was terror struck into us at the age of 8, 9 or 10 by them, but
they should not be on a terrorist list.
I just worry, as we get these intersected, you are going to
have kids who are looking for college loans, you are going to
have people who are trying to get a job, somebody trying to get
a security clearance, and they are told, no, we cannot tell you
why you are not getting it, and somebody is going to be
mistakenly on a list. So, I raise this because we will have a
lot of questions next year.
We will do the review down at the Department headquarters,
but we will do a review that the American public will know. We
will do it carefully so that the classified information is not
released, but there is a growing concern in this country that
our government knows too much about us and may be doing things
with that information that none of us want done. I am talking
about the millions upon millions of totally law-abiding
Americans, like that 1-year-old child.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy.
We will now proceed, on the early bird rule, calling on
Senators in order of arrival.
Senator Sessions, you are recognized.
Senator Sessions. Thank you.
Director Mueller, congratulations on your hard work. I know
there are problem areas, and I will ask you about some of
those, but you have--indeed, every U.S. Attorney's Office has--
a terrorist specialist in every field office of the FBI, which
covers the entire United States.
The speed and accuracy and responsiveness of FBI agents to
information that might connect to terrorism, would you not
agree, is light years ahead of what it was before 9/11?
Director Mueller. Yes, sir. As Senator Leahy pointed out,
we did not have databases such as IDW on September 11, the
ability, as some would say, to connect the dots. We do have
that ability today and it is attributable to the growth of not
only the database structure, but also of the networks and the
ability to communicate that information and make it available
to persons whose business it is to prevent terrorist attacks.
Senator Sessions. And the wall that separated the FBI and
CIA was removed by the Patriot Act. Has that enabled you to be
more effective in protecting this country from terrorist
attack?
Director Mueller. Of all the things that have occurred,
pieces of legislation that have been passed since September 11,
the Patriot Act is the one piece of legislation I would point
to as making a dramatic, substantial difference in our ability
to work cooperatively with each other in sharing information
and preventing terrorist attacks.
Senator Sessions. Well, I think that is quite clear. The
American people want more. They also will criticize you for not
maintaining information and not sharing it with the person at
the airport so they can identify somebody who might be a
terrorist if they happen to get by the system, and then they
will complain that you are maintaining information that somehow
might oppress somebody's rights.
Let me just say this to you, just briefly, on that subject.
It is easy to criticize your program, the Automated Targeting,
the TSP, the warehouse, the IDW, and these efforts to make our
aircraft safer, to make us safer from those who would come into
this country to attack us.
But let me ask you, when these programs are established,
just briefly, are legal counsel consulted before these programs
are initiated, whether it is in the FBI, DOJ, or Department of
Homeland Security?
Director Mueller. Absolutely. Every one of the databases
and programs is reviewed by legal counsel. We have a specified
privacy officer whose responsibility it is to do that. The
Department of Justice has a Privacy Office whose responsibility
is to do much the same thing. We had, in the last month, the
members of the Privacy Board come and review what we were doing
and they were provided briefings on IDW and the other databases
that we maintain to do our work.
I might also add that with regard to IDW, we did show and
did give access and did a briefing on IDW to the media, so we
believe that it is an appropriate database, and we also believe
that it passes all privacy concerns.
Senator Sessions. Well, if you do not maintain those
records and somebody slips by and kills a lot of Americans, you
will be hauled in here to be criticized for it, there is no
doubt about that.
And you are prepared to brief the Committee on the programs
under your jurisdiction, if we have additional questions, in
confidence if that is appropriate?
Director Mueller. To the extent that I can, in confidence,
but if it is classified that might present an additional
hurdle. But I am prepared to brief whichever committee--
including, quite obviously, the Judiciary Committee--to the
extent that I am allowed to under the applicable rules.
Senator Sessions. Well, this is what I would suggest. I
suggest you continue those programs that you believe are
appropriate and that you believe are legal and the counsel have
approved. If a court says it is not proper, I would expect you
to stop it, and I know you would.
I would just say this. I would wait to see what Congress
does. My impression is, the pattern in Congress is to bring
officials up and accuse them of all kinds of things, but then
not offer legislation to stop it. Is it not true that if
Congress disapproves one of these programs, we can shut off
funding and require it to be stopped?
Director Mueller. I believe that to be the case, sir.
Senator Sessions. So it will be up to us. If we think
something is going wrong, let us have a debate on it. Let us
have legislation offered that will stop it. Then I would expect
you to explain to the American people what risk this Nation is
incurring if it is stopped.
Director Mueller, I remain concerned about the
interoperability of the Crime Information System computers
between Homeland Security and the FBI, that you managed much
of. I have asked you about this previously.
For example, we now believe that there are 597,000
absconders on immigration charges, people who were arrested and
have absconded. Now, if you are caught in Alabama or
Massachusetts for reckless driving and you do not show up for
court, your name goes into the system. Petty larceny, your name
goes into the system.
But the fact is, only 75,000 of the 597,000 absconders, as
I understand it, have been entered into this system. You have
committed to creating an interoperable system that somehow will
work. Where are we on that?
Is it not true that if we really expect the American people
to believe that we are serious about immigration enforcement,
those who have absconded, jumped bail, have not shown up for
their deportation or their hearing, that they ought to be
entered into the NCIC so that if they are arrested anywhere
else in the country they would be known to be illegally here
and be subject to deportation?
Director Mueller. My understanding, Senator, is that in
August of 2003, NCIC established an immigration violator file.
As of November 20--
Senator Sessions. NCIC is under your jurisdiction?
Director Mueller. It is. It is. It is, quite obviously, a
system that State and local law enforcement, as well as Federal
law enforcement, use to determine whether the person they are
looking at has a record or is otherwise being pursued by
Federal authorities.
My understanding is that, as of November 20, there were
over 200,000 records in that database. Of those, over 100,000
are deported felon records and another 107,000 are absconder
records. So my belief is that NCIC has a number of those
absconder records.
I do not know what portion of the universe of absconder
records there may be in DHS, but my belief is that, to the
extent that DHS wishes us to put those records in NCIC, they
are being put in NCIC.
Senator Sessions. Well, my records indicate only 17
percent, 75,000 of the 500,000 entire population of absconders,
are now in NCIC.
Director Mueller. We would have to reconcile the figures
you have, sir, with the figures that we have. I would be more
than happy to do that so we are both on the same page.
Senator Sessions. Thank you.
Chairman Specter. Thank you, Senator Sessions.
Senator Kohl?
Senator Kohl. I thank you, Mr. Chairman.
Director Mueller, I would like to discuss the alarming
increase in violent crime across our country. Unfortunately, no
city has been afflicted more in the past year than my own City
of Milwaukee.
Violent crime in Milwaukee has risen 32 percent in 2005;
robberies were up 36 percent; aggravated assaults were up
nearly 32 percent; and most concerning of all, homicides
increased by 40 percent.
We all agree that we must find out what is causing this
problem and fix it, and that means Federal, State and local
officials working together to get the problem under control.
Part of the problem is that we are not giving our States
and localities the help that they need. Year after year, we see
a concerted effort by this administration to end the COPS
program and gut funding for juvenile justice and prevention
programs.
Virtually everyone in the law enforcement community agrees
that this has been a major contributing factor to the rise in
violent crime. For exmaple, the Milwaukee police department
received $1 million from the COPS program in 2002, but by last
year they had gone down to no funding at all for this program.
As a result, between 2002 and 2005, the Milwaukee police
department's forces were reduced by 55 police officers, leaving
it with nearly 200 vacancies in a force of 2,000. Years of
decreases in funding have led to fewer cops on the beat and
increases in violent crime.
Another part of the problem is the lack of juvenile
prevention at intervention programs. The deputy police chief in
Milwaukee was recently quoted as saying, ``We have a lot of
young people involved in robbery, some are 10 and 11. A lot of
the kids that we see never know anything but violence.''
Juvenile crime accounted for a large part of the recent
increase in overall crime in Milwaukee in 2005, and again it
has come on the tail end of the administration's efforts to
eliminate prevention programs that have proved successful in
the past.
While FBI resources have been diverted to focus on the
threat from terrorism, and I understand that, nevertheless,
this administration has not replaced those resources and now we
are faced with the results of neglecting these problems. We
need to make our communities safe again.
So I would like to ask you four questions, and perhaps you
can respond to each one. First, will you please commit to
coming to Milwaukee soon to discuss the dramatic rise in crime
with State and local officials to see what can be done to help
get this problem under control?
Second, in July you said that the Bureau was analyzing
possible causes of the surge in violent crime across the
country. Will you commit to direct those undertaking that
effort to focus specifically on what is going on in my City of
Milwaukee, or if that overall report has already been
completed, will you commit to taking a look at Milwaukee,
giving me regular updates on your progress?
Third, if the need exists, will you commit to adding
Federal agents to the Milwaukee area on a permanent basis? And
fourth, Director Mueller, without commenting on any specific
program, would you agree that an increase in the State and
local police forces and a renewed focus on juvenile prevention
programs must be a part of any strategy to address this problem
not only in Milwaukee, but across our country?
Director Mueller. Senator, I share your concern about the
spikes in crime around the country. As the Chairman pointed
out, I spent time as a homicide prosecutor here in Washington,
DC. The one thing you take away from that, is the devastation
to a community from violent crime, particularly homicides and
assaults.
We have, in areas where we have ratcheted back--we have
ratcheted back and had to by reason of our priorities--the
number of agents we have addressing the drug problem, smaller
white-collar criminal cases, but we have not allocated
resources away from violent crime.
To the contrary, I have tried to build up our contributions
to reducing violent crime in our cities through the Safe Street
task forces, cold case squads, and the like. I believe that the
future and the success is dependent on working closely together
on task forces with State and local law enforcement, as well as
Federal agencies, not just the FBI, but ATF and the like.
I support the funding for State and local law enforcement
agencies. I would like to see that funding, in part, directed
towards the task force concept because I believe we could be
more effective together when we work on task forces.
In response specifically to your questions, I was recently
in Milwaukee. I would have to see when my schedule will allow
me again to be in Milwaukee. I know the Department of Justice
has teams going out to various cities--I am not certain whether
Milwaukee is one of them--to look at the causes of crime. We
have agents who are participating in that. I will take a
specific look at Milwaukee, but I cannot promise, necessarily,
that I can be in Milwaukee in the near future.
As I indicated as to your second question as to what is
being done to look at the causes of this uptick, I know
Department of Justice is looking at this, with teams traveling
around the country. I would be happy to update you on their
findings.
I cannot promise additional Federal agents. I often get
requests. There probably is not a Senator here that would not
want more FBI agents in their particular States.
I will talk to our SAC out there to get a better view of
what is happening there and make certain--and I believe it is a
high priority on his list, but I will again talk to him--but
cannot make a promise to give additional agents there at this
point in time.
Last, I think I addressed the fact that I do believe that
there has to be a coordination in terms of funding of State and
local police departments. My hope is that funding in some way
ties in with State and local police officers being participants
and task forces.
Too often, the State and local police officers--and
rightfully so--have a very realistic concern about issues
within their communities. The first officers that are taken
off, are those taken off of task forces.
But I think task forces are one of the best tools for
addressing crime, cyber crime, and particularly violent crime.
I am supportive of funding so that we can work more closely
together with State and local law enforcement in these areas.
Senator Kohl. Thank you very much.
Chairman Specter. Thank you, Senator Kohl.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman. I wanted to ask
you a little bit about the violence that we are seeing along
our border between the United States and Mexico. Particularly
of concern to me is the violence among drug cartels in Nuevo
Laredo and the various kidnappings and other problems
associated with that violence.
I have discussed this matter with our ambassador to Mexico,
Tony Garza. I have addressed it with Attorney General Gonzales.
And, as you probably know, he sent a Violent Crime Impact Team
to Laredo. I have also discussed this with officials from the
Government of Mexico.
First of all, can you confirm for me that the FBI does, in
fact, have membership on the Violent Crime Impact Team?
Director Mueller. I believe we do. I would have to check on
that. I know we are participating in a number of task forces
down there. I would have to get back to you as to what our
participation is. I believe we probably are, but I would have
to get back to you and confirm that we are.
Senator Cornyn. I cannot imagine you would not be, but
apparently there were some questions raised. I would appreciate
that.
Director Mueller. That is fine.
Senator Cornyn. Are you prepared at this point to update us
on what is happening as far as the kidnappings of American
citizens in Nuevo Laredo?
Director Mueller. Without getting into the details because
it is an ongoing investigation, if you are talking about a
recent, relatively highly publicized kidnapping, we are still
participating in the investigation of that. It was not totally
successful, but it has had some limited success.
Senator Cornyn. From a 30,000-foot level, could you give us
a general idea about the FBI's participation?
Director Mueller. We participate on Safe Street task
forces. Whenever there is a kidnapping, we specifically will
have agents participating in the investigation. From 30,000
feet, the view does not look good of what is happening in
Laredo Nuevo.
Where there are incursions into the United States, we quite
obviously have jurisdiction to act, and we act as quickly as we
possibly can. We will in put whatever resources are needed to
address the investigation.
Our concern is reciprocity across the border and having
identified individuals with whom we can exchange information
and work cooperatively because of the difficulties of law
enforcement, and indeed the military, on the other side of the
border operating.
My hope is that, with the elections over and the new
government in, that with a pledge to address violence of the
cartels, we will enhance our ability to have counterparts
across the border which will enable us to work together to
address the problems there.
Senator Cornyn. Hope springs eternal, I guess. That is
obviously a huge concern.
At your last appearance, on another note, we discussed a
report that found significant non-compliance with the Attorney
General's guidelines in the use of confidential informants.
You will recall, the report found one or more guidelines
violations in 87 percent of the confidential informant files
examined, including a 49 percent non-compliance of FBI agents
giving proper instructions to informants.
There have been a number of high-profile cases. In my
State, a large case in Ft. Worth had a problem with the misuse
of informants in which the IG found misuse of informant Katrina
Leong--I believe I am pronouncing that name correctly--a
Chinese spy. I have been seeking information about an ICE
informant who had been involved in multiple murders while under
ICE's control.
Can you tell us what has been done in the Agency to improve
compliance with the guidelines? Are there any other tools that
you need in order to effect compliance?
Director Mueller. There are several levels of concern with
regard to informants. Of the cases you mentioned, one of them,
the ICE case, is not ours. That is a DHS case, so I would not
be familiar with that.
Katrina Leong was a source for a number of years in the
counterintelligence arena, but that case was handled out of
California and it has gone through the judicial system there.
It pointed out weaknesses in our handling of informants that we
have remedied in the meantime, not only in the
counterintelligence program in terms of our review of our
assets, but also across the board.
The IG pointed out, in a number of instances--those you
alluded to--where our files were not being documented. The
scrutiny was not being given. We have put into place programs
to assure that that is done with appropriate follow-up.
Last, we have in development now a software package that
will enable us to do assessments and to do what in the past has
been an extraordinary amount of paperwork, but do it digitally
in a secure system, to give us a better overview of the sources
that we use across the board.
So both in terms of isolated incidents, we have changed our
procedures to minimize the chance of that happening again. In
terms of documenting the files and doing what is necessary to
assure that we are documenting what we are doing with files, we
have put into place procedures and we are moving ahead with a
digitized system that will better enable us to have oversight
over the program as a whole.
Senator Cornyn. Thank you. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Cornyn.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, Mr. Mueller. I listened very carefully to your
response to Senator Kohl. I recall, the last time we met I
asked you about the priorities of the FBI. You listed
combatting significant violent crime as number eight out of
eight priorities. There are 28,331 fewer criminal cases opened
by your Agency in 2004 than in 2000. That is a drop of 45
percent.
Violent crime is rising in the United States, by your own
statistics, at its highest rate in 15 years. Local and State
law enforcement officers are telling your Inspector General
that violent crime is getting worse and there is reduced FBI
involvement in violent crimes in their jurisdictions. I can
tell you this is true in the big cities in California.
I think you have got a real need for a mission
reevaluation. I think you have to take into consideration, the
President has zeroed out the COPS program. JAG burn grants are
gone. Gang crimes are substantially on the rise. I am very
interested in this, so I watch for FBI activity in this area
and have seen very little.
I believe the President, in 2007, added one agent. I
believe your funding level for FBI criminal case agents has
decreased by almost 1,000 agents, or 18 percent, since 9/11. I
think you have got a real problem on your hands, and I question
your priorities in that regard. I think violent crime has to be
raised in the FBI priority list.
Would you comment?
Director Mueller. Yes, Senator. The priorities on the
national security side are counterterrorism, preventing another
terrorist attack, counterintelligence, with which you are
familiar in terms of the service on the Intelligence Committee
and the importance of that program, given the threats from
outside the United States, and cyber crime and attacks on our
infrastructure, and the like. Those are the three national
security priorities that we have.
On the criminal side, the first priority is public
corruption, in the belief that if we do not investigate these
cases, they perhaps will not be investigated. Second, is civil
rights. The third priority is organized crime, because if we do
not do organized crime, organized crime crosses borders. Those
in local jurisdiction do not have the wherewithal to address
organized crime. That is our No. 3 criminal.
Senator Feinstein. Could I say one thing on that point?
Director Mueller. Yes, ma'am.
Senator Feinstein. Gangs are killing more people in this
country than organized crime ever did, or ever will. That is
just a fact. They are spreading all across the country. They
are being operated out of prisons. It is an extraordinarily
serious problem. I think, to have this on a low level, is a big
mistake.
Director Mueller. In other words, organized crime and
violent crime are the two priorities we have and they intersect
with each other because you can have organized gangs of
criminals that we address under RICO and those tools that we
have used traditionally in the past.
The other priority is, there are substantial white-collar
criminal cases. If we were not doing the Enron cases, if we
were not doing the Worldcom cases, if we were not doing the
Quest case, they would not be done.
Consequently, I believe violent crime is tremendously
important. My hope is that we will have, and get in the future,
additional resources to put in that priority. But I think our
priorities are appropriately aligned, although I would very
much appreciate additional resources to be put into the violent
crime arena.
Senator Feinstein. Well, this Senator does not agree with
the priorities, let me just put it that way. I represent a big
State. It is a deep concern in big cities. I want to register
that with you very publicly. I think the FBI has a role in
fighting violent crime, crime that is taking place on a major
scale. So, I will leave you with that.
Let me, in response to the Chairman's questions, ask you a
couple of questions that I think you probably can answer here.
Have terrorist acts been prevented as a result of FBI
activities?
Director Mueller. Yes.
Senator Feinstein. Terrorist acts in this country?
Director Mueller. Yes.
Senator Feinstein. Can you give us a number?
Director Mueller. I can give you examples, not necessarily
a total number.
Senator Feinstein. Well, would you give us what you can in
this venue, please?
Director Mueller. I can tell you the Torrence case that I
mentioned, which is a California case. Individuals who obtained
weapons, had developed an al Qaeda-like philosophy, although
had no ties to al Qaeda, operating at the outset in prison
until several of them got out.
Last year, they came together and robbed gas stations to
obtain money to obtain weapons. They were in the process of
obtaining weapons so that they could, on September 11 of last
year, go into military recruiting stations and shoot them up,
and then on Yom Kippur, as worshippers came out of synagogues,
shoot up the worshippers. That was a terrorist attack that was
well along the way to being undertaken. That is one example.
Another one that would have an impact on this country is
the case where 24 individuals were arrested in August in the
U.K. Their plans were to obtain explosives and get them on
airplanes and blow the airplanes out of the skies, along the
lines of what happened with Pan Am 103.
That is a case that we worked with the CIA, we worked with
our counterparts in the U.K., MI-5, Scotland Yard, and with our
counterparts in other countries. If that attack had been
allowed to go forward, it would have been devastating on the
United States and on the United States' citizens. Those are but
two.
There are a litany of them. I believe I listed a number of
those in my longer statement of similar cases that we have
addressed since September 11. I can name, just off the top of
my head, the group in Lackawanna, the group in Northern
Virginia.
There was a group out of Portland, Oregon, although that
group was training here to go into Afghanistan to fight. So, I
listed a number of them in my longer statement, but I can
provide you a fuller statement if you would like.
Senator Feinstein. I pick it up from the Intelligence
perspective, but I think it is also important that this
Committee have an understanding. My time is up, but I would
just ask you to watch that violent crime rate. This affects
regular Americans every day, shopping, walking, going to the
park. It is a real problem. The FBI has a role in it, and I do
not think you can abdicate it.
Thank you, Mr. Chairman.
Director Mueller. I absolutely agree with you. We are not
abdicating it. I am looking for ways to enhance our presence.
Chairman Specter. Thank you, Senator Feinstein.
Senator Grassley?
Senator Grassley. Director Mueller, I just have one issue I
want to discuss with you in the 5 minutes I have, and that is
the anthrax investigation. I wrote the Attorney General October
23 about your Agency's refusal to brief Congress on the
investigation into the 2001 anthrax attacks, which obviously
targeted this Congress, and specifically Senator Leahy.
It has been 5 years since those attacks and over 3 years
since any Congressional briefings on the investigation. This
investigation is one of the largest efforts in FBI history, I
am told.
Congress has a right and a responsibility to get some
detailed information about how all those resources are being
used and why there seems to be so little progress in the case.
Several of my colleagues on the committees--
Feinstein, Schumer, Feingold--have all agreed to co-sign a
briefing request letter that I have circulated, along with
Congressman Reichert of New Jersey. I hope that Senator Specter
and other members of the Committee would also sign the letter.
But regardless, I need to keep asking these questions until
I get some answers. I asked dozens of questions in my letter to
the Attorney General. I do not intend to repeat all those
questions today, but I will be submitting those questions for
the record. I believe this Committee has an obligation to make
sure that it gets full and complete answers to those questions.
The main reason that the FBI has cited for refusing to
brief Congress is the fear of leaks from members and staff of
Congress. But one of the issues that we in Congress need to
investigate is actually the leaking by the Justice Department
and the FBI.
As you know, Steven Hatfeld is suing the FBI for leaking
his name to the press as a person of interest in the
investigation. He is also suing the New York Times. We recently
learned that two of its sources for the New York Times story
were FBI agents.
So could you please explain why the FBI can leak
information about someone who has never been charged with
anything to the New York Times, but the FBI will not brief
Congress about one of the most extensive FBI investigations
ever?
Director Mueller. Senator, I abhor leaks, whether it be
from the FBI or any other entity. I have taken steps, when I
have learned of leaks, to investigate such leaks.
My understanding is that your letter did go to the Attorney
General and the Attorney General responded by letter of October
31 in which the Justice Department took the position that,
according to longstanding DOJ policy, where you have a grand
jury investigation and nonpublic information has been developed
in the course of the investigation, that that type of extensive
briefing could not be given.
We periodically meet with the victims of that horrific
occurrence and provide them some insight into the allocation of
resources to successfully bring the persons responsible to
justice.
We have offered that to other victims, or those such as
Senator Leahy and Senator Daschle, but this is not the type of
briefing I know you are asking. But I do believe that that is
the subject of the letter from the Attorney General on October
31.
Senator Grassley. How many FBI personnel have been
reprimanded or punished for leaking information in the anthrax
case, and how many leaks on this case from the FBI or the DOJ
sources do you think occurred?
Director Mueller. I believe there are at least two leaks,
based on what I have read in the newspapers as well. That
information comes from others, or persons to whom we would not
have had access in our investigation. Specifically, I am
talking about the reporters themselves. No one has at this
point been punished because we have not been successful in
identifying the source of some of those leaks, but that is not
for want of trying.
As to the underlying investigation, I will tell you that we
are still pursuing it as forcefully as we possibly can. We have
17 FBI agents still assigned to it, and 10 postal inspectors
assigned to it. It is ongoing and we will continue to press
forward.
Senator Grassley. Before my time is up, there are some
questions in that letter to the Attorney General that do not
involve grand jury investigation.
I am going to give you a clip from Joseph Billy, the FBI
Assistant Director for Counterterrorism, that said, ``I am not
aware of a declination to brief the Congress on the anthrax
investigation.'' Another quote was, ``I believe that we have
regularly kept those that we are accountable to informed about
the progress in the case.''
This looks like an example of the FBI's left hand not know
what the right hand was doing. You are telling me that you will
not answer questions about the anthrax investigation, while
someone else is telling the public that you are keeping us
fully informed. Could you set the record straight? Which is it?
Director Mueller. I would be happy to look at that clip. I
was not aware that there was that clip out there, Senator.
Senator Grassley. He is the FBI Assistant Director of
Counterterrorism.
Director Mueller. Yes.
Senator Grassley. I do not have another question, but
Chairman Specter, I think we have a right to be briefed. I hope
you will take a look at my letter and see if we can get a
briefing on this anthrax investigation.
I think we owe it to people like Senator Leahy, who have
put their lives on the line or had their lives threatened, at
least, to be brought up to date while this was going on.
Chairman Specter. Senator Grassley, I think you are right.
I have it on my list for a second round, which I do not have to
pursue since you have done such a good job. I will be glad to
co-sign your letter.
Senator Leahy. I have avoided making many public comments
about the anthrax case, especially on the five-year
anniversary. I might note, at least two people who touched the
envelope that I was supposed to open died. Five people died in
all. My family was put under police guard until we said we
really did not want that. It disrupted our lives enormously.
I read in the paper, the FBI flew down the families of
victims to Washington for a briefing. I know I was not invited
to that briefing. I came out unscathed. The letter that I was
supposed to open stopped before it got here.
My sorrow is mostly for those who died just doing their job
in trying to deliver a letter to me. But I also know how
disruptive it was of my family and my own life. For me
personally, I can handle that. I faced death threats and all
when I was a prosecutor.
But I am not satisfied with this investigation. I am not
satisfied with the briefings I have had. I am not satisfied
with the information I have received on it. I suspect, along
with Senator Grassley, I will in the coming months be asking
more questions. Thank you.
Chairman Specter. Thank you, Senator Leahy.
Director Mueller, what is the problem with getting a
briefing on this issue?
Director Mueller. On?
Chairman Specter. On the anthrax issue, the anthrax
investigation.
Director Mueller. Well, as set forth in the letter from the
Attorney General, there are aspects of the investigation that
are grand jury matters at this point. There are aspects of the
information that can, and should not, be disclosed, even to
victims.
Yes, we can give an over-arching briefing as to how many
people we have on it, but you are asking for something more. It
is the Department's policy that, where you have an ongoing
investigation such as this, a grand jury investigation, that
such a thorough briefing should not be given.
Chairman Specter. Well, Director Mueller, I would ask you
to take a look at the legal authorities on the proposition that
we asked both the Attorney General and Deputy Attorney General
McNulty. If there is solid authority for Congressional
oversight on pending investigations, you could invoke the grand
jury secrecy cloak here in a little different area, but are
there matters where the grand jury secrecy cloak would not be
involved?
Take a look at the authorities which were cited, and the
exchange of letters that I directed, both to Attorney General
Gonzales and Deputy Attorney General McNulty, that Congress
does have authority for investigations on pending matters. We
have that authority. Take a look at it and supplement your
answer, please.
Director Mueller. Let me also say, Senator, I am very
sympathetic to what Senator Leahy says. Both of us in our
careers have spent a great deal of time with victims, and the
frustration of victims in not having the information they feel
that they need to put what is happening into a context.
I am very sympathetic and will take your words and go back
and again discuss it with the Attorney General. But do not for
a moment think that I do not understand your concerns, Senator
Leahy, and your desire to learn more about the facts of what
has happened and what we have been doing.
Chairman Specter. Senator Grassley, do you have a
supplemental comment?
Senator Grassley. There was a grand jury inquiry when we
were briefed 3 years ago. It seems to me, if we could be
briefed then with a grand jury investigation, we could be
briefed today with that same grand jury investigation going on.
Chairman Specter. Director Mueller, include Senator
Grassley's latest point in your response.
Director Mueller. I will.
Chairman Specter. Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Good to see you again, Mr. Director. Thank you for being
here today. I have been in politics a while, but I have to say
I was a little appalled by some of the statements made in the
recent months by the President and the Vice President, and even
the Attorney General, characterizing those who have raised
concern about the NSA's warrantless wire tapping program as
unpatriotic and opposing wire tapping terrorists.
In October, President Bush said the following: ``If you
don't think we should be listening in on the terrorists, then
you ought to vote for the Democrats.'' Even after the election,
the Attorney General said the critics of the NSA program
``argue nothing could justify the government being able to
intercept conversations like the one the program targets,'' and
he said that ``critics' definition of freedom is both utterly
divorced from civic responsibility, in itself a grave threat to
the liberty and security of the American people.''
Now, these statements are blatantly false, offensive, and
outrageous. Mr. Director, do you know of anyone in this
country, Democrat or Republican, in government or on the
outside, who has argued that the U.S. Government should not
wire tap suspected terrorists?
Director Mueller. No.
Senator Feingold. Thank you for that answer. I also do not
know a single person who has said the U.S. Government should
not wire tap suspected terrorists. Of course it should. The
President and the Attorney General should have the decency and
the honesty to stop suggesting otherwise.
As you well know, the issue is not whether the executive
branch should wire tap suspected terrorists, it is whether it
should have to follow the laws passed by Congress when it
actually conducts these wire taps.
So let me ask you another question. Do you agree with the
Attorney General that anyone who has raised questions about the
legality of the NSA's wire tapping program poses--and let me
quote the Attorney General again--''a grave threat to the
liberty and security of the American people''?
Director Mueller. I do not think it is appropriate for me
to comment on what the Attorney General has said. He is much
more familiar with the program than I am.
Senator Feingold. Do you believe independently of the
Attorney General's statements, that people that make those
statements are a ``grave threat to the liberty and security of
the American people''?
Director Mueller. Again, I am going to refrain from
commenting on what the Attorney General said.
Senator Feingold. I just asked you for your independent
opinion of whether these types of individuals are--
Director Mueller. I would find it very hard to divorce my
independent opinion from--well, I go back to saying I think it
is inappropriate for me to comment on what the Attorney General
has said. That is his. I think he ought to be asked about those
comments.
Senator Feingold. What I am asking you now, Mr. Director,
is whether or not you believe people who have questioned the
legality of the NSA wire tapping program pose a threat. I have
taken the Attorney General's quote out of it now.
Director Mueller. I believe that Congress should look at
all aspects of the program and understand the context in which
technology has developed exponentially, and there is a
necessity to address new ways of giving us the tools you need
to be successful in thwarting terrorist attacks. There can be
different ways of doing that.
There can be arguments on both sides, but Congress needs to
grapple with the issues of this expanding technology and give
us the tools we need to expeditiously do that which you said at
the outset, which is to wire tap putative terrorists'
conversations so we have the information we need do our jobs.
Now, in the midst of that, there are people who believe the
same underlying proposition that you set forth at the outset,
but may disagree on the tools to do that.
Senator Feingold. Well, I can certainly say if that had
been the statements during the campaign, Mr. Director, I would
not have any problem and I would not be making these comments
right now. It is time for this administration to stop
exploiting the terrorist threat to justify its power grab.
Congress needs to understand fully why the administration
decided to violate the FISA Act. We need to have a serious
dialogue about whether FISA has shortcomings that need to be
addressed.
I do not think we can do that when, instead of the kinds of
things you just said, which is a reasonable statement of the
issue, the President and the Attorney General are falsely
accusing their critics of sympathizing with terrorists. That
kind of political scare tactic has got to stop. I appreciate
the fact that you have not engaged in this kind of inflammatory
rhetoric.
I would like to make a final point in this. A number of
administration officials over the past few months have talked
about the need to modernize FISA to make it technology neutral
and address some of the anomalies that have been created by
changes in the communications infrastructure, which you were
alluding to. That sounds like a reasonable goal. Senator
Feinstein and others are working on accommodating that.
The problem is, the legislation the administration has
presented as supposedly modernizing FISA really does no such
thing. I think, to me, it pretty clearly guts FISA entirely. It
wipes out 30 years of law and replaces it with a blank check
for the President to wire tap whoever he wants. Now, that is
typical of the kind of over-reaching misrepresentations made by
some in this administration.
I would simply like to urge you, Mr. Director, to convey to
your colleagues that if they truly want to work with the next
Congress to accomplish goals that all of us can agree on, that
they try a new approach. They have to stop over-reaching and
come to the table willing to have an honest discussion about
changes that they believe need to be made in light of
technology advances.
I am very open to those kinds of reasonable arguments.
Honest discussion of these issues has been sorely lacking in
recent years and it is going to be absolutely critical if we
are going to work together to move this country forward.
Mr. Director, will you deliver that message?
Director Mueller. Yes, sir.
Senator Feingold. I thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feingold.
Senator Kyl, you have joined us. I will turn to you for
questioning.
Senator Kyl. All right. Thank you, Mr. Chairman. I would be
happy, if you want to go ahead, to defer.
Chairman Specter. No, no. You take your first round.
Senator Kyl. All right. Thank you.
Welcome, Mr. Director. First of all, we have, over the
years, responded to a lot of recommendations of the Department
of Justice with regard to changes in the law to better fight
the terrorists.
Are there ideas that you have today for additional tools to
fight the terrorists that you would like to share with us, or
would you be willing to provide those for the record?
Director Mueller. I can mention two off the top of my head,
but there may be others that I would like to get back to you
on.
One, is I go back to administrative subpoenas. I have
mentioned this before to the Committee on several occasions in
the past. It would ease our burden in terms of our ability to
get the information we need to swiftly determine whether or not
a threat is a valid threat and the persons who may be
implicated deserve further attention.
Second, one of the threats we face in the terrorism arena
are individuals who are not necessarily aligned with a
terrorist group overseas which would be a designated foreign
entity, but is deserving of the use of the FISA process to
immediately and very quickly determine whether or not the
communications--whether it be communications over cell phones,
telephones, or the Internet--and make those readily available.
We are constrained still by Title 3.
One of the developments that we would like to explore is
utilizing the FISA process where we have individuals who do not
necessarily meet the current prerequisites under FISA, but
still present that threat, the kind of threat that we saw that
led to Oklahoma City, and give us the FISA tool for addressing
that threat in the United States.
Senator Kyl. In regard to that latter point, even though we
provided something called the ``Masawi fix'' to deal with a
person that could not be connected specifically to a known
terrorist organization, we have now eliminated that requirement
but we still require the person to be foreign-born.
Director Mueller. Right.
Senator Kyl. That is to say, not to be a U.S. citizen. So,
something to deal with somebody who is not a foreign person
would be useful.
Director Mueller. A McVeigh, for instance.
Senator Kyl. Yes.
Just to remind us--I have forgotten the statistics now--but
there are 200 or 300 administrative subpoena authorities
existing in our government today for various agencies, from the
post office, to Social Security, and so on. Can you remind us
of how common that is and why it is useful in the context that
you mentioned it?
Director Mueller. Just to name a few, in health care fraud,
child pornography, drug cases the DEA has authority. The
ability that we would have to immediately, when we get word
there is a piece of information in a motel, or in a hotel, or
at a bank that we need rather quickly, issue an administrative
subpoena has a number of benefits, in the sense that it is an
order to produce the documents, not just a letter, as you have
with the national security letter.
There also is the enforcement possibility by the courts.
Those are the benefits to us, the speed, the ability to get
that information quickly, and also to have the authority of the
courts, which we do not have with the national security letter.
On the other hand, from the perspective of the recipient of
the letter they have an opportunity to contest if it is over-
broad; if there are some reasons why one should not comply,
there is the opportunity then to go to court and get that
resolved. Both parties would have the right to appeal whatever
initial decision is made.
So from the perspective of speed, and second in terms of
getting a swift resolution to the issues that may be raised, it
is a very useful tool. That is used, as you have pointed out
and we have indicated, in any number of other areas far less
important to the overall weal of the country than preventing
terrorist attacks.
Senator Kyl. Indeed, we will work with you on that, then.
Finally, just a quick status report, if you would, on the
work to combine the IDENT and IAFIS fingerprint systems, so
important, among other things, for our border security.
Director Mueller. When Mike Chertoff came in and took over
the Department of Homeland Security, we broke a logjam in terms
of establishing two separate systems. We are well along the
lines of addressing the complaints that first found a home in
the IG reports as to two separate systems.
I would have to get back to you on where we are in the
continuum of developing that, but there certainly is will on
both sides to get that accomplished, understanding that a ten-
print is the idea and that there ought to be a merging of, and
a development from, the two-print to the ten-print and a
merging of the databases and utilizing the ultimate IAFIS
database to the benefit of both the Bureau, State and local law
enforcement, as well as Department of Homeland Security.
Senator Kyl. Thank you very much.
Chairman Specter. Thank you very much, Senator Kyl.
Director Mueller, there have been media reports that the
FBI is assisting the British investigators on the allegations
relating to the international poisoning case. Is the FBI
assisting in that investigation?
Director Mueller. Let me just say, we have provided
assistance in a couple of instances where there were questions
that Scotland Yard wanted asked of individuals in the United
States. That is one way we have been assisting.
Also, our laboratory has been providing some guidance and
substantial expertise in the U.K. But to the extent that we can
add some assistance in terms of our understanding of Polonium
210, we have provided that to Scotland Yard.
Chairman Specter. Well, that is certainly something to be
pursued with all the resources available on an international
basis, beyond our cooperation with the British generally. If
the reports are true, it is really an extraordinary case and it
has potential for application far beyond Great Britain, with
the subtleties of the action taken, if true.
So to whatever extent assistance is requested there --I
know in law enforcement you do not stick on strictly
jurisdictional lines, but that is something we commend you for
pursuing.
Director Mueller. Any request from the U.K. on that case,
we would try to accommodate.
Chairman Specter. Then we can doubtless have some better
oversight than we have on the anthrax investigation.
Director Mueller. Was that a question, sir?
Chairman Specter. No, that was a statement.
Director Mueller. Yes, sir.
Chairman Specter. There was a report in the Washington Post
on October 11 that, after 5 years beyond 9/11, the FBI still
has only 33 Arabic-speaking agents. Is that true?
Director Mueller. Well, I think it ought to be put into
context, Mr. Chairman. We have within the Bureau almost a
couple of hundred agents with some capability in Arabic.
Chairman Specter. How many?
Director Mueller. Two hundred. I am sorry. Middle Eastern
languages, as is pointed out, 159 in Arabic. But what we
measure, are those that are at Level II in proficiency. There
the story was accurate in terms of, in Arabic.
Chairman Specter. Only 33.
Director Mueller. We have a total of 52 who are proficient
in Middle Eastern languages, which include Farsi, Turkish, and
Urdu, for instance.
Chairman Specter. Director Mueller, when you combine that
with the answers which we finally did receive on November 30 to
the May 2 questions submitted for the record, you had responded
that, of the 7,028 hours of recordings that needed translating,
more than 46 percent--33,240 hours--could not be interpreted
due to obscure language and dialects so that you cannot
interpret what is on the recordings. I see a puzzled look on
your face. Is that inaccurate?
Director Mueller. Well, I would have to go back and look at
it. We have, in addition to the agents who are Level II or
higher, 411 linguists in Middle Eastern languages.
Now, in the past we have had issues with regard to
particular esoteric dialects, but when we have had a case,
particularly a Priority One case, which is a terrorist case,
that presents a short-term threat, we have reached out to other
agencies, whether it be DoD or CIA, to obtain whatever
translation ability we need. I would have to go back and see
what those figures reflect.
Chairman Specter. Well, Director Mueller, we had the famous
situation, if true--and apparently it is--that there was a
recording on September 10, the day before 9/11, that there
would be an attack and it was not transcribed until the day
after, September 12. Now, it is obviously a difficult matter
with the dialects and the complications.
The recruiting of people skilled in these lines is not an
easy matter. Can the Congress be of any help to you on funding
or any assistance in getting the people that we need to make
these interpretations, translations?
Director Mueller. The Congress can always be of help to us
in funding. In fact, I do want to mention one point there,
because if we do not get back to the computer systems, I do
want to get back to that.
But in terms of funding, we are looking, and have tried a
number of approaches to attract persons to be agents. We have
gone through thousands of individuals and are continuing to try
to attract and to recruit agents with various Middle Eastern
language skills.
We have put together recently another task force. We have
enlisted some outside help to do that. I hope, by the time I am
in next year to testify, that we will have some results and
improvements.
If I might spend a moment just on the issue with regard to
Sentinel, and what I raised and what Senator Leahy raised
earlier about the $57 million.
Chairman Specter. Go ahead.
Director Mueller. I tried to point out that the total for
Phase II, which has always been the total for Phase II, is $157
million. I think it was $150 million, and then for some reason
it went up to $157 million.
When we sat down to get the budgeting on this, the
administration was willing to give us $100 million. In
negotiations with OMB, we had to find the $57 million in
previous-year monies and the like, which we have done.
But with a continuing resolution--we are in a continuing
resolution phase at this juncture--the Senate mark-up is for
$80 million of the $100 million requested. The House mark-up is
for the full $100 million that we have requested.
We have to go to Lockheed Martin and enter into the
contract for Phase II in February. My concern is that we would
be precluded, I believe, legally to entering into that contract
if we do not get the monies authorized by Congress in advance
of them.
So we have the $157 million that has been requested, but
when you ask, can Congress help on the funding, Congress could
help on the funding by including the continuing resolution the
$100 million we need to augment and supplement the $57 million
we have set aside for Phase II of Sentinel.
Chairman Specter. Congress could be of assistance to the
FBI if Congress would fulfill its appropriations function. That
is a yes answer, Director.
Senator Leahy. Mr. Chairman, I agree on that.
Director Mueller. I had to think it through.
Chairman Specter. I was on the floor yesterday on the issue
of the Subcommittee which I chair on appropriations, Labor,
Health, Human Services, and Education. There are so many
important programs where we have held hearings and reevaluated
what we need, and we have been stymied in bringing our bills to
the floor and we have been stymied in having conferences.
What you have just talked about, the difference between the
House and the Senate, these differences are created in order to
have negotiating room to make concessions. I think it highly
likely that the $100 million figure would have been the result
in conference.
I have a long list of complaints about that. My squash
partner today complained about NOAA on ocean funding. On the
lower level, they are going to have people discharged. It is a
highly deplorable situation.
But if there is an effort made, Senator Leahy can confirm,
to pick out the FBI, much as it is needed, that would set off a
chain reaction of hundreds--probably thousands--of items.
I am interested to hear this because it will give us
additional ammunition--Senator Leahy and I are both on
appropriations--to try to get our colleagues to do the work
necessary to finish these bills.
Senator Leahy. Well, also, I might say, Mr. Chairman, it
requires leadership to do it. We have completed action on many
of the appropriations bills at the Committee level, but even
though the law required us to get all these done by the end of
September, we spent a great deal of time with major debate on
gay marriage, flag burning, Terry Schiavo, and all those
things, which may be fine and good, but it would have been nice
if we had done the business that the law requires us to do, and
the American people expect us to do first, and then take the
time on some of these things.
They easily could have passed every one of these
appropriations bills if the leadership of the House and the
Senate wanted to. Frankly, I think one of the reasons the
American people have changed the leadership is because they
knew they did not do their job.
Director Mueller. Well, I know both are on appropriations
committees. As Senator Leahy suggested at the outset, we ought
to learn from our mistakes, and I believe we have done so. I
think the IG's most recent report indicated that we have
learned. We are continuously being monitored in the Sentinel
program by the IG, by the GAO, by this committee, and by the
appropriations committees and others.
I believe everybody believes this project is worthwhile. I
believe they believe it is on target. It does have risks, but
we do need the money to go forward. I would not want to have to
delay the project, which is important to the Bureau, because we
did not have the funding necessary to start Phase II at the
time that we had indicated that we needed to.
I might also say that this has been the subject of
discussions with the appropriations Committee since we
indicated that we were entering into this contract with
Lockheed Martin.
Chairman Specter. I have one final question before yielding
to Senator Leahy.
Senator Leahy. I am going to have to leave, but go ahead.
Chairman Specter. No, you go ahead.
Senator Leahy. No, go ahead. Go ahead.
Chairman Specter. No, no. You pick it up and I will ask it
when you finish.
Senator Leahy. If I might, I am going to have to leave for
another thing. But I have asked for answers from the Department
of Justice, and the FBI, and others regarding what we have seen
reported--and actually in some instances documented--cases of
abuse of detainees in U.S. custody.
According to press reports, the CIA disclosed the existence
of two interrogation documents. One was a presidential
directive regarding the CIA's interrogation methods and
detention facilities located outside of the United States, and
an August 2002 Department of Justice memorandum to the CIA
General Counsel regarding CIA interrogation methods, the so-
called second Bybee memo. This has turned out an ongoing FOIA
lawsuit.
Have you reviewed either the presidential directive
regarding the CIA's interrogation methods in secret detention
facilities or the second Bybee memo?
Director Mueller. No, sir.
Senator Leahy. Would you be able to provide these documents
to the committee?
Director Mueller. I do not have them and have not seen
them.
Senator Leahy. I want to ask you then about a practice that
is euphemistically known as ``extraordinary rendition'', or
some have more accurately called it torture by proxy. Press
reports have described cases in which suspects are arrested, or
in some cases kidnapped on foreign soil--I am not going to go
into the case of one arrested on American soil--and then,
without any judicial process they are flown to third countries
for the purpose of detention and abusive interrogation.
A German citizen named Khalid al Masri was snatched off the
streets in Macedonia and was flown to Afghanistan, where he was
tortured and held for five months in a secret prison.
Director, has the FBI participated, directly or indirectly,
in any extraordinary rendition since you have been Director?
Director Mueller. Not as you describe them. I am not
familiar with the al Masri case. I will tell you that we
participate in renditions where we have an outstanding piece of
paper--and by that I mean either an indictment or a complaint
against an individual--and we locate that individual in a
foreign country, and generally with the cooperation of the
government, that person is rendered back to the United States.
We had a recent example of that.
Senator Leahy. Rendered to the United States?
Director Mueller. Back to the United States. Those are the
renditions that we engage in. So I want to be clear, when you
are talking about renditions, that we do engage in this type of
rendition where a person is, generally with the cooperation of
the foreign government, rendered to the United States, even
though there is no extradition treaty.
We had a recent case involving Bangladesh, with whom we
have no extradition treaty, but we did have charges against an
individual and we worked cooperatively with that government to
have that person rendered back to the United States.
Senator Leahy. Was the FBI involved with the Canadian
citizen who was sent to Syria?
Director Mueller. We were.
Senator Leahy. You know the case I am referring to?
Director Mueller. I think you are discussing the Arrar
case?
Senator Leahy. Yes.
Director Mueller. I am somewhat limited in what I can say
about that case because it is in litigation. I can say that we
did participate here in the questioning of Mr. Arrar. We did
not make the decision as to which country he should be deported
to.
Senator Leahy. Of course, some might say, as a Canadian
citizen on his way to Canada, you might have sent him to
Canada. Just think how much better off we all would be had that
been done. I just throw that out rhetorically.
You talk about people coming here. Has the FBI been
involved in identifying or locating persons who were
subsequently rendered to other countries?
Director Mueller. I am sorry, sir. Could you repeat the
question?
Senator Leahy. Has the FBI been involved in identifying or
locating persons who were subsequently rendered to other
countries by the CIA?
Director Mueller. I do not believe so. I do not believe so,
but if I could get back to you on that, if I could spend some
time looking at the question and assure that I fully understand
it.
Senator Leahy. Are you investigating any of the allegations
that have been made by al Masri and others concerning possible
violations of U.S. laws?
Director Mueller. No.
Senator Leahy. Well, you and I will have further
discussions on this, you can imagine.
Let me just tell you one thing that bothers the heck out of
me. Here is an article in a newspaper that has always been pro-
law enforcement. I am going to give you this. It says, ``FBI
Agent's Story Threatens Rooney Case''.
Let me tell you what that is. You are probably familiar
with it. We have a young woman from Arlington, Virginia,
Michelle Gardner Quinn, 21 years old. She was a UVM senior. She
is out with friends of hers in Burlington, Vermont, probably
one of the safest cities in this country. She met up with
somebody and, at least as it appears, within hours she was
brutally murdered. A person has been arrested.
I had talked to law enforcement officers, State law
enforcement officers during that time simply to make sure, if
there was anything that they needed and were not getting from
the Federal Government, I would be happy to make calls for
them.
Obviously I was not going to get involved in the
investigation; they are highly competent. They assured me they
were getting all the help they needed, but if they need more,
they would call.
Then, last month, an FBI agent wrote an article for a local
paper, another paper, detailed the murder investigation and all
the evidence in this case in a very self-congratulatory
fashion: look what we did. An FBI agent did this.
Now, as I said, State, local, county, and Federally, people
cooperated beautifully in this matter in a horribly, horribly
tragic thing, something that just stunned the State of Vermont.
I was in Vermont at the time that the press accounts down
here. Local press accounts were significant. It was just a
horrible thing. It brought the community together in a way,
hoping to get this.
He detailed this. Of course, the defense attorney, doing as
a defense attorney should, immediately raised this as a Motion
to Dismiss, which the courts denied, saying that it would taint
any future jury. The court ruled the right way. But it just
raises another issue, a major issue, on appeal.
Now, if I had had an investigator in my office when I was a
prosecutor, I would have fired them on the spot. What in
heaven's name was this agent--has this come to your attention?
Director Mueller. Yes, it has. It has been referred for
investigation.
Senator Leahy. This is something you would never do. I
mean, you have had experience as a prosecutor and everything
else. I mean, were you as shocked as I was?
Director Mueller. Let me just say, it is very unfortunate
this occurred. On the one hand, I have heard, as I think you
have, that the cooperation was excellent and the cooperation of
all contributed to identifying and arresting the individual who
was responsible for this terrific tragedy.
We have apologized to the Burlington police department, to
the Vermont State Police, and other partners in that
investigation that this occurred.
Senator Leahy. That is what they have told me.
Director Mueller. We have referred this for investigation
to determine what policies may well have been violated by this
agent.
Senator Leahy. Well, I would assume that it would be FBI
policy, if you are in the middle of an investigation or
involved in an investigation that has not even gone to trial,
you do not have an FBI agent going and writing an article or
paper saying, look at what a great job we have done.
I mean, I do not mind people bragging after the conviction
is over. But can we say, at least in the abstract, that it
would be totally against your policy?
Director Mueller. Yes.
Senator Leahy. All right. I think that would be the same.
Director Mueller. That is what the investigation is looking
into, exactly that, the disclosure of sensitive information
during the course of an investigation.
Senator Leahy. I must admit, and I have been asked about
this by the press, who defended the FBI and everybody else as
being highly professional, and said that this had to be an
aberration. But I cannot emphasize enough how upset we were in
Vermont, how demoralized the police officers were. These people
canceled vacations. They worked around the clock.
In my experience in our State of Vermont, I have never seen
law enforcement work so hard on a matter as this, and with
great cooperation from the Bureau and everybody else. To see
this happen is just awful. So I leave it at that, but I want
you to know that this is not a matter of just passing concern
to me.
Director Mueller. Thank you.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy.
Director Mueller, following up on what Senator Grassley had
asked about leaks: there was a leak three weeks before the last
election about an investigation into Congressman Curt Weldon,
who represents Delaware County in the Philadelphia suburbs.
Director Mueller. Yes, sir.
Chairman Specter. Following the leak in the newspapers,
there was a search and seizure, highly publicized in advance,
on Congressman Weldon's daughter's property. I know that this
is a matter which is under investigation by the Department of
Justice because it was raised in a meeting I had with Attorney
General Gonzales.
To have that kind of a disclosure 3 weeks before an
election, is extraordinarily unfairly prejudicial. Whatever
investigation the Federal authorizations have is a very
important matter, obviously, and has to be pursued.
It does not matter who was under investigation, whether it
is a Member of Congress, or anyone; that is outside of the
realm. But to have the timing in such a highly prejudicial way
casts a real question-mark on what is going on.
To what extent can you shed any light on that leak, on
efforts to determine the source of the leak or efforts to stop
those leaks? The FBI has gigantic power, which we all know.
When I was District Attorney in Philadelphia, the common
parlance was that the D.A. has the keys to the jail. But the
disclosure of a pending investigation can be disastrous.
Comment?
Director Mueller. I was exceptionally disappointed--and
that is being charitable--in terms of my response upon hearing
about the leak. It is unfair, in advance of an election. But as
importantly to us, it adversely affected the investigation and,
consequently on that and several other matters that occurred at
about the same time, we have initiated investigation.
I am periodically updated on those particular
investigations and believe that we are having some success. But
there are a serious of investigations. We have undertaken some
by our inspection side, some--at least one--we are looking at
as a criminal investigation.
Chairman Specter. You think you are having some success--
Director Mueller. I do believe that we are having success.
Chairman Specter. [Continuing]. On the Weldon
investigation?
Director Mueller. I do not want to specify a particular
investigation. There are a series of investigations that we
undertook at the same time. I think it is fair to say, although
I usually say I can neither confirm nor deny an investigation,
in this particular case we are pursuing it. By that, I mean
Congressman Weldon.
Chairman Specter. Well, all right. That is reassuring to
hear, Director Mueller.
Well, it is 11:42. You have been here a long time. You had
a very good turnout from Senators. This is a right tough week
to attract the attention of Senators, but you have given us
very many important messages.
I would like you to go back to the executive officials, as
I will, to see if you cannot brief this Committee on the
aspects of the Terrorist Surveillance Program which come within
your jurisdiction. Much of it does not come within your
jurisdiction, but what does come within your jurisdiction, I
think this Committee is entitled to have the oversight
function.
The comments you made about the appropriations process are
very, very, very serious. I will publicize them among my
colleagues as to the impact that it has on a really vital
program. We need you to get the technology up to date because
your ability to track terrorists and interface with the other
investigative branches depends upon the technology.
Director Mueller. Yes.
Chairman Specter. Thank you very much, Director Mueller.
Director Mueller. Thank you.
Chairman Specter. That concludes our hearing.
[Whereupon, at 11:45 a.m. the hearing was concluded.]
Questions and answers and submissions for the record
follow.]
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